Where will I do my federal prison time?

Posted by Jennifer MerkleSep 08, 2021

Where will I do my federal prison time?

If you or someone you love is being sentenced to serve a term of imprisonment in a federal prison, you may be concerned about where you will serve that sentence.  An individual can be designated to serve their sentence in any federal prison or contract facility (including a state or privately run prison) which provides for the safety and security needs of the inmate.  The Federal Bureau of Prisons (BOP) makes all designation decisions. While a federal judge may include a recommendation to the BOP in the Judgment in a Criminal Case (Judgment) when imposing a sentence of imprisonment, the sentencing judge has no authority or control over the final decision.

While the BOP is required to consider the court's recommendation, Congress, through the passage of Title 18 U.S.C. § 3621(b), requires the BOP to consider the correctional facilities that are available, the “nature and circumstances of the offense” and the “history and characteristics of the prisoner,” among others like programming needs, and is statutorily required to try to place the offender within 500 miles of their residence. BOP relies on the information provided to it through the Judgment, presentence investigative report (PSR or PSI), and Statement of Reasons to make the initial designation. The BOP uses this information to determine the custody level of the offender and the security level of the facility that it deems appropriate to house the offender. These decisions are not subject to judicial review.  See e.g., 18 U.S.C. § 3625.

The BOP identifies four custody levels: Community, In, Out, and Maximum.  See BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (September 4, 2019). An inmate identified as Community Custody is eligible for the least secure housing, may be assigned to a work detail with minimal supervision, and may participate in programs in the community.  By contrast, inmates assigned Maximum custody are subjected to maximum control and supervision. The BOP classifies its institutions into five security levels: Minimum, Low, Medium (Male Only), High, and Administrative.  These facilities are distinguished based upon the level of security the physical facility can provide and the level of staff supervision it offers. The BOP assigns points to different factors to ascertain what custody level applies to the inmate and what security level facility would be appropriate for designation.  However, these cannot be mechanically determined as the BOP also has the ability to exercise professional correctional judgment in determining an appropriate placement by allowing staff to assign a management variable which it can use to raise or lower the security level of the facility that the BOP determines is appropriate to house a particular offender.

In most cases, you will be designated to a facility where the BOP identifies space and which generally provides security that meets your custody needs.

Are there ways to optimize the information the BOP is provided so that your custody classification can be as low as possible?  Yes, there is.  You can review the procedures the BOP will follow that are outlined in Program Statement 5100.08, and try to ensure that the information the BOP will be provided allows for the lowest scores possible.  The actions you can pursue include requesting authority to self-surrender and ensuring that is reflected in the PSR and/or Judgment. You can ask your attorney to ensure the instant offense behavior is concise and offers no more information than necessary to describe the conduct which forms the basis of the conviction. If you are pleading to a simple assault, ask your attorney to ensure the offense conduct reflects those actions which comprise the simple assault, not behavior that could have supported a conviction for an aggravated assault. You can talk to your attorney to determine if it will be helpful to ensure that any outstanding charges, including failures to appear, have been fully resolved and are reflected as such in your PSR (be cautious about pending criminal charges that could increase your criminal history points).

You can also ask your counsel to reach out to The Law Office of Jennifer M. Merkle for a consultation about these issues.  You can reach Jennifer by completing the contact form at www.jmmerklelaw.com or emailing her at [email protected].