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Criminal Justice Magazine
Fall 2003
Volume 18 Number 3

FederalSentencing

Alan Ellis and J. Michael Henderson

Alan Ellis, a past president of the NACDL, is the founding partner of the Law Offices of Alan Ellis, with offices in Sausalito, California, and Ardmore, Pennsylvania. His practice emphasizes the presentence and postconviction representation of federal criminal defendants and inmates. He is also a contributing editor to Criminal Justice magazine, publisher of Federal Pre-Sentence and Post-Conviction News , and coauthor of The Federal Prison Guidebook , The Federal Sentencing Guidebook , and The Federal Post Conviction Guidebook . J. Michael Henderson serves as a federal prison consultant to the Law Offices of Alan Ellis. Formerly, he was the Federal Bureau of Prisons’ regional designator for the western region of the United States.

Early Release from Custody

The Federal Bureau of Prisons (BOP) provides two very specialized programs that can benefit offenders in specified categories and, as incentive, offer qualified offenders with additional time off their sentences.

Boot camp

The first of these programs is the bureau’s Intensive Confinement Center Program (ICCP), more commonly known as "boot camp." This highly structured approach is designed for first offenders or those with only minor prior incarceration histories, who qualify for minimum-security placement but because of a lack of resources in their personal lives have the potential for recidivism. The BOP has two ICCP for males—at Lompoc, California, and Lewisburg, Pennsylvania—and one for females at Bryan, Texas.

Placement in ICCP requires either a written judicial recommendation at the time of sentencing or notification by the BOP to the sentencing judge when it finds an offender is qualified for the program. For direct placement after sentencing, the sentence must be 12 to 30 months. If a sentence is more than 30, but not more than 60 months, the offender may still be eligible for boot camp, but will go first to one of the bureau’s minimum-security facilities and later transfer to an ICCP class if space is available. For those without a judicial recommendation at the time of sentencing, the judge’s non-opposition, sought by the BOP through the probation office, is required for later placement. It is preferable, therefore, to get your client a direct commitment, which means a sentence of no more than 30 months. Courts are permitted to depart downward for the sole purpose of making a defendant eligible for boot camp in the Sentencing Guidelines. (U.S.S.G. § 5G1.7; 18 U.S.C. § 4046.)

In United States v. Davies, No. 91–50818, 1992 U.S. App. LEXIS 32471 (9th Cir. 10/9/92), (unpublished disposition), the Ninth Circuit observed that eligibility for placement at an ICCP may be accomplished if the district court grants a downward departure. The court went on to state that suitability for placement in an ICCP can be based on rehabilitation in unusual circumstances or in combination with other factors, such as aberrant behavior or extreme vulnerability to physical assault. ( See also United States v. Gauvin, 173 F.3d 798, 808 (10th Cir. 1999) (affirming extent of departure (three levels) to allow participation in boot camp.); United States v. Raffone, No. 98–1410, 1998 U.S. App. LEXIS 31797 (2d Cir. 12/23/98) (eligibility for shock incarceration program may be based on a downward departure for a combination of factors).) In a bold decision, one district court departed downward 18 months from the guidelines in order to make the defendant eligible for shock incarceration. ( See United States v. Martin, 827 F. Supp. 232 (S.D.N.Y. 1993).)

In United States v. Williams, 65 F.3d 301 (2d Cir. 1996), the court took the highly unusual step in an analogous situation of granting a downward departure not to reward a defendant’s post-offense rehabilitation, but rather to allow the defendant to enter a particular BOP drug treatment program. The Second Circuit approved the district court’s use of its departure power to facilitate—as opposed to reward—rehabilitation by noting that 18 U.S.C. § 3553(a)(2)(D) mandates that a sentencing court take account of the defendant’s need for "treatment" in the most effective manner.

Eligibility for ICCP is also impacted by accrued credit towards jail time because the offender was confined prior to and/or during the trial period. For example, if a sentence of one year and one day (the minimum sentence length for direct placement eligibility) is imposed, and the offender was in jail for seven months during the trial, there will be insufficient time remaining to participate in ICCP. Further, although the ICCP can be completed in six months, new classes start about every other month.

