3 reasons having an advocate is critical in the sentencing phase of a criminal case

In our last post, we began looking at the public corruption case of Sheldon Silver. As we noted, Silver is facing the possibility of significant prison time based on the sentencing range applicable to his case, yet his defense attorneys are suggesting very little or no time.

The 22 to 27 year range at play in Silver’s case is the range suggested by the federal sentencing guidelines, which are not mandatory, but are still usually given significant consideration in sentencing. It would be interesting to see numbers regarding how often federal judges depart from the guidelines in favor of a defendant. Because of the way the guidelines work, there is a real necessity for working with a strong advocate.

Accurate calculation of sentencing factors

The federal sentencing guidelines provide a sentencing range for an offender based on two primary factors: the seriousness of the offense and the offender’s criminal history. To determine the appropriate sentencing range for a defendant, both of these factors must be accurately calculated, and these calculations are not necessarily straightforward.

Offense seriousness depends not only on generic factors in a case, but also on specific characteristics of the offense along with any appropriate adjustments. This means that there is, first of all, the need to accurately apply the rules to the facts of the case, and second of all, the need to steer the case toward an outcome favorable to the defendant. The government can be expect to highlight factors in a case which dictate a greater degree of offense seriousness, which is exactly why a defendant needs to highlight factors which would dictate a reduced seriousness level.

In our next post, we’ll continue this discussion.


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