What Happens at the Sentencing Hearing and After?
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.
To prepare for sentencing, the defense attorney will prepare a memorandum. That memorandum will summarize the defendant, 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-pronged approach that includes:
1. A first-person sentencing narrative,
2. A character-letter writing campaign, and if resources permit,
3. A sentencing video.
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 three-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. 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 it has had on society. They 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 help.
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 expressions 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.
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.
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 recommendation. 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:
Every federal prison falls into one of five different security levels: minimum, low, medium, high, or administrative. Administrative-level facilities are designed to hold prisoners from any security level. That means an administrative facility may be holding mass murderers together with people that mailed envelopes with fake postage stamps. Because administrative facilities hold such diverse groups of prisoners, life inside of them is strictly controlled.
Prisoners held in administrative facilities are usually there for a specific purpose besides serving the sentence. Their freedom of movement is strictly controlled.
For the most part, administrative facilities are like large county jails, holding any type of offender. Generally, they serve five purposes:
1. Holding people near the courthouse to ease transportation for judicial proceedings;
2. As transit facilities while prisoners on being transferred to other prisons;
3. As medical centers, where staff and equipment are available to treat complicated health concerns of the BOP prisoner population.
4. As high-security facilities that limit a prisoner’s ability to interact with the public or with other prisoners.
5. As witness-protection facilities for offenders that may be particularly vulnerable in general population.
The vast majority of federal prisoners serve their sentences in minimum, low, medium, or high security prisons. Ordinarily, authorities hold people in administrative facilities for limited amounts of time, and for specific reasons. As a result of the Bureau of Prison’s complex system of classifying prisoners, the prisoners held in each respective prison will have similar security needs.
Seven factors determine an institution’s security level. They include:
1. The use of mobile patrols that drive around the institution’s perimeter 24 hours each day;
2. Gun towers located around a prison’s outside perimeter from which armed BOP guards monitor the activities inside of a prison;
3. The perimeter barriers that separate the prison from the community;
4. The use of detection devices like metal detectors and sound guns that can intercept prisoner conversations;
5. The internal security features like locks on individual doors and bars on windows;
6. Specific housing issues, such as whether prisoners are confined in locked rooms, cages, or open dormitories; and finally,
7. The ratio of inmates to staff members.
The higher the security level of an institution, the more stringent the security needs. The most secure federal prison in the United States is the Administrative-maximum security prison at Florence, Colorado (ADX), In the ADX, authorities have strict control over all movement and interactions.
United States penitentiaries (USP’s) are high-security institutions. They can have higher rates of violence because they hold prisoners with violent backgrounds in more open settings.
Medium-security prisons (Federal Correctional Institutions—FCI’s) also have relatively high-security needs. They generally hold prisoners with up to 30 years remaining to serve. These long-term prisoners may bring higher levels of volatility to an institution.
Low-security FCIs maintain a substantial degree of control, but they are more open than medium-FCIs or high-security USPs.
Federal Prison Camps or Satellite Prison Camps (FPCs and SCPs), on the other hand, hold prisoners that the BOP has determined need the least amount of supervision or security controls. People in camps have about as much exposure to violence as people shopping in a grocery store. Violence can happen, but it’s rare and isolated because most of the people in camp do not want disciplinary infractions that can lead them to higher security prisons.
Custody, Classifications, and Security Scoring: After a federal judge imposes a sentence of incarceration, the U.S. Marshals will send the judgment order and the PSR to the BOP office in Grand Prairie, Texas. State prison systems will have a similar process, with a group of administrators determining where the person will serve the sentence.
Officials that will never meet the person will make a determination on where he should serve the sentence. For that reason, when requesting a judicial recommendation at sentencing, defense attorneys should ask the judge to do more than recommend an institution. Attorneys should provide the judge with specific reasons why one institution is in the best interest of society and the attorney should request the judge to state those reasons in the judgment order. The judge’s reason should coincide with offerings at the specific institution. For example, there may be a specific program that would benefit the person. Or there may be external reasons why confinement in a specific institution would serve the needs of society. If the judge provides a reason, officials in the BOP will place more weight on the judge’s recommendation.
The BOP published a Custody and Classification Manual (Manual) which describes guidelines prison administrators use when designating an individual’s place of imprisonment. The Manual is available on the Bureau of Prisons’ website at www.BOP.gov under Program Statement 5100.07 (check the latest version).
Interested parties that have access to the Internet should consult the www.BOP.gov website. It includes considerable amounts of useful information, including program statements. Anyone going into the federal prison system would be wise to review Program Statement 5100.07 to understand how prison behavior influences the type of facility in which an offender is held.
