Federal Pretrial Primer 2: Pleas, Sentencing and Designation

This is the second of three articles written by the consulting firm PCR Consultants which deals with the federal pretrial phase of an inmate’s federal prison experience. Here we’ll look at what you can expect, how you’re odds are for beating an indictment, and how you can help yourself before leaving for prison.

The Hard Truth: Less than 1% Of Federal Defendants are Acquitted at Trial

The first hard truth which needs to be said out loud is the fact of an impending conviction. According to the Bureau of Justice Statistics, 93.6% of all federal defendants plead guilty at some point before trial. All federal district court cases are prosecuted by the local U.S. Attorney, and some areas boast over a 97% conviction rate. Only 2% of federal criminal cases go to trial, and most of those will lose. According to those numbers, Only 1% of federal criminal defendants will both take their case to trial, and also be acquitted.

About 90% of all federal charges are felonies, and 93% of those felonies result in conviction. Only 2% of federal criminal cases go to trial, and most of those will lose. According to those numbers, Only 1% of federal criminal defendants will both take their case to trial, and also be acquitted.

This environment coerces plea bargains out of defendants. No sane defendant is willing to risk the rest of their lives in prison against those kinds of odds, unless they have nothing to lose because they are facing nearly a life sentence anyway. Regardless of the chicken or egg argument (pleas cause high conviction rates, or conviction rates cause pleas), if anybody is indicted by the U.S. Attorney they will most likely end up with a felony conviction. This also means a stay, long or short, in federal prison.

A Federal Pretrial Defense Timeline

Four events make up this federal pretrial time-line.

First, there is charging a crime and detention concerns. A defendant is charged with a crime by indictment, information, or complaint. They have an initial appearance to plea to the offense (guilty v. not guilty) and an inquiry is made by the district court into whether this particular defendant should be free or in custody pending further hearings.

Second, In 94% of cases the following event is plea negotiations. This is followed by either trial (no guilty plea), or a change of plea hearing (a guilty plea). Federal criminal trials are a large topic and won’t be covered here. Typically, though, the plea negotiations are the most important part of this process which gets largely ignored. There are many aspects to plea agreements that are very important in the long term, but are not prioritized when the larger worry of trial is looming. Read more about what to look for in plea agreements on our dedicated article about plea agreements.

Third, after a guilty plea is negotiated, and the guilty plea is entered, the process continues to sentencing. The sentencing phase is long and includes a detailed report from the U.S. Probation Office to the sentencing judge. This report is a full-scope look at the defendant, and the crime(s) they will be sentenced for.

This report, called the Pre-Sentence Investigation Report. This called the PSI or PSR, depending on who is asked. Technically a “PSI” refers to the investigation itself, while “PSR” refers to the final report to the sentencing judge. Using either term is usually fine, and anybody with experience in the federal criminal justice system will know what is being referred to.

The PSR makes a huge impact at sentencing, as it weighs the nature of the specific crime, the criminal history of the defendant, the recommended sentencing range by the Sentencing Guidelines Manual, and a slew of other considerations that matter to a sentencing judge.

Fourth, is the sentencing hearing. Before the sentencing hearing, lawyers from both sides will file sentencing memos filled with their arguments over what the appropriate sentence should be for the defendant. At the sentencing hearing, the defense attorney and the government prosecutor will argue over what points in the PSR should be changed or thrown out, and the sentencing judge making final determinations over the correct interpretation of the PSR and recommended sentence calculations.

After sentencing, if a defendant is allowed to self-surrender for incarceration, a simple letter from the federal Bureau of Prisons will be sent alerting the convicted defendant of where they will be serving their sentence, and the date required to report to that facility.

Ways to Make A Difference In Sentences

These events carry with them a possibility for better or worse outcomes, depending on how they are dealt with. A plea bargain is rather routine, but normally is negotiated very aggressively by the assigned Assistant U.S. Attorney prosecuting the case.

Knowing if a plea agreement is a good bargain or a bad one is difficult. This is likely the first time a federal criminal defendant has been in this position before. Who studies other cases before they are charged with a crime? Reliance on the defense attorney is nearly always the default of a defendant.

Prosecutors are recognized by both their conviction rates AND the length of sentences they average. This is a negotiation like anything else and prosecutors want to “win” (get the most time in prison with the least amount of work they can). Negotiation from the defense side is dangerous, and can backfire if made too vigorously by removing the government’s willingness to offer a plea bargain option altogether.

At sentencing, things are much worse for a defendant who goes to trial (and loses). This is usually referred to as the “Trial Penalty” because there exists a built-in leniency at sentencing for defendants who plead guilty, and do so early in the process. ((This saves the government lots of time and resources

Cooperating with the government to help them prosecute others, in conjunction with a guilty plea, can make a massive difference in sentencing. In one recent case, a cooperating defendant who pleaded guilty was given 50 months in prison, while the uncooperative co-defendant, who went to trial, was sentenced to 410 months. Eight times larger sentence, for defendants who committed the same crime together!

Do you trust your attorney to effectively calculate your sentencing guidelines and weigh the pros and cons of trial?

A prison consultant can work with you to be a second opinion, using real-world experiences backed by solid law, to make sure that you are getting the best possible sentence, and even garnering reductions in that sentence with their personal conduct while on pretrial status.

Decades of your life can be saved by knowing even the smallest details that your lawyer may not know!

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