Criminal Justice Section  

    Criminal Justice Magazine


Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

FederalSentencing

Alan Ellis, Samuel A. Shummon, and Sharon Han

Federal Prison Designation and Placement: An Update

Department of Justice statistics indicate that 93.6 percent of federal criminal cases result in a guilty plea, 75.6 percent of the defendants who go to trial are convicted, and 82.8 percent of those convicted received a prison term. For many federal criminal defendants where they do their time is as important as how much time they'll do. This is no less true now than it was in 1996 when this column featured an article entitled "Securing a Favorable Federal Prison for your Client." However, considerable changes have been made to the Bureau of Prisons rules and regulations in the last four years that determine where inmates will serve their sentences. Specifically, in late 1999, the Bureau of Prisons updated its rules. (Bureau of Prisons Program Statement 5100-07.)

It is the Federal Bureau of Prisons' (BOP) policy to place an individual in the least restrictive facility for which he or she qualifies within 500 miles of a release residence. Release residence is defined as the defendant's legal address listed on the presentence investigation report (PIR). The least restrictive facility falls into one of five categories within the federal prison system's 96 institutions: minimum, low, medium, high (the most secure), and administrative. Minimum-level security institutions include most federal prison camps. (See the sidebar "U.S. Federal Prisons" for a list of all federal prisons in the United States and their security levels and locations.)

Minimum security offenders are not violent and are not considered an escape risk. There are generally no walls or fences around minimum security prisons. Consequently, prisoners are theoretically free to "walk away" from these facilities; but if they do and are recaptured, the consequences are severe. The likelihood of them ever being placed in a federal prison camp or even getting to a halfway house for any significant amount of time at the end of their sentence becomes quite remote.

Most individuals want to be designated to a federal prison camp because of the lack of violence and what they perceive to be better conditions of confinement. According to bureau statistics, approximately 25 percent of all inmates as of April 2000 are housed in minimum security facilities, i.e., federal prison camps.

Designation of an inmate to a specific institution is governed by Bureau of Prisons Program Statement 5100.07 and involves two steps. The first step is "scoring" the defendant to determine which security level is appropriate. This is done by the community corrections manager (CCM). Every judicial district has a CCM who scores a sentenced defendant to determine his or her security level. The criteria considered by the CCM include: (a) existence of and type of detainer, (b) severity of current offense, (c) months to release (females only), (d) type of prior commitments, (e) history of escapes or attempts to escape, (f) history of violence, and (g) precommitment status. (To access the two forms for male and female inmates, go to the Bureau of Prisons' Website at www.BOP.GOV; select FOIA/Policy from the menu, then click on 5000-Inmate/Custodial Management. Forms are located in Program Statement 5100-07. The site recommends you download during off-peak hours.)

Thus, a voluntary surrender ordered by the sentencing judge is very important because it lowers a defendant's security score (the lower the better). Additionally, voluntary surrender to the designated institution rather than to the U.S. marshal's office will lessen the trauma of going to prison. Your client will be spared the unpleasantness of being shackled and transferred via "con air," aboard the U.S. Marshal Service prisoner transport aircraft, or bused. This arduous process-called "diesel therapy" by inmates-can often take weeks.

Additionally, a self-surrender previously earned a male defendant a reduction of six points from his security point total; now it only earns a three-point reduction.

The CCM also makes other determinations about the offense and the offenders-identified as public safety factors-that can dramatically impact the designation decision.

Public safety factors (PSF)

Disruptive group. A male inmate who is a validated member of a disruptive group identified in the Central Inmate Monitoring System shall be housed in a high-level security institution, unless the PSF has been waived.

Greatest severity offense. A male offender whose current term of confinement falls into the "greatest severity" range according to the offense severity scale (Appendix B in Program Statement 5100.07) shall be housed in at least a low-level security institution, unless the PSF has been waived.

Greatest severity offenses include:

  • aircraft piracy;
  • arson;
  • assault (serious bodily injury intended or permanent or life- threatening bodily injury resulting);
  • carjacking;
  • drug offenders who were part of an organizational network and organized or maintained ownership interest/profits from large-scale drug activities, (drug equals or exceeds drug quantities in excess of 10 kilograms of cocaine, 31 grams of crack, 250 kilograms of hashish, 620 kilograms of marijuana, 2 kilograms of heroin, 17 kilograms of methamphetamine, 20,000 dosage units of PCP, 250,000 dosage units of amphetamine, barbiturates, LSD, and other illicit drugs);
  • escape from a closed institution or secure custody through the use of force or weapons;
  • espionage including treason, sabotage, or related offenses, and use or possession of explosives involving risk of death or bodily injury;
  • extortion by weapons or threat of violence, and homicide or voluntary manslaughter;
  • kidnapping involving abduction, unlawful restraint, or demanding or receiving ransom money;
  • robbery;
  • sexual offenses including rape, sodomy, incest, carnal knowledge, transportation with coercion or force for commercial purposes;
  • use of toxic substances or chemicals as weapons to endanger human life;
  • distribution of automatic weapons, exporting sophisticated weaponry, or brandishing or threatening use of a weapon.

