New Federal Bureau of Prisons’ Security Classification Regulations, September 2006

Effective September 12, 2006, the Federal Bureau of Prisons instituted new security and custody scoring classifications. The changes are designed to reflect not only the centralization of designations to the Security Designation and Custody Classification Center in Grand Prairie, TX, but to update and modernize the criteria for designating an inmate to one of the Bureau’s five security levels assigned to all federal institutions. The new criteria will now take into account age, Criminal History Points from the PSI, (converted to a Criminal History Score), education and history of drug and alcohol use. The numerical cutoffs have also been changed as follows: Minimum: 11/15 for females, Low 12-15/15-30 for females, Medium: 16-23, High: 24+/ 31+ for females. The calculations are more inclusive and comprehensive taking in a broader range of criteria. We suspect that many of our clients and inmates will now face new hurdles in initial designations and that many currently incarcerated will be transferred to higher or lower level facilities as the new regulations are implemented during the bi-annual or annual custody level review. Please feel free to contact us with any questions or assistance you may need.

On February 8, 2005 the Federal Bureau of Prisons made an announcement that it will close the following Federal Prison Camps: FPC-Eglin (Florida), FPC-Nellis (Nevada); FPC-Allenwood (Pennsylvania) and FPC-Seymour Johnson (North Carolina). We expect that these closures are related to putative cost savings and further expect that it will become a bit more difficult to attain camp status for existing inmates as well as future inmates.

“A Primer on Booker/Fanfan” (pdf) Click Here to read an article we have written to help clients, friends and visitors understand the impact of Booker/Fanfan.

On January 12, 2005, the United States Supreme Court issued its long awaited decision in Booker and Fanfan. Click here to read the case. In its 124 page Decision the Supreme Court held that the mandatory application of the guidelines is a violation of the Sixth Amendment to the United States Constitution. The court wrote “The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” In other words, the Guidelines are now advisory only and the courts may take into account a host of additional factors when sentencing an offender. Please feel free to contact us if you have any specific questions. This case may affect thousands—if not scores of thousands—- of people in the federal system and in particular those awaiting sentencing.

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1. On January 6, 2005 the Bush Administration announced that it is eliminating funding for the Federal Bureau of Prisons’ Intensive Confinement Center (ICC), program, commonly known as Boot Camp. According to the Administration and the BOP, the program, initiated 14 years ago, is being phased out in a cost cutting measure and as a result of its limited effectiveness at reducing rates of recidivism. We understand that the Women’s program at Bryan-FPC has accepted its last class and that the Men’s programs at Lompac-FCI and Lewisburg-FCI will be accepting one more class. Several federal judges have already expressed their shock and disappointment at the BOP’s and Administration’s decision to eliminate the program. District Judge William M. Skretny, of the Western District of New York, stated that,. “I’d be very disappointed if this shutdown goes forward. I’ve had prisoners write to me after going through the program and tell me what a positive experience it has been in their lives.” It is expected that some might judicially challenge the decision but immediate success appears unlikely. Contrary to popular belief there is no statute that mandates the existence of the program only one that funds the program and grants the BOP the power to establish the program. See, 18 USC §4046 Creative and unique legal theories will be needed.

Already litigation (Click here to read a copy) has begun seeking to stay sentencing where a Court has recommended ICC placement to inmates and at least one court has entered an Order Staying Execution of Sentence pending litigation of the legality of termination of the ICC. The legal challenge is based, in part, on purported non-compliance with the Administrative Procedures Act. We will provide updates of any litigation regarding the ICC.

2. In June 2004 the United States Supreme Court rocked the foundations of the many states’ sentencing schemes that were modeled on the United States Sentencing Guidelines. Now, the constitutionality of federal sentencing awaits the Supreme Court’s opinion in companion cases known as Booker and Fanfan.. In Blakely v. Washington, the US Supreme Court struck down a part of the State of Washington’s sentencing scheme as a violation of the Sixth Amendment to the US Constitution since it allowed a judge to enhance a sentence based on facts neither admitted to by the defendant nor found by a jury. As many involved in the federal system are aware, judges routinely enhance sentences based on the amount of money involved, quantity of drugs and the like when such facts were neither admitted to nor found beyond a reasonable doubt by a jury. Needless to say, those involved with federal sentencing, eagerly await the application of the Blakely rationale to the Sentencing Reform Act of 1984 (and the USSG’s). It is expected that by mid to late January 2005 the Supreme Court will issue its decision(s) in Booker and Fanfan. Click Here to read Transcript of Booker and Fanfan Oral Argument before the US Supreme Court. By and large, it is expected that all or part of the USSG’s will have to be revised and it is expected that there will by substantial litigation as to the applicability and retroactivity of the Court’s decisions. Stay tuned.

3. On September 9, 2004, the First Circuit Court of Appeals ruled that the December 13, 2002 U.S. Department of Justice policy limiting federal inmates’ eligibility for placement in a community corrections center to the last ten percent of their sentence is illegal . As well, the Court struck down a Department of Justice policy prohibiting the BOP from designating an inmate directly (or subsequently) to a Community Corrections Center. Click here for the Opinion of the Court.

4. In July 2004, the New York Times reported that the United States prison population reached an all time high with over 6.9 million Americans incarcerated or on parole or probation. Based on a report by the United States Bureau of Justice Statistics, one in 132 Americans were incarcerated or on probation/parole in 2003. Click here to read the full report. UPDATE: As of 2008, that number is 1 in 100 Americans are incarcerated. We truly have become the “Incarceration Nation.”