The Champion, May 1985
|"My attorney told me he got me a "good result." If that's true, what am I doing here?"
[At the Mid-Year Meeting in Tucson, NACDL Board member Richard Lubin, Esquire of West Palm Beach, Florida, interviewed Lianne Scherr of Philadelphia, a sentencing specialist. Lianne earned a Master's degree in social work in 1965 from Bryn Mawr College. She worked in psychiatric hospitals and other mental health facilities until eight years ago when she began to specialize in forensic social work.]
CHAMPION: One of the things that I've noticed over the last number of years is that there are a number of different people and groups involved in preparing alternative sentencing proposals. They are starting to look the same to me. What about that problem? What about the fact that it seems like the preparers have fallen into a mold or a pattern? How do you maintain your credibility?
SCHERR: I think that it's unnecessary and wasteful to grind out sentencing proposals that look exactly alike. The sentencing proposal must encompass two basic things: (1) distinguish the client as an individual, humanize him; and (2) show that the client is not a continuing threat in the community. This last can be accomplished in several ways: statistically, by comparing his characteristics with studies that report on success rates of parolees or probationers; by building into the sentencing proposal supervisory safeguards; by demonstrating that the client's criminal involvement was motivated by a problem that can be treated. e.g., drug dependency: and so forth.
CHAMPION: You want to help the client out if you can. How can you ask a judge to give your client a break when he doesn't deserve a break as much as the guy last week or the one you're going to work on next week?
SCHERR: I truly believe that long-term incarceration is not productive. It is not productive for the individual defendant and it is not productive for society. There is a study that was just done by the Rand Corporation in California in which they estimate that to keep a person on probation costs the state about $5,000 a year as opposed to $15,000 a year for incarceration. It's not cost effective to have people in prison and it certainly doesn't help the client to be in prison. Prison makes it that much harder for him to return to society. A successful alternative plan is one in which everyone involved in the case feels satisfied with the sentence.
CHAMPION: one of the problem is that these kinds of reports have been around for a while now. I've seen them in my community for a number of years. They are in vogue amongst at least what I consider to be good defense lawyers.
CHAMPION: Good defense lawyers at least consider them and either decide whether to use them or not on a given case. And judges are getting used to them is what I've seen. How do you deal with the problem that the same guy now may not get the same benefit out of an alternative sentencing proposal as somebody five or six years ago when it was unique?
SCHERR: I think that's true generally. I think there's a closing down of option that criminal defense attorneys can utilize because of the new federal Comprehensive Crime Control Act of 1984, because of mandatory sentencing guidelines. That's a problem. But that's a problem for all of us, but that doesn't mean that I stop trying. And occasionally, I think I am able to educate judges and I am able to educate prosecutors that for God's sake, the prisons are over-crowed, this is somebody who does not, should not, be in prison, and there's a better solution for disposing of his case. To put this in another perspective: The United States of America has one of the highest rates of incarceration in the world. Only the Soviet Union and South Africa exceed the number of persons in prison. The countries of western Europe and the British Commonwealth make much greater use of alternatives to prison and have for the last 20-30 years. In England, for example, Parliament has, over the years, emphasized that prison should not be used at all for persons under age 21 or first offenders unless all alternatives have been ruled out. In contrast to the United States, where the rate of incarceration has skyrocketed in recent years and led to a crisis in prison over-crowding, Western European countries have been experiencing a drop in prison population. In many of these countries, fines are the most commonly used sanction, for almost all categories of crime.
CHAMPION: Let's talk for a minute about sentencing guidelines. They are coming along. Florida, Minnesota, and Pennsylvania, to name a few states, already have sentencing guidelines. The federal Government is going to have sentencing guidelines soon. I think that's the way of the future. Is that going to make your service obsolete?
SCHEER: Absolutely not. In my experience all the states that have sentencing guidelines (and I'm distinguishing between sentencing guidelines and mandatory sentencing) provide an opportunity for the judge to go below or above the guidelines either in mitigation or aggravation of the offense. If the judge is going to mitigate, clearly, he's got to have the reason in front of him for doing that. The sentencing specialist, therefore, is responsible for providing that judge with reasons for going below the guidelines.
CHAMPION: Is it your practice to appear at the sentencing?
CHAMPION: Do you testify at the sentencing?
