Federal Pretrial Primer 3: Getting the Prison you Want

This is the third and final installment of PCR Consultants’ primer on the federal pretrial phase of incarceration. The institution where one eventually does time is equally as important as how much time he or she will spend inside.

Your Next Destination

Are some Institutions Better than Others?

The short answer is: yes. Once it becomes clear that a prison sentence is unavoidable, the next question is always about where a defendant will do his or her time. This is not only an important question, it is the ONLY question that can make a meaningful difference to quality of life when doing time, and how soon an inmate can leave.

A lot of questions need to be answered, but this is where lawyers tend to fall very short. Lawyers can know a ton about criminal defense, but also know almost nothing about the inner workings of the Bureau of Prisons (BOP). The BOP uses its own set of standards to determine what security level an inmate “requires”. A future inmate of the BOP might assume that he belongs in a camp because he has no prior criminal record at all, but this isn’t always true.

If a sentence is too long, security levels increase. If it is too short, the certain camp a defendant asked to go to may no be given to him because it offers programs that require a sentence be certain length to qualify for placement there. At this point a judge’s opinion is only advisory, and the future inmate is fully at the mercy of the BOP. However, there is good news.

A sentencing judge can make a recommendation to the BOP of where he or she wishes to be incarcerated. If (and this is a huge ‘if’) that judge makes a recommendation for placement which is within BOP regulations for security level and program needs, that recommendation is granted a large majority of the time. If not, a future BOP resident can be sent literally ANYWHERE in the country that has room for them. Avoiding this mistake can mean months of time taken away in a halfway house and even up to a year off an inmate’s sentence for participation in the BOP’s residential drug and alcohol program.

Because lawyers make their money in criminal defense, most don’t spend the time to make truly informed decisions on what to ask the judge to recommend. This mistake is costly, but the cost of it is only apparent after one is already behind bars and its months-too-late to correct the problem. Prison Consultants, good ones anyway, have first-hand knowledge of the BOP process of inmate designation and which institutions are better and worse, closest to home, and have the programs available for each client’s specific needs.

Thank you for reading this primer. There will be many more to come which detail life inside the BOP, what to expect from a halfway house, and what’s in store for a released convict with the US Probation Office.

Federal Pretrial Primer 2: Pleas, Sentencing and Designation

This is the second of three articles written by the prison 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 first hard truth that needs to be dealt with is 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 places, like the Northern District of Illinois (lead by U.S. Attorney Patrick Fitzgerald) boast over a 97% conviction rate.

This creates an environment that encourages plea bargains because nobody wants to go up against those kinds of odds, but those odds are greatly bolstered by guilty pleas. Regardless of the chicken or egg argument, if you are indicted by the United States Attorney you most likely will end up with a Felony Conviction. This also probably means a stay, long or short, in federal prison.

Three events make up this federal pretrial time-line. First is the plea hearing, followed by trial and/or sentencing hearing (depending on the plea). The process ends with a simple letter from the federal Bureau of Prisons alerting the convicted of where they will be serving their sentence.

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 who is prosecuting the case. Knowing if you are getting a good bargain or a bad one is difficult. This is probably the first time a defendant has been in this position before and hasn’t studied other cases like theirs to check if a similar case was given a better deal.

Realize that prosecutors are recognized by both their conviction rates AND the length of sentences they average. This is a negotiation like anything else and they want the most time in prison with the least amount of work they can get away with. However, this is a pitfall in and of itself because a wrong step can remove the plea bargain option altogether.

Next is the sentencing after plea or trial. Sentences can become much more strict if the defendant forces trial, and leniency in sentencing at that point is solely at the discretion of the presiding judge. On the other hand, sentencing after a cooperative plea hearing is automatically reduced just for cooperating with the U.S. Attorney, and different legal avenues can be used, depending on the situation, to abolish ugly things like “Mandatory Minimum” sentences. Does your attorney know how to use these avenues? Can your attorney effectively calculate your sentencing guidelines?

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.

