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History of Defense-Based Sentencing Advocacy

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History of Defense-Based Sentencing Advocacy and NASAMS

Sentencing advocacy, as practiced by members of National Alliance Sentencing Advocates & Mitigation Specialists (NASAMS), has historical antecedents in the work of Boston shoemaker John Augustus, who in the mid-19th Century invented a practice of intervening with courts to advocate for release from jail on humanitarian and common-sense grounds. His work provided the impetus for probation services, which were established by law in every state of the union by the end of the 19th Century.

A more recent stimulus to sentencing advocacy was the U.S. Supreme Court's historic decision in Gideon v. Wainwright in 1963, which guaranteed legal counsel to indigent criminal defendants. Subsequent important court decisions, the American Bar Association's recognition of the ethical obligation of defense counsel to prepare sentencing plans for their clients, and the establishment of special programs to provide sentencing-related services in some of the new state and local public defender offices created to fulfill the Gideon mandate, lay groundwork and built experience in practice for defense-based sentencing advocacy.

In the 1970s two pioneers, G. Thomas Gitchoff and Jerome Miller, a founder of the National Center on Institutions and Alternatives (NCIA), separately wrote about their successes in developing individualized sentencing plans for criminal courts. Miller's group formalized their approach to sentencing advocacy with a service called "Client Specific Planning," and trained many practitioners in its methodology.

In the 1980s sentencing advocacy grew as a profession with support from the Edna McConnell Clark Foundation through grants to NCIA and predecessor offices of The Sentencing Project, under the direction of Malcolm Young. Early programs, such as Offender Rehabilitation Services in the Washington, D.C. public defender officer, and the Portland, Oregon public defender office that assigned a team of a social worker, investigator, and attorney to every felony defendant, were evaluated. Results showed that sentencing advocacy contributed to an increase in the use of alternatives, reducing the reliance on jail and prison. With The Sentencing Project's assistance, a number of states including New Mexico, Connecticut, and North Carolina funded defense-based sentencing advocacy programs as a means of reducing jail and prison use.

In 1989, the first National Conference on Sentencing Advocacy was held in Washington, DC. The Conference garnered a remarkable turnout and media interest, prompting a group of 15 sentencing professionals from around the United States to come together to make recommendations about the future of sentencing advocacy as an emerging profession. In 1991, a concept paper, entitled "An Emerging Profession: White Paper on Sentencing Advocacy," (Links to B2a) was authored. While the paper was a "work in progress" and asked more questions than it answered, it did recognize the existence of a growing profession and called for the creation of a professional association to support its development. Since the formation of a professional association would need support and legitimacy, the authors of the White Paper turned to The Sentencing Project for a home for this new association. In 1992, NASAMS was founded as the National Association of Sentencing Advocates (NASA) under the auspices of The Sentencing Project. In 2005, NASAMS joined the National Legal Aid & Defender Association as a section in its Defender Division and adopted the National Alliance of Sentencing Advocates & Mitigation Specialists as its new name.

NASAMS and the field of sentencing advocacy has continued to develop since its 1992 founding. In their daily work, NASAMS members explore personal and social histories of criminal defendants, and in the process come to know their life stories very well. On that basis, they develop individualized sentencing plans for their clients who face conviction and the prospect of incarceration. The individualized sentencing plans are used by defense attorneys to offer prosecutors during plea negotiations, or courts at sentencing, alternatives to lengthy incarceration. Typically, the focus of their sentencing proposals is on substance abuse or and/or mental health treatment, victim restitution, community supervision, avoidance of future misconduct, and appropriate and constructive consequences designed to foster offender accountability and responsible behavior. This approach offers courts a cost-effective way to sentence selected offenders to community-based programs, while reserving prison and jail space for offenders who must be incapacitated for the safety of the community.

NASAMS members now also include mitigation specialists, who work to save the lives of defendants facing sentence of death. Their role is to explain crimes that are often terrible and to speak for the dignity and value of those who have committed the worst criminal acts. By helping juries that pronounce sentence in death penalty cases to understand their clients' life stories, they argue, often successfully, for lifelong prison terms in secure settings instead of the death penalty.

AN EMERGING PROFESSION: White Paper on Sentencing Advocacy - (PDF format - 152k)

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