CHAMPION: Is that to highlight what's in the report or to supply additional information to the court?
SCHERR: When I appear at the sentencing (and I almost always do), how I appear there and what I do there is part of the long-range strategy. In a recent sentencing, I were in front of a new judge, a young judge, who was new to the concept of sentencing alternatives, much less to sending people to prison. The attorney felt it was important for the judge not to hear the same thing that I put in my report, but for the judge to see me and to hear me speak so that she would believe that my report was credible. So I got up and spoke to her and I told her that occasionally I am referred cases in which I cannot in all good conscience propose an alternative to incarceration. I will not do that. But I will do it where I feel that it's justified.
CHAMPION There are times that you will not recommend an alternative?
SCHERR: No, I just won't do it. After interviewing some defendants I must tell the attorney that I can't do this. I may suggest they talk to another sentencing specialist, X, Y, or Z. This is not the case for me.
CHAMPION Equal protection. I always hear about you can buy the best defense and there are rich bad people who could hire you, and there are poor good people who couldn't. What about that problem?
SCHERR: That's a question that nudges at the conscience of all of us. My criteria in accepting a pro bono case are (1) this is an attorney whom I respect and would like to work for, and (2) the case has a lot of merit. Also let's face it, by the time I get sentencing, frequently the client's financial resources are exhausted and sometimes it's a sexy case and I want to do it anyway.
CHAMPION How do you deal with an impossible judge?
SCHERR: Well, sometimes it is impossible. I've learned through bitter experience that there are some judges for whom I don't know what I can do. There're not to hear a bit of it, and it's a waste of the client's resources. I feel caught because I think I've got to give it my best shot, but the possibility of the proposal not working is very high. It's the same dilemma an attorney has.
CHAMPION What are some other problems you encounter?
SCHERR: The biggest problem these days is that drug offenders are being viewed much more seriously than they were say, five years ago. I find that at all levels, in federal courts, in state court. It's not fun and games, this is not a poor kid. It's serious. I think judges across the nation have caught the bug that the only way to eradicate the epidemic of drug use and abuse is to hand down harsh sentences.
CHAMPION How then do you approach difficult cases?
SCHERR: First, there are your goals, what you're trying to accomplish, what you hope you can accomplish in terms of the sentencing disposition; but on another level you have a strategy, which is how are you going to do this. How are you going to get it across. So for example, if an attorney thinks he has a case that's just hopeless to try and it's going to be a guilty plea, I encourage him or her to bring me in early to assist in plea negotiations. I prepare a confidential background history and evaluation of the client so that the attorney knows who his client is and what the problems are with the case from the point of view of the client's strength and weakness. For example, if you have a drug offender who has clearly got a bad habit, it seems to me that the way to approach plea bargaining is to pass that information along to the prosecutor, while at the same time getting your client into a drug treatment program. That's what I mean by strategic planning. It should begin early on in a case. And that's why I call myself a "forensic social worker" rather than a "sentencing specialist." I can be involved at almost any stage in a case, from providing information for a reduction in bail hearing right through to sentencing.
CHAMPION I suppose too many lawyers call you after a jury has found their client guilt and then they want you to save the situation rather than some preplanning.
SCHERR: I think what happens more often than not is that an attorney who has gone to trial and lost the case is exhausted. He is extremely depressed; he doesn't want to think about the case any more: He doesn't want to think about the client. At that point there may be bad blood between the defendant and the attorney. In the meantime there are other cases that the attorney has to attend to. That's a marvelous time to bring in a sentencing specialist, because then you can turn your client over to another person, new blood, fresh interest, new input. Your client has somebody to talk to, and moan and groan with and some productive work can start again.
CHAMPION: Do you find resentment from probation officers in that they are trudging along doing dozens and dozens of these cases the best they can and here you are getting paid for what they have to do anyway? Is there resentment?
SCHERR: Sometimes. That is a very human feeling. The best time to approach a probation officer is before they've seen the client. In this way I save them hours of time and aggravations, and particularly in state courts I find that effective. Federal probation officers are much more wary of me, but that also varies from district to district. For example, in the western United States, I generally find that federal probation officers are much more open minded than on the East Coast.
CHAMPION: So, do you take the approach of I can help you and if I can help you, let me know how I can do it and let's work together?
