Last week was a gem. Twice, clients who were almost certain to go to prison when we first started working their cases, avoided that fate. First, in federal court a twenty-year-old kid who pleaded guilty to distributing heroin and oxycodone received three years probation. In state court, a client on a fourth lifetime DUI and facing felony charges was spared a stay in Idaho's pen because of what he had accomplished since his arrest six months prior.
The key in each case? Their story. Not some fictional account of why they were before the court facing years of incarceration, but rather, the account of their life, and how their current arrest had dramatically changed their way of thinking, and the demonstration of that change by their actions.
Here are three things to remember if you are facing sentencing:
First - every judge has that robe because he or she will protect society first. Rehabilitation? Nice concept but in the end it is less important than protecting the rest of us. Call us the herd. We huddle together at night and stay in motion pushing the young and infirm to the center to protect them. And we expect that judges will protect us from dangers of the night. Real criminals. Thugs. Lions, and tigers and bears - oh my! So if you want to stay out of jail or prison you must convince the court that you are NOT a danger. Telling us that you have changed won't make it, and honestly, there are crimes from which no amount of personal change will save you (think murder, rape or mayhem). So as you think about your future and are facing a real likely prison sentence, you must convince the court that you do not belong in prison.
Second - actions matter, words are cheap. How many times have I seen crying defendants tell the court that they made a "mistake" and they will never do so again? Lawyers out there: am I right? Of course I am! For thirty-four years I have listened as defendants told sentencing judges how they intended to change. Intentions won't buy your freedom.
Get off your butt and change! Now! Today! Right this minute!
Got a drug problem? Get to an AA or NA meeting right now. Get into rehab. Don't wait for the court to order you to act, act now, without an order. Prove by your actions that you belong back in the herd. If your actions can't convince the court, you won't be going home.
Third - look like you are trying to be the man or woman society expects you to be by (drumroll please) getting to work. That's right, work. Judge's work. Lawyers work. Your mother or father (and perhaps both of them) likely work. Societal norms produce an expectation that adults will work, and judges look at that as evidence that you are one of us. A member of the herd.
Can't find a job? Keep looking. Beg for a job. Call a friend. And in the mean time volunteer. Accept that dishwashers job despite the fact that it makes your BA in English Lit seem like a waste of time, because your willingness to work at a job you are "over-qualified" for makes it clear that will be productive, an not destructive. Humility is something that gets rewarded. Worst case - get into a training program, complete your GED, or enroll in college.
So how did a kid who had an opiate addiction and faced years in prison avoid that fate? He kept going to rehab (he failed twice), kept going to NA and AA, got a sponsor, worked the 12 - steps, got a job as a server in a restaurant, enrolled in school, got some more rehab, and manned up. He admitted he had broken the law. He talked about how low he had sunk - selling drugs so that he could get drugs to use - and then he proved he would do whatever it took to become a productive member of the herd. He was also lucky to have parents who pushed him, but were willing to let him fail if he would not act.
How about that felony DUI? Fourth lifetime. And did I mention he had two prior felony convictions and had done a 180 day prison boot camp program (the infamous "rider") seven years before? But now, he fully complied with every pretrial release condition imposed by the court when he was charged. He never missed a court appearance, he never missed a random BAC blow, he never missed a meeting or a phone call and he kept fighting for his freedom. He went to school, kept his job, supported his children and wife and reluctantly admitted that he had lied to the police when he said he only had a couple beers. The judge said he was avoiding prison because of what he had done while the case was pending.
You can stay out of jail, or prison, and have a real life if you are willing to act.
So if you are facing criminal charges and want to keep your life, act. Do something. Don't wait for the court to order you to move, just move. A friend of mine told me once it is easier to steer a moving car. He was right - it is easier to direct an action than to start one. Sometimes just being willing to move won't save you, but it might.
I had a voice message from my client in that federal case the morning after he was sentenced to probation (which almost NEVER happens in federal court): "Thanks again. I am in shock. I'm not certain what happened in there, but I am free today, and headed to a meeting."
Hang in there.