Sentencing Hearings are one of the things I handle often as a criminal defense lawyer here in Atlanta and other parts of the country. I also write occasionally about how the press and criminal cases intersect, and the increasing abdication by the press when they simply re-print whatever “press release” gets issued by some prosecutor’s office. Today I just finished a two day sentencing hearing in federal court. There likely will be some press coverage about the case, but I will leave that for another day. Instead, I want to talk more specifically about how sentencing hearings operate in theory, and in practice.
People who are familiar with the kind of work that I do know that a sentencing hearing needs to happen any time someone is convicted of a federal crime (whether that conviction comes after a trial or after a plea of guilty). The first thing that happens is that the person gets interviewed by a United States Probation Officer, who creates a lengthy document called the “Presentence Investigation Report” or “the PSR.” The PSR generally has two parts. One is sort of a miniature biography of the Defendant, while the other portion is where the Probation Officer makes recommendations about how to calculate the Sentencing Guidelines. These Guidelines result in a “range” of months for a particular case. This range is the starting point, because after the Judge calculates the Guidelines and gets that range, the Judge then needs to decide what is a “reasonable sentence.” The factors for a reasonable sentence are found in another law called title 18 United States Code, Section 3553. After the Judge considers those factors, the Judge decides if the 3553 factors suggest a sentence that should be inside, higher, or lower than the range suggested by the Sentencing Guidelines. At least this is the way it is supposed to work.
However, note that a Judge can stay within, go higher or go lower than the Guidelines but only after first calculating those Guidelines. Experienced lawyers in the federal criminal justice system (and by this I mean BOTH prosecutors and criminal defense lawyers) know that it is easier for a judge to give a sentence that is at least close to the Guideline range. Prosecutors therefore advocate for calculating the Guidelines that result in a higher range, defense lawyers argue for applying the Guidelines that result in a lower range. Obvious, right?