Terms Of Imprisonment
The jury finds that the defendant did the crime. Now for doing the time.
While never easy or fun, going to prison used to be a whole lot less complicated than it is today. The steps were simple enough: 1) Come equipped with a toothbrush. 2) Snuggle into a cold steel bunk. 3) Cut weeds or pick up trash along the highway. (Watching Cool Hand Luke helps here.) 4) Repeat steps 2 and 3 until the debt to society is paid.
But for today’s defendant-turned-convict, going to the big house is a much more complex and sophisticated undertaking.
Calculating the range of penalties under the sentencing guidelines can be frazzling enough. Throw in complications with simultaneous federal and state sentences, and it can drive even the most levelheaded inmates and defense lawyers stir crazy.
Yet, at least in the federal system, clients and lawyers don’t have to navigate the sentencing maze alone. Though they’re not exactly the welcome wagon, probation officers and the Bureau of Prisons at least can alleviate some of the uncertainty.
Representatives from both offices explained their policies and services in March at the ABA Criminal Justice Section’s 17th Annual Institute on White Collar Crime. Also on the bill at the conference in San Francisco were criminal defense lawyers and one lawyer who specializes in sentencing and post-conviction issues.
The presentations came as increasing penalties across the board make incarceration all the more likely, even for first-time offenders. “I think you start thinking about it when the clients first come in the door,” says Dallas defense lawyer Charles M. Meadows.
Even before the notice of appeal and motion for a new trial are filed, the probation office should be the first stop for the client and lawyer after the jury delivers a guilty verdict. While the lawyer perhaps had been the most important person in the client’s life, the probation officer soon will occupy that spot. The probation officer conducts the pre-sentence investigation (PSI) into the client’s background, and then calculates the recommended sentence under the guidelines, which use a point system to account for everything from prior records to the extent of injury to victims.
Pre-Sentence Investigations Tell All
While the criminal case may have produced tons of documents, piles of evidence and reams of transcripts, the only items prison officials see are the judgment and sentencing order and the pre-sentence investigation. From those, prison officials map the inmate’s custodial future, from assignment in a maximum-security slammer or a country-club prison camp to determining whether the federal time will run concurrently or consecutively to any state sentence.
“The PSI is the bible as far as the Bureau of Prisons is concerned,” says sentencing specialist Allan Ellis of Sausalito, Calif. “Make sure there’s nothing in the PSI that’s going to come back and bite the client in the rear end.”
Probation officer Lisa L. Reed of Houston says she and her colleagues often conduct much more intrusive probes than anything the defendant underwent with law enforcement. Their PSIs include detailed and highly personal interviews with family members, friends, prosecutors, police and victims.
“I can’t urge you strongly enough to get in and see your probation officer as early as possible,” Reed says. She says counsel should always accompany the client to meetings with probation officials.
Significant elements of PSIs include estimates of victims’ losses, a financial statement from the defendant, whether the defendant accepts responsibility or poses a flight risk, and recommendations from prosecutors. Reed says defense lawyers also should come to meetings prepared with any case law that may reduce the recommended guideline sentence.
Reed adds that defendants also shouldn’t be shy about admitting alcohol or drug problems, which can get them into treatment and earn them up to six months in a halfway house at the end of their sentences. Alcoholism and drug abuse won’t increase sentences. Above all, Reed says, every question needs to be sorted out before the probation officer reports to the sentencing judge.
“If you have any issues that you feel need to be in the pre-sentence report, you need to meet with your probation officer before that report is written,” Reed says. “It’s very difficult to get a PSI changed once it’s issued.”
Defense lawyers say clients can help themselves measurably if they make restitution before sentencing and obtain letters from victims stating satisfaction with the compensation. Not only will they influence the judge, but they also can go a long way toward blunting any prosecution arguments that sometimes inflate victim damage above actual loss. In addition, defense lawyers should get prosecutors to stipulate as much as possible to other facts to avoid disputes at the sentencing hearing. “You try to get those things nailed down,” Ellis says.
Candor and completeness are other hallmarks of successful pre-sentence preparation. For example, judges frown on financial statements that suggest defendants are trying to conceal ill-gotten gains. Careful financial planning may enable clients to shield some assets from forfeiture or restitution orders, but lawyers must ethically satisfy themselves that they’re not helping the client merely duck or defraud creditors.
At the same time, candor has its limits. While the guidelines reward acceptance of responsibility for criminal conduct, defendants should go no further than admitting the elements to the offenses proved at trial or specified in a plea bargain. To say more can increase a sentence and tip off law enforcement to new crimes and charges that result in more time behind bars.
In assigning an inmate to a facility, the Bureau of Prisons typically looks for the institution closest to the inmate’s home that has the appropriate security level and an available bed. If inmates have a preference, they need to have the judge recommend that prison in the sentencing order, says Valerie Stewart, a regional bureau lawyer based in Dublin, Calif. Despite complaints from certain judges that the bureau ignores them, Stewart says it follows their recommendations 93 percent of the time.
More importantly, Stewart says, inmates simultaneously sentenced in federal and state courts for the same offenses can serve consecutive sentences—even if judges in both systems intended them to run concurrently—if the courts and lawyers aren’t careful. That’s because federal prisons generally don’t start crediting an inmate’s time until after they obtain jurisdiction over the inmate, often determined by arrival in federal custody after the state stretch ends.
A sentencing order that says nothing on the issue leads to a presumption of consecutive sentences. So in federal court, the judge should specifically credit an inmate’s state time against the federal sentence, making it clear that it’s only credit, not a reduction of the federal term.
