View Full Version : What Happens After The Pre-Sentence Investigation


Digger
03-21-2002, 05:03 AM
By: Michael G Santos
10/28/2001

Describes issues concerning the sentencing hearing, prison classifications,
and inmate classification.



Federal Bureau of Prisons (BOP)

As discussed in the article concerning pre-sentence investigation reports, after an offender has been convicted of felony charges, a probation officer will thoroughly review the offenderís history and prepare a non-argumentative report for the courtís consideration. Then, the judge will set a sentencing date. Once the judge establishes that all-important date, the offender should consider whether he will make a statement before the judge imposes sentence. This decision, one of great consequence, must not be made in haste.

Offenders ought to appreciate the fact that before judges proceed to the bench, they attend law school and enjoy careers as lawyers. Judges, better than most people, understand that attorneys are professional advocates, capable of debating either side of an issue. Indeed, sentencing judges frequently listen to attorneys describe their clients as candidates for sainthood; one can be sure that even Charles Manson and other notorious felons had attorneys who argued passionately about their clientsí redeeming qualities.

What judges rarely hear is an offender who expresses remorse for breaking laws against society. Such statements can be much more influential than the most eloquent pleas by counsel. An offender should realize the powerful impact a formal expression of remorse has at sentencing, and then decide how he wants to approach the proceeding.

Although an offenderís opportunity to address the court at sentencing may influence the judgeís sentence, many offenders choose to remain silent and allow counsel to speak for them. In this writerís opinion, such a decision is a mistake, one that can be measured in a longer prison sentence.

I have been confined since 1987. During that time Iíve frequently been asked to assist other prisoners who were preparing post-conviction motions through which they hoped the sentencing judge would recognize an injustice and correct it by reducing the offenderís sentence. Providing this legal assistance has given me an opportunity to read transcripts from hundreds of sentencing proceedings. Again and again, I read sentencing transcripts where judges state on the record that they were imposing the lowest possible sentence as a result of the offenderís acceptance of responsibility, citing the statement as evidence of the offenderís remorse of contrition. Likewise, Iíve read several transcripts where sentencing judges rebuke offenders who chose to remain mute during their sentencing proceedings.

The U.S. Sentencing Guidelines, which federal judges must follow, provide a sentencing range for every offense. At the low end of the guidelines, sentencing judges have the discretion to impose a monetary fine or probation in lieu of a prison sentence; at the higher end of the guidelines, a judge has the discretion to impose a sentence within a range of many years. As an offender who is serving a 45-year term, I can assure all readers there is a definite advantage in receiving the lower sentence, and an offenderís statement made at sentencing may sway the judge to impose a sentence at the low end of his sentencing discretion.

Offenders who choose not to address the court at sentencing usually make this decision in an effort to preserve appellate rights. One of my books left over from law school indicates that in some jurisdictions, as many as 90 percent of the defendants who were convicted after trial and sentenced to prison will appeal their convictions. If an offender decides not to express remorse at sentencing because of concerns that such a statement could hinder an appellate strategy, the offender should understand the legal systemís tendency to let a trial courtís decision stand; the judicial system has a thing about ďfinalityĒ or bringing closure to a case.

According to Modern Criminal Procedure, a well-known and respected legal treatise, success on appeal varies with the particular appellate court. Generally, appellate courts give great deference to the trial court and the decision of the jury. Indeed, approximately 90 percent of all criminal convictions that resulted from a jury trial are affirmed on appeal. Finding relief through post-conviction procedures is even less fruitful, as courts grant relief to fewer than five percent of the post-conviction motions they receive.

Unfortunately, offenders learn too late that every passing day in the criminal justice system renders an offender's sentence and conviction more immutable. The best time to influence a judgeís sentencing decision is before the sentence is imposed, as in nine out of ten cases, offenders never have an opportunity to appear before their sentencing judge again. Accordingly, my experience and observations suggest that offenders should take advantage of the one opportunity they have to express remorse for their criminal behavior.

My suggestion is that the offender work with his attorney in preparing a ďsentencing packageĒ for the judge. The package should contain any type of information the offender has available that might demonstrate the offenderís commitment to leading a crime-free, productive life upon release from confinement. The offender might look for opportunities to atone for his criminal actions prior to sentencing and document his efforts for the sentencing judge.

If the offender can muster character references that will attest to the offenderís contributions to the community, then those reference letters definitely should be included in the sentencing package. Most important, though, is the offenderís written statement to show the sentencing judge that although the offender stands guilty of committing a crime, he is not a recalcitrant; I advise offenders to make every effort to show respect for the law and to substantiate claims of contrition.

