Making Powerful Sentencing Arguments: A Defense Attorney’s Guide

Sentencing is often the most consequential phase of a criminal case. Long after questions of guilt have been resolved—by plea or verdict—the sentencing hearing determines how much of your client’s life, liberty, and future will be taken by the State. For defense counsel, sentencing is not an afterthought or a formality. It is advocacy at its most human, where law, facts, and narrative converge. This guide offers a practical, courtroom-tested framework for crafting and delivering powerful sentencing arguments on behalf of your client.

1. Reframe Sentencing as Its Own Trial

Too many lawyers treat sentencing as a brief add-on to the case they already tried. Effective advocates treat sentencing as a separate proceeding with its own theory, evidence, witnesses, and burden of persuasion.

Your objective at sentencing is not to relitigate guilt, but to answer a different question for the judge: Who is this defendant, and what sentence is just, necessary, and proportional?

Begin preparing for sentencing early—often before the plea or verdict. Every case has mitigation; your job is to find it, develop it, and present it coherently.

2. Know the Law Cold—and Use It Strategically

Judges expect defense counsel to understand sentencing law better than anyone else in the courtroom. This includes:

• Statutory ranges and mandatory minimums

• Sentencing guidelines and their advisory or binding nature

• Aggravating and mitigating factors

• Alternatives to incarceration

• Recent appellate decisions affecting discretion

But knowing the law is not enough. You must translate discretion into permission. Show the court where it can go, not just where it must start.

Frame leniency as legally sound, not merciful improvisation. Cite authority that confirms the judge’s power to individualize the sentence.

3. Develop a Sentencing Theory

Just as every trial needs a theory, every sentencing needs a theme that unifies your argument. Examples include:

• This case is about aberration, not character.

• This defendant needs treatment, not warehousing.

• This offense is serious, but the punishment need not destroy what remains redeemable.

Your theory should be simple, repeatable, and anchored in the statutory purposes of sentencing—punishment, deterrence, rehabilitation, and protection of the public.

4. Humanize the Client Without Excusing the Conduct

Judges are skeptical of excuses, but they are receptive to understanding. The most effective sentencing arguments acknowledge the harm while placing it in human context.

Humanization includes:

• Personal history: upbringing, trauma, poverty, addiction, mental health

• Positive roles: employment, caregiving, military service, community ties

• Conduct since arrest: compliance, treatment, remorse, restitution

Avoid minimizing the offense. Instead, argue that accountability and mercy are not mutually exclusive.

5. Use Mitigation Evidence—Not Just Argument

Sentencing advocacy is strongest when supported by evidence. Consider:

• Letters from family, employers, clergy, or mentors

• Psychological or substance abuse evaluations

• Treatment records or enrollment confirmations

• Certificates, awards, or work histories

Where appropriate, present live witnesses. A credible employer or family member can be more persuasive than pages of briefing.

Organize mitigation so it tells a story, not a scrapbook.

6. Address Aggravating Factors Head-On

Ignoring the prosecution’s aggravating factors invites the court to accept it unchallenged. Instead:

• Concede what cannot be disputed: As Gerry Spence famously said, “A concession coming from your mouth is greater than an exposure coming from your adversary’s.”

• Contextualize what can be explained

• Correct what is exaggerated or unsupported: Prosecutors love to indulge in idle speculation as it relates to what could have happened if some intervening event did not happen. For example, if the police had not arrived when they did, if a Good Samaritan had not intervened, or if the victim hadn’t acquiesced but stood his ground and acted in self-defense. This falls under the category of “uncharged conduct” and is always more egregious than the actual offense for which the defendant was convicted. Other times, the prosecutor references charges during the sentencing hearing that were dismissed as part of the plea bargain. Thankfully, there is case law that supports pushing back when prosecutors or judges reference dismissed or unproven charges at sentencing. Even though much of the case law focuses on jury verdicts, the same constitutional and due process protections apply after a plea. A guilty plea is the legal equivalent of a conviction after trial for sentencing purposes. As such, the same constraints on judicial fact-finding at sentencing apply. The bottom line is that sentencing must be based on facts that are properly supported and adjudicated. Judges may not rely on dismissed, uncharged, or unproven allegations to enhance a sentence.

