Dec 30, 2017
I’m Michael Santos and I want to welcome you to another Prison Professors podcast episode. Earlier episodes provided you with the background information on my partners and me. Today we’re recording a series of five podcasts that will help our listeners understand a bit more about the process of going into the criminal justice system.
As of now, I have five episodes planned. They include the following:
Understanding the Process
We’re going to start by paraphrasing Stephen Covey. In his timeless bestseller, The Seven Habits of Highly Effective People, Dr. Covey advised that we should try to understand before we try to be understood.
That guidance applies to anyone who wants to master prison. We’re recording this series of episodes of the Prison Professors podcast specifically for people who anticipate that they may go into the criminal justice system. Those who have a solid understanding of the system may want to skip this episode.
Our goal is to help listeners make decisions that will put them on the path for the best possible outcome.
And the best possible outcome requires good decisions. To make good decisions going forward, we need to understand how the process works. So let’s begin with some instructions on how someone goes into the criminal justice system.
Investigators frequently start the process. Those investigators may work as part of the SEC, the IRS, the FBI, or the DEA. Allegations of misconduct can lead to an investigation. During that investigation phase, agents will collect evidence. The agents will work closely with federal prosecutors. The federal prosecutors will make a decision on how to proceed. If they want to charge a person with a crime, they have different options.
But once investigators and prosecutors decide to bring charges, especially in the federal system, the person becomes a defendant.
When prosecutors choose to bring a case against someone, chances for a conviction become exceedingly high. At first, the person may be a “target” of an investigation. The investigation can take place secretly, with a grand jury.
In the grand jury proceeding, a prosecutor puts together a group of citizens. Those citizens listen to evidence that the prosecutor presents. That evidence includes live testimony from investigators and other witnesses. Grand jury members listen to the witnesses respond to the leading questions from the prosecutor. At some point, the prosecutor will ask the members of the grand jury to “indict” the target of the investigation.
In some cases, prosecutors use a less formal way of charging people. Rather than going through a grand jury, they may file a “criminal information.” The criminal information can result from an agreement that the prosecutor makes with the defense team.
Regardless of how prosecutors bring charges, things change. To start, a person becomes a defendant. We have all heard stories that in our country, we have a presumption of innocence. Yet few people who have been charged with a federal crime recognize that distinction.
Statistics show the consequences. We encourage our listeners to do their own research. Simply type into Google “United States Attorneys’ Annual Statistical Report.” Or download it from our website at PrisonProfessors.com.
Read the data. That data should help people make better decisions as they advance through the process.
At our website, PrisonProfessors.com, we offer an abundance of articles, blogs, and videos that will help people understand more about the criminal justice system. Learn as much as possible. We do not dispense legal advice, but we provide a lot of content that will help our audience make better decisions.
Our co-founder, Shon Hopwood, is a lawyer. But he does not use our site to provide legal advice. To participate in litigation, Shon would need to know details of the case. Details of a case require many hours of research, and time comes at a premium. We trust that our listeners will have a solid legal team in place to advise them.
On the other hand, we members of our audience to understand the opportunity costs that come with every decision. Those who want to master prison quickly should realize implications of every decision along the way. We make better decisions when we have a more complete understanding of the process.
The Defense Attorney:
Once prosecutors charge a person, the defendant will need a defense attorney. If a client does not have the resources to hire a defense attorney, the Court will provide an attorney. The court-appointed attorney may be a part of the federal defenders. Or the court-appointed at torney may be a defense attorney that agrees to work on the CJA panel. Every federal judicial district has a roster of attorneys who are experienced in federal court.
Regardless of whether the defense attorney serves on the panel or with the federal defenders, that person will have been exposed to extensive amounts of training and resources. Federal defenders and panel attorneys are well qualified to represent defendants in federal court.
Other defendants may retain counsel. Attorneys who have extensive practice in federal court charge a premium. Hourly fees for defense attorneys with experience in federal court depend upon how long the attorney has been practicing and geographical locations. Defendants should expect to spend tens of thousands for any representation in federal court. For those who lack access to capital, we urge defendants to use federal defenders rather than hire an attorney who lacks experience in federal court.
Our team has a process for vetting defense attorneys in federal court. We also offer consulting services to assist defendants who need this guidance. Your defense attorney will become an essential part of your team, so choose wisely.
If prosecutors bring charges against a defendant, a plea hearing will follow. That plea hearing can happen quickly, or it can be postponed. We work with some defendants who may wait for years before they actually face charges and enter a plea. In most cases, people enter not-guilty plea hearings. Then, after defense attorneys work out the most favorable deal, defendants change their plea to guilty in accordance with the plea agreement.
Let’s talk about pleading guilty.
Entering a guilty plea is a formal proceeding. There will not be much conversation. Early in the hearing, the defense attorney will let the judge know that the defendant wants to enter a plea, or a change of plea. The judge will then ask the defendant to rise. The defendant must swear to tell the truth, under penalty of perjury. The judge will let the defendant know that he is not bound by any deal the prosecutor may have made. The defendant must acknowledge that he understands. After the judge is satisfied that the defendant understands, the judge will read each criminal charge. Then the judge will ask the defendant if he is guilty of the charge. The defendant will not have an opportunity to explain or elaborate. He will simply say, “I plead guilty.” Opportunities for explanations and elaborations will come much later.
