Prison Professors

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Prepare: What Defendants Should Know about Court, Sentencing, and Prison

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1. What Should I Know About Prison Transfers?

Based upon the number of minimum-security camps in the federal prison system, we estimate that less than 20% of the federal prison population gets the privilege of voluntarily surrendering. Being able to surrender to prison is a perk.

Ordinarily, when judges sentence people to serve less than 10-year terms, and the person does not have a history of violence or escape attempts, the Bureau of Prisons will classify that person as “minimum-security.” Judges may allow those people to report to prison on their own volition. In the systems, it’s known as “voluntary surrender.”

There is an advantage to surrendering to prison voluntarily. It’s less stressful. Rather than mixing with hundreds of other prisoners, many of whom may be intimidating, it’s easier to have a family member or friend drive to the prison. A person walks out and presents himself to a guard. That’s when the admissions process begins.

The other 80% of people that serve time do not get the privilege of voluntary surrender. They may have been held in detention centers for months because they did not qualify for release on bail. Or they may have been taken into custody right after the sentencing hearing. In most cases, the U.S. Marshals service will transport those people to prison.

Prison offers comparatively more freedom than the local jail or detention center. But time in transit can be among the worst time a prisoner spends in confinement. For security reasons, staff members do not tell the prisoner when he is scheduled for transfer. That “unknown” factor brings considerable amounts of stress.

My partner, Michael, served 26 years in federal prisons of every security level. He transferred numerous times. In several of his books, including Earning Freedom: Conquering a 45-Year Prison Term, he wrote extensively about the transfer process.

Like everything else in confinement, there is a lot of hurry-up-and-wait. Once the officer notifies the prisoner to gather his belongings, the officer will rush the prisoner out of his area and lead him to a separate holding area, usually a cage or a room. The officer will lock the prisoner inside the new cage. If it's not full already, the cage where the prisoner is held will quickly fill with scores of other prisoners who also are being prepared for transfer. Think of a sardine can.

Occasionally, a jailer will come to the outside of the cage and scream for the prisoners to quiet down as he makes some announcement. The jailer will be looking for prisoners with special needs, medical and such, and provide instructions on what procedures will follow. After the long wait—and a prisoner should expect to spend several hours as these preparations are made for transport—jailers will begin calling names, usually in groups of four or five. They will begin escorting those prisoners to another holding cell. Authorities will order the prisoners to strip naked as guards search for contraband.

The strip search is part of the journey. Guards will perform their visual inspections of naked prisoners several times during the transfer process. Although strip searches may humiliate a new prisoner, to guards it is routine and impersonal.

The prisoner strips naked. The guard stands about two feet in front of him and begins barking commands: “Lift your arms! Run your fingers through your hair! Open your mouth!  Stick out your tongue! Lower your lips! Lift your genitals! Turn around! Let me see the bottom of your feet! Bend over! Spread ‘em! Wider! Get dressed!”

After the strip search, the guard issues the prisoner a set of transfer clothing. The clothing is usually a one-size-fits-all set of bright orange overalls or elastic-waist paints. Sometimes they include socks, other times not. The prisoner may get a pair of cloth slippers or rubber sandals, depending on what's available.

Guards will transfer the prisoner to another cell after he dresses in prison garb. He’ll wait for every other prisoner being transferred to go through the same process. When the holding cell's noise reaches the same unbearable level, the prisoner will have a good indication that it will be time for the next procedure.

The next step is for guards to come around and begin locking the prisoners in chains. Prisoners will be called out of the cell, about three or four at a time. A row of jailers will place steel cuffs around the prisoners' ankles, steel cuffs around the prisoners' wrists, and the guards will fasten the cuffs to a chain placed around each prisoners' waist. Once the prisoners are chained, they'll be led to yet another holding cage while they wait for all the other prisoners to join them.

After all the prisoners have been fastened in their traveling chains, guards will escort them to school-type buses. With steel bars covering the blacked-out windows, it's rather obvious the buses are used for prisoner transport. The prisoners march toward the buses, stumbling all the way because their ankles are chained together, moving slowly so the ankle chains don't dig too deeply into the skin around their ankles. The back of the bus has a caged area in which an officer rides, rifle in hand, to keep watch over the prisoners. When all prisoners are on board and accounted for, the bus departs.

Some prisoners are fortunate in that they are designated to prisons requiring only a single bus ride. Many, however, are designated to prisons far away and will take a combination of bus rides and plane rides as they make their long and arduous way to their respective institutions.

The U.S. Marshals operate a prisoner-transport service to move prisoners from coast to coast. The planes move in circular routes, and prisoners are scheduled to board these flights at the discretion of the U.S. Marshals and BOP administrators. Consequently, moving from point A to point B may take 30 days or longer, with overnight stays in several facilities along the way—even if one is only transferring 100 miles. The circular route took one prisoner who was transferring from Fort Dix, New Jersey to Fairton, New Jersey (which is an hour away by car) on plane rides and bus rides through several states before delivering him.

What Makes Transfers Difficult:

Being transferred by the prisoner-transport service is difficult. The prisoner is in the dark and he never has an opportunity to settle in. Purchasing goods from the commissary may not be an option. The prisoner may be able to guess, but he’ll never know how long he will remain in a particular facility. He may not have soap, toothbrush, or sandals to wear for the shower.

The more person knows about the process, and understands how to cope, the better prepared he will be. Our courses offer many interviews that show strategies that others have used to make it through challenging times.

A holdover prisoner in transit is the prison equivalent of a homeless person, living as a transient without any personal belongings. He is around strangers the entire time he's in transport, doesn't eat well, and is loaded with stress because he's out of touch with his family. The prisoner doesn’t receive regular mail. He may have limited access to a quasi email system, which can somewhat ease the stress.

Besides a lack of access to personal property, and constant frustrations, the prisoner in transport is exhausted from all the middle-of-the-night wake-up calls, the waiting, the noise, the chains. In his book Earning Freedom, Michael wrote that time transit was the worst part of his prison experience. He described strategies to keep a positive mindset.

Secondary Transfers:

After arriving at the designated facility, and progressing through the sentence, circumstances change. Sometimes it’s possible to transfer to another facility. Usually, prison transfers occur because of changes in the prisoner's security-level scoring. Other times prisoners may request transfers to similarly-rated facilities for their own reasons. Generally, case managers will not process a prisoner's request for transfer unless the individual has served at least 18 consecutive months of confinement in the institution with disciplinary-free conduct.

Even if an inmate meets the necessary criteria for transfer, his request to serve his sentence in a particular facility may or may not be granted. When a prisoner requests a transfer to a specific facility, he subjects himself to the discretion of administrators. Ultimately, designators have the responsibility of controlling population levels in all of the federal prisons within his respective region.  Consequently, a request to transfer to the FCI in Miami, Florida may result in a transfer to the FCI in Beaumont, Texas.

Prisoners may wonder whether there is anything they can do to enhance their chances of moving to a particular facility. Based on our extensive experience with the BOP, the formal answer is no. The informal answer is possibly. Everything is possible with self-advocacy.

In Earning Freedom, for example, Michael wrote about several instances where he was able to coordinate a “re-designation.” On several occasions.

• Once, he was confined at the high-security prison in Atlanta. Authorities re-designated him to a medium-security prison in Oregon. He succeeded in blocking that transfer.
• Later, effective self-advocacy led to his coordinating a transfer to McKean, in Northwest Pennsylvania.
• While confined in a low-security prison in Fort Dix, New Jersey. Authorities moved to transfer Michael to a prison in Florida. He succeeded in getting that transfer reversed.
• Much later in his sentence, he was serving time at the federal prison camp in Florence, Colorado. Authorities moved to transfer him to a camp in Texas. Effective self-advocacy helped him reroute his transfer to Lompoc, California.
• Finally, he succeeded in coordinating a transfer from the camp in Taft to a camp in Atwater, to ease his preparations for release.

To succeed at coordinating transfers in a large bureaucracy, a prisoner must lay considerable amounts of ground work. Most people will not serve multiple decades in prison, and they will not encounter multiple transfers. On the other hand, for those that want to learn lessons in self-advocacy that will help them through the journey, we highly recommend our digital courses at ResilientCourses.com.

In most cases, after a person enters a guilty plea, or after a jury finds a person guilty, the judge sets a sentencing date. Those sentencing dates may be extended if the person is cooperating with authorities. Sometimes a person doesn't get sentenced for several years after the guilty plea. In most cases, a person will face a sentencing hearing within a few months of pleading guilty. On the other hand, our team has worked with clients that waited 10 years before they had resolution. They committed a crime, faced civil proceedings, waited through criminal proceedings, cooperated with authorities. From the time of the crime, and the time the sentence was imposed, 10 years passed. Every case is different.

To prepare for sentencing, the defense attorney will prepare a memorandum. That memorandum will summarize the defendant's conduct, include points of law, and offer reasons why the defendant deserves leniency. The prosecutor will submit a memorandum. In most cases, the prosecutor will argue for a harsher sentence.

In earlier chapters, we've emphasized the importance of engineering a sentence-mitigation strategy. For reasons described earlier, our team recommends a three- or four-pronged approach that includes:

1. A first-person sentencing narrative,
2. A character-letter writing campaign, and if resources permit,
3. A sentencing video,
4. A comprehensive sentence-mitigation plan.

By investing the time and energy to prepare, the person can help the judge get a better understanding of what happened. In addition to the four-pronged sentence-mitigation strategy, the person should also consider speaking at sentencing. Every defendant has a right to speak during the "allocution" phase, but not every defendant chooses to speak.

Why?

Sometimes, defense attorneys discourage defendants from speaking. By nature, defense attorneys are risk averse. They may have worked very hard preparing elaborate arguments. An emotional defendant may undermine the defense attorney's arguments by minimizing responsibility. Some defendants can talk themselves into a harsher sentence. A well-prepared defendant, on the other hand, can be his best advocate during allocution.

Judges have told members of our team that they want to know as much as possible about the defendant before sentencing. Too often, defendants squander the opportunity to make a persuasive plea for mercy at sentencing. They may talk about how they're going to miss their family and how they've been going to church. Every defendant will miss his family. Going to church may or may not be relevant to the judge.

Defendant's advance their pursuit of mercy when they convince the judge that they understand the gravity of their crime and the impact the crime has had on society. Judges want to know defendants have introspected, and a well-prepared defendant can make that case during allocution. In earlier chapters, we've addressed our thoughts on how a defendant should prepare for the sentencing hearing. The videos that we include with our course also provide tips to prepare.

What Happens at the Sentencing Hearing?

At the sentencing hearing, the defense attorney, the prosecuting attorney, and possibly the probation officer will take turns arguing their issues regarding the presentence investigation report. Sometimes, the prosecutors will call upon victims of the crime to have their say. And the person being sentenced may call upon character witnesses, too.

At some point, the prosecutor may request a specific sentence. The defense attorney will argue that the sentence should be less than what the prosecutor recommends. If a person chooses to make a statement, it will usually be after the attorneys and other witnesses have had their say.

We're convinced that acceptance of responsibility and an expression of remorse is a better strategy than standing stone-faced before a sentencing judge. Eloquence or flowery prose is not nearly as important as sincerity. People being sentenced should know that judges are not gullible or soft. By being truthful and unpretentious, a person can advance prospects for mercy.

After Sentencing:

Once the judge imposes sentence, defendants may ask the judge to rule on collateral matters. Those being sentenced to federal prison may ask the judge to resolve three matters:

1. Payment schedules for monetary penalties associated with the sentence;
2. A recommendation for a particular institution;
3. Those with sentences of less than 10 years may request time to get their affairs in order and report to prison voluntarily.

Payment Schedules and the Financial Responsibility Plan (FRP):

When judges impose monetary fines or restitution as a part of the sentence, administrators in prison will want to collect. The counselor, case manager, or unit manager will try to enroll the person in a Financial Responsibility Plan (FRP). It's a "voluntary" program, with strings attached. If the person does not participate in the FRP, administrators will withhold privileges. For example, by not participating, counselors may deny the person access to commissary, the telephone, or visiting.

Participating in the FRP plan requires the person to maintain a balance of funds in the prison commissary account. Payments toward FRP will come out automatically, on a specified date. If the person does not have funds available, sanctions will follow.