SCHERR: Not so much "I can help you" (because that sounds condescending) but "I 've got some information about the defendant which I would be delighted to share with you if you think it could be helpful." In other words, It's up to the probation officer. I don't try to force it on him, but again, it's a way of dealing with people. Just like prosecutors and defense lawyers know how to deal with each other and negotiate with each other, sentencing specialists ought to know how to deal with and negotiate with their opposite number, the probation officer.
CHAMPION: My experience has always been that getting the probation officer on your side, getting the probation officer to agree with what you want to happen to the defendant is crucial. How do you do that? Do you do that or do you have the lawyer do that?
SCHERR: I will do it anyway it works. If it seems that the probation officer is open to me and enjoys speaking with me and if I can find some things in common that get me feeling comfortable with each other, fine. Also, if I've got a client who's very amiable, very appealing, that client is going to do a lot for himself. And the client can be "prepped" before he goes in for his interview. Or it may be that the probation officer responds better to authority figures in which case I'll say, "May I ask the attorney to call you?"
CHAMPION: I want to come back to something I talked about. I talked about the fact that the judges are now starting to see a lot of these alternative sentencing proposals. How do you really individualize someone? How can you really convince the judge that this guy really could benefit and society could be safe if you don't put him in the slammer?
SCHERR: Here's where my background as a psychiatric social worker helps, and in fact, in some cases, gives me an edge. Anyone can take a history, born so and so, raised in this community, and so forth. But the important questions are why or how did a person get himself involved in a criminal event or series of criminal events. All sentencing specialists try to individualize or humanize the client, but some of us have better tools for doing that than others. That's my particular strength. I've been a psychiatric social worker for 20 years. On the other hand, I want to point out that there are, for example, sentencing specialists who are ex-probation officers. They understand the system in a particular jurisdiction in a way that I never can. I'm not trying to make myself out to be an exceptionally wonderful person. I think that just as attorneys have various strengths, so do sentencing specialists. We're not "cookie cutter" people. Each of us has my own special abilities. I agree with you that that is a problem if the sentencing specialist uses the same format and phrases over and over again. I try to avoid that problem by encouraging attorneys to contact me early in a case, before trial or guilty plea, so that I develop a whole strategy of turning the situation around in the eyes of the prosecutor, the probation officer, and finally, the judge. So far as the written proposal, I try to vary it in format to present the most salient facts, the most cogent arguments.
CHAMPION: Is it also your practice when available, to call witnesses at the sentencing hearing?
SCHERR: It's not my practice: that's up to the attorney. If we're in front of a judge who is doing a whole string of sentencing on a particular day, he's not going to want to spend a half hour or more on a particular sentencing and they hate having people stand up and tug on their heartstrings. They hate it. There is a strategy as to how the hearing is actually conducted.
CHAMPION: Earlier we were speaking about you interacting with the probation officer who is doing the pre-sentence report. Why not just supply the probation officer with all of the information and let the probation officer put it all in his or her report, rather than you doing a separate report?
SCHERR: Yes, indeed, why not? The main reason is because in most cases probation officers don't recommend alternatives to incarceration. That's why I mean they may be very sympathetic and they may say the defendant seems genuinely remorseful and that sort of thing, but they do not have the wherewithall nor do they have the mandate to propose alternatives to incarceration in many jurisdictions.
CHAMPION: Do you think that's because they're just afraid to do what they think? Either their superiors wouldn't approve of it or the judge wouldn't approve of it?
SCHERR: That's very likely, yes, and also because they're overworked. It's all they can do to keep their heads above water in terms of the number of people they are processing every week or every month. There's a thing called "burnout." We've all heard of it. After a while, you just can't look at another 26-year-old drug offender and feel very much at all for that person.
CHAMPION: How do you convince the judge that you're not a hired gun like the criminal's defense lawyer is, or like he thinks the criminal defense lawyer is?
SCHERR: Well, first of all, because I'm not. In other words, I won't propose alternatives to incarceration or short term incarceration if I feel the defendant doesn't merit it. I won't take those cases and that's made very clear to a judge who would have a concern like that.
CHAMPION: I have seen judges cross-examine preparers of client specific proposals and bring out how much they are being paid, and whether or not you think you would be hired if you recommend something the defense lawyer didn't like? What would you say to a judge who implied that of you?