Sex offender. A male or female inmate whose behavior in the current term of confinement or prior history includes one or more of the following elements will be housed in at least a low-level security institution, unless the PSF has been waived. A conviction is not required for application of this PSF if the PSI, or other official documentation, clearly indicates the following behavior occurred in the current term of confinement or prior criminal history. If the case was dismissed or nolle prosequi, application of this PSF cannot be entered. However, in the case where an inmate was charged with an offense that included one of the following elements, but as a result of a plea bargain was not convicted, application of this PSF should be entered.

For example, according to the PSI, an inmate was specifically described as being involved in a sexual assault, but pled guilty to simple assault. Based on the documented behavior, application of this PSF should be entered:

(a) engaging in sexual conduct with another person without obtaining permission to do so (forcible rape, sexual assault or sexual battery);
(b) possession, distribution or mailing of child pornography or related paraphernalia;
(c) any sexual contact with a minor or other person physically or mentally incapable of granting consent (indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, rape by administering a drug or substance);
(d) any sexual act or contact not identified above that is aggressive or abusive in nature (rape by instrument, encouraging use of a minor for prostitution purposes, incest). Examples may be documented by state or Bureau of Prisons' incident reports, clear NCIC entries, or other official documentation;
(e) attempts are to be treated as if the sexual act or contact was completed;
(f) any offense referenced in the Sex Offender Notification and Registration Program Statement;
(g) application of this PSF is required for any offender whose current term of incarceration involves violation of any of the following statutes: 18 U.S.C. § 2241, 18 U.S.C. § 2242, 18 U.S.C. § 2243, 18 U.S.C. § 2244, 18 U.S.C. § 2251, 18 U.S.C. § 2252.

Threat to government officials. A male or female inmate classified with a Central Inmate Monitoring assignment of "threat to government official" will be housed in at least a low-level security institution, until the PSF has been waived.

Deportable alien. A deportable alien is a male or female inmate who is a citizen of a foreign country. In addition, the inmate will be housed in at least a low-level security institution, unless the PSF has been waived. Unless an inmate meets all of the below criteria, the following PSF shall be applied:
(a) documented and/or independently verified history of stable employment in the United States for at least three years immediately prior to incarceration. Stable or regular employment is generally defined as full-time (40 hours a week) work. Part-time or seasonal work prior to incarceration does not meet the definition of stable employment;
(b) verified history of domicile in the United States (five or more consecutive years immediately preceding the inmate's incarceration for the current term of confinement). For example, if an inmate was arrested and detained in March 1993 on his or her current conviction, and was in the United States between 1980 and 1984, and again between 1992 and 1993, a PSF for deportable alien will be applied because the five years were not consecutive and did not immediately precede his or her incarceration; and
(c) verified strong family ties in the United States, which include only the immediate family. Members of immediate family include mother, father, stepparents, foster parents, brothers and sisters, spouse, and children. The word "spouse" includes a common-law relationship that has previously been established in a state that recognizes such a status. In states that do not, a common-law relationship is not considered immediate family. To determine the application of state laws, consult regional counsel.

The defendant or the family member's statement to the probation officer preparing the PSI is not considered adequate verification for criteria (a) and (b).

The PSF shall not be applied when the Immigration and Naturalization Service (INS) or the immigration judge has determined that deportation proceedings are unwarranted.

Sentence length. A male offender with more than 10 years remaining to serve will be housed in at least a low security facility unless the PSF has been waived. A male offender with more than 20 years remaining to serve will be housed in at least a medium security facility unless the PSF has been waived. A male offender with more than 30 years remaining to serve (including nonparolable life sentences) will be housed in a high security facility unless the PSF has been waived.

A significant change was made to bureau policy in November 1999 in Bureau of Prisons Program Statement 5100.07. Specifically, there is no longer a formula for expected length of incarceration, an item that was deleted and is no longer figured into the security point total for male inmates. There is, however, the new months to release item that can favorably impact the sentence length public safety factor. For example, a male inmate with more than 10 years remaining to serve must be housed in at least a low-level institution unless the PSF has been waived. If a male offender receives a prison sentence of 142 months (142 x .85 = 121 months), which on its face would make him ineligible for a federal prison camp, yet he's been incarcerated presentence for 15 months, the BOP would subtract his time in custody from the 142 months, which would bring him below 120 months (10 years) and, therefore, make him eligible for a federal prison camp.