Administrators will compute payments in accordance with the amount of money that passes through the commissary account over a six-month period. To avoid hassles associated with the FRP program, the defendant may make a request during the sentencing hearing. Some judges will agree to suspend any monetary payments until after the person is released from prison. Another option would be to ask the judge to set FRP payments at a fixed amount during sentencing. Otherwise, prison officials may order the person to make burdensome monetary payments that make life more difficult in prison.

Ordinarily, the minimum payment to participate in an FRP program is $25 per quarter. But some people pay more than $1,000 per month toward the FRP. High payments can be a burden on both families and on the person serving time.

Requesting Specific Institutions:

During the sentencing hearing, the person may request to serve his sentence in a specific institution. Later in this chapter we'll describe different security levels. If a defendant is serving a sentence that will require more than 10 years of imprisonment, or if there are other factors involved, the person will have to serve his sentence in a low-security prison or higher. A person should understand security levels as well as the custody-and-classification system before asking for a specific institution.

To the extent possible, the person should also learn as much as possible about program availability in specific institutions. As a result of our consulting work, our team has a wide network of contacts with people that are serving sentences in the Bureau of Prisons. We gather information about specific prisons, and programs in specific prisons. Then we make the information available through ResilentCourses.com.

Some judges will agree to recommend a specific institution. In the federal system, judges sentence a defendant "to the custody of the attorney general." That means the person is being transferred from the judicial branch of government to the executive branch of government. The attorney general oversees the Bureau of Prisons, and the Bureau of Prisons has ultimate discretion on where a person serves the sentence. Although a defendant may request a specific institution, and the judge may recommend a specific institution, the Bureau of Prisons is not bound to follow the judge's recommendation.

For that reason, a person should understand more about the prison-designation process. Then, the person should work closely with counsel. To increase the chances of getting to the best prison, the attorney should think strategically when framing the request.

As an example of a request that went wrong, we offer the story of Andrew. A federal judge sentenced Andrew to serve 15 months in prison. At the sentencing hearing, the attorney requested the judge to recommend that Andrew serve his sentence at the Lompoc Federal Prison Camp. The judge agreed. Yet when Andrew received his letter of designation, he learned that the Federal Bureau of Prisons ordered him to serve his term at a federal detention center.

Andrew had a valid reason for wanting to serve his sentence at the federal prison camp in Lompoc. Yet his attorney failed to ask the sentencing judge to cite those reasons on his Statement of Reasons. As a result, the BOP did not place the appropriate weight to the judge's recommendation.

The more people know about the custody, classification, and designation process, the more effective they may be in getting to the best possible prison, given personal circumstances.

Prison Classifications—The Different Levels:

For the full chapter, visit PrisonProfessors.com. Or send an email to [email protected]

In most cases, after a person enters a guilty plea, or after a jury finds a person guilty, the judge sets a sentencing date. Those sentencing dates may be extended if the person is cooperating with authorities. Sometimes a person doesn’t get sentenced for several years after the guilty plea. In most cases, a person will face a sentencing hearing within a few months of pleading guilty. On the other hand, our team has worked with clients that waited 10 years before they had resolution. They committed a crime, faced civil proceedings, waited through criminal proceedings, cooperated with authorities. From the time of the crime, and the time the sentence was imposed, 10 years passed. Every case is different.

To prepare for sentencing, the defense attorney will prepare a memorandum. That memorandum will summarize the defendant’s conduct, include points of law, and offer reasons why the defendant deserves leniency. The prosecutor will submit a memorandum. In most cases, the prosecutor will argue for a harsher sentence.

In earlier chapters, we’ve emphasized the importance of engineering a sentence-mitigation strategy. For reasons described earlier, our team recommends a three- or four-pronged approach that includes:

1. A first-person sentencing narrative,
2. A character-letter writing campaign, and if resources permit,
3. A sentencing video,
4. A comprehensive sentence-mitigation plan.

By investing the time and energy to prepare, the person can help the judge get a better understanding of what happened. In addition to the four-pronged sentence-mitigation strategy, the person should also consider speaking at sentencing. Every defendant has a right to speak during the “allocution” phase, but not every defendant chooses to speak.

Why?

Sometimes, defense attorneys discourage defendants from speaking. By nature, defense attorneys are risk averse. They may have worked very hard preparing elaborate arguments. An emotional defendant may undermine the defense attorney’s arguments by minimizing responsibility. Some defendants can talk themselves into a harsher sentence. A well-prepared defendant, on the other hand, can be his best advocate during allocution.

Judges have told members of our team that they want to know as much as possible about the defendant before sentencing. Too often, defendants squander the opportunity to make a persuasive plea for mercy at sentencing. They may talk about how they’re going to miss their family and how they’ve been going to church. Every defendant will miss his family. Going to church may or may not be relevant to the judge.

Defendant’s advance their pursuit of mercy when they convince the judge that they understand the gravity of their crime and the impact the crime has had on society. Judges want to know defendants have introspected, and a well-prepared defendant can make that case during allocution. In earlier chapters, we’ve addressed our thoughts on how a defendant should prepare for the sentencing hearing. The videos that we include with our course also provide tips to prepare.

What Happens at the Sentencing Hearing?

At the sentencing hearing, the defense attorney, the prosecuting attorney, and possibly the probation officer will take turns arguing their issues regarding the presentence investigation report. Sometimes, the prosecutors will call upon victims of the crime to have their say. And the person being sentenced may call upon character witnesses, too.

At some point, the prosecutor may request a specific sentence. The defense attorney will argue that the sentence should be less than what the prosecutor recommends. If a person chooses to make a statement, it will usually be after the attorneys and other witnesses have had their say.

We’re convinced that acceptance of responsibility and an expression of remorse is a better strategy than standing stone-faced before a sentencing judge. Eloquence or flowery prose is not nearly as important as sincerity. People being sentenced should know that judges are not gullible or soft. By being truthful and unpretentious, a person can advance prospects for mercy.

After Sentencing:

Once the judge imposes sentence, defendants may ask the judge to rule on collateral matters.  Those being sentenced to federal prison may ask the judge to resolve three matters:

1. Payment schedules for monetary penalties associated with the sentence;
2. A recommendation for a particular institution;
3. Those with sentences of less than 10 years may request time to get their affairs in order and report to prison voluntarily.

Payment Schedules and the Financial Responsibility Plan (FRP):

When judges impose monetary fines or restitution as a part of the sentence, administrators in prison will want to collect. The counselor, case manager, or unit manager will try to enroll the person in a Financial Responsibility Plan (FRP). It’s a “voluntary” program, with strings attached. If the person does not participate in the FRP, administrators will withhold privileges. For example, by not participating, counselors may deny the person access to commissary, the telephone, or visiting.

Participating in the FRP plan requires the person to maintain a balance of funds in the prison commissary account. Payments toward FRP will come out automatically, on a specified date. If the person does not have funds available, sanctions will follow.

Administrators will compute payments in accordance with the amount of money that passes through the commissary account over a six-month period. To avoid hassles associated with the FRP program, the defendant may make a request during the sentencing hearing. Some judges will agree to suspend any monetary payments until after the person is released from prison. Another option would be to ask the judge to set FRP payments at a fixed amount during sentencing. Otherwise, prison officials may order the person to make burdensome monetary payments that make life more difficult in prison.

Ordinarily, the minimum payment to participate in an FRP program is $25 per quarter. But some people pay more than $1,000 per month toward the FRP. High payments can be a burden on both families and on the person serving time.

Requesting Specific Institutions:

During the sentencing hearing, the person may request to serve his sentence in a specific institution. Later in this chapter we’ll describe different security levels. If a defendant is serving a sentence that will require more than 10 years of imprisonment, or if there are other factors involved, the person will have to serve his sentence in a low-security prison or higher. A person should understand security levels as well as the custody-and-classification system before asking for a specific institution.

To the extent possible, the person should also learn as much as possible about program availability in specific institutions. As a result of our consulting work, our team has a wide network of contacts with people that are serving sentences in the Bureau of Prisons. We gather information about specific prisons, and programs in specific prisons. Then we make the information available through ResilentCourses.com.

Some judges will agree to recommend a specific institution. In the federal system, judges sentence a defendant “to the custody of the attorney general.”  That means the person is being transferred from the judicial branch of government to the executive branch of government. The attorney general oversees the Bureau of Prisons, and the Bureau of Prisons has ultimate discretion on where a person serves the sentence. Although a defendant may request a specific institution, and the judge may recommend a specific institution, the Bureau of Prisons is not bound to follow the judge’s recommendation.

For that reason, a person should understand more about the prison-designation process. Then, the person should work closely with counsel. To increase the chances of getting to the best prison, the attorney should think strategically when framing the request.

As an example of a request that went wrong, we offer the story of Andrew. A federal judge sentenced Andrew to serve 15 months in prison. At the sentencing hearing, the attorney requested the judge to recommend that Andrew serve his sentence at the Lompoc Federal Prison Camp. The judge agreed. Yet when Andrew received his letter of designation, he learned that the Federal Bureau of Prisons ordered him to serve his term at a federal detention center.

Andrew had a valid reason for wanting to serve his sentence at the federal prison camp in Lompoc. Yet his attorney failed to ask the sentencing judge to cite those reasons on his Statement of Reasons. As a result, the BOP did not place the appropriate weight to the judge’s recommendation.

The more people know about the custody, classification, and designation process, the more effective they may be in getting to the best possible prison, given personal circumstances.

Prison Classifications—The Different Levels:

For the full chapter, visit PrisonProfessors.com. Or send an email to [email protected]

In the previous chapter we discussed the structure of PSR reports and how a Statement of Reasons can help some people overcome problematic PSRs. Probation officers prepare the PSR specifically for the sentencing judge. But the PSR follows the person all the way through the journey.

In fact, our team would argue that the PSR has a bigger influence after the sentence is imposed. After all, a judge likely knows a great deal about the case. If a defendant engineered an effective sentence-mitigation strategy, as we described in chapter six of this program, the judge will also know a great deal about the person and the influences that led him into the problem. Further, an attorney will likely be there to advocate on the person's behalf.

After the judge imposes the sentence, on the other hand, the defendant will not have an attorney. He will need to advocate on his own behalf. And the PSR will be an essential tool. If the person worked intelligently by engineering an effective sentence-mitigation strategy, he may succeed in getting a more favorable journey through prison. On the other hand, if the PSR is inaccurate, the person may have a harder time overcoming hurdles in prison—when a defense attorney will not be available to help.

For these reasons, we encourage people to review the PSR carefully. Again, this is a critical responsibility. Some factors the offender must especially be concerned about include whether the PSR inaccurately reflects that the offender was a "leader" in the criminal offense.

Any reference to the word "leader" or "organizer" may result in the offender being treated more severely by prison administrators. If the PSR suggests or identifies the offender as being a leader, and the offender believes such an accusation to be inappropriate, then it is in his best interest to address this problem. Impress upon the attorney to work to correct the inaccuracy in the PSR.

Rather than ordering the probation officer to amend the PSR, the judge may correct the inaccuracy on the Statement of Reasons. Prison officials cannot ignore the Statement of Reasons. And a person in prison may be able to rely upon the statement to clear matters up through administrative remedy—which we describe in a later chapter.

Drug Offenders:

Drug offenders should review the quantity of drugs the PSR attributes to them. Frequently, people played relatively minor roles in drug distribution networks, but the PSR may insinuate greater responsibility. If it suggests that the offender was responsible for all the drugs involved in a large conspiracy, prison officials may take the conservative approach and classify him more harshly.

If the PSR suggests a person is responsible for large quantities of drugs, he may be sent to a higher-security prison. He may be ineligible for camp placement. When it comes time for halfway house or home confinement, administrators may deny him. For these reasons, people should do their best to get a PSR that accurately reflects culpability. And if the probation officer will not make the adjustment, the prisoner should work with counsel to get specific language in the Statement of Reasons at sentencing.

Violence in PSR:

Besides leadership roles and high drug quantities, we've seen other significant problems with inaccurate PSR reports. For example, if the PSR alludes to violence, use of weapons, or ties to organized crime, prison officials will classify the person more harshly.

We've heard of attorneys that mislead their clients. They diminish the relevance of the PSR, saying the judge already knows what he is going to do. Such advice may reflect the attorney's eagerness to conclude his representation in the case and move on to new matters. A judge may have an idea of the sentence that he is going to impose, but the PSR has more lasting ramifications on a person going to prison.