SCHERR: Because I stand behind my own work, I've not had a problem like that. I have had prosecutors try to shake me in that way. I haven't had a judge question me in that way or otherwise suggest that he or she was doubtful of my credibility. I've had prosecutors try to make me look bad and I don't feel it has worked. In fact, I welcome cross examination from the prosecutor because I feel in that way I can clarify whether there are any doubts, whether I'm a hired gun, whether I just slopped something together by way of certain format. The reason that I work independently is that I feel that when the case is divided between several people in an office that prepares sentencing proposals, something is lost in terms of advocating and caring what happens to a particular defendant. I also think you've got to be able to express that advocacy in your writing. You also need to be able to express that when you're in the courtroom. You've got to show that this is an extremely thoughtful and moral and ethical preparation.
CHAMPION: Do you ever try to speak to the prosecutor during the time that you are preparing your report?
SCHERR: Yes, indeed. I learned that the hard way. A few years back I was afraid to approach a prosecutor who was the head of an organized crime unit and I didn't call him. He was really tough and really heavy. He attacked me at the sentencing hearing saying "Ms. Scherr, why didn't you contact my office so that I could tell you what my version of these offenses are and my view of the defendant?" And I was taken aback. So I always call the prosecutor. I talk with him about the case if he will allow it. I also talk with agents if they will allow it and the prosecutor will allow it. Sometimes they don't allow it, but at least I've covered myself. And sometimes the prosecutor mellows out a little when he's heard my version of the defendant.
CHAMPION: Why shouldn't a lawyer just have his law clerk or his associate or his secretary gather the background on somebody and present the proposal? Why should he hire somebody like you?
SCHERR: Obviously, a lawyer can do that and sometimes that's effective and there's no problem with that, when there's enough time and enough resources in an office to do that. What I'm finding though is that as attorneys get better in their practice, they have more and more clients, their cases get more complicated, and they simply don't have the time nor the psychic energy to address themselves to this particular area. I think also it's helpful to have another point of view on how to address a particular client's sentencing. It's helpful to have a second point of view. Frankly it's an economy, a psychological economy and also a financial economy to bring in a sentencing specialist. My fees, I would estimate, are lower than what the attorney is charging on an hourly basis for a case. It's simply practical.
CHAMPION: How can a lawyer in a non-metropolitan area who doesn't have a professional like you in his or her town help his client at sentencing?
SCHERR: I'm so glad you asked me that question. A number of lawyers at conferences have approached me with that question. I advise them to find somebody in their own community whom they can train in criminal procedure. This person could be a mental health professional, a psychologist, a social worker or an ex-probation officer. It should, however, be somebody you're comfortable with. Somebody that you have a good rapport with, somebody that you trust, somebody whose instincts you're comfortable with, who talks the same kind of language. I also suggest that the attorney bring me in on a case where the money is available so that I can train this other person. This other person will sit with me, with the lawyer, with the client, through the development of the alternative sentencing strategy. Then I remain available to consult by telephone on future cases.
CHAMPION: Do you have any data on whether or not these reports convince judges?
SCHERR: I have two stacks in my office of all the proposals I've ever done over the last eight years, a stack of the ones that succeeded and a stack of the ones that failed. The stack of the ones that succeeded is many times higher than the ones that failed.
CHAMPION: Do you know whether or not alternative sentencing is taking hold across the country? Are judges, in fact, imposing more alternative sentences?
SCHERR: Yes, I think so. For example, the US Probation Office in Philadelphia has recently hired a probation officer to do nothing but connect appropriate clients up with community service depositions. I think we've succeeded in pushing some probation offices in the direction of alternative sentencing.
CHAMPION: The final question is whether there is anything that you would say in summary as to why, as part of being competent defense attorneys, I should use your services or the services of someone like you.
SCHERR: Yes, the bottom line to the client is always, "How much time and what kind of time am I going to do?" And that's a question that most attorneys at the beginning of the case don't even want to think about. And yet, somewhere in the back of their minds they know that there's a distinct possibility, if not a probability, that the client is likely to go to jail unless something extraordinary is done to prevent this. My advice to an attorney is if he thinks that he's got a case that he's not going to win, he had better start preparing for sentencing right at the outset. Statistics show that 80% of arrests or indictments end in conviction. Let's face it, it's getting tougher out there.