Pleading Not Guilty:
If the defendant persists with a “not guilty” plea, a trial will follow. The trial can last for days, weeks, or months. During the trial, prosecutors will present evidence. The defense attorney will argue to discredit the evidence. The judge will decide what evidence the jury will hear. And in time, the jury will render a verdict. If the verdict is not guilty, the judge will release the defendant—and he can go home. If the verdict is guilty, the process will continue with a Presentence Investigation.
A federal probation officer will begin the Presentence Investigation (PSI) by reviewing a report from the federal prosecutor. That prosecutor’s report will present the government’s version of events. Probation officers will cut and paste the prosecutor’s version of events into a report that is known as the Presentence Investigation Report, or PSR.
To continue the investigation, the probation officer will speak with the defendant. The defense attorney should be present during the PSI interview. If a defense attorney chooses not to prepare the defendant for the PSI, the defendant will have a red flag; he is not being advised appropriately. Defendants should take every effort to prepare for the PSI, as it will have lasting implications. Those implications stick around long after the sentencing hearing.
During the PSI interview, the probation officer will ask the defendant about what he or she has to say about the offense. We advise defendants to prepare for this question. Ideally, the defendant will have written a narrative in advance. The defendant can explain the process by thinking through the content of that narrative.
According to video interviews our team has done with federal judges, which are available on our YouTube channel, that PSR can have an enormous influence at sentencing. Further, it will have an influence on placement in the Bureau of Prisons. The PSR will influence the journey in prison. It will influence when the defendant transfers back into the community. And it will influence the level of liberty the defendant has while on Supervised Release. For those reasons, we urge defendants to take every opportunity to understand the presentence investigation, and to prepare.
Fortune, as you know, always favors those who prepare.
The probation officer will conclude the investigation with an extensive presentence investigation report. The PSR will include what the probation officer learned from the defendant and also from other people who are related to the defendant. That may include family members, it may include employers, it may include creditors, it may include victims.
The PSR will include both objective and subjective information. The objective information includes information about the conviction. It will also include information that will influence the federal sentencing guidelines. Those federal sentencing guidelines are complex. We urge defendants to learn how various factors influence those guidelines. Also, it’s crucial for defendants to know how they can work to get the most favorable outcome during the sentencing hearing. It all starts with the presentence investigation report.
Learn and understand about sentencing hearings before the inevitable date. Unfortunately, when federal prosecutors bring charges, more than 80 percent of the defendants face a sentencing hearing. Influencing the outcome with a well thought-out sentence-mitigation strategy—that is essential. Learn what steps you can take to move the needle in your direction. Although every case is different, and requires a highly customized approach, we can provide some bullet point suggestions.
Designation in the Bureau of Prisons:
In some cases, a comprehensive strategy will result in an alternative sanction that does not include time in custody. Our team at Prison Professors does its best to help defendants who want to advance arguments for a non-custodial sentence. No one can change the past, but we all can sow seeds for a better future. Unfortunately, in most cases, sentences include prison. When prison becomes part of the journey, the next step after the sentencing hearing will be for the Bureau of Prisons to assign the appropriate prison.
Several factors go into the equation of prison designations. The Bureau of Prisons relies upon the latest edition of Program Statement 5100 to determine prison designations. The complicated matrix assigns points to objective factors that include criminal history, type of offense, severity of crime, and so forth. A variance table makes additional adjustments. Public Safety Factors and Management Variables can also influence the custody and classification. Our website includes a calculator that calculates the point system.
Besides custody and classification scoring, the Bureau of Prisons will also consider judicial recommendations, medical needs, prison population levels, institutional needs, and geographical locations. All of those factors go into consideration of the Bureau of Prisons’ decisions. Then, the BOP will order the prisoner to begin serving the sentence in a specific prison.
Defendants should learn everything they can about the designation process. The more they understand, the better prepared they become to influence where they will serve the time. Although we can master any environment, the earlier we get started in mastering the process, the better off we are.
Isn’t that always the case in life?
Serving the Sentence:
Success through any prison journey begins with a clear understanding. When we can define what success looks like on the other side of the journey, we have a start. The heart of this book will describe how to take us from where we are today, to the life we want to create. Although many of us would like to change the past, we master the system when we deal with the world as it exists—rather than as we would like it to be.
Our team at PrisonProfessors.com will help you every step of the way.
Thank you for listening to Chapter 1 of our free ebook, How to Master Federal Prison—Quickly. To get the entire free ebook at once, take one of the following actions:
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Shon Hopwood and Justin Paperny are my partners at Prison Professors. I’m Michael Santos. Our team creates digital content and we offer consulting services.
We assist people who face challenges with prosecution, sentencing, and prison.
We also assist agencies that want to improve outcomes in their institutions. Our clients include individuals, law firms, state and federal prison systems, the courts, and school districts.
Visit us at PrisonProfessors.com or contact Justin at 818-424-2220 to learn more. Subscribe to our podcast on iTunes. And please leave us an honest review!
Stay tuned for another 20 to 30 minute episode with Prison Professors.