Violent behavior. A female inmate whose current term of confinement or history involves two convictions (or findings of commission of a prohibited act by a BOP disciplinary hearing officer) for serious incidents of violence within the last five years shall be assigned to the Carswell Administrative Unit, FMC Carswell, Texas, unless the PSF has been waived.

Serious escape. A female inmate who has been involved in a serious escape within the last 10 years, including the current term of confinement, shall be assigned to the Carswell Administrative Unit, unless the PSF has been waived.

A male inmate who has escaped from a secure facility with or without the threat of violence or who escapes from an open institution or program with a threat of violence will be housed in at least a medium-level security institution, unless the PSF has been waived.

Prison disturbance. This category applies to a male or female inmate who is involved in a serious incident of violence within the institution and found guilty of the prohibited act(s) of engaging in or encouraging a riot, or acting in furtherance of such as described in, but not limited to, institution disciplinary codes such as 103, 105, 106, 107, 212, 213, or 218. Such a finding must be in conjunction with a period of multiple institution disruptions. As a result, males will be housed in at least a high-level security institution and females will be assigned to the Carswell Administrative Unit, unless the PSF has been waived.

Mere possession of a firearm is not a PSF and, in and of itself, does not affect prison placement.

Thus, most deportable aliens, escapees, offenders serving in excess of 10 years, drug offenders who were part of an organizational network and organized or maintained ownership interest/profits from large-scale drug activities involving more than 10 kilograms of cocaine or 620 kilograms of marijuana, sexual offenders including inmates convicted of child pornography, and offenders identified as posing a significant threat to a governmental official or who are members of disruptive groups may not be assigned to a minimum-level security facility without a waiver of the PSF.

A disruptive group is a prison gang that has been identified by prison staff and certified by the bureau as engaging in illicit activities within the BOP and/or being disruptive to the internal operation of the BOP. An organized crime group, i.e., La Cosa Nostra, is not necessarily identified as a disruptive group unless it engages in the above activities.

For example, in a drug case involving more than 10 kilograms of cocaine or 620 kilograms of marijuana, the CCM will look at the role in the offense portion of the PSI to see if there's any upward adjustment under United States Sentencing Guideline section 3B1.1. If not, the offender will generally not be treated as a greatest severity offender. Clearly, if your client receives a mitigating role under U.S.S.G. § 3B1.2, he or she will not qualify for the greatest severity PSF. Accordingly, if the sentencing judge finds that your client's sentence should not be enhanced because of a section 3B1.1 aggravating role, make sure that the PSI is corrected and/or that the judge issues findings pursuant to Rule 32(c)(1) of the Federal Rules of Criminal Procedure. In some cases, a finding by the sentencing judge and/or notation on the judgment in the criminal case that the defendant was not part of an organizational network and did not organize or maintain ownership interest/profits from large-scale drug activities will help.

A waiver of a PSF can only be executed by a regional director of the BOP. The bureau is divided into six geographical regions. Each region is headed by a regional director.

The CCM and the regional designator (each region has a regional designator who makes the final decision where to send an individual) look to the presentence investigation report to obtain most, if not all, of this information.

The process begins as follows. The U.S. marshal receives a copy of the judgment in a criminal case (formerly called the judgment and commitment order) from the court or clerk. Upon receipt of the judgment, the U.S. marshal requests a designation from the bureau's local CCM. The marshal also sends form USM-129 to the CCM identifying the custody status of the individual and how much time, if any, he or she has served. The U.S. probation officer provides a copy of the PSI report to the CCM.

The CCM reviews these materials along with any other information submitted by the sentencing judge, such as a recommendation of a place of incarceration (commonly contained in the judgment in a criminal case and, in rare instances, contained on an AO-235 form or even in a letter to the regional director). This recommendation is just that-a recommendation. It is not binding on the bureau. It is not a court order. Some judges mistakenly think that the BOP doesn't follow their recommendations. Obviously, where a judge recommends a violent offender for a federal prison camp, the BOP will not honor the recommendation; however, in most cases, assuming the individual qualifies for placement in the institution recommended by the sentencing judge, the bureau will make every effort to honor the judge's recommendation.

Similarly, in accordance with Rule 38(b) of the Federal Rules of Criminal Procedure, when the court of conviction recommends that the inmate be retained in a place of confinement that will allow the inmate to participate in the preparation of the appeal, the Bureau of Prisons will make every effort to place the inmate in such a facility unless a reason exists in not placing the inmate in that facility, in which case the matter is called to the attention of the court and an attempt is made to arrive at an acceptable place of confinement.