Although a person may begin with one custody and security score, the scores may change over time. Those changes could result in transfers to other institutions.
In an effort to ensure all designation and transfer decisions are made without favoritism given to an individual’s social or economic status, the Manual provides a matrix which allows BOP case managers to arrive at an objective score that will determine each offender’s security needs.
Once case managers identify an offender’s security level, he will be designated to a corresponding facility. Basically, the manual uses a point system for two types of offender scoring.
1. The Base Score, evaluates an offender’s legal status;
2. The Custody Score, evaluates an offender’s prison behavior.
With the Base Score, an offender can score from a minimum of zero points to a maximum of seven points. It assigns points to such issues as whether the individual has a detainer filed against him (pending additional legal action); the severity of the current offense; any type of prior commitment; any history of escape attempts; any history of violence; and an individual’s pre-commitment status (whether he self-surrendered). On this Base Score, the lower the number of points, the better for an offender.
With the Custody Score, an offender can score from a minimum of ten points to a maximum of 30 points. It evaluates the percentage of time served as related to expected stay in prison; history of drug or alcohol abuse; mental / psychological stability; the seriousness and quantity of disciplinary infractions received while in custody; frequency of disciplinary problems during the past year; level of responsibility demonstrated during incarceration; and family ties. On this score, the higher the number of points, the better for the offender.
After BOP administrators calculate a Base Score and a Custody Score, they plug the two separate numbers into a formula which will provide the administrators with a total security-level score. For male offenders, barring special circumstances outlined in Chapter Seven of the Manual, total score between zero and five points may qualify for camp placement. Scores between six and eight points usually are held in low-security prisons. If a person scores between nine and fourteen points, he generally will be designated to serve his sentence in a medium-security prison. If the score is higher than fifteen points on the security-level scoring system, the person may go to a high-security federal penitentiary.
For female offenders, the BOP uses a similar system, but assigns different points to the criteria determining each female offender’s security level. Females with zero to ten points usually are designated to minimum-security facilities; females with eleven to twenty-one points usually are designated to low-security facilities; and females who score higher than twenty-two points usually are designated to a high-security facility for women.
Management Variables and Public Safety Factors:
Despite an offender’s classification scoring, some additional circumstances may play a role in an offender’s security level. The Bureau of Prisons accommodates these factors through the use of Management Variables and Public Safety Factors.
Management Variables identify criteria that may have an impact on where an individual serves his sentence. Case Managers can apply a Management Variable to an individual offender for the following reasons:
1. Judicial Recommendation: when the offender’s sentencing judge recommended a specific institution;
2. Release Residence/Planning: to help an offender remain close to his area of release;
3. Population Management: to maintain balance in a facility’s inmate population;
4. Central Inmate Monitoring: to monitor specifically targeted offenders;
5. Medical / Psychiatric Treatment: to provide medical attention;
6. Program Participation: to allow inmates to participate in programs available at only certain facilities;
7. Work Cadre: to make use of inmate labor;
8. Mariel Cuban; to monitor a group of prisoners whom the BOP identifies as having caused widespread disruption in the federal prison system;
9. Greater Security: to confine prisoners in higher-security facilities than for which they would otherwise qualify; and,
10. Lesser Security: to confine prisoners in lower-security facilities than for which they would otherwise qualify.
The Bureau of Prisons applies Public Safety Factors to screen offenders that administrators deem may require a more secure prison than the classification point system indicates. Public Safety Factors are applied for the following reasons:
1. Disruptive Group: for inmates who are identified as belonging to a group suspected of subverting prison management policies;
2. Greatest Severity Offense: to screen leaders of criminal enterprises, racketeers, and offenders convicted of serious crimes;
3. Sex Offenders: to monitor inmates who have been convicted of sexual crimes, including Internet pornography;
4. Threat to Government Official: to monitor inmates who have been identified as seriously threatening government officials;
5. Deportable Alien: to keep track of prisoners who may be deported at the conclusion of their sentences;
6. Sentence Length: to track offenders with long sentences;
7. Serious Escape: to monitor prisoners who have escaped from secure prisons; and,
8. Prison Disturbance: to monitor prisoners identified as having participated in prior riots, strikes, or other subversive behavior.
After BOP administrators consider all factors, including the Classification score, Management Variables, and Public Safety Factors, they will designate the person to a particular prison. The stated objective of the BOP’s security designation system is to confine offenders in the lowest security-level facility for which the offender qualifies, normally within 500 miles of the inmate’s release residence.
But that doesn’t always happen. Our team is firmly convinced that by understanding what’s coming, it’s easier for people to prepare for a successful journey.