An inaccurate PSR report may result in a prisoner serving his sentence in a harsher environment and it may deprive him of access to special programs. Some offenders serve more time in prison than necessary because of inaccurate PSR reports. Once the report is submitted to the BOP, making an amendment to it is—for all practical purposes—unlikely.

Influence the Process:

The best time to influence possibilities for an accurate PSR is before the investigation takes place. In chapter six, we discussed the importance of engineering a sentence-mitigation plan. A best-case scenario would be to present the probation officer with a well-thought-out sentencing narrative (that counsel has approved) during the investigation.

When the probation officer asks the offender what he has to say about his role in the office, the offender may respond:

I knew that I was going to be nervous when I got here. For that reason, I've taken the time to write out a document. Please review this document and incorporate as much as possible into your report. I'll be submitting it, through counsel, to my judge at sentencing.

We've seen probation officers cut-and-paste entire portions of the defendant's statement into the PSR. Provide the probation officer with a written copy, and perhaps a digital version as well. Make it as easy as possible. By influencing the PSR, the person advances possibilities to advocate for himself while he is inside the BOP.

On the other hand, if the person receives an inaccurate report, ask counsel to work earnestly to correct inaccuracies as early as possible. If the probation officer refuses to amend the PSR, then the next best time to object is at sentencing. The offender should request the sentencing judge to order the necessary corrections. If that opportunity passes, the offender may be stuck with the inaccuracies for the duration of his sentence.

As discussed previously, all is not lost, so long as the judge agrees to clarify judicial findings in the Statement of Reasons. The BOP will consider those judicial remarks if they differ from the PSR.

Offenders who do not take the time to understand the significance of the PSR frequently encounter problems that could have been avoided. Even if errors were made in the initial draft, the offender must not underestimate the importance of having all errors corrected and ensuring that the court orders the erroneous report destroyed.

People that have more financial resources might consider hiring a post-conviction or sentencing specialist. Get advice on all issues regarding PSR reports. Sometimes, it makes sense to hire a retired probation officer, or sentencing expert, to draft a mock report. The defense attorneys may submit the report, along with the expert's credentials, for the judge to consider. A person should make every possible effort to ensure that he is portrayed accurately and in a favorable way, not only for the sentencing judge, but also for prison authorities.

Examples:

Raymond:

Raymond, an offender who was convicted of conspiracy to distribute cocaine, played a minor role in his offense. He allowed others to use his telephone to facilitate their drug transactions. Raymond was not privy to the quantity of drugs being sold, nor to the number of transactions that took place over his telephone line. Yet the PSR report indicated over 20 kilograms of cocaine were sold and that all conspirators, including, Raymond, were equally culpable.

The sentencing judge had listened to all the testimony at trial. He knew that Raymond was a minor player in the conspiracy. He found Raymond less culpable than the others and gave him a downward departure from the sentencing guidelines because of his minor role.

The judge did not, however, order an amendment of the PSR. As a result, case managers in the BOP used the PSR to classify him. As a result of the inaccuracy, they deemed him a "serious offender," meaning he could not get camp placement. Raymond tried to get the judge to amend the PSR several times while he served the term. But the judge ruled the matter moot because Raymond received the downward departure at sentencing, and he refused to make any further adjustments.

Neither Raymond nor his attorney appreciated the significance of his PSR prior to sentencing. At sentencing, the attorney persuaded the judge that the PSR inaccurately portrayed Raymond as an equal participant in the conspiracy. Yet he didn't attempt to change the PSR itself. Accordingly, Raymond was sentenced appropriately, but he served his term in more severe conditions than other similarly situated offenders because his PSR was inaccurate.

Raymond showed his case manager the sentencing transcripts. The judge clearly ruled that Raymond was less culpable than the others and sentenced him accordingly. The case manager, however, said the PSR governed all classification decisions.

Again, this is a situation where the judge could have clarified Raymond's culpability in the Statement of Reasons. Since he did not have that clarity, he served a harsher sentence.

Carlos:

Carlos owned a small chain of retail stores in New Jersey. He was convicted of tax evasion and sentenced to serve four years in prison. When interviewed during the presentence investigation, the probation officer asked Carlos whether he had any problems with substance abuse. Thinking that admitting to any form of substance abuse would result in an unfavorable impression, Carlos told the probation officer that he did not abuse drugs.

In fact, Carlos smoked marijuana occasionally for fifteen years. He drank alcohol regularly, sometimes until he blacked out. Had he admitted this substance abuse to the probation officer, his PSR would have reflected Carlos' experience with controlled substances, including alcohol. Instead, the PSR stated what Carlos indicated during the investigation: no history of substance abuse.

When Carlos began serving his sentence, he learned about the drug treatment programs. He also learned that nonviolent offenders who completed the 500-hour program successfully could get out of prison earlier. Carlos wanted to apply for the program. He approached the psychologist who administered the drug treatment program for an interview.

When the psychologist read Carlos' PSR, she noted no indication of substance abuse. She told Carlos that he would not be eligible for any time off his sentence because there wasn't any prior history of substance abuse. Carlos explained that he had used marijuana for 15 years. He didn't admit his drug use to the probation officer, he said, because he didn't want to make a bad impression.

The psychologist expressed sympathy. Yet without documentation of prior substance abuse, he didn't qualify for the program. She told him that she needed some type of documentation before she could admit him. As a result of his not preparing in advance of his meeting with the probation officer, Carlos had a harder time.

Randall:

Randall is a 64-year old medical doctor. For the past 30 years he operated a cardiology practice. Randall was sentenced to serve 36-months for violating the laws pertaining to health care. Randall's PSR confirmed that he held an undergraduate degree from Columbia University and a medical degree from Cornell. It did not verify that he graduated from high school.

During his first week in prison, administrators ordered Randall to the education department. The teacher told Randall that he had to participate in a GED class. Randall said such a request was silly, as he has practiced as a physician for over 30 years. The BOP staff member said, "That doesn't mean anything. A lot of people have advanced degrees but don't have a GED. We require all our prisoners who lack a high school diploma to participate in the GED program."

Randall thought the order absurd and told the teacher that he would show her his PSR, which verified his educational credentials. The teacher said she was not interested in reading about those credentials. Since the report did not indicate that Randall had a GED, the teacher was requiring him to participate in the class. Randall refused and was promptly taken to segregation for refusing an order. He also was sanctioned with loss of commissary.

Rich:

Problems with attorneys not wanting to introduce defendant statements in psr.

Final Word:

To avoid the type of problems that make confinement more difficult, do everything possible to get an accurate PSR. Raymond, Carlos, Randall, Rich, and many other federal prisoners struggle through harsher conditions because they didn't fully understand the importance of a PSR.

To get a more complete understanding of the PSR, it may make sense to read Rule 32 of the Federal Rules of Criminal Procedure (or the equivalent rule in a state system) to grasp the intended purpose of the presentence investigation.

In the previous chapter we discussed the structure of PSR reports and how a Statement of Reasons can help some people overcome problematic PSRs. Probation officers prepare the PSR specifically for the sentencing judge. But the PSR follows the person all the way through the journey.

In fact, our team would argue that the PSR has a bigger influence after the sentence is imposed. After all, a judge likely knows a great deal about the case. If a defendant engineered an effective sentence-mitigation strategy, as we described in chapter six of this program, the judge will also know a great deal about the person and the influences that led him into the problem. Further, an attorney will likely be there to advocate on the person’s behalf.

After the judge imposes the sentence, on the other hand, the defendant will not have an attorney. He will need to advocate on his own behalf. And the PSR will be an essential tool. If the person worked intelligently by engineering an effective sentence-mitigation strategy, he may succeed in getting a more favorable journey through prison. On the other hand, if the PSR is inaccurate, the person may have a harder time overcoming hurdles in prison—when a defense attorney will not be available to help.

For these reasons, we encourage people to review the PSR carefully.  Again, this is a critical responsibility. Some factors the offender must especially be concerned about include whether the PSR inaccurately reflects that the offender was a "leader" in the criminal offense.

Any reference to the word "leader" or "organizer" may result in the offender being treated more severely by prison administrators.  If the PSR suggests or identifies the offender as being a leader, and the offender believes such an accusation to be inappropriate, then it is in his best interest to address this problem. Impress upon the attorney to work to correct the inaccuracy in the PSR.

Rather than ordering the probation officer to amend the PSR, the judge may correct the inaccuracy on the Statement of Reasons. Prison officials cannot ignore the Statement of Reasons. And a person in prison may be able to rely upon the statement to clear matters up through administrative remedy—which we describe in a later chapter.

Drug Offenders:

Drug offenders should review the quantity of drugs the PSR attributes to them. Frequently, people played relatively minor roles in drug distribution networks, but the PSR may insinuate greater responsibility. If it suggests that the offender was responsible for all the drugs involved in a large conspiracy, prison officials may take the conservative approach and classify him more harshly.

If the PSR suggests a person is responsible for large quantities of drugs, he may be sent to a higher-security prison. He may be ineligible for camp placement. When it comes time for halfway house or home confinement, administrators may deny him. For these reasons, people should do their best to get a PSR that accurately reflects culpability. And if the probation officer will not make the adjustment, the prisoner should work with counsel to get specific language in the Statement of Reasons at sentencing.

Violence in PSR:

Besides leadership roles and high drug quantities, we’ve seen other significant problems with inaccurate PSR reports. For example, if the PSR alludes to violence, use of weapons, or ties to organized crime, prison officials will classify the person more harshly.

We’ve heard of attorneys that mislead their clients. They diminish the relevance of the PSR, saying the judge already knows what he is going to do. Such advice may reflect the attorney's eagerness to conclude his representation in the case and move on to new matters. A judge may have an idea of the sentence that he is going to impose, but the PSR has more lasting ramifications on a person going to prison.

An inaccurate PSR report may result in a prisoner serving his sentence in a harsher environment and it may deprive him of access to special programs. Some offenders serve more time in prison than necessary because of inaccurate PSR reports. Once the report is submitted to the BOP, making an amendment to it is—for all practical purposes—unlikely.

Influence the Process:

The best time to influence possibilities for an accurate PSR is before the investigation takes place. In chapter six, we discussed the importance of engineering a sentence-mitigation plan. A best-case scenario would be to present the probation officer with a well-thought-out sentencing narrative (that counsel has approved) during the investigation.

When the probation officer asks the offender what he has to say about his role in the office, the offender may respond:

I knew that I was going to be nervous when I got here. For that reason, I’ve taken the time to write out a document. Please review this document and incorporate as much as possible into your report. I’ll be submitting it, through counsel, to my judge at sentencing.

We’ve seen probation officers cut-and-paste entire portions of the defendant’s statement into the PSR. Provide the probation officer with a written copy, and perhaps a digital version as well. Make it as easy as possible. By influencing the PSR, the person advances possibilities to advocate for himself while he is inside the BOP.

On the other hand, if the person receives an inaccurate report, ask counsel to work earnestly to correct inaccuracies as early as possible. If the probation officer refuses to amend the PSR, then the next best time to object is at sentencing. The offender should request the sentencing judge to order the necessary corrections. If that opportunity passes, the offender may be stuck with the inaccuracies for the duration of his sentence.

As discussed previously, all is not lost, so long as the judge agrees to clarify judicial findings in the Statement of Reasons. The BOP will consider those judicial remarks if they differ from the PSR.

Offenders who do not take the time to understand the significance of the PSR frequently encounter problems that could have been avoided. Even if errors were made in the initial draft, the offender must not underestimate the importance of having all errors corrected and ensuring that the court orders the erroneous report destroyed.

People that have more financial resources might consider hiring a post-conviction or sentencing specialist. Get advice on all issues regarding PSR reports. Sometimes, it makes sense to hire a retired probation officer, or sentencing expert, to draft a mock report. The defense attorneys may submit the report, along with the expert’s credentials, for the judge to consider. A person should make every possible effort to ensure that he is portrayed accurately and in a favorable way, not only for the sentencing judge, but also for prison authorities.

Examples:

Raymond:

Raymond, an offender who was convicted of conspiracy to distribute cocaine, played a minor role in his offense.  He allowed others to use his telephone to facilitate their drug transactions. Raymond was not privy to the quantity of drugs being sold, nor to the number of transactions that took place over his telephone line. Yet the PSR report indicated over 20 kilograms of cocaine were sold and that all conspirators, including, Raymond, were equally culpable.

The sentencing judge had listened to all the testimony at trial. He knew that Raymond was a minor player in the conspiracy. He found Raymond less culpable than the others and gave him a downward departure from the sentencing guidelines because of his minor role.

