Federal prison placement, profiles, and tips
How to ensure that your client gets into the best possible prison and is released at the earliest opportunity.
Although it is Bureau of Prisons policy to place an individual in the least restrictive facility within 500 miles of the inmate's release residence, many inmates end up far from their families in harsher conditions than necessary. It doesn't have to be that way.
You can take three steps to ensure that your clients do their time in the best possible facilities. First, learn how the BOP classifies its facilities, and the characteristics of each type of facility. Second, understand how the BOP decides what type of prison is appropriate. Finally, learn how to increase the odds of a favorable placement.
For assistance with all three steps, turn to Alan Ellis and Michael Henderson’s Federal Prison Guidebook.
1. Learn facility characteristics
In 400 pages, or about 4 pages each, 105 federal prisons are described under the headings listed below. Most valuable and difficult to obtain is the institution-specific information on educational, vocational, religious, and recreational opportunities.
- Counseling/Rehab Services
- Health Services
- Smoking Areas
- Religious Services
- Telephone Policy
- Inmate Mail
- Visiting Hours
- Lodging/Accommodations Nearby
- Directions to Facility
2. Understand BOP designation process
16% of all federal inmates are housed in camps and community settings. The designation information in Federal Prison Guidebook explains how camp inmates and higher security level designees are selected, and what you can do to influence BOP’s scoring.
- Scoring the defendant’s security criteria
- Public safety factors
- Medical care level
- Management variables
- Central inmate monitoring information
3. Increase odds of favorable placement
Some judges mistakenly think the BOP does not follow their recommendations. While not binding, the BOP actually follows 85% of judicial recommendations. Overcrowding is making supported judicial recommendations more important. Federal Prison Guidebook explains how counsel can affect recommendations and placement.
- The role of defense counsel
- Ensuring the accuracy of the presentence investigation report
- Obtaining an appropriately-supported judicial recommendation
- Residential drug abuse program
- Community placement
9 practice tips from the book
Presentence investigation report
- Importance of accuracy. “Prisoners often complain that they have been negatively impacted by inaccurate information in their PSRs. At a recent presentation that author Alan Ellis gave at a federal prison, he asked the assembled inmates if the conditions of their confinement were affected by errors in their PSR. 80% responded that they were. He then asked the 80% how many of them were told by their attorneys prior to sentencing that the inaccuracies would have no detrimental effect. Almost all of the 80% raised their hands. It's up to us to reduce both these figures.” §2:10
- Meeting preparation. “Accompany your client to probation officer meetings that are part of the PSR process. Since probation officers are overburdened, obtain in advance the forms and documents they need, and have your client complete and bring them to the initial interview. If you have any cases supporting your guideline position, highlight the relevant portions and bring them with you. Highlighted cases are more helpful to probation officers, who are not lawyers and are sometimes put off by memoranda of law.” §4:10.2
- Drug abuse or alcoholism. “It is important for defense counsel to make sure that the Presentence Investigation Report (PSR) adequately documents any drug (illegal as well as prescription) abuse or alcoholism. Many defense lawyers and defendants tend to downplay substance abuse problems, under the mistaken belief that revealing such problems can harm the client. Unless a client's substance abuse problem is adequately documented in the Presentence Investigation Report (PSR), he or she may not qualify for the Bureau's Residential Drug Abuse Program and will not get the chance to earn up to a one-year reduction in sentence pursuant to 18 U.S.C. § 3621(c)(2), which permits such a reduction for nonviolent inmates who successfully complete a residential drug treatment program in a BOP facility.” §2:10
- Medical condition. “Attorneys often try to magnify their client's health problems in hopes of gaining sympathy from the sentencing judge. A focus on mental or physical problems can be warranted if it supports an argument for a lower sentence based either on Guideline Program Statements, such as USSG §5H1.3 (p.s.) (mental and emotional conditions "not ordinarily relevant") and §5H1.4 (physical condition "not ordinarily relevant"), or the non-guideline factors 18 U.S.C. §3553(a) requires a court to "consider." Otherwise, highlighting these problems may have the unintended consequence of the client being designated either to a medical facility rather than a camp, or to a different camp that is not the client’s first choice.” §2:10
