A criminal defense attorney will advocate for his or her client at all stages of a criminal prosecution, most importantly, a trial …. but certainly it is no surprise that most of this litigation actually occurs after a plea of guilty or a finding of guilt. In short, at sentencing.
Although a state or federal crime will list a maximum sentence, it is rare that the Judge will actually execute that maximum sentence . The real executed sentence is more influenced by the Minnesota State or Federal Sentencing Guidelines. In Federal Court, the federal Judge is not a party to any plea agreement. The federal Judge can do whatever they want in terms of a sentence, as the Federal Sentencing Guidelines are completely advisory.
Often times, in Minnesota state court, the defense attorney will argue for a “dispositional departure” or a “durational departure.” A “dispositional departure” is a departure where a prison sentence is announced but not executed (i.e., the defendant does not serve prison time but is placed on probation). A “durational departure” is a departure where a prison sentence is announced but the defendant serves only part of the prison sentence (i.e., the defendant goes to prison but not for the prison sentence recommended by the Minnesota Sentencing Guidelines).
An “aggravated” dispositional or durational departure means the judge imposes a more severe penalty; a “mitigated” dispositional or durational departure means the judge imposes a less severe penalty.
A prepared criminal defense attorney will often write sentencing position papers in both state, and certainly, federal court. Sometimes these position papers will be 1 page long and sometimes 50 pages. The defense lawyer who spends the time, the many hours working on behalf of the client is the defense lawyer who achieves the best result. There is no substitute for hard work.