The judge did not, however, order an amendment of the PSR. As a result, case managers in the BOP used the PSR to classify him. As a result of the inaccuracy, they deemed him a “serious offender,” meaning he could not get camp placement. Raymond tried to get the judge to amend the PSR several times while he served the term. But the judge ruled the matter moot because Raymond received the downward departure at sentencing, and he refused to make any further adjustments.

Neither Raymond nor his attorney appreciated the significance of his PSR prior to sentencing. At sentencing, the attorney persuaded the judge that the PSR inaccurately portrayed Raymond as an equal participant in the conspiracy. Yet he didn’t attempt to change the PSR itself. Accordingly, Raymond was sentenced appropriately, but he served his term in more severe conditions than other similarly situated offenders because his PSR was inaccurate.

Raymond showed his case manager the sentencing transcripts. The judge clearly ruled that Raymond was less culpable than the others and sentenced him accordingly. The case manager, however, said the PSR governed all classification decisions.

Again, this is a situation where the judge could have clarified Raymond’s culpability in the Statement of Reasons. Since he did not have that clarity, he served a harsher sentence.

Carlos:

Carlos owned a small chain of retail stores in New Jersey. He was convicted of tax evasion and sentenced to serve four years in prison. When interviewed during the presentence investigation, the probation officer asked Carlos whether he had any problems with substance abuse. Thinking that admitting to any form of substance abuse would result in an unfavorable impression, Carlos told the probation officer that he did not abuse drugs.

In fact, Carlos smoked marijuana occasionally for fifteen years. He drank alcohol regularly, sometimes until he blacked out. Had he admitted this substance abuse to the probation officer, his PSR would have reflected Carlos' experience with controlled substances, including alcohol. Instead, the PSR stated what Carlos indicated during the investigation: no history of substance abuse.

When Carlos began serving his sentence, he learned about the drug treatment programs. He also learned that nonviolent offenders who completed the 500-hour program successfully could get out of prison earlier. Carlos wanted to apply for the program.  He approached the psychologist who administered the drug treatment program for an interview.

When the psychologist read Carlos' PSR, she noted no indication of substance abuse. She told Carlos that he would not be eligible for any time off his sentence because there wasn’t any prior history of substance abuse. Carlos explained that he had used marijuana for 15 years. He didn't admit his drug use to the probation officer, he said, because he didn’t want to make a bad impression.

The psychologist expressed sympathy. Yet without documentation of prior substance abuse, he didn’t qualify for the program. She told him that she needed some type of documentation before she could admit him. As a result of his not preparing in advance of his meeting with the probation officer, Carlos had a harder time.

Randall:

Randall is a 64-year old medical doctor. For the past 30 years he operated a cardiology practice.  Randall was sentenced to serve 36-months for violating the laws pertaining to health care. Randall's PSR confirmed that he held an undergraduate degree from Columbia University and a medical degree from Cornell.  It did not verify that he graduated from high school.

During his first week in prison, administrators ordered Randall to the education department. The teacher told Randall that he had to participate in a GED class. Randall said such a request was silly, as he has practiced as a physician for over 30 years. The BOP staff member said, "That doesn't mean anything. A lot of people have advanced degrees but don't have a GED. We require all our prisoners who lack a high school diploma to participate in the GED program."

Randall thought the order absurd and told the teacher that he would show her his PSR, which verified his educational credentials.  The teacher said she was not interested in reading about those credentials. Since the report did not indicate that Randall had a GED, the teacher was requiring him to participate in the class. Randall refused and was promptly taken to segregation for refusing an order. He also was sanctioned with loss of commissary.

Rich:

Problems with attorneys not wanting to introduce defendant statements in psr.

Final Word:

To avoid the type of problems that make confinement more difficult, do everything possible to get an accurate PSR. Raymond, Carlos, Randall, Rich, and many other federal prisoners struggle through harsher conditions because they didn’t fully understand the importance of a PSR.

To get a more complete understanding of the PSR, it may make sense to read Rule 32 of the Federal Rules of Criminal Procedure (or the equivalent rule in a state system) to grasp the intended purpose of the presentence investigation.

What Should I Know About the Pre-sentence Investigation Report?

After a person pleads guilty or is found guilty, the presentence investigation will be the next step. For more details, check out Rule 32 of the U.S. Rules of Criminal Procedure in the federal system. Each state system has a similar rule in the book of criminal procedure.

In federal cases, probation officers conduct these investigations to help sentencing judges and others evaluate the background of the person. The investigation culminates with an all-important presentence investigation report (PSI or PSR—used interchangeably). The report will include recommendations, based on guidelines and the probation officer's opinion. Sentencing judges will consider recommendations from the PSR when imposing sentence.

Besides the importance of the PSR for sentencing, people should pay close attention to the process because the report also will play a significant role in the person's life if he is sentenced to prison. Information in the PSR influences how authorities classify the prisoner, when he will be released, and what level of liberty he will have after he gets out of prison.

To preserve rights and to self-advocate once inside, it's crucial to understand everything about the presentence investigation before it begins. Best-practice preparations require a person to invest the time and energy to understand the process well before the sentencing hearing, or even the investigation begins.

If a defense attorney fails to stress the importance of the PSR, be wary. In prison, the PSR will be the main document administrators will use to make assessments, especially at the start of the journey.

• Case managerswill use the document to consider the severity of the offense;
• Counselors will use the document to determine who can visit the offender;
• Educational administrators will use the PSR to determine whether the prisoner is required to participate in programs;
• Psychologists will turn to the PSR to see whether the individual is eligible for beneficial programs; and
• Medical personnel will turn to the PSR to determine whether the prisoner merits medical attention

Once the court accepts the PSR, it will follow the person until his journey concludes. If there are errors in the PSR, and the probation officer refuses to make adjustments, then it's absolutely critical to ask the judge to address these errors in the Statement of Reasons, which we'll describe below.

Beginning the Investigation:

The probation officer assigned to the case will begin the investigation by becoming familiar with the government's version of the offense. Then, the probation officer will schedule a face-to-face. The meeting may take place at the person's home, in the probation office, over the phone, or in the facility holding the person if he's in custody. Prior to the meeting, the probation officer will have insight on the case from the prosecutor and the investigators. The purpose of the meeting is to collect information from the person being investigated, if he's willing to offer it.

The probation officer will ask the person what he has to say about the offense. He'll also ask about the offender's personal background. Among other things, the probation officer will ask about:

• Family history,
• Education,
• Criminal background,
• Employment history,
• Substance-abuse background,
• Medical condition, and
• Financial status.

Anyone going through a PSR investigation should remember probation officers are law-enforcement officers. If the probation officer believes the person lied, or provided misleading information, or if he believes the offender tried to influence others inappropriately, the probation officer may make things worse. The probation officer could charge the offender with obstruction of justice if he believed the offender tried to interfere with, manipulate, or subvert his investigation. With such a recommendation, the judge may add additional time to a defendant's sentence.

Probation officers have huge caseloads and it may feel as if they're cynical. The investigator will interview the offender's family members, check the offender's school records, and obtain official records of the offender's previous legal problems. The probation officer also will speak with previous employers, check with creditors, and search for information to verify the offender's statements about his medical condition.

A person may reserve his right to remain silent during the investigation. But if he chooses to communicate, he should understand that any lies or attempts to mislead the probation officer could result in a longer or more severe sentence. We recommend honesty and good preparation before the PSR interview.

Some people refuse to provide any information to the probation officer. They may have valid reasons for wanting to remain silent. But if the person doesn't participate in the PSR investigation, the probation officer's writing will only reflect the government's version of events.

Appellate strategy may influence a person's strategy. He may choose not to answer questions about the offense. If that is the case, the offender should be courteous, explaining that for appellate reasons, he cannot discuss the case. He may want to cooperate with the investigation in ways that will not jeopardize his rights.

We recommend that unless the offender has good reason, he ought to cooperate with the investigation. In fact, we urge defendants to prepare the sentence-mitigation strategy long before the PSR interview, and to provide as much documentation as possible to the probation officer. By giving the officer the personal narrative, the person makes the probation officer's job easier. He may cut and paste entire paragraphs or pages into the report. This strategy allows the person to influence a document that will prove enormously influential while the person serves his sentence.

The PSR will influence administrators that the prisoner may never meet. For example, when making the initial classification of where a person serves the sentence, administrators will rely upon the PSR. Others will use the PSR to determine who can visit. On top of all that, the PSR will include information that determines whether the person gets a lower-bunk pass, qualifies to participate in beneficial programs, and for other crucial issues that can influence release dates.

Once inside prison, a Unit Team will meet with the prisoner. Administrators on the team—case managers and counselors—will consider the PSR and the record a person accumulates during his confinement.

For those reasons, prior to going inside, people should invest time to understand the myriad ways a PSR will influence the prison term. Then he can make a more competent decision on whether to provide more, rather than less information.

Those who've pled guilty should understand that the probation officer has the authority to recommend a significant downward adjustment from the sentencing guidelines. If the person convinces the officer that he provided a full and candid description of his criminal actions and demonstrates genuine remorse for his criminal behavior, the officer may recommend that the person gets credit for "acceptance of responsibility."

The probation officer's recommendation in the PSR isn't binding on the judge, but it is influential. In our experience, people that express remorse for their actions help themselves. If they can persuade the court that their criminal behavior was an aberration rather than a pattern of behavior or a criminal lifestyle, they usually receive lower sentences than those who refuse to cooperate with the presentence investigation. Likewise, those who choose to exercise their rights to silence may be portrayed as unremorseful. Judges would likely take a lack of remorse into consideration at sentencing.

The PSR Report Itself:

Once the officer finishes the investigation, court rules require him to write his complete report "in a non-argumentative style." After describing the details of the offense and other identifying data, a model PSR from the Southern District of New York contains headings as follows.

Offense Conduct:

In this section, the probation officer writes the government's version of events and may describe discrepancies that the offender wanted inserted in the document.

Victim Impact Statement:

If the crime had an identifiable victim, the probation officer may give the victim an opportunity to describe how the offense impacted him (or her).

Defendants' Participation:

If the offender was convicted along with others in the offense, the probation officer may detail the conduct of each defendant in the case under this heading. This can be prejudicial, because some participants may be much more culpable than others.

Offenders ought to ask the attorney to challenge any information that suggests or insinuates that he participated in the same behavior of others if he did not. Prison staff members who evaluate an offender may not make any distinction between participants. If the PSR indicates that one member of the offense was violent and predatory in nature, that information may have a material influence on all members of the offense as far as prison classifications are concerned.

Obstruction of Justice Adjustment:

If the person obstructed justice in any way, the probation officer may recommend a sentencing enhancement. Examples of obstruction of justice include when an offender tries to influence what others will say during a government investigation. If the offender calls an individual and says, "Don't talk, or else...." the officer may charge the individual with obstruction of justice and with threatening violence. If so, prison administrators may characterize the offender as being violent in nature, which will prohibit participation in certain beneficial programs.

Acceptance of Responsibility Adjustment:

If the offender is candid about his responsibility, the probation officer may recommend a downward departure from sentencing guidelines. The level of the downward departure will depend upon when the offender accepted responsibility. People that plead guilty early in the criminal justice procedure receive the largest downward departures for acceptance of responsibility. It's a reward for saving the government the time and expense of preparing for trial.

Those who proceeded through trial will have a higher burden to meet in order to receive this benefit. But going to trial does not necessarily preclude a person from receiving this sentencing adjustment. Remember, the judge has discretion, and it's important to build an influential case on why you're worthy of mercy. Acceptance of responsibility can weigh heavily on the judge's decision to grant mercy.

Offense Level Computation:

Criminal statutes and guidelines influence this objective score. Offenders may read about these scores by studying the U.S. Sentencing Guidelines Manual which is available in all federal prison law libraries. Those who do not have access to prison law libraries may review online or order the book from a bookstore. Guideline manuals may be too complicated to read for those that do not have a legal background. Our courses at ResilienceCourses.com offer some video tutorials.

Criminal History:

This information comes from past criminal convictions. Points are assigned to those who have been convicted for other offenses, and each prior conviction counts against the score. Chapter Four of the U.S. Sentencing Guidelines Manual explains how probation officers count the points.

Offender Characteristics:

Probation officers use this section to describe what he learned about the offender through his presentence investigation. It's a subjective description. The offender's family responsibilities also will be discussed as well as the offender's community ties.

