Political Trends, Sentencing, Classification, Designation & Program Practice in Federal Prison

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Tuesday, June 5th, 2018
Political Trends, Sentencing, Classification, Designation & Program Practice in Federal Prison

President Trump has charged his closest advisor, son-in-law Jared Kushner, to lead prison reform. People may ask why Kushner? He has no background in criminal justice or prison reform. Nor is he a former felon. But he has proven to be a highly educated successful real-estate developer. Kushner holds degrees from Harvard and New York University. He has displayed talent in fields he has chosen to pursue, from real-estate development to publishing. But with a bevy of professionals who have spent their lives studying and working to improve the system to choose from, why would the Trump administration select a novice to lead the way in conducting and implementing effective prison reforms?

The only possible reason may be that Kushner’s father, Charles Kushner, is a former federal inmate. In 2005, Charles Kushner was convicted in the District of New York for tax evasion, illegal campaign contributions, and witness tampering. Charles Kushner was subsequently sentenced to two years in federal prison and served 1 year at a minimum-security Federal Prison Camp in Montgomery, AL, among other white-collar criminals. His father is hardly the face of the average felon in America. His sentence carried a maximum of 3 years in prison, but he only received 24 months, of which he served only 12. This begs the question of how come he only served half his sentence. Charles Kushner received halfway-house time soon after starting his sentence.

Kushner teamed up with U.S. Attorney General Jeffrey Sessions. Sessions has a hardline stance for sentencing and maintaining mass incarceration rates. He also favors expanding private prisons, which greatly benefit from high prison populations. Recently, Sessions cautioned the U.S. Senate not to support a bipartisan bill that would reduce sentences for nonviolent offenders, remove the three-strike mandatory-life provision, and allow federal judges discretion in sentencing decisions (Reuters, February 14, 2018).

It is widely known the United States leads the world in the number of individuals we incarcerate. In 2016, state and federal prisons held approximately 1,505,400 prisoners. This number is a drop from the previous year, seeing 2,300 fewer prisoners admitted to state and federal prisons in 2016 than in 2015.* Even though this reduction in prison population over the past year is relatively minuscule (approximately 1 percent), the Bureau of Justice Statistics (BJS) recently released data reflecting that this is the third consecutive year that the state and federal prison population intake is declining. This downward trend is evidence that correctional reforms are moving slowly in the right direction.

Regardless of the administration in place in the United States, the public outcry for alternative sentencing and less incarceration has caught the attention of our political leaders. As political initiatives and strategies continue to take effect in prison programs, the need to stay updated on the latest BOP programs is essential for the offender, consultants, and legal professionals.

Federal prison consulting can assist with the laborious journey to federal prison. Upon sentencing in Federal District Court, the Bureau of Prisons (BOP) has the sole responsibility in determining where an offender will be designated for service of his/her sentence. Prior to a designation occurring, the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas, receives documents from the sentencing court, U.S. Probation Office, and the U.S. Marshals Service. Upon receipt of these documents, the DSCC will classify the offender to determine his/her security level and decide on an appropriate security-level facility.

Upon classification, the DSCC will initially designate the offender to a facility based on his/her security level. In determining an appropriate facility, the DSCC considers a number of factors, including medical and mental health concerns, security and separation issues, release residence, gang affiliations, judicial recommendations, and population management of the BOP. The BOP attempts to designate offenders to facilities commensurate with their security and program needs within a 500-mile radius of their release residence.

Prior to sentencing, the Pre-Sentence Investigation Report (PSR) is the most important document utilized in determining an offender’s security level. It is imperative that it is thorough and accurate—otherwise it could negatively impact the offender and result in designation to a higher security facility. In addition, it provides important information to the court and Federal Bureau of Prison (BOP) regarding the offender’s socio-economic status and substance-abuse history, medical and mental health concerns, family support, and employment history. This information is used by the BOP to determine programming recommendations for the offender and to assist with pre-release programs. It is important to have a consultant on your side who can review the PSR and suggest objections and changes before it is submitted to the judge.

Often, federal judges make important recommendations in the offender’s Judgment and Commitment Order. It is important to ensure it appropriately reflects your client’s security level and programming needs, which will come from the PSR. If the security level is inaccurate with BOP policy, the BOP has the right to not follow the recommendation.

The rules apply even to certain sex offenders. We had a case where the defendant was found guilty of Possession of Child Pornography. He did qualify for the RDAP program. He was designated to a close-by low-security BOP facility that has RDAP. He released with 6 months of RRC placement and received one year off his sentence under Title 18 3621. Most attorneys don’t realize that in the right case a sex offender might be eligible for time off their sentence. In some cases, they are eligible and not precluded from an early release benefit.

Lately in North Texas there have been major conspiracy cases for drug and healthcare crimes. Many co-defendants, once indicted, were deemed by the BOP as uncommitted separation cases, also known as separates, and assigned prison numbers. Given this status and depending on the time of sentencing, some of the defendants may find themselves in prisons far from home. This can be avoided given proper consultation.

Prior to sentencing, you must have an accurate PSR scored correctly to make sure the point total is as low as possible. In addition, it helps to include language supporting any eligible programs. For example, unverified education is a one-point enhancement that can make the difference between a Low and a Camp minimum-security institution. Finally, at sentencing you should make Judicial Recommendations. We often hear (sometime from judges), “The BOP will do what they want anyway, so I won’t make any recommendations.” Offer recommendations! The BOP (particularly at facility designation) will see these and weigh them carefully, although the BOP has the ultimate authority on the placement and programming.

Just as Charles Kushner received halfway-house time relatively soon after he began his federal sentence, you can for your clients also. One of the common ways is by applying for the Second Chance Act, which allows nonviolent first-time offenders to be given average of 6 to 12 months of halfway-house time to ensure a successful reintegration into society. Often this time is used to find employment, housing, reconnect with family members, and participate in programming not offered in prison. Despite some reduction in Residential Re-entry Center (RRC) bed space, submitting a Second Chance Act request, which can be tailored to the institution and RRC, can absolutely increase the chance of receiving more RRC than would otherwise have been given without submitting the request.

Another popular program is the Residential Drug Treatment Program (RDAP). RDAP is the Bureau’s most intensive treatment program. The most attractive part of this program is that eligible inmates may receive up to a year off their sentence upon successful completion. Offenders are housed in a unit separate from general population; they participate in half-day programming and half-day work, school, or vocational activities. This component must last at least 6 months. To ensure the Bureau provides evidence-based treatment in its drug-abuse treatment programs, the RDAP is a minimum of 500 hours. The RDAP has a duration of 9 to 12 months.

The BOP receives thousands of requests for this program, though not every inmate is a viable candidate. First, the inmate must meet diagnostic criteria for a Substance Use Disorder as outlined by the APA Diagnostic and Statistical Manual, 5th Ed. (American Psychiatric Association). Then, the pre-sentence report must be reviewed. The pre-sentence report is the crucial document that determines eligibility for entrance into RDAP. There needs to be a documented history of substance abuse in the PSR that is present before the arrest/indictment for the current offense.

In conclusion, the journey through the federal prison system requires guidance and effective decision-making. Make sure you get the assistance necessary so you can navigate it properly to best serve your client.

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The programs and issues addressed above are those we typically address as consultants, though these options are not exhaustive of all those one has as a federal offender. We have collaborated with many TCDLA members, provided CLE at various meetings, and would love the opportunity to continue to do so. The authors can be reached by email at federalprisonauthoritybop@gmail.com or on www.federalprisonauthority.com.


* Bureau of Justice Statistics (BJS) National Prisoner Statistics Report—Jan. 10, 2018.