Reframe aggravating facts within your sentencing theory. For example, a prior record may reflect untreated addiction rather than incorrigibility.

7. Speak the Court’s Language

Sentencing judges are outcome-oriented. They want to know:

• What sentence are you asking for?

• Why is it sufficient but not greater than necessary?

• How will it protect the public?

• How will it promote rehabilitation?

Be precise. Vague pleas for leniency are far less effective than concrete, reasoned proposals.

8. Make a Specific, Defensible Ask

Always end with a clear sentencing request. Whether it is probation, a downward departure, a concurrent sentence, or a particular program, tell the court exactly what you want and why.

Explain how your proposed sentence satisfies the statutory goals better than the prosecution’s recommendation.

Judges are far more likely to grant relief when you give them a well-supported option rather than an open-ended plea for mercy.

9. Master the Delivery

Sentencing is as much performance as persuasion. Key delivery principles include:

• Slow down—judges listen differently at sentencing

• Maintain respectful candor

• Use silence strategically after important points

• Speak to the judge, not at your notes

Avoid theatrics. Authenticity carries more weight than rhetoric.

10. Remember What Is Truly at Stake

For the court, sentencing is one of many cases. For your client, it may define the rest of their life.

The most powerful sentencing arguments remind the judge—subtly, respectfully—that the decision before them is absolute (unless, of course, an Appellate judge finds otherwise) and deeply human. When done well, sentencing advocacy does not ask the court to ignore the law, but to apply it wisely.

In the end, powerful sentencing arguments are built on preparation, empathy, credibility, and courage—the willingness to stand before the court and say: this person is more than the worst thing they have ever done.

One-Page Sentencing Script (Counsel Table Reference)

Use this as a live courtroom guide. It is designed for eye contact and controlled delivery, not verbatim reading.

OPENING (Frame the Moment)

Your Honor,

• Sentencing is about who this person is and what punishment is just.

• Guilt is resolved. Proportionality and discretion remain.

“The question before the Court is not whether a crime occurred, but what sentence is just, necessary, and proportional for this defendant.”

ACKNOWLEDGE THE HARM (Credibility First)

• Acknowledge seriousness

• No minimization

• Separate conduct from character

“This offense caused real harm. John accepts responsibility. Accountability matters.”

SENTENCING THEORY (Repeatable Theme)

• This case is about:

  • ☐ aberration, not character

  • ☐ treatment, not warehousing

  • ☐ rehabilitation already underway

  • ☐ proportional response, not punitive severity

    
    

HUMANIZE THE CLIENT (Controlled Narrative)

• Brief personal history (relevant only)

• Positive roles (work, family, service)

• Post-arrest conduct

“Since this case began, he has [worked, complied, sought treatment, supported others]. These are actions, not promises.”

ADDRESS AGGRAVATION (Do Not Ignore It)

• Concede the undisputed

• Contextualize the rest

• Correct exaggeration

“The prior record reflects [context], not incorrigibility.”

PURPOSES OF SENTENCING (Judge’s Language)

• Punishment ✔

• Deterrence ✔ / limited

• Public protection ✔ / already achieved

• Rehabilitation ✔ / underway

“A sentence greater than necessary does not advance these goals—it undermines them.”

WHY INCARCERATION IS NOT NECESSARY (If Applicable)

• Breaks treatment/employment/family

• Does not reduce risk

• Creates instability

“Incarceration here would interrupt what is working.”

THE SPECIFIC ASK (Always Precise)

• Requested sentence:

  • ☐ probation

  • ☐ time served

  • ☐ concurrent sentence

  • ☐ downward departure

  • ☐ treatment-based alternative

“We respectfully ask the Court to impose [specific sentence], which is sufficient but not greater than necessary.”

CLOSE (Judicial Discretion & Humanity)

• Emphasize discretion

• Avoid theatrics

• End clean

“This Court has the authority to punish the conduct without destroying the person. We ask the Court to exercise that discretion here.”

---

Delivery Notes:

• Slow pace

• Speak to the judge

• Pause after key lines

• Sit down cleanly after the ask