- Advance agreement. “When you meet with the probation officer, find out his or her “dictation date.” This is the date by which he or she must dictate the first draft of the PSR. When possible, it is extremely helpful to have the probation officer and the assistant U.S. attorney buy into what you believe is your client's offense behavior, role in the offense, and any grounds for downward departure before the dictation date. Remember that probation officers often have a psychological investment in their original draft PSR. Since getting them to change a PSR can be difficult, put your effort into trying to get a good initial draft. That way, you won't have to file that many objections.” §4:10.2
- Sentencing memorandum. “Experience suggests that 80% of the time, a judge has a "tentative sentence" in mind even before the sentencing hearing begins. Unless you put on a tremendous dog-and-pony show at sentencing, it is likely that that "tentative sentence" is going to be your client's sentence. The best way to influence the judge's selection of "tentative sentence" is to file a sentencing memorandum approximately seven days before sentencing. If you can present the judge with character letters and a solid presentence memorandum that uses the § 3553(a) factors to demonstrate why a sentence below the guideline range is "sufficient, but not greater than necessary" to achieve the goals of sentencing, you will go a long way towards achieving the sentence you want.” §4:10.3
- Maintaining eligibility. “The possibility of the time reduction under §3621(e) is an important factor in plea negotiations and sentencing. Charge bargaining can result in a better chance at RDAP eligibility (for example, by ensuring that the defendant is not convicted of a crime—such as a violent felony —which would preclude sentence reduction). Contesting a "gun bump," USSG § 2D1.1(b)(1), or the existence of a prior conviction for certain offenses can also increase a defendant's chances of receiving a sentence reduction for participating in RDAP.” §4:10.5
- Judicial recommendations. “Unfortunately, some judges don't like to recommend particular places of confinement at sentencing, believing that they are not “correctional experts,’’ or because they have become discouraged by letters they get from the BOP advising them that their recommendations cannot be honored in a particular case. In these situations, counsel should point out two things. First….” §2:10
- Credit for prior custody. “Inmates can lose substantial credit towards their federal sentences because of the BOP's narrow interpretation of 18 U.S.C. §3585(b), which governs credit for prior custody. The BOP interprets the statute to prohibit “double credit” in many instances for time served on a sentence imposed by different jurisdictions. For example, under BOP policy, any time credited toward another sentence (whether state or federal) prior to the imposition of the current federal sentence cannot be credited toward the new federal sentence, even if the earlier sentence resulted from related conduct, and even if the judge, whether state or federal, ordered the sentences to run concurrently. The BOP's interpretation of §3585(b) sometimes converts a concurrent sentence into a partially consecutive sentence regardless of the Judgment and Commitment Order, because the defendant will not begin getting federal credit until the court imposes the federal sentence. There are ways to get around this, such as….” §4:10.6
Highlights from the 2012-14 edition
The 2012-2014 edition of Alan Ellis’ Federal Prison Guidebook is full of new and updated information on the Bureau of Prisons’ policies, procedures, and facilities:
Chapter 6: Pre-Release. This chapter focuses on pre-release placement, both halfway house (RRC) and home confinement, in the wake of the Second Chance Act.
Chapter 7: Sex Offenders.
Chapter 10: Direct Appeals.
Chapter 11: Habeas Corpus: §2255 Motions, with a thorough guide to both §2255 and §2241 motions.
Additional New and Updated Material
- Categories and examples of products approved for sale in the commissary (Chapter 1)
- Standard features of TRUFONE (Chapter 1)
- Acknowledgment of the BOP operating minimum-security work cadres at administrative facilities (Chapter 2)
- RDAP chapter covers revised BOP policy and practice (Chapter 3)
- New practice tips to help attorneys and their clients obtain the lowest possible sentence to be served at the best possible facility under terms and conditions that will facilitate release at the earliest possible opportunity (Chapter 4)
- “At a Loss for Justice,” an article on economic offenses (include larceny, fraud, and nonfraud white-collar offenses); how to use prison statistics in your case; updated child pornography guidelines; and an example of instructions for writing good character letters (Chapter 9)