If the offender engineered a sentence-mitigation strategy earlier, he may want to share his personal narrative during the PSR interview. Probation officers may cut and paste parts of the narrative into this section. That strategy can prove extremely useful to the person as he goes through the system, both in sentencing and while in prison.

Substance Abuse:

This section describes whether the person suffered from any substance abuse problems in the past. It is an extremely important section. In the federal prison, the BOP has authority to reduce a person's by as much as 12 months if the offender completes a 500-hour drug treatment program during his incarceration. To qualify for this year off, the BOP will require the offender to provide documentation that he suffered from substance-abuse prior to imprisonment, ideally, during the 12 months that preceded arrest.

The substance-abuse section of the PSR report is an excellent place to document a history of drug abuse or alcoholism that would benefit from treatment. During the PSR investigation, defendants that suffered from alcoholism or abused other drugs should report those experiences. If those reports meet certain criteria, the defendant may qualify for participation in a drug-treatment program. If he completes the program successfully, he may get out of prison earlier.

People that do not understand the PSR sometimes conceal their history of substance abuse. They mistakenly believe substance abuse of any kind will reflect badly on them at sentencing. Hiding a history of substance abuse may limit access to beneficial programs that could result in a sentence reduction.

Physical Condition:

Here the probation officer describes health problems or medical conditions. If the person suffers from a bad back, has weak knees, or any ailments that may have an impact on his ability to climb onto a top bunk or perform certain duties, he should detail those ailments. If the probation officer documents health conditions in the PSR, it may influence housing assignments.

If possible, it's helpful to get a letter from a physician and medical records. Good preparation includes documentation to support a medical condition. That documentation can help a prisoner self-advocate once his term of imprisonment begins. For example, a doctor's letter verifying a bad back or weak knees will help an offender secure a coveted lower-bunk pass. That pass can be a blessing for an individual who lacks the strength to climb onto a top bunk.

Education and VT Skills:

The probation officer will ask about education and credentials. To avoid complications, help the probation officer get the information necessary to confirm diplomas and degrees. Administrators in prison will require those that do not have a verified high school education to attend prison-sponsored GED courses for at least 240 hours. They will receive lower wages from their prison work details. Participation in GED classes may have an impact on an ability to earn good time or earned time.

Prison administrators frown upon prisoners who have extensive computer experience. If the PSR indicates that an individual has computer programming skills, administrators may deny that individual access to coveted clerical jobs by placing computer ban on his file. Administrative rules may deny camp placement for defendants that have crimes related to sophisticated computer programming and wireless networks.

Employment Record:

Probation officers will check with prior employers to obtain an evaluation of the person's work habits. A good work history may influence the sentencing judge. Also, an extensive work history may help a person advocate for himself if he is seeking a specific job in the prison.

Financial Condition:

Consider all financial liabilities and responsibilities when meeting with the probation officer who is preparing the report. Most criminal convictions result in monetary fines or restitution orders. All felony criminal convictions result in criminal-assessment fees. For some defendants, sentencing courts impose cost-of-confinement fees.

Sentencing judges may choose not to impose fines and cost-of-confinement fees if the person is incapable of paying. Judges are less forgiving when it comes to restitution. Laws may require judges to impose felony-assessment fees.

If the court imposes a monetary penalty, BOP staff members will demand monthly payments. They will consider any funds that pass through the offender's commissary account as being available for such payments. These charges can make life more difficult inside.

If a monetary sanction becomes part of a person's sentence, the offender's attorney ought to ask the judge to specify that the fine is not to be collected until after the offender's release from confinement. If the judge's commitment order specifies that the offender doesn't have to pay the monetary portion of the sanction until the person is released, the BOP will not be able to pressure the person for payments during confinement.

Sentencing Options:

The probation officer discusses options the judge may consider when imposing sentencing. The options are rather limited in that they only offer a monetary fine, probation, or incarceration in some form—either house arrest, a community confinement center, or imprisonment. Many crimes, particularly offenses related to the distribution of drugs, require mandatory-minimum sentences that preclude sanctions less than imprisonment. One can develop a better understanding of federal sentencing options by reading the most current edition of the very detailed Federal Sentencing Law And Practice by Thomas W. Hutchison, et al, and published by West Group.

Factors that May Warrant Departure:

In the federal system, judges must consider sentencing guidelines. The guidelines are not mandatory, but most judges use them as a starting point. If the judge chooses to depart from established guidelines for a specific offender, the judge must articulate his reasons during the sentencing hearing.

The probation officer will describe factors that may warrant either a downward or upward departure from the sentencing guidelines. The most common downward departure is when an offender cooperates with the government in the investigation and provides assistance in the prosecution of others. People that place the highest value on getting out of prison at the soonest possible time may choose to cooperate with prosecutors. Such decisions may influence where a person serves his time, and whether that person is ostracized by others in prison.

In rare instances, probation officers may recommend downward departures for other reasons. They may find that a person's situation is markedly different from others that were convicted of the same type of offense. It is a high burden, but in rare cases, people receive downward departures for issues other than cooperating in the prosecution of others.

Upward departures are more common. Judges issue sentences that are harsher than the guidelines when they're convinced that the sentencing guidelines do not reflect the seriousness of the offender's conduct.

The Completed PSR Report:

Following the completion of the PSR, the probation officer will deliver copies of the report to the prosecutor and the offender's attorney. Both parties will have time to review the document. If inaccuracies appear, each party will have an opportunity to object to the perceived errors. Once the objections are noted, the probation officer will determine whether the objections are valid. If so, changes to the PSR will follow.

If the probation officer refuses to make changes that either party wants, that party can bring the matter up with the sentencing judge. The judge will listen to both sides and each side may present evidence to bolster its position. After hearing the arguments, the judge will make a determination. Sometimes, though, the judge may sentence the offender according to his findings at the hearing, but not order changes to the written PSR.

Defense attorneys should be vigilant in efforts to get a PSR that accurately reflects the judge's findings. The BOP will use the PSR for classifications and to make other decisions, which can have a huge influence on how and where the person serves the sentence. If the judge chooses not to order the probation officer to correct a PSR, the defense attorney may ask the judge to make specific findings in the commitment order, and also in a Statement of Reasons for the sentence.

Statement of Reasons:

In addition to the PSR, the court will submit a Statement of Reasons to the Bureau of Prisons. See Title 28 United States Code Section 994(w)(1)(B), which tells us:

the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);

In February 2016, the Judicial Conference issued, and the Sentencing Commission approved, Form AE 245B. Section IB4 of the revised form tell us that:

"comments or factual findings concerning any information in the presentence report, including information that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation, or programming decisions."

The United States Sentencing Commission published a video at the following location that offers more insight into the Statement of Reasons:

• https://www.ussc.gov/education/videos/sentencing-and-guidelines-revised-statement-reasons-form

The Bureau of Prisons will review both the Statement of Reasons and the PSR when classifying a person. For that reason, attorneys should make a strong case to persuade the judge to put specific language in the Statement of Reasons that may help a person qualify for specific BOP programs. That Statement of Reasons could potentially influence an earlier release date. Program Statement 5322.13 requires the BOP to consider the Statement of Reasons when calculating each prisoner's security level. For that reason, some may argue that the Statement of Reasons may be an excellent remedy to overcome problems with an inaccurate PSR.

What Should I Know About the Pre-sentence Investigation Report?

After a person pleads guilty or is found guilty, the presentence investigation will be the next step. For more details, check out Rule 32 of the U.S. Rules of Criminal Procedure in the federal system. Each state system has a similar rule in the book of criminal procedure.

In federal cases, probation officers conduct these investigations to help sentencing judges and others evaluate the background of the person. The investigation culminates with an all-important presentence investigation report (PSI or PSR—used interchangeably). The report will include recommendations, based on guidelines and the probation officer’s opinion. Sentencing judges will consider recommendations from the PSR when imposing sentence.

Besides the importance of the PSR for sentencing, people should pay close attention to the process because the report also will play a significant role in the person’s life if he is sentenced to prison.  Information in the PSR influences how authorities classify the prisoner, when he will be released, and what level of liberty he will have after he gets out of prison.

To preserve rights and to self-advocate once inside, it’s crucial to understand everything about the presentence investigation before it begins. Best-practice preparations require a person to invest the time and energy to understand the process well before the sentencing hearing, or even the investigation begins.

If a defense attorney fails to stress the importance of the PSR, be wary. In prison, the PSR will be the main document administrators will use to make assessments, especially at the start of the journey.

• Case managerswill use the document to consider the severity of the offense;
• Counselors will use the document to determine who can visit the offender;
• Educational administrators will use the PSR to determine whether the prisoner is required to participate in programs;
• Psychologists will turn to the PSR to see whether the individual is eligible for beneficial programs; and
• Medical personnel will turn to the PSR to determine whether the prisoner merits medical attention

Once the court accepts the PSR, it will follow the person until his journey concludes. If there are errors in the PSR, and the probation officer refuses to make adjustments, then it’s absolutely critical to ask the judge to address these errors in the Statement of Reasons, which we’ll describe below.

Beginning the Investigation:

The probation officer assigned to the case will begin the investigation by becoming familiar with the government's version of the offense. Then, the probation officer will schedule a face-to-face. The meeting may take place at the person’s home, in the probation office, over the phone, or in the facility holding the person if he’s in custody. Prior to the meeting, the probation officer will have insight on the case from the prosecutor and the investigators. The purpose of the meeting is to collect information from the person being investigated, if he’s willing to offer it.

The probation officer will ask the person what he has to say about the offense. He’ll also ask about the offender's personal background. Among other things, the probation officer will ask about:

• Family history,
• Education,
• Criminal background,
• Employment history,
• Substance-abuse background,
• Medical condition, and
• Financial status.

Anyone going through a PSR investigation should remember probation officers are law-enforcement officers. If the probation officer believes the person lied, or provided misleading information, or if he believes the offender tried to influence others inappropriately, the probation officer may make things worse. The probation officer could charge the offender with obstruction of justice if he believed the offender tried to interfere with, manipulate, or subvert his investigation. With such a recommendation, the judge may add additional time to a defendant's sentence.

Probation officers have huge caseloads and it may feel as if they’re cynical. The investigator will interview the offender's family members, check the offender's school records, and obtain official records of the offender's previous legal problems. The probation officer also will speak with previous employers, check with creditors, and search for information to verify the offender's statements about his medical condition.

A person may reserve his right to remain silent during the investigation. But if he chooses to communicate, he should understand that any lies or attempts to mislead the probation officer could result in a longer or more severe sentence. We recommend honesty and good preparation before the PSR interview.

Some people refuse to provide any information to the probation officer. They may have valid reasons for wanting to remain silent. But if the person doesn’t participate in the PSR investigation, the probation officer's writing will only reflect the government's version of events.

Appellate strategy may influence a person’s strategy. He may choose not to answer questions about the offense. If that is the case, the offender should be courteous, explaining that for appellate reasons, he cannot discuss the case. He may want to cooperate with the investigation in ways that will not jeopardize his rights.

We recommend that unless the offender has good reason, he ought to cooperate with the investigation. In fact, we urge defendants to prepare the sentence-mitigation strategy long before the PSR interview, and to provide as much documentation as possible to the probation officer. By giving the officer the personal narrative, the person makes the probation officer’s job easier. He may cut and paste entire paragraphs or pages into the report. This strategy allows the person to influence a document that will prove enormously influential while the person serves his sentence.

The PSR will influence administrators that the prisoner may never meet. For example, when making the initial classification of where a person serves the sentence, administrators will rely upon the PSR. Others will use the PSR to determine who can visit. On top of all that, the PSR will include information that determines whether the person gets a lower-bunk pass, qualifies to participate in beneficial programs, and for other crucial issues that can influence release dates.

Once inside prison, a Unit Team will meet with the prisoner. Administrators on the team—case managers and counselors—will consider the PSR and the record a person accumulates during his confinement.

For those reasons, prior to going inside, people should invest time to understand the myriad ways a PSR will influence the prison term. Then he can make a more competent decision on whether to provide more, rather than less information.

Those who’ve pled guilty should understand that the probation officer has the authority to recommend a significant downward adjustment from the sentencing guidelines. If the person convinces the officer that he provided a full and candid description of his criminal actions and demonstrates genuine remorse for his criminal behavior, the officer may recommend that the person gets credit for “acceptance of responsibility.”

