Preparation for Federal Prison
As attorneys, we work hard and long for clients to get an acquittal or the least amount of prison time in federal cases. When prison becomes a reality, defendants now have a whole new set of questions before them and their family. While attorneys cannot possibly know everything about the prison experience, there are some basic things that clients want to know.
Security Level
There are four security levels in the Bureau of Prisons (BOP); Minimum, Low, Medium and High. The BOP uses a matrix based on a set of questions whose answers are contained in the Presentence Report. The defendants age, their crime, criminal history, whether they are allowed to voluntarily surrender or not, past violence, alcohol/substance abuse, completion of high school graduation and the type of offense are used to determine a classification. Those with sex offenses or non-US citizens, receive a Public Safety Factor that prohibits placement in minimum security camps.
Past cases that are unresolved can also trigger the BOP to place a detainer on the defendant, again making them ineligible for camp placement. Sometimes, attorneys can help resolve issues such as closing old criminal cases that can help put a defendant in a lower security prison. Also, validating education level (at least high school) or clarifying drug abuse can also lower points making someone eligible for a lower security prison. There is a huge difference between a US Penitentiary (high) and a Medium. Likewise, there are differences between Mediums and Lows … and Lows and Minimum Camps.
Program Eligibility
The BOP has several programs that inmates can participate in, some of which can reduce time from an imposed sentence. Most inmates can earn Good Conduct Time of 54 days/year of the sentence imposed (prorated for partial years). In addition, many inmates, particularly those who are headed to minimum or low security prisons, can earn First Step Act credits. There are 68 offenses that make an inmate ineligible, and inmates must have a minimum or low PATTERN score (Measure of violence and recidivism) to be able to apply the credits to reduce a sentence. Eligible inmates can also earn additional days of First Step Act credits toward home confinement. Those with long sentences, 8 years or more, can earn up to a year in the home confinement.
The BOP’s Residential Drug Abuse Program (RDAP) can take up to an additional year off a sentence if the person qualifies. To qualify there must be documentation in the Presentence Report of drug or alcohol abuse within a year prior to the indictment. There also must be enough time in the sentence to complete the residential portion in prison, 9 months, along with at least 4 months in the community. When combined with the First Step Act, a 42-month sentence can be reduced to a bit over a year in prison before transitioning to home confinement.
Judicial Recommendations
The BOP measures its compliance with judicial recommendations and has a track record of meeting those requirements 75% of the time. Most recommendations that are not complied with are because the attorney requesting the recommendation does so with something that cannot be complied with, such as asking for a camp when the person is Low security or asking for a camp placement for a male to a female facility. Attorneys need to discuss with a client where they would like to serve their sentence and then assess whether that prison is appropriate. Knowing which programs are appropriate for your client also helps for programs like RDAP that is only available in certain locations.
Also, if you are allowed to voluntarily surrender to prison, then at least make a recommendation as to the date when the person will surrender. If left to the BOP, there is no telling when the person will surrender and advance notice of where to surrender can sometimes be only a few days. Defendants want to know a date and most all judges will at least give them a date. One other thing to remember, if you want to surrender earlier than the date given, they can also do that by contacting the prison and giving them notice of the earlier surrender.
Sentence Computation
The initial questions we get from defendants as they consider prison is “How long will I be in prison and when can I get back into the community?”. Knowing this answer could also help in plea negotiations as defendants weigh their options to plead or go to trial. The BOP is not always 100% accurate and errors happen. It is important to discuss any variances the BOP has on someone’s sentence.
In more complex cases, there can also be issues of jail credit and how state or other federal cases affect the amount of time an inmate serves in prison. These can be complicated and there are instances that knowing more about a sentence computation could assist the Court in fashioning a fair sentence.
Restitution and Collateral Consequences
When considering a plea deal, many defendants overlook the implication of restitution as a punishment. Once out of prison, many newly returning citizens face the difficulties of finding employment and getting financial resources, like a bank account, to get back on their feet. Restitution is considerable in many federal cases and most of those who go to prison have few resources available to make payment in full. They are then faced with the prospect of up to 20 years after leaving prison to pay restitution amounts. For those who are older, approaching retirement age, they need to know that the government will garnish a portion of their Social Security or take all or part of federal tax refunds.
Restitution lives on years after released from Supervised Release and many people need to know how to structure their lives so that they can make ends meet. It is important for defendants to understand the perils of restitution and the steps the government may take to collect should be a priority.