Friday, March 13, 2015

Every Point Matters

When someone is committed to serve a sentence with the Bureau of Prisons, their designation is, in part, dependent on their security level. There are five Bureau of Prisons security levels: Minimum, Low, Medium, High and Administrative. An inmate’s security level primarily depends on how many security points they receive in their designation and custody classification. 

Like golf, the higher the score the worse the result. Sometimes 1 point can be the difference between someone being designated to a USP (high security) and not an FCI (medium). For instance, for men, a security score of 16-23 point usually places an inmate in a medium security facility. But add 1 point, and that same inmate can find himself in a USP. (See Bureau of Prisons Program Statement P5100.08, Chapter 1, page 2).

There are several relatively simple things counsel can do to better a client’s score. First, a person receives 2 points if he/she does not have a high school diploma or GED. If the diploma or GED is not “verified” in the presentence report, the person gets the points. Early on in a case, counsel should determine when and where their client obtained a diploma or GED. Then, get your client to sign a release so you can get the proof to provide during the presentence investigation, should it be necessary.

If someone does not have a diploma or GED but is enrolled in or making satisfactory progress in a GED program, then only 1, rather than 2, points are added to their classification score. Counsel should help an out of custody clients without a diploma or GED, in finding, and enrolling in a GED program. Counsel should advise their in-custody clients to start a GED program if one is available where there are in pretrial detention.

Inmates without a verified high school diploma or GED have two additional problems. First, the Bureau of Prisons will require that almost everyone without a verified high school diploma or GED to enroll in an adult literacy program for a minimum of 240 hours. (See Bureau of Prisons Legal Resource Guide, pages 19-20). Second, failure to participate and make satisfactory progress in the adult literacy program can prevent an inmate from receiving the maximum allowable good time credit. See 18 U.S.C. 3624(b)(1).

Next, outstanding criminal cases, detainers, or warrants can increase a person’s security score. Depending on the nature of the outstanding case, this could add between 1 to 7 security points. (See Program Statement P5100.08, Chapter 4, page 11.) The Bureau of Prisons may treat arrests listed in the PSR with an “unknown” disposition as pending, unresolved cases. 

Of course, these arrests are usually listed as “unknown” because probation could find no filed case. While most would assume this means no case was filed, not so the Bureau of Prisons. When the PSR lists the results of an arrest as “unknown” first ask the probation officer writing the report to change it to “no case filed.” If they are unwilling to do so, submit a written objection and put the government to its burden of proving there was a case filed. Be sure to explain to the court in the objection why this matters, or risk the court relying on Fed. R. Crim. P. 32(i)(3)(B) to avoid resolving the issue.

For more information, see Bureau of Prisons Program Statement P5100.08. Also check out the page on the Bureau of Prisons.

-- David Freund

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