Too often overlooked by defense lawyers is the client’s right to effective assistance of counsel at the sentencing stage. Too many defense lawyers also fail to recognize how an evaluation of sentencing is an essential component of effective assistance during the pretrial and plea negotiations. See U.S. v. Pinkney, 551 F.2d 1241, 1248 (1976). The Pinkney opinion explained that “the first step toward assuring proper protection for the rights to which defendants are entitled at sentencing is recognition by defense counsel that this may well be the most import part of the entire proceeding.” Id. at 1249.
The performance and effectiveness of attorneys in criminal cases will often be judged against the American Bar Association Standards for the Defense Function. The commentary to Standard 18-5.17 speaks to the measures of an appropriate sentencing. Of significance, the commentary points out the obvious: “Contested proceedings as to guilt occur in a fraction of criminal prosecutions, but sentencing is an issue in every case.” Id. Standard 4-4.1 directs that defense counsel be prepared to address sentencing mitigation at the plea negotiation stage. The reasoning of the commentary is quite compelling:
“The lawyer has a substantial and important role in to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of the statements made to the lawyer by the defendant. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself.”
The point being, that too many lawyers overlook sentencing preparation entirely. And, where a client needs to be protected by negotiating a plea arrangement, the defense attorney needs to be preparing for sentencing from the outset of the case. As the ABA commentary indicates, too many lawyers rely on nothing more than “general emotional appeals.” Simply stated, you can’t beg your client to a better sentence. And, the right to effective assistance of counsel applies to sentencing hearings, and hence, not preparing appropriately for sentencing as well as trial may lead to ineffective assistance of counsel claims.
