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The Two-Step Process Prior to Sentencing That Can Make a Huge Difference
Written by: Lawrence Hartman
Okay, so you’ve either signed a Plea Agreement or lost at trial. What next occurs is a Presentence Investigation (PSI) done by the Office of Probation and a Sentencing Memorandum prepared by your attorney. How those two things are handled can make a huge difference in how much time you serve, how much restitution you’ll be obligated to pay and major quality of life issues in prison.
The PSI is done by a Probation Officer (PO) who comes to interview you within 30 days, or so, after the end of your trial or the signing of your Plea Agreement. I cannot emphasize enough how critical this process is. I’ve met way too many people whose interviews cost them dearly in many ways because they weren’t prepared or got awful advice. So, please read the rest of this section carefully because it will have a major impact on your entire time in prison.
During the interview with the PO, she or he will ask a number of background questions ranging from family history, past criminal history, your lifetime of prior employment, drug and alcohol use, medical history and your intended release address once you‘re done with prison. Then, depending on the PO, she or he will follow up with calls and interviews to confirm your story and get additional background information from family members. Mine, frankly, just took my word for everything, while others have their lives picked over with a fine-tooth comb.
It’s vital that you include all family and medical information during your PSI for numerous reasons. Something as simple as not including a close relative can make it more difficult to get her or him on your visitation list. The impact is considerably greater when it comes to your healthcare, though, because medical services in prison are atrocious enough to begin with. Allow me to emphasize, you won’t be treated nor given medication for anything not mentioned in your PSI (unless and until you’re subsequently diagnosed at the prison, and that is a long, drawn-out process). Things to consider are asthma, diabetes, blood pressure, past cancers, past surgeries, gastric acid issues, and whatever else you can think of. Include everything. Ross M. forgot to mention his skin cancer and it took over a year and a half to get any treatment as it continued to grow. It’s that bad and worse. Moreover, you’re not allowed to bring medicine in with you, but should start receiving what you need within a few days of arrival, earlier if you’re lucky. You just never know.
On the other hand, there are certain “ailments” and issues that can make life easier in prison, so many people build them into their PSI for just that reason. Tinnitus, vertigo and back problems are tough to disprove and get you a “bottom bunk pass,” a torn Achilles heel and knee issues can lead to a “soft shoe pass” allowing you to wear sneakers instead of rigid institutional boots, and being of a certain age or having weight or hernia issues can get passes of “no standing for prolonged periods” and “no lifting over 15 pounds,” helping you escape some of the crappier work assignments. “Medical idles,” that get you out of everything, are also available, either short or long term, for various ongoing ailments (ranging from a bad hip to PTSD).
Finally, of course, you need to include your history of past drug and alcohol use. Many lawyers will ignorantly tell you to say nothing, thinking it will look bad in front of the judge. They have no idea what they’re talking about – judges don’t care. Moreover, that bad advice will screw you out of RDAP (the Residential Drug Abuse Program) which can take up to a year off your sentence. Illicit drug use or the abuse of alcohol or prescribed drugs within one year of your sentence is all that’s necessary. Moreover, plenty of people keep “their addiction hidden” from loved ones, so simply acknowledging your addiction in the PSI will suffice. Give that serious consideration. Finally, the release address you provide should get you designated to a prison within 500 miles of there. That can be critically important for visits.
The PO will also review your entire history, the information from your Plea Agreement or trial transcript, and all allegations made by the prosecution, in order to calculate a final Sentencing Guideline Level for you. Perhaps you’ve already done this exercise with your attorney but until this point that’s all it was, an exercise. Now it’s set in stone providing clear parameters and consequences for your sentence.