In determining an inmate’s eligibility, the BOP excludes from consideration those who have committed certain offenses, mostly ones that involve elements of violence or physical force—actual or implied. Sex offenses and those that involve weapons preclude eligibility. In fact, while the bureau has one written policy governing the ICCP—Bureau of Prison Program Statement 5390.08—it has an entirely separate policy that lists all of the offenses that preclude ICCP participation (Program Statement 5162.04). In addition, there can be no unresolved or pending charges, including possible deportation proceedings, in the offender’s criminal background. Effective review of the draft presentence investigation report by defense counsel can help ensure that there are no outstanding criminal charges, even minor ones, or past charges for which no disposition is given. In determining if an offender’s prior incarceration history is "minor" or "serious," the BOP relies on its separately issued policy on classification of inmates (Program Statement 5100.07), which assigns categorical ratings to offenses. Any prior offense that resulted in a confinement, regardless of how long, must fall into the bureau’s "lowest" or "low-moderate" categories in order for the offender to be considered a prospect for placement in boot camp.

These issues aside, the BOP also looks at the actual needs of offenders and their lack of meaningful resources, which could make them a greater risk of recidivism. It’s unlikely that the target group of offenders would have had the benefits of a college education, work skills and/or positive employment, or financial assets, such as real estate, or military experience. Asked if a white-collar offender convicted of a federal crime is eligible for the ICCP, the polite answer from the BOP is likely to be "No!"

Eligible offenders must volunteer, and can opt out of the program at any time. They must also be mentally and physically fit to participate in the rigors of the program, as determined by the BOP medical staff. The goal of the program is to promote personal development, self-control, and discipline. Some of the program’s components are strict discipline and daily physical conditioning; vocational training; counseling; stress management programs; life-coping skills; and positive personal attitude and self-esteem programs.

Upon successful completion of the ICCP, offenders are placed in community corrections centers (halfway houses), sometimes then to home confinement, after which they are eligible for a sentence reduction of up to six months.

RDAP

Another specialized Bureau of Prisons program that offers the promise of early release for qualified offenders is known as the Residential Drug Abuse Program (RDAP). Successful completion of this program can result in a 12-month reduction in the offender’s sentence and an extended six-month halfway house placement. Unlike the ICCP, however, a broader category of offenders is eligible for this program.

Institutional case management and psychology services staff determine an offender’s eligibility. First, staff looks for verification of an offender’s drug abuse problem through interviews with the offender and a check of official documents, which almost always includes the presentence investigation report. (BOP is particularly interested in the 12 months immediately preceding sentencing or incarceration.) Unfortunately, it’s not uncommon for defense attorneys to fail to prep their clients for this interview or to advise them not to divulge information about substance abuse to the probation officer who will prepare the report. If the substance abuse problem is not documented in the presentence report, BOP cannot "verify" it, and it’s likely the offender will not qualify for RDAP. It’s helpful if the substance abuse problem is known at the time of sentencing because defense counsel can request that the judge recommend RDAP in the formal judgment.

Next, BOP staff will look at background documents, such as the presentence report, to determine that offenders meet formal psychological diagnostic criteria that will clear the way for them to participate in the program. As a voluntary program, the offender must sign a formal participation agreement.

RDAP is available at many BOP institutions, and for all but "high" security levels at federal penitentiaries. RDAP is currently in high demand, though, which sometimes necessitates transferring an offender from one facility to another where space is available. RDAP classes are called "cohorts" because participants are housed together in segregated quarters away from non-RDAP inmates. These offenders are expected to spend a portion of each day in RDAP with a part-time institutional work assignment. RDAP can be completed in as little as nine months; optimally, after they complete the program, offenders will be transferred to community correctional centers (CCC)—halfway houses—for transitional prerelease program assistance for up to six months.

The extended CCC placement is intended to keep offenders on track as they reenter the community—the time when they are most at risk for returning to drugs. Successful completion of the RDAP community transitional phase is required for those offenders seeking early release . Hence, inmates with detainers, deportable aliens, and others who are ineligible for CCC, are not eligible for the RDAP program.

Similar to the ICCP, the BOP uses a separate policy for RDAP that lists crimes that will preclude an offender from an early release (Program Statement 5162.04), but not from participating in the program itself and its extended CCC placement. The listed offenses include crimes of violence, sex offenders, and weapons possession.




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