Sentence Mitigation: Is it just a defense tactic or can it be a motivator for treatment?

A recent posting about our intensive program for sexual offenders on a professional social network greatly upset a person on the network.  This person felt that it was disgusting that we offer a treatment program that can aide sentence mitigation for people accused of sexual crimes, or to paraphrase, that we help sex offenders get lighter sentences for financial gain.  This upset me greatly as I take our work with people who have committed sex crimes very seriously and consider it prevention of sexual abuse.  As I consider part of my work as an expert to counter emotion with science, I thought to put my own emotions on the back burner and write something educational about sentence mitigation.

What is Sentence Mitigation?

When someone is being sentenced for a crime a judge is obligated to take into consideration all of the information about that person.  It is the job of the prosecution to present evidence of all of the aggravating factors in the case.  These are the things that help them make an argument for stronger and harsher sentences.  Aggravating factors can include prior offenses, vulnerable victims, hate crimes, violence, etc.

It is the job of a defense attorney to present the facts about the person that would support a less harsh sentence.  Any facts presented for sentence mitigation are not related to the guilt of the person, they have acknowledged what they have done (pled guilty). Mitigating factors can be those that were in place prior to the offending such as lack of criminal record, mental illness, addiction, physical illness, history of being abused.  Other mitigating factors are those the occur after the offense has happened.  These can be acceptance of responsibility, rehabilitation post offense (treatment), cooperation with law enforcement, addiction, mental illness, etc.  Mitigating factors do NOT excuse a crime but help provide an explanation. 

Therapy as a Sentence Mitigation Tool

Do defense attorneys suggest clients go to therapy so they have some fuel for sentence mitigation?  In a word, Yes. Many of our clients are referred to us by their attorneys after they have had a visit from the police or the FBI.  This happens basically no matter the type of offense.  DUI?  Get a drug and alcohol assessment.  Domestic Violence charge?  Do some classes.  Assault charge?  Complete an anger management program. 

What most people might not know, but all of us in the treatment community do know, is that very few people self-refer for treatment relating to addictions of any kind or offending.  In over 10 years of practice ownership, I can count on one hand the number of clients who came to treatment with no outside pressure because they felt like they had a problem.  Many clients are pressured into treatment.  This pressure may come from a partner, spouse, employer or the police.  People don’t self-refer for many reasons, shame, fear, stigma and wait until they are caught in some way shape or form be that watching pornography at work, getting a DUI, getting caught in an affair, running up the credit cards with gambling debt, etc. 

The act of going to therapy itself does not help the defense attorney make a mitigation argument.  It is what happens in therapy that can help a defense attorney make a mitigation argument.  If a client is referred by an attorney for treatment, the initial thought might be something like “ok this will look good to the judge.”  Any good therapist will know whether or not a client is taking the therapy work seriously.  If the client is just biding time, trying to look good for a judge, that is reflected in the treatment reports that go to the attorney.  Trust me that bad treatment reports never make it to court.  Same thing for evaluations that deem a client high risk to re-offend.  They hardly ever see the light of day in a court room.

Changing motivations

What gets a person in the door of a therapy office is not necessarily what keeps them there.  The goal with pre-sentence treatment is to help the person move from the “oh shit I’m caught” stage into really deeply and truly looking at their actions and the motivations for the actions.  Though it is popular to believe that people who commit sexual crimes are deviant monsters who deserve to die, most (not all) people who are committing these crimes know they have a problem, feel a good deal of remorse and want to do what they can to help themselves.  Thus, an attorney referral to help with sentence mitigation can turn into a person who really wants to do a lot of work on themselves to get better and make sure they never offend again. 

Sitting at the end of a day filled with many emotions, I reflect on the work I do.  I am proud of the work that I and my staff do working with people who have committed sexual offenses.  I realize that I work with a population of people that the world would rather forget about and many people think don’t deserve treatment.  Though it would be great if more people self-referred, I ultimately don’t care if it is an attorney referral that gets them through the door.  Those of us who work with sexual offenders are doing prevention work. 

My final words are not mine but those of one of my wonderful colleagues:  Everyone deserves treatment.  Period. Full Stop. 

References

https://www.nolo.com/legal-encyclopedia/mitigating-circumstances-sentencing.html

https://www.justia.com/criminal/aggravating-mitigating-factors/

https://www.criminaldefensemitigation.com/mitigating-factors-criminal-sentencing/

You’re Being Investigated for a Cybersex Crime: The Psychosexual Evaluation

 

So far in our series of articles we have talked about finding a good attorney and a good therapist.  The next step in the process is to talk to your attorney about a psychosexual evaluation.  In most states and in Federal cases, the prosecution will have you undergo an evaluation with a therapist who works either for or on behalf of the state, county or Federal government. It is normally always a good idea to have one done by a psychologist who is not working for the organization that is prosecuting you.

First, what is a psychosexual evaluation?  The evaluation is comprised of an interview with a psychologist, a lot of psychological testing and a review of all forensic documents related to your case.  What tests you take often depends on the clinician who is doing the evaluation.  These objective measures will test for factors that may have both influenced your committing the crime you are accused of and may influence you to commit the crime again.  For example, you will likely do some type of personality test to see if you have any mental health diagnoses that influenced your crime such as depression, anxiety, bi-polar disorder, etc.  You will also likely be asked to take some test that will assess your likelihood of having a substance abuse problem, as this is sometimes correlated with certain types of crimes.

How do you find the right person to conduct the psychosexual evaluation?  If you have an attorney, he or she may have a psychologist that they work with closely and will refer you to that person.  If you are looking for this person on your own, there are a few things you should be on the lookout for.  First, you need someone who has a Ph.D. and has been trained to give the types of tests that you need.  Not all therapists have the training to be qualified to administer certain psychological tests.  Second, the psychologist who performs your evaluation needs to be experienced in performing psychological evaluations for sex crimes.  Not all forensic psychologists work with sex crimes.  Some, for example, perform evaluations for competency to stand trial.  Third, your evaluator should be a member of ATSA and familiar with the latest research related to offenders of your type of crime.

A question I often am asked is “what happens if the evaluation says something bad?”  My first response to this question is that there is nothing about an evaluation that is “bad.”  An evaluation is a combination of facts, testing results and opinion based on all those elements.  However, if you are concerned about the outcome of the evaluation, there is a solution.  If the evaluator is retained by your attorney and paid for by your attorney, the report then falls under attorney-client privilege as client work product.  This way, if your attorney does not feel that the evaluation will help you, he or she will not use it during your sentencing.

In most cases, the psychosexual evaluation is used for sentence mitigation.  Your attorney may use a favorable evaluation in the plea negotiation process beforehand.  Your psychosexual evaluation will be part of the pre-sentence memorandum that your attorney files with the court prior to your sentencing.  This report will give the judge information as to some of the reasons why you committed your crime as well as provide the judge with some information about your risk of recidivism (commit another crime).  The judge will take all this information into account when they are determining your sentence.

If your attorney does not suggest an evaluation, ask them about it.  Whether or not you need an evaluation or if it may be helpful will depend on your case and your jurisdiction.  We provide these suggestions as they are helpful in our geographic area of Pennsylvania.

Dr. Jennifer Weeks is the owner of Sexual Addiction Treatment Services.  She specializes in the treatment of sexual offenders and cybersex offenders.  Through her program she provides psychosexual evaluations, treatment and expert witness testimony.  SATS also offers coaching services for those people who are being investigated but are not in Pennsylvania.