The probation officer's recommendation in the PSR isn’t binding on the judge, but it is influential. In our experience, people that express remorse for their actions help themselves. If they can persuade the court that their criminal behavior was an aberration rather than a pattern of behavior or a criminal lifestyle, they usually receive lower sentences than those who refuse to cooperate with the presentence investigation. Likewise, those who choose to exercise their rights to silence may be portrayed as unremorseful. Judges would likely take a lack of remorse into consideration at sentencing.

The PSR Report Itself:

Once the officer finishes the investigation, court rules require him to write his complete report "in a non-argumentative style." After describing the details of the offense and other identifying data, a model PSR from the Southern District of New York contains headings as follows.

Offense Conduct:

In this section, the probation officer writes the government's version of events and may describe discrepancies that the offender wanted inserted in the document.

Victim Impact Statement:

If the crime had an identifiable victim, the probation officer may give the victim an opportunity to describe how the offense impacted him (or her).

Defendants' Participation:

If the offender was convicted along with others in the offense, the probation officer may detail the conduct of each defendant in the case under this heading. This can be prejudicial, because some participants may be much more culpable than others.

Offenders ought to ask the attorney to challenge any information that suggests or insinuates that he participated in the same behavior of others if he did not. Prison staff members who evaluate an offender may not make any distinction between participants. If the PSR indicates that one member of the offense was violent and predatory in nature, that information may have a material influence on all members of the offense as far as prison classifications are concerned.

Obstruction of Justice Adjustment:

If the person obstructed justice in any way, the probation officer may recommend a sentencing enhancement. Examples of obstruction of justice include when an offender tries to influence what others will say during a government investigation. If the offender calls an individual and says, "Don't talk, or else...." the officer may charge the individual with obstruction of justice and with threatening violence. If so, prison administrators may characterize the offender as being violent in nature, which will prohibit participation in certain beneficial programs.

Acceptance of Responsibility Adjustment:

If the offender is candid about his responsibility, the probation officer may recommend a downward departure from sentencing guidelines. The level of the downward departure will depend upon when the offender accepted responsibility. People that plead guilty early in the criminal justice procedure receive the largest downward departures for acceptance of responsibility. It’s a reward for saving the government the time and expense of preparing for trial.

Those who proceeded through trial will have a higher burden to meet in order to receive this benefit. But going to trial does not necessarily preclude a person from receiving this sentencing adjustment. Remember, the judge has discretion, and it’s important to build an influential case on why you’re worthy of mercy. Acceptance of responsibility can weigh heavily on the judge’s decision to grant mercy.

Offense Level Computation:

Criminal statutes and guidelines influence this objective score. Offenders may read about these scores by studying the U.S. Sentencing Guidelines Manual which is available in all federal prison law libraries.  Those who do not have access to prison law libraries may review online or order the book from a bookstore. Guideline manuals may be too complicated to read for those that do not have a legal background. Our courses at ResilienceCourses.com offer some video tutorials.

Criminal History:

This information comes from past criminal convictions. Points are assigned to those who have been convicted for other offenses, and each prior conviction counts against the score. Chapter Four of the U.S. Sentencing Guidelines Manual explains how probation officers count the points.

Offender Characteristics:

Probation officers use this section to describe what he learned about the offender through his presentence investigation.  It's a subjective description. The offender's family responsibilities also will be discussed as well as the offender's community ties.

If the offender engineered a sentence-mitigation strategy earlier, he may want to share his personal narrative during the PSR interview. Probation officers may cut and paste parts of the narrative into this section. That strategy can prove extremely useful to the person as he goes through the system, both in sentencing and while in prison.

Substance Abuse:

This section describes whether the person suffered from any substance abuse problems in the past. It is an extremely important section. In the federal prison, the BOP has authority to reduce a person’s by as much as 12 months if the offender completes a 500-hour drug treatment program during his incarceration. To qualify for this year off, the BOP will require the offender to provide documentation that he suffered from substance-abuse prior to imprisonment, ideally, during the 12 months that preceded arrest.

The substance-abuse section of the PSR report is an excellent place to document a history of drug abuse or alcoholism that would benefit from treatment. During the PSR investigation, defendants that suffered from alcoholism or abused other drugs should report those experiences. If those reports meet certain criteria, the defendant may qualify for participation in a drug-treatment program. If he completes the program successfully, he may get out of prison earlier.

People that do not understand the PSR sometimes conceal their history of substance abuse. They mistakenly believe substance abuse of any kind will reflect badly on them at sentencing. Hiding a history of substance abuse may limit access to beneficial programs that could result in a sentence reduction.

Physical Condition:

Here the probation officer describes health problems or medical conditions.  If the person suffers from a bad back, has weak knees, or any ailments that may have an impact on his ability to climb onto a top bunk or perform certain duties, he should detail those ailments. If the probation officer documents health conditions in the PSR, it may influence housing assignments.

If possible, it’s helpful to get a letter from a physician and medical records.  Good preparation includes documentation to support a medical condition. That documentation can help a prisoner self-advocate once his term of imprisonment begins. For example, a doctor's letter verifying a bad back or weak knees will help an offender secure a coveted lower-bunk pass. That pass can be a blessing for an individual who lacks the strength to climb onto a top bunk.

Education and VT Skills:

The probation officer will ask about education and credentials. To avoid complications, help the probation officer get the information necessary to confirm diplomas and degrees. Administrators in prison will require those that do not have a verified high school education to attend prison-sponsored GED courses for at least 240 hours. They will receive lower wages from their prison work details. Participation in GED classes may have an impact on an ability to earn good time or earned time.

Prison administrators frown upon prisoners who have extensive computer experience. If the PSR indicates that an individual has computer programming skills, administrators may deny that individual access to coveted clerical jobs by placing computer ban on his file. Administrative rules may deny camp placement for defendants that have crimes related to sophisticated computer programming and wireless networks.

Employment Record:

Probation officers will check with prior employers to obtain an evaluation of the person’s work habits. A good work history may influence the sentencing judge. Also, an extensive work history may help a person advocate for himself if he is seeking a specific job in the prison.

Financial Condition:

Consider all financial liabilities and responsibilities when meeting with the probation officer who is preparing the report. Most criminal convictions result in monetary fines or restitution orders. All felony criminal convictions result in criminal-assessment fees. For some defendants, sentencing courts impose cost-of-confinement fees.

Sentencing judges may choose not to impose fines and cost-of-confinement fees if the person is incapable of paying. Judges are less forgiving when it comes to restitution. Laws may require judges to impose felony-assessment fees.

If the court imposes a monetary penalty, BOP staff members will demand monthly payments. They will consider any funds that pass through the offender's commissary account as being available for such payments. These charges can make life more difficult inside.

If a monetary sanction becomes part of a person’s sentence, the offender's attorney ought to ask the judge to specify that the fine is not to be collected until after the offender's release from confinement. If the judge’s commitment order specifies that the offender doesn’t have to pay the monetary portion of the sanction until the person is released, the BOP will not be able to pressure the person for payments during confinement.

Sentencing Options:

The probation officer discusses options the judge may consider when imposing sentencing. The options are rather limited in that they only offer a monetary fine, probation, or incarceration in some form—either house arrest, a community confinement center, or imprisonment. Many crimes, particularly offenses related to the distribution of drugs, require mandatory-minimum sentences that preclude sanctions less than imprisonment. One can develop a better understanding of federal sentencing options by reading the most current edition of the very detailed Federal Sentencing Law And Practice by Thomas W. Hutchison, et al, and published by West Group.

Factors that May Warrant Departure:

In the federal system, judges must consider sentencing guidelines. The guidelines are not mandatory, but most judges use them as a starting point. If the judge chooses to depart from established guidelines for a specific offender, the judge must articulate his reasons during the sentencing hearing.

The probation officer will describe factors that may warrant either a downward or upward departure from the sentencing guidelines. The most common downward departure is when an offender cooperates with the government in the investigation and provides assistance in the prosecution of others. People that place the highest value on getting out of prison at the soonest possible time may choose to cooperate with prosecutors. Such decisions may influence where a person serves his time, and whether that person is ostracized by others in prison.

In rare instances, probation officers may recommend downward departures for other reasons. They may find that a person’s situation is markedly different from others that were convicted of the same type of offense. It is a high burden, but in rare cases, people receive downward departures for issues other than cooperating in the prosecution of others.

Upward departures are more common. Judges issue sentences that are harsher than the guidelines when they’re convinced that the sentencing guidelines do not reflect the seriousness of the offender's conduct.

The Completed PSR Report:

Following the completion of the PSR, the probation officer will deliver copies of the report to the prosecutor and the offender's attorney. Both parties will have time to review the document.  If inaccuracies appear, each party will have an opportunity to object to the perceived errors. Once the objections are noted, the probation officer will determine whether the objections are valid.  If so, changes to the PSR will follow.

If the probation officer refuses to make changes that either party wants, that party can bring the matter up with the sentencing judge. The judge will listen to both sides and each side may present evidence to bolster its position. After hearing the arguments, the judge will make a determination. Sometimes, though, the judge may sentence the offender according to his findings at the hearing, but not order changes to the written PSR.

Defense attorneys should be vigilant in efforts to get a PSR that accurately reflects the judge's findings. The BOP will use the PSR for classifications and to make other decisions, which can have a huge influence on how and where the person serves the sentence. If the judge chooses not to order the probation officer to correct a PSR, the defense attorney may ask the judge to make specific findings in the commitment order, and also in a Statement of Reasons for the sentence.

Statement of Reasons:

In addition to the PSR, the court will submit a Statement of Reasons to the Bureau of Prisons. See Title 28 United States Code Section 994(w)(1)(B), which tells us:

the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);

In February 2016, the Judicial Conference issued, and the Sentencing Commission approved, Form AE 245B. Section IB4 of the revised form tell us that:

“comments or factual findings concerning any information in the presentence report, including information that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation, or programming decisions.”

The United States Sentencing Commission published a video at the following location that offers more insight into the Statement of Reasons:

• https://www.ussc.gov/education/videos/sentencing-and-guidelines-revised-statement-reasons-form

The Bureau of Prisons will review both the Statement of Reasons and the PSR when classifying a person. For that reason, attorneys should make a strong case to persuade the judge to put specific language in the Statement of Reasons that may help a person qualify for specific BOP programs. That Statement of Reasons could potentially influence an earlier release date. Program Statement 5322.13 requires the BOP to consider the Statement of Reasons when calculating each prisoner’s security level. For that reason, some may argue that the Statement of Reasons may be an excellent remedy to overcome problems with an inaccurate PSR.

When is the right time think about a sentence-mitigation plan?

Answering that question reminds me of an old saying about the best time to plant an oak tree. I heard a speaker ask that question to members of his audience. Predictably, audience members ventured a guess.

• In the morning?
• In the winter?
• In the summer?

No one had a clue.

Pausing for dramatic effect, the speaker then gave the answer. The best time to plant an oak tree was 20 years ago. The second-best time is today.

We could say the same thing about a sentence-mitigation plan. Too often, a defendant doesn't do anything to prepare for the sentencing hearing.

It's understandable. Many defendants don't think of themselves as criminals. Regardless of what type of activity brought them to the attention of authorities, they think that they're different, immune from the law enforcement. They may not know anyone that has been through the criminal justice system, and they cannot conceive of themselves going into the system.

• How do you see yourself?

But authorities saw me differently. In their eyes, I violated securities laws. That made me a target for prosecution. And when federal authorities target a person for prosecution, their conviction rates exceed 85 percent. With those odds, it makes a lot of sense to begin thinking about a sentence-mitigation plan at the soonest possible time. Regardless of what type of charge a person faces, it's important to realize that sentencing proceedings will likely follow. Sentence-mitigation plans can help.

Start with an understanding of what the defense attorney will do. Attorneys will work with:

• The evidence against the individual,
• The procedural rules that determine what evidence the court will consider,
• The substantive law that Congress has passed,
• The case law that judges have decided,
• The prosecutor's ability to prove a case against the defendant.

To succeed, the defense attorney will exercise judgment and discretion, fighting valiantly to get the best possible outcome for the defendant. Both the prosecutor and the defense attorney will be analyzing the case and pressing forward to get the outcome they want. Rather than justice, the prosecutor will strive for a conviction. The defense attorney will parry the prosecutor's efforts, always assessing the strength of arguments that he can use.

