I just finished reading a news story in the NY Times titled “Frail, Old and Dying, but Their Only Way Out of Prison Is In A Coffin.” It follows reporting by The Marshall Project on the same topic. The bottom line, accurately told by both is this: there are far too many old prisoners who are dying in federal lockup because too many bureaucrats won’t release them. They like rules. We see them in criminal law – folks who cannot find any good in anybody confined for a crime.

The reports indicate too often old prisoners are not granted compassionate release, even when death is imminent, based on the severity of their offense or criminal history. How often? Sixty percent of the time. Imagine an eighty-seven-year-old man convicted of tax fraud with less than two years to serve on his sentence – Irwin Schiff. After trying to get his father released for two years, Andrew Schiff arrived at a federal prison to say goodbye to his father, who was by then unconscious and on a respirator, chained to his bed and watched by a guard twenty-four hours a day. Andrew told the NY Times, “There is no humanity in there.” He is right.

Aging prisoners are a problem, and with our ever-increasing number of inmates and ever-increasing length of sentences, the problem is going to simply get worse. Here are three things to remember if you are facing a federal trial and the possibility of a federal prison sentence.

First – the Feds play to keep. Defendants are found guilty or plead guilty in federal court 98.5% of the time. Fighting the feds requires faith in your lawyer, money to pay for the fight, and a commitment to get the case ready for trial. Preparation wins cases, especially federal cases. That takes time and time is money.

Second – If you are guilty, tell your lawyer. I know this sounds crazy but sometimes the best we can do for you is damage control. Getting you in and out as quickly as possible may be your best move, but your best opportunity to do that means you must be honest up front.

Third – Big sentences are the norm in certain drug cases and white-collar cases. It is important to understand the law here and keep in mind the potential factors that will increase the Sentencing Guidelines range. For example, in a fraud case, the amount of loss is critical because it is the primary determiner of the length of sentence.

One final thought on this grim subject – United States v. Stein, an 11th Circuit 2017 securities fraud case, provides a look at loss calculation for purposes of the sentencing guidelines range.  As menti0ned above, the bigger the loss, the longer the sentencing range – sometimes long enough to keep you in prison for the rest of your earthly years. In Stein, the Court of Appeals rejected the Government’s calculation of loss based what it termed “the buyer’s only” method because it failed to take into account reliance and proximate causation. Stein’s guidelines range had increased by 20 points based on the calculation of a $50 to $100 million loss. Intervening causes of loss, such as a declining market generally, must be considered on that issue. The Government had relied on actual loss, not intended loss, but its proof did not include evidence other than one investor who claimed he had been defrauded in reliance on the defendant’s fraud. The guidelines range in that case put Mr. Stein’s range at life in prison. He had been sentenced to 204 months – that’s right – 17 years.

If your case involves fraud – securities fraud, tax fraud, wire fraud – consult Stein and subsequent cases for potential arguments regarding loss calculations. It may be critical to keeping your sentencing level in check and avoiding death in the big house.