For Federal Criminal Defense Attorneys
It’s surprising how many otherwise competent federal criminal defense attorneys ‘punt’ at the federal sentencing hearing. *
What federal judges look for at sentencing
- Attorneys, humanize your client.
- Good allocution can cause a Judge to impose a lower sentence.
- Tell us their story, but don’t minimize the seriousness of what your client did.
- Judge Rice said he will often ask a defendant what he/she is going to do upon release from prison to determine whether he/she is likely to re-offend.
- Show his/her strengths and weaknesses. If you can show that you are on the same page with the court as to the seriousness of the offense, the chances of having your other statements accepted will increase.
- When asked which of the cases coming before them they find most challenging, judges agreed: predatory child sex offenders who have harmed children and white-collar criminals who have harmed vulnerable people.
- All judges agreed they would rather hear from your client during their sentencing hearing unless you have new information not contained in your sentencing memorandum and other submissions.
“Judge Schiltz said it this way: “It’s surprising how many otherwise competent federal criminal defense attorneys ‘punt’ at the sentencing hearing.” Judge Scola suggested that Attorneys take a page out of the book from our death penalty colleagues and advised, “Don’t wait to think about sentencing advocacy.” In other words, since 99 percent of one’s federal criminal clients will be facing sentencing, start preparing the case for sentencing early on.”
- Reduce the time, expense and effort needed in preparing your client’s Presentence Report.
- In preparation for the (federal) sentencing hearing (eg.: RDAP, Medication availability, mental and or medical healthcare (and Psychology Therapy) programs).
- Being proactive in this process will impact your clients and their family’s immediate fears and future.
- Save the BOP the cost of a possible transfer at a later date, no matter how rare this may be. Regarding transfers, a federal inmate may not be eligible for transfer until they have demonstrated 18 months with no negative conduct.
The responsibility for a client’s mental and physical health should be safeguarded in order to protect them from themselves and others while providing a safe environment for the duration of their incarceration.
This is the responsibility of the federal criminal defense team, court, and BOP
The cost of proper research and preparation of these PSR-relevant variables can affect the bottom line of your firm:
- There are approximately 3,000 medications available on the BOP Formulary and Non-Formulary. Are your client’s medications available on the BOP Formulary List?
- There is a Non-Formulary Medication list, requiring a multiple-step referral request process in order to get an approval or refusal.
- PPRS Prison Match™ has a comprehensive medication list that can save hours of research time and facilitate inclusion into your client’s PSR.
- Inclusion of Non-Formulary Medications in your client’s PSR highlights the need for discussion at sentencing.
- Keep in mind that there are other medications that are simply not available.
- Medical and Mental Healthcare is dispensed in the BOP through a CARE LEVEL I-IV Structure.
- Where would you look, and what amount of staff time is needed for researching this issue? This could be critical in determining how healthcare is dispensed in order to ensure that your client’s healthcare needs are met. Ensure this by documenting them in their PSR, in preparation for the sentencing hearing.
- Using the symptoms of Autism Spectrum Disorder as an example, is your client able to function in the general population with other inmates? If not – your client may be a candidate for the Skills Program, which is only available at two facilities (Coleman-Medium and Danbury-Low).
- The Skills Program is part of the BOP’s National Programs that includes Psychological Counseling (For Individuals and/or groups, and can be taken multiple times), which are available at a limited number of facilities.
- After your research identifies where the services are located, does the defendant’s current ‘Security Level’ conflict with the program’s security availability? Here it may be possible to request a reduction in their PSF, if warranted. Then depending, a facility recommendation can be included within their PSR, and at the sentencing hearing.
- Verifying RDAP eligibility; note that drug/alcohol abuse also includes prescription medications along with those medications that are available ‘over the counter’. Per the American Bar Association; there must be present a verifiable, documented pattern of substance abuse or dependence within the 12-month period preceding arrest (§3:30.2 The 12-Month Rule).
- Federal Prison Camp or Satellite Camp: there are differences.
- Your Clients Increased Security Level: whether Low, Medium, Medium USP, High or High USP. Penitentiary’s (USP) along with the other security levels are meant to define the control of freedom of inmate movements.
- Public Safety Factor (PSF), may be used to reduce a security level before or at the sentencing hearing.
- Address the recidivism paradigm by matching your client to a facility that supports their interests in learning either an occupation, trade or higher education.
- Ensure that the content in the official PSR is accurate, making corrections where applicable.
- Lastly, see if you can get the US Attorney to agree to your placement proposals before the federal sentencing hearing.
Prison Match™ – Federal: PSR/Sentencing Preparation Software*
The responsibility for a client’s mental and physical health should be safeguarded in order to protect them from themselves and others, providing a safe environment for the duration of their incarceration.
This is the responsibility of the legal defense team, court, and BOP.
* In addition to the defense teams’ insight as to their client’s background and defense strategy, PPRS Prison Match™ is meant solely to be used as an ‘aide’ in their sentencing and prison placement decision-making process.
Placement of the defendant/inmate within 500 miles of their family and loved ones is “aspirational” on the part of the BOP.
The BOP Official PSR is a more comprehensive criminal history intake document.