Once the sentencing hearing begins, the offenderís attorney, the prosecuting attorney, and the probation officer will take turns arguing their issues regarding the pre-sentence investigation report. The next order of business will concern sentencing, with the prosecutor requesting a specific sentence and the defense attorney providing reasons the sentence should be less than the prosecutorís recommendation. Then, before the judge issues the sentence, the offender will have an opportunity to stand to address the court.

Although each offender must make his or her own decision, I am convinced the benefits associated with an acceptance of responsibility and an expression of remorse far outweigh the perceived benefits of standing stone-faced before a sentencing judge. Eloquence or flowery prose is not nearly as important as sincerity, and offenders may be certain the sentencing judge is not gullible. If one chooses to speak, the best policy is to be truthful and unpretentious.

After the judge passes sentence, the offender might request the judge to rule on collateral matters. Two issues concerning offenders who will be sentenced to prison include payment schedules for monetary penalties associated with the sentence, and the institution to which the prisoner will be designated to serve his term of confinement.

Regarding any monetary penalties imposed as part of the sentence, the offender may request the court to order the postponement of any payment toward these obligations until the offender is released from prison. The law does not require the judge to make a recommendation either way, but if the judge does not, Bureau of Prison counselors will require offenders to make payments toward these financial penalties from whatever money is available in a prisonerís commissary account. These payments can be a burden as a prisoner moves deeper into his sentence and financial resources become more scarce.

Also, the sentencing judge may listen to an offenderís request to serve his sentence in a particular institution. Some judges will agree to make such recommendations, and the prison system will make an effort to comply with any recommendations made by the judge. It is important to realize, however, that the prison system is crowded and many factors influence the facility where the offender will serve his time. A sentencing judgeís recommendation is helpful, but not binding on the prison system.

PRISON CLASSIFICATIONS

The Bureau of Prisons (BOP) operates its prisons according to the level of security it determines each prison requires. Each 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 each security level. That means an administrative facility may be holding mass murderers together with people who 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 these facilities are usually there for a specific purpose besides serving their sentence, and their freedom of movement is strictly controlled.

For the most part, administrative facilities are like jails that hold any type of offender. Generally, they serve three purposes:

1) As a facility close to courthouses so they can hold prisoners whom the U.S. Marshall Service needs to transport to court frequently;

2) As transit facilities where prisoners are held while en route to other prisons;

3) As hospital-like facilities where medical staff members and equipment are available to treat the complicated health concerns of the BOP prisoner population.

Most prisoners who are held prior to trial are confined in administrative facilities. Some examples of these include the Metropolitan Correctional Centers (MCC) located in several large cities, the Federal Transit Center in Oklahoma through which prisoners pass on their way to cross-country destinations, and the Federal Medical Centers that exist to treat offenders with serious medical problems.

The other four levels of security classification, minimum, low, medium, and high, are designed for prisoners to serve longer periods of time. Whereas prisoners are held in administrative facilities for specific purposes (to facilitate transportation or medical needs), prisoners may serve multiple decades in these other prisons. And as a result of the Bureau of Prisonsí complex system of classifying prisoners, the prisoners held in each respective prison will have similar security needs

Seven factors determine an institutionís security level.

1) They include the use of mobile patrols that drive around the institutionís perimeter 24 hours a day;

2) Gun towers located around a prisonís outside perimeter from which armed BOP guards monitor the activities inside of a prison;

3) 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) Internal security like locks on individual doors and bars on windows;

6) Housing issues, like whether prisoners are confined in locked rooms, cages or open dormitories;

7) And finally, the ratio between inmates and staff members

The higher the security level in the institution, the more stringent are the security needs. The most secure federal prison in the United States is the Administrative-maximum security prison at Florence, Colorado, where prisoners basically are denied all human contact. Federal penitentiaries, high-security prisons, have much higher rates of violence because they hold prisoners with violent backgrounds in more open settings.

>Medium-security prisons also have relatively high security needs, as they generally hold prisoners with up to thirty years remaining to serve. These long-term prisoners frequently bring higher levels of volatility to an institution.

Low-security prisons still maintain a degree of control, but they are more open than medium- or high-security prisons. Prison camps, on the other hand, are designed to hold prisoners whom the BOP has determined need the least amount of supervision or security controls.

Taxpayers frequently complain about the prison systemís use of federal prison camps. Many citizens want prisoners to suffer through long sentences and express outrage at what they perceive as the systemís codling of prisoners. What these people fail to take into consideration, however, is the extraordinary difference in costs required to operate lower-security prisons; the higher the security level, the higher the cost of confinement on a per-inmate basis.