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

Federal Pretrial Primer 1: What Prison Consultants Do

This is the first of three articles written for those who may be just entering the federal criminal justice system and the Bureau of Prisons. If you, or somebody you know, is dealing with a federal legal problem, you will undoubtedly encounter a cast of characters, names, and acronyms that are new and probably intimidating. We’ll make this information as understandable as possible while explaining why Prison Consultants can do for you.

The Cast of Characters

Who and what you’ll encounter

When the federal government first sets eyes on a person of interest where they believe a crime has been committed, an investigation will begin from one of many policing agencies (i.e. FBI, ICE, ATF, and many other abbreviated agencies). These agencies will be the first contact you will have with the system and their role tends to be very short. Generally you never see or know about the investigation, and your first indication of their interest in you will be when they make an arrest or formal indictment.

The second character in this sad play is your attorney. If you have a personal attorney, chances are they have tried very few federal criminal cases (federal criminal defense law can very different from state/local defense law) and will refer you to another defense attorney that knows their way around the halls of a federal courthouse. This is your first ally in a system that seems enormous and overpowering.

Third, if you are released on bond, will be a federal Pretrial Services Officer. This is basically a Probation Officer that is assigned to keep you out of any more trouble than you’ve already been accused of until your trial/sentencing hearing.

In very basic terms, these people will comprise the main contacts a new defendant will have when introduced into the world of federal justice. How you choose and interact with these people can make an huge impact on the eventual outcome of a case, and there is no single guidebook to describe exactly how to navigate your way through this confusing and frightening time.

This is why a fourth entity can be the most valuable ally anybody can have during this time: a Federal Prison Consultant.

Every person, and each case, is vastly different. Most people trust their attorney to do all of the thinking for them and pray that they made the correct choice in attorneys. The truth is that a good attorney can make the biggest difference on whether you serve prison time and/or how much time you spend there. The problem is: how do you know that your attorney is doing their job?

How, then, are you supposed to be secure in the defense your attorney is presenting on your behalf? Answer: A Prison Consultant is an entity that does not legally represent you, nor are they bound by the American BAR Association or its bylaws. A consultant can be a seasoned pair of eyes that will help you through this tough time and keep you from making common mistakes during this stage of the game.

Intro to the Bureau of Prisons

The Bureau of Prisons

Most people who become a target of the Department of Justice, and are indicted, will be sentenced and given prison sentences. A vast majority of these people will, in fact, serve time. When faced with prison time, the only asset a defendant has in his or her possession is knowledge. Knowledge is the only the one can really take into prison.

So what is the Bureau of Prisons?

The Bureau of Prisons (BOP) is responsible for all federal defendants who are convicted and sentenced to any prison term. It is a gigantic, intimidating monolith to the untrained eye and is often regarded as a lawless agency that does whatever it wishes. This is officially and mostly untrue. Understanding how the Bureau of Prisons works is the first step in influencing it to your advantage. Below are a few key knowledge bits that will get you started in your path to figuring it out.

Regions : The BOP is divided into six separate regions. For sentences of less than 5 years, a newly classified inmate will normally be sent to (“designated” to) an institution within their region. The regions are: Western, North Central, South Central, North East, Mid-Atlantic, and Southeast The You can see a regional breakdown of the United States on the home page of the Bureau of Prisons on it’s homepage.

Security Levels There are four main security level designators for BOP institutions. They are Maximum, Medium, Low, and Minimum. To add a wrinkle to this simple list, the BOP calls its facilities which house these security levels by different names.

  • Maximum Security inmates are housed in United States Penitentiaries (USPs)
  • Medium Security inmates are housed in Federal Correctional Institutions (FCIs) or USPs
  • Low Security inmates are housed in FCIs
  • Minimum Security inmates are housed in Federal Prison Camps (FPC)

Now these are not the only types of institutions the BOP operates. There are facilities with special purposes like medical complexes and the ADX SuperMax in Florence, CO that houses the most dangerous federal inmates. You can read about all the different types of facilities owned by the BOP

What the BOP doesn’t mention on their page is that it contracts with multiple private-company prisons to house in-transit and overflow inmates. There are mixed reviews about these privately run prisons, but most are not favorable and the existence and use of these prisons isn’t widely publicized by the BOP.