The PO will include all prior bad acts. Everything and anything is fair game; a past arrest for minor possession, some silly assault charge when you were out drunk with friends. Jim H. had two misdemeanor DUIs that tacked an additional four years onto his sentence. Plus, this includes everything going back a full 15 years. Shockingly enough, your PSI can also add on levels for things you were never even convicted of (have you beaten a DUI? Gotten arrested for a domestic dispute with the charges dropped later?), including current charges for which you were just acquitted. These factors impact both your guideline sentencing levels and security designation for prison.
The PO then completes the report which is now known as a Pre-Sentencing Report (or PSR). Both your attorney and AUSA will get a chance to review, comment and suggest revisions, which the PO may or may not agree to. The PSR then gets sent to the judge for ultimate consideration as part of your sentencing.
While all this is going on, your attorney is preparing your Sentencing Memorandum. This presents law and a narrative of the facts putting you in the most favorable light and includes a sentence request for a fixed amount of time (i.e. 36 months). It might also include a request for Alternative Sentencing (like an intensive treatment program) or for the sentence to be served in Home Confinement. It will also address objectionable issues in the PSR because while the PO may not have agreed with you, the judge still gets the final say. There are also some other critical steps you can and should be taking that can truly make a difference. Let’s face it, the judge only gets to know you from a few brief meetings. That’s not much time to get to know the kind of person you are. So, you need to take other measures to swing the process in your favor. Things such as supplying letters of support from friends, family and highly respected members of the community and handing the judge a book artfully explaining the details of your life can have a major impact. Your attorney can also request RDAP, a specific prison, and a Treaty Transfer, which, if approved by the judge, are still only recommendations. The BOP has the final say on the first two and the International Prisoner Transfer Unit of the DOJ on the third. However, I suppose, a judge’s recommendation certainly can’t hurt.
Prosecutors, in the meanwhile, are working on their own memo. They’ll typically ask for a sentence at the high range of the PO’s calculations of the Sentencing Guidelines, perhaps even beyond, unless you were a comprehensive cooperator. My bunkie Cristian worked at a clinic for four years as the Rehabilitation Director, providing services the government acknowledged he performed. The government also acknowledged that he made no money from the conspiracy (other than regular salary). However, since he’d been approving invoices (which he had no reason to believe weren’t legitimate), was represented terribly by his lawyer and had no one else giving him advice, he was painted with the same broad brush used against those who made millions. He lost at trial and prosecutors recommended a sentence of 25 years.
Finally, you’ll also have an opportunity to write a letter to your judge and make an open statement in court. How you present yourself in this letter and during this statement can have a huge impact on your ultimate sentence.
Going into sentencing, all the judge has to know you by is a one-sided press release, indictment and either plea agreement or trial proceedings, and a brief life history prepared by a probation officer as part of your presentence report. Without input from you, the judge only has hugely negative input about you as a person. In a letter and statement, you have the opportunity to explain that the criminal charge only represents but a small portion of your life. They provide a chance to share your struggles, accomplishments and explain your situation in a human light. After all, no one would ever want to be judged by their worst actions.
To be effective, the letter and statement must also demonstrate remorse and acceptance of responsibility. Judges want to see someone contritely admitting his or her failing and a readiness to accept the consequences. They additionally like to see someone taking actions toward redeeming themselves. So, they will take positive note of people seeking therapy or taking actions to better understand the bad decision making that went into the criminal act.
A heartfelt narrative can go a long way toward convincing a judge why he or she should sentence you to the low end of the Sentencing Guidelines or even depart below them. Our Team has helped hundreds of people tell their story in a meaningful way toward achieving positive outcomes.
About the author:
Lawrence Hartman, is Columbia Law School graduate and a principal at ComplianceMitigation.com. He has done deals worth hundreds of millions of dollars over his lengthy career as a Wall Street attorney, General Counsel of a publicly traded REIT, internet entrepreneur and international financier. He also, found himself on the other side of the process as a defendant and then inmate, learning all too well that things don’t work how they teach in law school. He served 7-1/2 years utilizing his legal background to gain unique insights and perspectives vital for mitigating criminal legal exposure.