On the other hand, some designations actually require a judicial recommendation. For example, the BOP will not designate an inmate to a community corrections center (CCC) halfway house for the service of his or her sentence unless recommended by the court. In some cases, if the sentencing judge recommends that a defendant who is otherwise eligible for a minimum security placement be designated to a CCC for the service of a sentence of up to one year (in some cases a year and a day), the BOP will designate such a facility. This will enable the inmate to be afforded work-release privileges and remain in the community.

The CCM then transmits this information to the regional designator via computer. Also, a list of the appropriate security level facilities in the order that is closest to the inmate's release residence will appear on the designator's computer screen. The designator then assigns an institution, considering any PSF, sentence limitations, central inmate monitoring (CIM) information, and management variables that may affect placement.

As to CIM information, inmates are often separated from other inmates because one may have testified against the other. The assistant U.S. attorney who prosecuted the case generally communicates this information to the bureau. These inmates are called "separatees."

Although the bureau's policy is to place offenders in institutions consistent with their security needs and within reasonable proximity to their release residences, there are management variables that the Bureau of Prisons uses to provide justification for exceptions to this policy. A management variable is applied when an inmate is to be housed in an institution that is not consistent with the security level assigned based on the security designation information available. For example, there may be security concerns that are not adequately reflected in the classification scoring. Also, programming needs may dictate placement in a facility not commensurate with an inmate's security needs.

Once a designation is made, the information is communicated to the U.S. marshal, who then communicates the information directly to the defendant. Under strict BOP policy, the bureau will not release the information to any other individual, including the defendant's attorney. Hence the attorney can only find out where the client has been designated by having the client ask the U.S. marshal, or, if incarcerated, a member of the staff at that facility. If the facility is a nonfederal facility, the client may not be able to obtain this information from institution staff because they are not privy to the computer used by the BOP and the U.S. Marshal Service.

Even more important than getting a judicial recommendation and a self-surrender, is the attorney's role in making sure that any inaccurate information in the PSI is corrected. It cannot be emphasized enough that this document is the one collection of data upon which virtually all correctional designation and other correctional decisions are made. For example, if the PSI incorrectly states that your client has a history of aggressive sexual behavior, even when it's not part of the conviction offense, he or she will not go to a federal prison camp despite what the calculated score might otherwise indicate or the judge recommends. The PSI is known as the "bible" by prisoners and BOP staff alike. If objections are made to inaccurate information at the time of sentencing and the judge finds that the information is, indeed, inaccurate, it is incumbent on counsel to make sure that the PSI is corrected before it is sent to the BOP or, at a minimum, that formal findings are made by the judge pursuant to Fed. R. Crim. P. 32(c)(1) and attached to the PSI before it is forwarded to the bureau. In some cases, a finding can be stated on the judgment in a criminal case and this will suffice.

Speaking of PSI inaccuracy, many defense lawyers and defendants tend to downplay their substance abuse problems. This is no longer a good idea. Statutory law now provides for reduction of a sentence of up to one year for a nonviolent inmate who has successfully completed a residential drug treatment program in a BOP facility. (18 U.S.C. § 3621(e)(2).) The inmate, however, will generally not qualify for the program unless the PSI documents a history of substance or alcohol dependency or abuse.

Also, attorneys often try to magnify their client's health problems in the hope that it will gain sympathy from the sentencing judge. Unless these medical problems will clearly entitle your client to a downward departure based on "mental and emotional conditions," U.S.S.G. § 5H1.3, or "physical condition," U.S.S.G. § 5H1.4, (both are "discouraged" grounds for departure), any information regarding these conditions that indicate that your client needs hospitalization may result in his or her not being designated to a federal prison camp, if eligible, but rather, designated to a medical facility.

Prisoners often complain that they have been negatively impacted by inaccurate information in their PSI. At a recent presentation that I gave at a federal prison, I asked the assembled inmates how many were affected by errors in their PSI. Eighty percent responded that they were. I then asked the 80 percent 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 percent raised their hands again. Suffice it to say, these were not "happy campers," rather, disgruntled inmates with a lot of time to "bad mouth" their attorneys to other prospective inmate clients. Not good.

Alan Ellis, a former president of the National Association of Criminal Defense Lawyers, has offices in both Sausalito, California, and Philadelphia, Pennsylvania. For more than 25 years he has consulted with leading defense lawyers throughout the United States in the area of federal plea negotiations, sentencing, and postconviction remedies. He is a contributing editor to Criminal Justice magazine, is the publisher of Federal Presentence and Post Conviction News, and the coauthor of the Federal Prison Guidebook. Samuel A. Shummon, an associate in Ellis's San Francisco office, is the co-author of the Federal Prison Guidebook and editor of Federal Presentence and Post-Conviction News. He assists the firm in prison designations, prison transfers, inmate disciplinary matters, and prisoner transfer treaty work for foreign inmates. Sharon Han is a legal assistant at San Quentin's Patton Extension Program. She will enter law school in the fall.

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