By Todd Haugh | 62 Am. U. L. Rev. 1 (2012)

Ted Kaczynski and Bernie Madoff share much in common.  Both are well-educated, extremely intelligent, charismatic figures.  Both rose to the height of their chosen professions—mathematics and finance.  And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion.  But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be.  While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing.  In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history.  Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence—150 years in prison—for a nonviolent offense.  Why were these two men ultimately given the same sentence?  And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

The answer lies in how attorneys use sentencing mitigation strategies.  This Article contends that federal white collar defendants and their attorneys have failed to effectively use mitigation strategies to lessen sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes.  The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients.  After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this Article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases.  The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.

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