94. 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\u2019t 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\u2019s 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\u2019ve emphasized the importance of engineering a sentence-mitigation strategy. For reasons described earlier, our team recommends a three- or four-pronged approach that includes:
- A first-person sentencing narrative,
- A character-letter writing campaign, and if resources permit,
- A sentencing video,
- 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 \u201callocution\u201d 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\u2019s 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\u2019re going to miss their family and how they\u2019ve been going to church. Every defendant will miss his family. Going to church may or may not be relevant to the judge.
Defendant\u2019s 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\u2019ve 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\xa0Hearing?
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\u2019re 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.\xa0 Those being sentenced to federal prison may ask the judge to resolve three matters:
- Payment schedules for monetary penalties associated with the sentence;
- A recommendation for a particular institution;
- 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\xa0Responsibility 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\u2019s a \u201cvoluntary\u201d 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\u2019ll 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 \u201cto the custody of the attorney general.\u201d\xa0 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\u2019s 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\u2019s 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\u2014The Different Levels:
For the full chapter, visit PrisonProfessors.com. Or send an email to Team@PrisonProfessors.com