While the defense attorney may be a great analytical thinker, he may not have time to listen to the defendant's life story. For that reason, every defendant should invest the time and energy to present that life story.

A life story can make all the difference in the world when it comes to sentencing. Indeed, our team has worked closely with many federal judges. Our website includes two interviews that my partner Michael did with federal judges. Michael asked those judges what steps a person could take to influence the judge's decision. Each judge responded by saying that, when it comes to sentencing, they want to hear from defendants.

Our interviews with both judges are available for free through our Prison Professors YouTube channel, under the following playlist:

• Judge Mark Bennett from the Northern District of Iowa
• Judge Stephen Bough from the Western District of Missouri
• How to Prepare for Sentencing:
• https://www.youtube.com/playlist?list=PLf7W0veN3NWbq9nzGNmhQliFbqmaXz26y

If you cannot access the link because you're reading this book in print, simply Google How to Prepare for Sentencing + Prison Professors and you'll find our helpful videos on YouTube or text the following word, to the following number:

• Text word: Sentence
• Text to number: 44222
  • You'll get an automatic brochure sent to your phone.

Defense Attorney's Position:

Some defense attorneys support a pro-active sentence-mitigation plan, while other defense attorneys resist such initiatives. Why?

As stated above, attorneys are great analytical thinkers. Since they know it's the prosecutor's burden to prove a case, they operate out of an abundance of caution. They do not want to introduce any evidence that a prosecutor could use against their client. And since most defendants start out in denial, incapable of fully appreciating the system or the charges against them, some attorneys do not want their clients to say anything.

Attorneys may have invested considerable amounts of time to construct an elaborate defense. They do not want their clients to make statements that prosecutors may twist, making it more difficult for the attorney to argue for leniency at sentencing. Defense attorneys may prefer to rely upon case law, facts, and what the prosecutor could prove.

We have a different perspective. Our team has interacted with more than 1,000 people that have gone through the criminal justice system. We've had personal interactions with state and federal judges. Based on our experience, we're convinced that defendants put themselves in a far better position when they engineer an effective sentence-mitigation plan. When a person creates and executes on an effective sentence-mitigation strategy, that individual does immense service to his defense attorney.

In our view, an effective sentence-mitigation plan will strive to achieve several outcomes:

• It will help the judge see and understand the defendant as an individual,
• It will help the judge grasp influences that led the defendant to the current situation,
• It will help the judge see aspects of the defendant's life that could not be conveyed by the defense attorney's eloquence alone,
• It will help the judge see the defendant in his own environment,
• It will help the judge learn what other people in the community think about the defendant.

Engineering an effective sentence-mitigation plan does not excuse the misconduct or litigate the case. In fact, a sentence-mitigation plan does just the opposite. It is a strategy to show the judge why the defendant is worthy of mercy. It would not serve a defendant's interest to minimize culpability, or to blame anyone. If referring to the criminal conduct at all, the sentence-mitigation plan should focus on some key points, including:

1. Show an understanding and an appreciation for the victim's pain, suffering, or loss.
2. Show influences that led the defendant to become involved in the instant offense.
3. Show what the defendant has learned from the experience.
4. Show what steps the defendant has taken to reconcile with society, the victims, and his community to make things right.
5. Articulate a coherent plan to show why the defendant will never break the law again.

What if I Go to Trial?

As stated in previous lessons, the vast majority of people charged in a criminal case start off with a not-guilty plea. Their defense attorneys then assess the evidence and the risks of proceeding through trial, then negotiate the most favorable plea-agreement possible. Still, a small percentage of defendants maintain their innocence and proceed through trial.

If a defendant proceeds through trial, and is found guilty, that defendant may want to appeal. In that case, the defendant will want to create a sentence-mitigation plan that does not in any way threaten the prospects for an appeal. Accordingly, he should refrain from discussing any aspects of the case. Instead, such a strategy should focus exclusively on helping the judge get to know him as a person.

There is always an opportunity to create a mitigation strategy. It is equivalent to building a sales presentation. And how do we accomplish that goal? We begin by thinking about our audience. A sentence-mitigation strategy has an audience of one: the judge.

• What steps can you take to differentiate yourself from every other defendant that comes before the judge?

First Person Approach:

Let your lawyer argue the law and deal with the evidence against you. When it comes to articulating the story of your life, use your own words, in a first-person voice. From our perspective, this is a common sense.

Your lawyer is a professional advocate, skilled in the arts of persuasion. Even if the most notorious criminal retained your attorney, a professional code of ethics would require your attorney to provide the most zealous defense possible. After decades of practicing law, judges know that the defense attorney is going to argue for leniency at sentencing.

While deliberating over the appropriate sentence, the judge isn't too concerned with arguments on case law. He has read the case law; he has his own opinion. On the other hand, he doesn't know much about the defendant.

Prior to sentencing, defendants have an opportunity to influence the outcome. Again, a defendant does well when he starts from the premise that he's about to make the biggest sale of his life. The only question is how well he has prepared, or how much time, energy, and resources he wants to invest to build a persuasive case.

Three-Tiered Plan:

Our team believes that an effective sentence-mitigation plan should begin at the soonest possible time. No one can change the past, but any of us can begin crafting a story that will show who we are as individuals and how we got here. We're big believers in a three-tiered strategy that includes:

• A personal sentencing narrative
• A strategic character-reference letter campaign
• A sentencing video
• A sentence-mitigation story of community service

When is the right time think about a sentence-mitigation plan?

Answering that question reminds me of an old saying about the best time to plant an oak tree. I heard a speaker ask that question to members of his audience. Predictably, audience members ventured a guess.

• In the morning?
• In the winter?
• In the summer?

No one had a clue.

Pausing for dramatic effect, the speaker then gave the answer. The best time to plant an oak tree was 20 years ago. The second-best time is today.

We could say the same thing about a sentence-mitigation plan. Too often, a defendant doesn’t do anything to prepare for the sentencing hearing.

It’s understandable. Many defendants don’t think of themselves as criminals. Regardless of what type of activity brought them to the attention of authorities, they think that they’re different, immune from the law enforcement. They may not know anyone that has been through the criminal justice system, and they cannot conceive of themselves going into the system.

• How do you see yourself?

But authorities saw me differently. In their eyes, I violated securities laws. That made me a target for prosecution. And when federal authorities target a person for prosecution, their conviction rates exceed 85 percent. With those odds, it makes a lot of sense to begin thinking about a sentence-mitigation plan at the soonest possible time. Regardless of what type of charge a person faces, it’s important to realize that sentencing proceedings will likely follow. Sentence-mitigation plans can help.

Start with an understanding of what the defense attorney will do. Attorneys will work with:

• The evidence against the individual,
• The procedural rules that determine what evidence the court will consider,
• The substantive law that Congress has passed,
• The case law that judges have decided,
• The prosecutor’s ability to prove a case against the defendant.

To succeed, the defense attorney will exercise judgment and discretion, fighting valiantly to get the best possible outcome for the defendant. Both the prosecutor and the defense attorney will be analyzing the case and pressing forward to get the outcome they want. Rather than justice, the prosecutor will strive for a conviction. The defense attorney will parry the prosecutor’s efforts, always assessing the strength of arguments that he can use.

While the defense attorney may be a great analytical thinker, he may not have time to listen to the defendant’s life story. For that reason, every defendant should invest the time and energy to present that life story.

A life story can make all the difference in the world when it comes to sentencing. Indeed, our team has worked closely with many federal judges. Our website includes two interviews that my partner Michael did with federal judges. Michael asked those judges what steps a person could take to influence the judge’s decision. Each judge responded by saying that, when it comes to sentencing, they want to hear from defendants.

Our interviews with both judges are available for free through our Prison Professors YouTube channel, under the following playlist:

• Judge Mark Bennett from the Northern District of Iowa
• Judge Stephen Bough from the Western District of Missouri
• How to Prepare for Sentencing:
• https://www.youtube.com/playlist?list=PLf7W0veN3NWbq9nzGNmhQliFbqmaXz26y

If you cannot access the link because you’re reading this book in print, simply Google How to Prepare for Sentencing + Prison Professors and you’ll find our helpful videos on YouTube or text the following word, to the following number:

• Text word: Sentence
• Text to number: 44222
  • You’ll get an automatic brochure sent to your phone.

Defense Attorney’s Position:

Some defense attorneys support a pro-active sentence-mitigation plan, while other defense attorneys resist such initiatives. Why?

As stated above, attorneys are great analytical thinkers. Since they know it’s the prosecutor’s burden to prove a case, they operate out of an abundance of caution. They do not want to introduce any evidence that a prosecutor could use against their client. And since most defendants start out in denial, incapable of fully appreciating the system or the charges against them, some attorneys do not want their clients to say anything.

Attorneys may have invested considerable amounts of time to construct an elaborate defense. They do not want their clients to make statements that prosecutors may twist, making it more difficult for the attorney to argue for leniency at sentencing. Defense attorneys may prefer to rely upon case law, facts, and what the prosecutor could prove.

We have a different perspective. Our team has interacted with more than 1,000 people that have gone through the criminal justice system. We’ve had personal interactions with state and federal judges. Based on our experience, we’re convinced that defendants put themselves in a far better position when they engineer an effective sentence-mitigation plan. When a person creates and executes on an effective sentence-mitigation strategy, that individual does immense service to his defense attorney.

In our view, an effective sentence-mitigation plan will strive to achieve several outcomes:

• It will help the judge see and understand the defendant as an individual,
• It will help the judge grasp influences that led the defendant to the current situation,
• It will help the judge see aspects of the defendant’s life that could not be conveyed by the defense attorney’s eloquence alone,
• It will help the judge see the defendant in his own environment,
• It will help the judge learn what other people in the community think about the defendant.

Engineering an effective sentence-mitigation plan does not excuse the misconduct or litigate the case. In fact, a sentence-mitigation plan does just the opposite. It is a strategy to show the judge why the defendant is worthy of mercy. It would not serve a defendant’s interest to minimize culpability, or to blame anyone. If referring to the criminal conduct at all, the sentence-mitigation plan should focus on some key points, including:

1. Show an understanding and an appreciation for the victim’s pain, suffering, or loss.
2. Show influences that led the defendant to become involved in the instant offense.
3. Show what the defendant has learned from the experience.
4. Show what steps the defendant has taken to reconcile with society, the victims, and his community to make things right.
5. Articulate a coherent plan to show why the defendant will never break the law again.

What if I Go to Trial?

As stated in previous lessons, the vast majority of people charged in a criminal case start off with a not-guilty plea. Their defense attorneys then assess the evidence and the risks of proceeding through trial, then negotiate the most favorable plea-agreement possible. Still, a small percentage of defendants maintain their innocence and proceed through trial.

If a defendant proceeds through trial, and is found guilty, that defendant may want to appeal. In that case, the defendant will want to create a sentence-mitigation plan that does not in any way threaten the prospects for an appeal. Accordingly, he should refrain from discussing any aspects of the case. Instead, such a strategy should focus exclusively on helping the judge get to know him as a person.

There is always an opportunity to create a mitigation strategy. It is equivalent to building a sales presentation. And how do we accomplish that goal? We begin by thinking about our audience. A sentence-mitigation strategy has an audience of one: the judge.

• What steps can you take to differentiate yourself from every other defendant that comes before the judge?

First Person Approach:

Let your lawyer argue the law and deal with the evidence against you. When it comes to articulating the story of your life, use your own words, in a first-person voice. From our perspective, this is a common sense.

Your lawyer is a professional advocate, skilled in the arts of persuasion. Even if the most notorious criminal retained your attorney, a professional code of ethics would require your attorney to provide the most zealous defense possible. After decades of practicing law, judges know that the defense attorney is going to argue for leniency at sentencing.

While deliberating over the appropriate sentence, the judge isn’t too concerned with arguments on case law. He has read the case law; he has his own opinion. On the other hand, he doesn’t know much about the defendant.

Prior to sentencing, defendants have an opportunity to influence the outcome. Again, a defendant does well when he starts from the premise that he’s about to make the biggest sale of his life. The only question is how well he has prepared, or how much time, energy, and resources he wants to invest to build a persuasive case.

Three-Tiered Plan:

Our team believes that an effective sentence-mitigation plan should begin at the soonest possible time. No one can change the past, but any of us can begin crafting a story that will show who we are as individuals and how we got here. We’re big believers in a three-tiered strategy that includes:

• A personal sentencing narrative
• A strategic character-reference letter campaign
• A sentencing video
• A sentence-mitigation story of community service

What Are Post-Conviction Proceedings?

