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 BOP Facilities Better than Others?
The short answer is: yes. Once it becomes clear that a prison sentence is unavoidable, the next question should always be where a defendant will serve his or her time.
This is not only an important question, it is the ONLY question that can make a meaningful difference to the quality of life when serving federal prison time. It can even affect how soon an inmate can leave.
Many of questions need to be answered at this stage, but this is where lawyers tend to fall very short. An attorney may know lots about criminal defense, but 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, 1For instance, a sentence of more than 10 years will disqualify a defendant for “camp” placement If a sentence is too short, the specific camp a defendant requested may not be given because it offers programs that require a longer sentence to qualify for placement.
Asking the Sentencing Judge for Placement Recommendation
The defense can request the sentencing judge to recommend a certain facility (prison) for placement of a defendant. The judge’s recommendation for facility placement is only advisory, and the future inmate is fully at the mercy of the BOP. However, there is good news.
If the judge makes an appropriate recommendation for placement, 2Meaning that the recommendation 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 inmate can be sent literally ANYWHERE in the country that has room for them. Avoiding this mistake can mean months of time taken away in halfway house placement or even up to a year off an inmate’s sentence for participation in the BOP’s residential drug and alcohol program (RDAP).
Because defense 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 the defendant is already behind bars and it’s far-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.
** 2019 UPDATE **
The First Step Act has changed the way the BOP designates inmates in a small, but very profound way. Before 2019, inmate placements “close to home” meant that the institution was within 500 Nautical Miles 3this is quite a bit more than standard miles we all use on a day to day basis in a straight line from the inmates home-of-record. After the First Step Act, this was changed to within 500 standard DRIVING miles of the home-of-record.
** 2020 COVID-19 UPDATE **
To reinforce how important facility placement is, the BOP response to COVID-19 is an important event to analyze. This is a huge topic, but for relevance here, a look at how some facilities responded versus other facilities is important. A good example of this is is Judge Gwin, out of the Northern District of Ohio. In response to a deluge of 28 U.S.C. §2241 filings out of FCI Elkton, Gwin ruled that conditions there for inmates vulnerable to the Caronavirus infection amounted to Cruel and Unusual Punishment in violation of the 8th Amendment.
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.