Sentencing Advocacy & Mitigation Services

 
NCIA’s Criminal Justice Services group has extensive experience assisting clients with all aspects of state and Federal sentencing. We offer the following services:

 

Federal Sentencing Consultation

NCIA’s Criminal Justice Services group has extensive experience preparing clients for sentencing in Federal court. We have worked closely with the defense bar for almost 38 years, researching and investigating alternative sentencing options, sentencing mitigation theories and other ways to lessen the impact of incarceration on offenders and their families.

Since the inception of the Federal Sentencing Guidelines in 1987, NCIA has remained abreast of the frequent guideline amendments, the applicable case law that have developed around the guidelines and the emerging empirical studies (social, cultural, medical and psychiatric) that lend themselves to arguments in support of departures from the guidelines. Post-Booker, NCIA has been on the leading edge of developing mitigation arguments under 18 U.S.C. §3553(a) factors. Additionally, we are intimately familiar with Bureau of Prisons (BOP) policies and practices through research of federal regulations, communication with BOP staff, outside program personnel, and others, including current clients committed to the Bureau’s custody who assist clients before and after sentencing, and by providing Prison Advocacy services during confinement.

NCIA staff assist defense counsel and prepare a client for sentencing by:

  • Developing personal and professional background information and materials highlighting client’s character for submission to the probation officer and/or the Court;
  • Preparing client for the pre-sentencing investigation process and probation interview;
  • Assisting with the development of a comprehensive sentencing memorandum or prepare an NCIA sentencing evaluation and report;
  • Researching specific sentencing guideline questions and developing specific sentencing guideline arguments, including arguments for downward departure from the sentencing guidelines range;
  • Conducting a disparity analysis of sentences imposed upon similarly situated offenders in federal courts using United States Sentencing Commission data.
  • Reviewing, analyzing and assessing the draft Pre-Sentence Report (PSR). Assisting in preparing formal response to the PSR;
  • Coordinating character reference letters and testimonials;
  • If appropriate, developing a community-based sentencing alternative, and preparing materials for the court outlining a specific sentencing proposal with supporting documentation.
Federal Sentencing Statistical Analysis

The United States Sentencing Commission (USSC) maintains a comprehensive, computerized database of federal sentencing information. For more than a decade, the NCIA has developed and used a reporting tool designed to aid defense teams as it relates to sentencing mitigation called the Federal Sentencing Statistical Analysis (FSSA) report. FSSA was designed to help criminal defense teams determine the reasonableness of the government’s incarceration demand upon the court. The FSSA produces a comprehensive statistical comparison which contrasts a client’s guidelines against sentences actually imposed in similar cases. This process allows the defense to analyze multiple factors that can affect a client’s total guidelines exposure. The FSSA has become a powerful tool for defendants with well over 150 cases winning significant downward variances based on the findings brought forward from the FSSA results. NCIA supports defense teams using FSSA with our own internal counsel to help develop strategies, determine alternative analysis scenarios amongst other consultative services.

This collection contains information on federal criminal cases sentenced under the Sentencing Guidelines and Policy Statements of the Sentencing Reform Act of 1984. The data files included in this FSSA contain all cases received by the USSC that were sentenced between October 1, 2002 and September 30, 2014. United States Federal Courts handled more than a million criminal cases between the fiscal years 2002 and 2014. The USSC estimates that 99 percent of all cases are included in the data collection.

Types of information gathered in the data sets includes:

  • Statute(s) of conviction (including statutory ranges and mandatory minimums)
  • Guideline applied
  • Whether the defendant entered into a plea agreement or was convicted after trial
  • All guideline calculations
  • Criminal history information
  • Final offense level and guideline range
  • District and circuit where the defendant was sentenced
  • The sentence imposed; detailed description of how the sentence will be served
  • Reasons for departure or variance
  • Financial penalties ordered
  • Characteristics of the defendant (including age at sentencing, education level, citizenship, marital status, number of dependents)
Development of Alternative Sentencing Plans

In 1978, NCIA prepared its first Alternative Sentencing Plan, using community service as social restitution. NCIA has continued to advocate for and write about the emergence of the imposition of community service as an alternative sentence. We describe cases where the Courts decided to impose a non-incarcerative sentence and rely on community service as the appropriate sanction. These cases highlighted a growing trend of Courts to apply 18 U.S.C  §3553(a) factors to individualize sentenced consistent with the Sentencing Commission initiatives.

18 U.S.C  §3553(a) mandates the Court to consider “the kinds of sentences available”. This mandate allows a community service order to satisfy the goals of sentencing. Community Service offers judges and alternative sentence to clients who can offer invaluable services and expertise to community organization. Substantial community service can sufficiently recognize the grave seriousness of white-collar crimes and utilize the time, skills and expertise of individuals who can be a benefit to communities in need.

NCIA assists defense counsel to prepare and submit alternative sentencing proposals to the courts. This includes gathering client background information, identifying organizations in a client’s community that would benefit from the client’s unique abilities and developing extensive community service placement for the client.

Development of Sentencing Videos

In the face of the Booker decision, a client’s personal history and characteristics have obtained a new relevance in the sentencing world. The courts now consider an offender’s lifetime of good deeds, service to the community, positive contributions to society, and their overall background in sentencing departure decisions. Traditionally these characteristics of the client are conveyed through submitting character letters to the court. In addition to coordinating character letters for submission, we have found inclusion of a character video to be a powerful tool to communicate the emotion and sentiments of a client’s references that cannot be felt in a letter.

A sentencing video provides sentencing judges an additional lens through which to view the client. Videos can humanize a client and capture their blemish free life through the testimony and stories of those they have affected positively. The video submission is a collaborative effort between NCIA, the videographer, the client, and those whose stories best illustrate the message we want to deliver.