In the United States, we like to say that a person is presumed innocent until there has been a finding of guilt. Defendants don't always feel that presumption of guilt. A criminal charge may result in being ostracized by friends, loss of employment, and even loss of housing. Those collateral consequences make a difficult situation worse.

From a legal perspective, life officially changes after a conviction. Prior to the conviction, the defendant may have gone through a "pre-trial services" program. While in the "pre-trial phase," a judicial employee or probation officer may lightly oversee the defendant, imposing light restrictions. As an example, rules may require a person in the pre-trial phase to request permission before traveling outside of a specific jurisdiction.

With a criminal conviction, more formal proceedings will follow. For felony cases, a pre-sentence investigation and ensuing report will follow the conviction.

Pre-Sentence Investigation Report (PSI or PSR—used interchangeably):

Once a defendant pleads guilty, or a jury convicts the defendant, the person becomes a convicted felon.

In most felony cases, the court will order the probation department to conduct a pre-sentence investigation. This investigation will result in a report that has a lasting influence on the defendant's life.

The pre-sentence investigation report provides details about the person's background for the sentencing judge, staff members in the prison system, and the probation officer that will supervisor the person after release. Essentially, the report will begin with a narration of the prosecution's version of the offense. The probation officer will interview the defendant and give him an opportunity to make a statement, too.

Besides interviewing the defendant, the probation officer will conduct an investigation into the defendant's personal background. It is not uncommon for the probation officer conducting the report to speak with the defendant's family members, friends, employers, and anyone else that may provide material information.

Major cases will result in more extensive pre-sentence investigations to provide the judge (and others) with a snapshot of the offense and the defendant's background. The judge relies on this information as a source of reference when deliberating over the appropriate sanction to impose.

Those going to prison should not underestimate the importance of the PSR. The PSR will have a big influence on the person while he is in prison and while he is on Supervised Release. Because of the PSR's importance, we devote chapter seven to the process, revealing how our team works with clients that choose to prepare before their interview with the probation officer.

Sentencing:

After the finding of guilt, and the completion of the PSR, the next step in the criminal justice process is sentencing. In most cases, sentencing is a function of the court. Basically, the sentencing judge has three alternatives:

• For the most serious crimes, the sentencing judge may impose a term of imprisonment.
• For crimes that the judge deems less severe, the judge may impose a term of probation, allowing the offender to remain in the community under specific conditions.
• Or, the judge may impose some type of financial sanction, like a fine or restitution.

Generally, the legislature determined the range of sanctions from which the judge can choose.

For federal crimes, judges must rely upon the sentencing guidelines when determining what sentence to impose. The guidelines are not "mandatory," but judges must consider them. As a result of a Supreme Court case, judges must consider personal characteristics. Those characteristics may warrant a sentence either below or above the guideline range. For that reason, our team recommends that defendants consider a multi-pronged approach to prepare prior to sentencing.

Congress designed the guidelines to create uniformity in sentencing. They provide a matrix that take many dynamics into consideration. Among other factors, guidelines consider the defendant's role in the offense, the defendant's acceptance of responsibility, aggravating factors, mitigating factors, and the defendant's criminal history. The Federal Sentencing Guidelines Manual provides details that judges may consider as they deliberate over appropriate sanctions.

Anyone anticipating the possibility of receiving a federal sentence ought to read guidelines manual to understand more about what judges consider when sentencing a defendant. Our team has interviewed several federal judges. They've given us insight with regard to steps a defendant should take in anticipation of sentencing. Specifically, judges want to know:

• What does the defendant understand about victims in the case?
• What led the defendant into the criminal behavior?
• What has the defendant learned from the process?
• What steps has the defendant taken to reconcile with society?

Although the defendant's attorney will prepare legal arguments to advocate for the defendant, every defendant should work to advocate for himself. Our team urges defendants to work toward a multi-part strategy that includes:

1. Preparing a sentencing narrative.
2. Preparing a sentencing video.
3. Preparing a package of character-reference letters.
4. Preparing a sentence-mitigation story of reconciliation with society.

Our catalog offers details on each of those options. This multi-part strategy will help the judge get to know the defendant's true nature. It can lead to mercy, or the least restrictive sanction. Read more about these options by texting the following word, to the following number:

• Text number: 44222
• Test following word: Sentence
• Or visit ResilienceCourses.com

If the defendant has been out on a bond, the judge may order the defendant into custody after the sentencing hearing. In other cases, the judge authorizes the defendant to report to prison later. Our team has seen cases with different outcomes. If the defendant makes a credible argument, he may have reason to wait several months before surrendering to prison. In the rarest of circumstances, defendants may remain free on bond pending the outcome of an appeal.

Every case is unique. Defendants should consider the pros and the cons of prolonging a surrender date to prison. In some cases, it makes sense to get to prison at the soonest possible time. In other cases, valid reasons exist to postpone the surrender date.

Becoming a Prisoner / Good Time / Earned Time:

After the judge sentences a person, a transition takes place. In the federal system, the trial judge loses jurisdiction over the case in a matter of days. The U.S. Marshal Service sends the Judgment Order, along with the PSR, to the administrative office of the Bureau of Prisons, in Grand Prairie, Texas. Prison staff members then rely upon a program statement, known as the Custody and Classification Manual. That manual includes a scoring system that results in a "security-level" score and a "custody-level" score. BOP officials in Grand Prairie rely upon those scores and other factors to determine where the prisoner will serve the sentence.

In December of 2018, President Trump signed the First Step Act. The First Step Act is the most significant criminal-justice reform legislation in more than two decades. Although the president signed the law, as of early summer 2019, the Bureau of Prisons has not yet fully implemented the First Step Act. We do not anticipate people in prison getting the full benefit of the law until 2020. As more details become available, we will update this book and our courses on ResilienceCourses.com. For more current information on details of The First Step Act, please visit our websites at:

• PrisonProfessors.com, or
• ResilientCourses.com, or
• WhiteCollarAdvice.com

Every person in federal prison will benefit from this new law. For example, as a result of the legislation, people in federal prison will receive a full 15 percent reduction in their sentences if they abide by rules in federal prison. Further, the law requires officials in the BOP to authorize more self-help programs for people in prison. Some examples of positive programs in federal prison include:

• Education courses
• Vocational courses
• Fitness courses
• Spiritual-development courses
• Substance-abuse treatment programs

All prisoners that remain active in those positive programs will derive some form of benefit from participating. But if the Bureau of Prisons officials determine that the qualified prisoners are at "low- or minimal-risk" of recidivating, those prisoners will receive "Earned Time" credits of 15 days each month.

It's important to differentiate "Good Time" credits from "Earned Time" credits. Prisoners receive up to 54 days each year in Good Time credits if they avoid being charged with any disciplinary conduct. Prisoners don't have to do anything particularly good to get the Good Time. They simply must avoid doing anything bad. By adhering to rules, a prisoner's sentence will be cut by 54 days per year.

The First Step Act does not cut time that a prisoner owes to complete the sentence. Rather, the prisoner that works to develop skills through good behavior and positive programming accumulates Earned Time credits at a rate of either 10-days per month, or 15-days per month. At the end of the sentence, the qualifying prisoner will be able to rely upon those Earned Time credits as an objective mechanism to transition into home confinement earlier than would otherwise be possible. Qualifying prisoners may serve significant lengths of time on home confinement.

For example, let's say a person qualifies for the maximum benefit under the First Step Act. That person may have a federal conviction and he may have received a sentence of 100 months. That person may qualify for the Residential Drug Abuse Program, too. The table below offers an estimate on what he could expect to serve with and without the First Step Act.

Factor

With First Step Act

Without First Step Act

100-month Sentence

100-month Sentence

100-month Sentence

Good Time Credits

15% of sentence, which reduces sentence to 85 months.

15% of sentence, which reduces sentence to 85 months.

RDAP time reduction

12 months off sentence, which reduces sentence to 73 months.

12 months off sentence, which reduces sentence to 73 months.

Earned Time Credit at 15 days per month

Roughly 50% of time to Residential Reentry Center, resulting in transfer to home confinement at somewhere between 37 and 42 months.

Six to 12 months available for transition to Residential Reentry Center, resulting in transfer to halfway house or home confinement at around 61 to 67 months.

Although the above table is only an estimate, and we won't have final details until the Bureau of Prisons releases its policy statement on the First Step Act, it's clear that this law will bring a positive benefit to many people in prison.

When it comes to Earned Time credits, the operative word is "qualifying" prisoner. Congress detailed a specific list of offenses that do not qualify for Earned Time credits. Generally speaking, people convicted of non-violent offenses qualify for Earned Time.

Again, we will update our sections on Earned Time as the Bureau of Prisons releases policy statements on this law.

Getting to Prison:

Once an individual is sentenced to prison, the next step is getting there. Offenders who are sentenced to relatively short terms, fewer than ten years, may have the privilege of surrendering to the facility to which they have been designated or assigned to serve their sentence. The vast majority of people will be taken into custody and proceed through the humiliating prisoner transfer system. Future chapters will describe what to expect when being transferred to an initial prison, or from one prison to another.

Appeals and Post-Conviction Remedies:

Most defendants will enter into plea agreements that prohibit them from launching direct appeals. Prisoners that proceed through trial, on the other hand, routinely appeal if the jury convicted them. They may appeal errors in due process. In rare circumstances, such as if they discovered information that had not previously been available, they may appeal issues that the trial court did not consider. Otherwise, appellate courts review errors that the lower court may have made, which would have violated the defendant's due process rights.

Every step in the judicial proceeding brings the case one step closer to finality.

The U.S. Supreme Court, being the highest court in the land, is the court of last resort. Few defendants ever see their cases advance that far in the appellate procedure. Indeed, relatively few offenders find any relief through appellate procedures. According to Modern Criminal Procedure, 9th Edition, by Yale Kamisar, et al, published by West Group, (St. Paul. Minn: 1999)—which we relied upon heavily to write this chapter—fewer than 11 percent of all defendants succeed on appeal.

Within one year after the appellate process is exhausted, those in prison may seek relief through habeas corpus, a civil (rather than criminal) proceeding. It is difficult to undo the long record that already has been established. The judicial concept of stare decisis, meaning "Let the decision stand" weighs heavily against defendants that seek relief through habeas corpus. Nevertheless, if defendants believe that their constitutional rights have been violated, such as if their attorney failed to represent them appropriately, and they file their motion within time limits authorized by the rules of civil procedure, they may attempt to get judicial relief through motions such as the §2255 motion.

Besides a defendant's motion, a prosecutor may initiate a post-conviction motion that gives jurisdiction back to the sentencing judge. As an example, prosecutors may file a Rule 35 motion. Prosecutors rely upon the Rule 35 as a tool to encourage people that have been sentenced to cooperate against others. By filing a Rule 35, prosecutors ask the judge to resentence the defendant to a lower term.

Final Word:

Anyone anticipating a potential problem with the criminal justice system should learn as much about the system as possible. The more knowledge a person has about the system, the better-prepared he will be to work with his attorney to achieve the best possible outcome.

People should rely on their attorneys for legal advice. Yet they also should make efforts to gather and learn from the experiences of others. Do not be an ostrich, living as though problems with the criminal justice system will somehow disappear.

If charged with a crime, we recommend reading the statute to find a complete definition of the elements of the offense. The defendant should read through potential penalties as well. The defendant does not have to speak with a law enforcement officer, but if he chooses to speak, he had better not lie. Lying to any law enforcement officer exposes the person to more problems—like obstruction of justice charges, or charges of making a false statement to a federal officer.

If ensnared in the criminal justice web, think about damage control. It's best to think proactively about navigating the challenges ahead. Learn the stakes associated with every decision.

When considering whether to go to trial or plead guilty, remember that sentencing guidelines incentivize those that expresses remorse and accept responsibility. The sooner a person starts preparing for leniency at sentencing, the better.

Although holding the prosecutor to task on every issue may bring some advantages, that option does not come without potential costs—both in terms of financial costs to launch an aggressive defense, and costs in terms of exposure to more difficult sanctions.

You've just listened to another chapter of Prepare: What Defendants Need to Know Before Court / Sentencing / or Prison. Get a free digital copy of the book by visiting Prison Professors.com. You can also send an email to [email protected]. Call or text 949-205- 6056