Hierarchy

The BOP has a standard hierarchy that it uses to delegate command starting with the Attorney General of the United States, then he Director of the Bureau of Prisons. From there the Director of the Central Office oversees policy and the Directors of the Regional Offices. The Regional Office directors oversee the Institutional Wardens. Lastly there are normally two Assistant Wardens per institution (one is for programs, one is for operations), each cell-block-unit has a Unit Manager, who oversees the Unit Counselor and Unit Case Manager.

 

You’re welcome to reprint these articles on your website and in your e-newsletters free of charge, provided that you don’t change the article in any way and you include the byline (including a link to our website) In doing so you agree to indemnify PCR Consultants and its directors, officers, employees, and agents from and against all losses, claims, damages and liabilities that arise out of their use. Unless otherwise noted, all content copyright © 2010-2015 PCR Consultants

Help Yourself at Sentencing

Whatever You’ve Done Can and Will be Used to Help at Sentencing

Sentencing is a difficult time for everybody surrounding a criminal trial. Victims and their families are never happy with a merciful prison term, while convicts always want less time than what they received. This gap will never close.

For those sitting with their lawyer at the defense table, anything that can be used to lessen a possible prison term is used on Sentencing Day. On March 2, 2011 the Supreme Court of the United States reversed a decision by the Eighth Circuit court and enabled more information to be used at sentencing in favor of the defendant.

In Pepper v. United States (No. 09-6822), the Supreme Court said that district courts may consider post-sentencing rehabilitation at a resentencing hearing. Upon hearing this case, the Supreme Court reversed the circuit decision claiming that post-sentencing rehabilitation was not allowed to be considered at a resentencing hearing. In simple terms: although some rehabilitation happened after the original sentencing date, it did not keep those actions from being used on a defendant’s behalf.

There is a more in-depth analysis of the Pepper case and its ramifications, check out the analysis portion at the bottom of this post.

What this Means to You

Everything a defendant does before and after being charged with a crime is looked at by the presiding court. Use this information to your advantage! Voluntarily entering treatment while on pretrial status (if bond is granted) can take years off of a potential sentence. Screwing up while on pretrial can add those same years onto a sentence, so stay diligent!

Analysis

 

After pleading guilty and receiving a sentence containing a very significant downward departure, the United States Attorney appealed, the sentence vacated, and was remanded back to the district court for resentencing. The sentence was again pronounced, appealed by the US Attorney, vacated, and remanded for resentencing. The Eighth Circuit court vacated the sentence of Mr. Pepper on three separate occasions because — despite sentencing guidelines being only advisory — determined that the sentence was reduced too much.

The fourth trip though the courts (referred to by the Supreme Court Slip Opinion as Pepper IV), the district court imposed a 65-month sentence. That sentence was affirmed on Pepper’s appeal by the Circuit Court, and then granted Certiorari

Common sense would dictate that, after the Booker and Gall decisions by the Supreme Court, a district judge’s discretion would exist above appeal so long as that decision was constitutional. However, the Eighth Circuit disagreed with the sentencing below, and held that using post-sentencing rehabilitation as grounds for downward departure at a resentencing was not proper.

This type of disregard for a judge using his own “Judgment” is the reason Gall was granted Certiorari after Booker in the first place. The Supreme Court felt it needed to, once again, make a judge’s judgment legal.

To drive this point home, the high court held the following:

“[C]onsistent with the principle that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U. S. 241, 247, this Court has observed a consistent and uniform policy “under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible concerning the defendant’s life and characteristics,” id., at 247. That principle is codified at 18 U. S. C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). . .”

So, if the law says that no limitation shall be placed on the information a sentencing court may use at sentencing, why did the Eighth Circuit ignore 18 U.S.C. §3661 on three separate occasions? It seems as though it simply did not like the lack of a stiff sentence for Pepper, regardless if that sentence was given under sound legal judgment. The Supreme Court disagreed, vacated in part, affirmed in part, and remanded.