The least expensive prisons to operate are prison camps. Camps do not require a fence around the perimeter of the prison. No gun towers exist. And the staff-to-inmate ratio is the lowest in the prison system. Indeed, prisoners confined in federal prison camps frequently work in community-type programs that place them in direct contact with civilians.

Whereas a high-security facility may have as many as one staff member for every prisoner it holds, a prison camp may require a single staff member for every 30 prisoners that it holds. Accordingly, the most expensive high-security facilities may cost administrators north of $40,000 per year to confine each prisoner that it holds, while it may cost taxpayers less than $10,000 per year to confine each inmate in a federal prison camp. With close to 2,000,000 people in American prisons, administrators have found it necessary to manage taxpayer dollars by properly classifying prisoners and holding them in the least-restrictive and cost-effective method available. After all, people are sent to prison as punishment, not for punishment.

INMATE CLASSIFICATIONS

After the PSI has been prepared, and if the judge imposes a sentence of incarceration, the Bureau of Prisons will evaluate the offenderís information in an effort to designate an appropriate facility for the offender to serve his sentence.

The Bureau of Prisons has published a Custody and Classification Manual (Manual) that describes guidelines prison administrators follow when designating an individualís place of imprisonment. The Manual is available on the Bureau of Prisonís web site at www.bop.org under Program Statement 5100.07. If an offender has access to the Internet, it would be wise to review the Manual in an effort to understand how prison behavior can influence the type of facility in which an offender is held.

In an effort to ensure all designation and transfer decisions are made without favoritism given to an individualís social or economic status, the Manual provides a matrix that allows BOP case managers to arrive at an objective score that will determine each offenderís security needs. Once case managers identify an offenderís security level, he (or she) will be designated to an appropriate facility.

Basically, the Manual uses a point system for two types of offender scoring. The first type of score, the Base Score, evaluates an offenderís legal status; the second type of score, the Custody Score, evaluates an offenderís behavior.

The Base Score, on which an offender can score from a minimum of zero points to a maximum of 7 points, evaluates and 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 individualís recommitment status. On this Base Score, the lower the number of points, the better for an offender.

The Custody Score, on which an offender can score from a minimum of ten points to a maximum of 30 points, evaluates the percentage of time the individual has served as related to his expected stay in prison; an individualís history of drug or alcohol abuse; an individualís mental/psychological stability; the seriousness and quantity of disciplinary infractions while in custody; the frequency of disciplinary problems during the past year; the level of responsibility demonstrated during incarceration; and the individualís 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 that will provide the administrators with a total security-level score. For male offenders, barring special circumstances outlined in chapter seven of the classification manual, offenders whose total score is between zero and five points may qualify for camp placement. Offenders who score between six and eight points usually are held in low-security prisons. If a prisoner scores between nine and fourteen points, he generally will be designated to serve his sentence in a medium-security prison. Offenders who score higher than fifteen points on the security-level scoring system usually will be sent 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 offenderís 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.

As mentioned above, despite an offenderís classification scoring, some additional circumstances may play a role in an offenderís security level. The Bureau of Prisons accommodates these factors through the use of management variables and public safety factors.

Management variables identify criterion 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 offenderís 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 facilities inmate population;

4) Central Inmate Monitoring, to monitor specifically-targeted offenders;

5) Med/Psych 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) PSF (Public Safety Factor) Waived, to make exceptions for inmates with special conditions;

9) Mariel Cuban, to monitor a group of prisoners who have caused widespread disruption in the federal prison system;

10) Greater Security, to confine prisoners in higher-security facilities than they would otherwise qualify;

11) Lesser Security, to confine prisoners in lower-security facilities than they would otherwise qualify.

The Bureau of Prisons applies public safety factors to screen offenders who 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 convicted of sex offenses;

4) Threat to Government Official, to monitor inmates who have been identified as seriously threatening government officials;

5) Deplorable 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;

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 offenderís classification score, management variables, and public safety factors, they will designate the individual to a particular prison. The stated objective of the BOPís 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.

Once an offender is initially designated, steps will be made to transfer the offender to the prison where he will begin serving his sentence. Offenders with very low security scores may be permitted to self-surrender to their designated prisons. Most offenders, through, will be transported by the U.S. Marshall service through a combination of road and plane trips. Offenders who must proceed through this prisoner-transport system should prepare themselves to spend several difficult weeks in transit, perhaps longer, as they make their way from jail to their respective prisons.

COMMENTS?

You can email the author at michael@prisonerlife.com