September 19, 2016 (Fault Lines) — I have just sentenced a violent gang member, non-resident alien methamphetamine defendant to a 20-year mandatory minimum sentence when I ask the defense lawyer if her client would like a judicial recommendation for a place of confinement. She indicates: “Yes, your Honor, how about the Federal Prison Camp (FPC) at Yankton, South Dakota?” “Nice try, but your client has the same chance of beating Donald Trump for President as a write-in candidate than getting into Yankton!” – I respond.
I fear that something similar to the above hypothetical exchange plays out daily in federal courtrooms across the country. The offender in the above hypo is not going to FPC Yankton for several reasons: He is not a citizen and will be deported upon completion of his sentence; he has a history of violence and the Bureau of Prisons (BOP) considers him a public safety risk; and, most important, his sentence is greater than 120 months. There may be other reasons as well, but any one of the above three disqualifies this offender from going to a FPC.
Criminal defense lawyers mark themselves as rank amateurs and, worse, completely ineffective advocates when they make silly suggestions for confinement that are totally inconsistent with BOP regulations. (I recently had a lawyer recommend a women’s federal facility for his male client and, no, he was not transgender – the lawyer didn’t realize that the former male facility had changed — 8 years ago).
Let’s face the real world: perhaps the best and often only helpful matter a criminal defense lawyer can do for a client is a thoughtful and meaningful recommendation for placement that the BOP will likely follow. Yet, I find 90% of criminal defense lawyers fail miserably in this responsibility.
Of course, if the sentencing judge never makes a judicial recommendation, as some don’t, you are saved from your own neglect. However, for those of us who do frequently make recommendations to the BOP, what can criminal defense lawyers do to assist in the process? First, read the BOP guide set forth below. Learn the Inmate Security Designation and Custody Classification of the BOP, so that you can compute the likelihood of your client’s eligibility for a certain facility. Also, learn about the various programs at the facilities your client is eligible to go to and try and match a facility with your client’s vocational, educational, and other programming needs. Also, if your judge doesn’t make recommendations, write a thorough letter to the BOP recommending a facility – I have never known a lawyer to do this, but what do you have to lose?
In addition to the resources about facilities on the BOP website, the book by former NACDL President Alan Ellis, Federal Prison Guidebook, is a superb resource that I have not only read cover to cover, but keep in arm’s reach on the bench. I frequently consult it while sentencing and discussing recommendations with an offender and his lawyer.
I understand that most offenders want to be as close to home as possible. However, for many, the chance to pick up a meaningful skill like HVAC or culinary arts, which will help provide real jobs in the future, is a more important consideration. Of course, there is a lot of thought that goes into a placement recommendation, balancing family visits with more meaningful employment when the offender is released. The placement discussion should take place early and often. As federal inmate populations decline, I think it is likely that the BOP will have greater flexibility in accommodating recommendations. Good luck!
- Judicial Recommendations for a Specific Institution, Geographic Area, or Specialized Program
The BOP has sole authority to designate the place of confinement for federal prisoners. See 18 U.S.C. § 3621(b). By statute, the BOP is required to consider the resources of the facility, the nature and circumstances of the offense, the history and characteristics of the prisoner, recommendations of the court, and guidance issued by the USSC. Initial designation decisions and decisions to transfer prisoners from one facility to another are ultimately the responsibility of the BOP and are made in accordance with Program Statement 5100.08, Inmate Security Designation and Custody Classification. The J&C may indicate the sentencing court’s recommendation to house the inmate in a specific institution, geographic area, or specialized program. While every effort is made to comply with the court’s recommendation, conflict with BOP policy and sound correctional management may prevent honoring the court’s recommendation. Prior to finalizing plea agreements or other concessions affecting a defendant’s conditions of confinement, the parties involved should consult with the relevant CLC office regarding factors that might affect availability of the program, or the eligibility of an individual defendant for any program assignment. Specific programs or institution placements should not be part of any agreement or promised to any criminal defendant. This is particularly important when defendants carry both state and federal sentences, as complex issues arise over which sovereign has priority to implement its sentence.