Incarceration Management & Federal Prison Consultation

If and when an NCIA client is sentenced to a term of incarceration, NCIA staff assist the client and family members in the transition from the community to a state or federal prison. These services are varied and include:

  • Assisting the client in obtaining the most appropriate prison facility. This includes working with federal and state classification and designation authorities in determining the facility that best meets the client and family needs. Critical to this process is developing information and documentation prior to sentencing that provides the necessary information through the presentence report.
  • Becoming the advocate for our clients in the designation process. Absent advocacy, many clients are designated to facilities that are inappropriate and not conducive to family visitation.
  • Once a designation is made, NCIA assists our clients in both the practical and psychological aspects of imprisonment. These include:
    • understanding the federal and state prison regulations
    • assisting with information such as visiting hours, mail, commissary, telephone, items that are allowed in prison, etc.
    • assisting clients in understanding the “culture” of imprisonment
    • assisting families in understanding their visiting regulations and explaining the process
  • Our tenet is that information is critical and that the more our clients can be prepared, the easier the transition is for them.
  • Finally, when appropriate, we “partner” our clients with an existing NCIA client who is in a particular federal facility. For the past 27 years, we have assisted thousands of clients and have developed a substantial network of resources throughout the country. Having a currently incarcerated client to assist in the first couple of weeks of imprisonment is invaluable.
Residential Drug Abuse Program, RDAP
NCIA offers comprehensive consulting services to defendants and their counsel regarding RDAP program locations, qualifications and admission criteria. We have successfully assisted over 100 clients with RDAP representation.Residential Drug Abuse Program (RDAP) is an intensive substance abuse program administered by the Federal Bureau of Prisons (BOP) offered to federal prisoners who qualify and voluntarily elect to enroll. Upon successful completion of the program, prisoners who meet the necessary criteria are eligible for a 12-month reduction of their sentence and possibly six months in a halfway house.The Supreme Court has approved the BOP’s exercise of discretion to deny early release to defendants with prior convictions for certain offenses, as well as to defendants who received an enhancement for possessing a gun.Violent offenses normally disqualify defendants from the early release portion of the program. Felony or misdemeanor convictions for homicide, forcible rape, robbery, aggravated assault, and child sexual abuses all render a prisoner ineligible to participate.The program is open to inmates with a documented history of substance abuse in the 12-month period prior to arrest for the sentence they are currently serving. It is authorized in 18 U.S.C. § 3621. RDAP is only available to inmates in federal prisons. State prisoners are not eligible to participate.Consulting with a professional experienced in sentence mitigation improves a defendant’s acceptance rate into the program, particularly when charges implicate an individual in a violent crime. We strongly urge that criminal defense attorneys provide advice on these matters as early as possible in the criminal justice process.Research commissioned by the BOP revealed lower rates of recidivism and a higher quality of life upon returning to civilian life for offenders who successfully complete the program.

Post-Incarceration Services

Many defendants think their term ends upon release from prison. Nothing could be further from the truth. If a defendant in the federal system is leaving prison there is a good chance that he/she will still be in BOP custody until he/she completes his prison term (for sentences greater than 6 months). If a person is going to a Residential Re-entry Center (halfway house) or a Comprehensive Sanction Centers he/she will be working with the BOP’s Community Corrections Management. If he/she eligible to be transferred to home confinement (the last 6 months or 10% of the sentence, whichever is less) your client will transition from the RRC or CSC with another set of rules and requirements. After leaving BOP custody he/she will start his supervised release period which is often for a period of 3 years.In all cases you will be following different rules and working with different branches of the Justice Department.Once he/she has completed his sentence he/she will then start supervised release and be under the supervision of the U.S. Probation office which is part of the U.S. District Courts (Judiciary Branch of the Federal system, as opposed to the Department of Justice). It is the responsibility for the U.S. Probation Office to make sure that every defendant complies with the requirements of his supervised release. Supervised release often contains many different conditions such as travel restrictions, monthly reporting and payment compliance of any fines and restitutions he/she may owe. If there is a fine or restitution outstanding during his supervised release period you will most likely be dealing with the U.S. Attorney’s Financial Litigation Unit. Once a person has completed his sentence (finalized supervised release) then he/she could have local issues such as re-instatement of State voting rights and other disenfranchisement issues.

NCIA can help a defendant navigate through the BOP, U.S. Probation Office, the U.S. attorney’s financial litigation unit and other federal, state and local agencies.

NCIA Post Incarceration services include assisting with:

  1. CCC/Half-way house placement and consultation; anything from preparing the person on the rules/culture of the HWH; what they can bring with them, obtaining forms of identification; access to your motor vehicle, job hunting; getting the early release to home confinement, advocating for the client with the HWH, etc.
  2. Home confinement consultation.
  3. Supervised release consultation – this would include preparing for the probation officers meeting, monthly report, travel requirements, restitution and fine payments, etc.
  4. Early termination of supervised release assistance.
  5. Restitution and fine restructuring services.
  6. Restoration of civil rights.
Parole Services

NCIA also assists inmates in assessing their chances for parole, and developing strategies that will increase their likelihood of obtaining parole release. Following a personal interview, and review of pertinent social and legal information and offense-related behavior, a post-release plan is prepared that addresses the issues of public safety and risk of recidivism through stable residence, employment, support services and community supervision. Reports are submitted to the parole board examiners, and when possible, NCIA staff attend the parole board hearing in further support of the release report.

 

For further information contact Herbert Hoelter at hhoelter@ncianet.org or 443.780.1311.