PRACTICAL TIPS FOR YOUR CLIENTS FACING FEDERAL INCARCERATION

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1 PRACTICAL TIPS FOR YOUR CLIENTS FACING FEDERAL INCARCERATION David A. Merchant II DISCUSSION OVERVIEW I. Time Computation A. In general B. Good time credit C. Residential Drug Abuse Treatment Program (RDAP) D. Consecutive versus concurrent time II. Security Classification and Designation A. Documents needed for designation FDFCDC 89

2 B. Detainers C. BOP facilities D. Security levels E. Security classification F. Designation FDFCDC 90

3 4/5/2016 Federal Bureau of Prisons David Merchant Assistant Federal Defender Billings, Montana Two Questions - How much time am I going to do? - Where am I going to do my time? Time Computation The BOP is solely responsible for calculating federal imprisonment time. see United States v. Wilson, 503 U.S. 329 (1992). FDFCDC 91 1

4 4/5/2016 Time Computation Title 18 U.S.C. 3585(a) dictates that [a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. GET THE DATE ON THE J + C Time Computation Good conduct time is credited at 54 days per year, pro rated, pursuant to PS In reality, the BOP gives your client 47 days per year after the first year s credit. This calculation has been upheld by the US Supreme Court. Barber v. Thomas, 130 S. Ct (2010) Time Computation For Instance On a 60 month sentence, the maximum good time credit is 235 days instead of 270 days On a 120 month sentence, the maximum good time credit is 470 days not 540 days. But it could be less FDFCDC 92 2

5 4/5/2016 Time Computation An inmate who does not have a least a GED is only eligible for a maximum of 42 days of Good Conduct Time per year. Time Computation Your client must have a sentence of one year and a day to qualify for good time. 12 months equals 365 days served. 12 months and a day equals 312 days. Residential Drug Abuse Treatment Program (RDAP) A 500 hour program where inmates are placed in a class that lives together, separated from the general prison population takes 8 to 12 months to complete Inmate must have (1) verifiable drug abuse problem (2) No serious mental health issues (3) within 36 months of release (4) agree to participate (sign agreement) (5) appropriate security level FDFCDC 93 3

6 4/5/2016 Residential Drug & Alcohol Program To qualify for the RDAP program the inmate must have a drug or alcohol problem within the last year (as verified in the PSR) Even then, if the inmate has had any drug or alcohol treatment or counseling, it may preclude them from entry into the program. In-patient counseling, post-conviction and prior to sentencing is used to exclude the inmate from the program. Residential Drug & Alcohol Program The LIE - Legal Instrument Examiner Deducts time served and statutory good time to see if the inmate has enough time to complete the program. So a client who gets a 24 month sentence and has 6 months in jail at the time of sentencing most likely will not get the RDAP program because their time is too short to complete the program. Some Inmates Ineligible for Early Release Under RDAP INS/ICE detainees; Inmates with prior felony or misdemeanor convictions for homicide, forcible rape, robbery, aggravated assault or child sexual abuse offenses; Inmates whose current offense has an element of physical force, firearm, sexual abuse offenses; FDFCDC 94 4

7 4/5/2016 Some Inmates Ineligible for Early Release Under RDAP Current offense that by it s nature or conduct presents a serious potential risk or physical force against the person or property of another; Offenses for which a guideline enhancement was applied to the offense level for the use or threatened use of force or firearm. Early release is based on successful completion of RDAP In the Ninth Circuit be aware that the BOP complies with Arrington v. Daniels, 516 F. 3d 1106 (9th Cir. 2008) and have a written response for inmates. Concurrent versus Consecutive Time The Bureau of Prisons would never know to give a client complete credit they are due because they would never know about previous days of jail time that the client served in state, local or tribal custody on the same matter, if it is not clearly spelled out in the PSR. FDFCDC 95 5

8 4/5/2016 Documents Needed for Designation USM US Marshal form - Gives separations, aliases, gang affiliations. Judgment & Commitment - Gives length of sentence and supervised release, must state concurrent or consecutive sentence (if silent the BOP will treat as consecutive) gives recommendations as to programming and/or facility. PSR -- MOST IMPORTANT for BOP Presentence Report Three versions draft - original revised - attorney revisions JUDGE GETS amended - court revisions after sentencing Most judges will not amend a PSR unless it effects the guideline calculation. This is contrary to both the law and policy as the PSR goes into the matrix for determination of classification, eligibility for programs (employment, RDAP, education), medical treatment, release plans as well as visitation eligibility. PSR Attorneys Be Aware Be aware of medical issues that effect client s ability to function in prison. (must now have documentation - provide it to PSR writer to be included in report) Be aware of any escapes or FTA = could be scored as Crime of Violence Be aware of crimes of violence that did not result in convictions FDFCDC 96 6

9 4/5/2016 PSR Attorneys Be Aware Be aware of any references to homosexuality Be aware of any gang references as well as tattoos listed - confirm with client Be aware that juvenile history (crimes, sexual behavior, educational reports, mental health evaluations) will be used to increase security levels PSR Attorneys Be Aware If client speaks Spanish, RDAP is in offered in the Spanish language at FCI Miami and FPC Montgomery. But -- an ICE detainer will prevent participation. Detainers A detainer will increase client s security level - except for ICE detainers Try to resolve any pending charges as a detainer may also prevent client from the RDAP program as well as halfway house placement. FDFCDC 97 7

10 4/5/2016 Federal Bureau of Prisons Institutions Facilities The BOP consists of 122 institutions, 6 regional offices, a Central Office (headquarters), 2 staff training centers, and 26 community corrections offices. As of April 4, 2016, the BOP housed 196,144 inmates throughout their system. Security Levels Minimum This is where your client wants to be Known as Federal Prison Camps Usually near a larger institution or military base Low staff to inmate ratios Inmates typically work at the larger institution or military base Very low risk of assault or escape. Security Levels Low Fenced facility. BOP programs and work (UNICOR) stressed. FDFCDC 98 8

11 4/5/2016 Security Levels Medium - Significantly more secured than a Low Monitored/controlled movement of inmates Cell housing rather than dormitory. High Security Levels Penitentiaries Highly secured facility Close control of inmates movement and programming Long term incarcerations. Admin Security Levels Facilities that have special missions, i.e. medical, transfers, treatment programs (STOP/SOMP), SMOOTH dangerous/escape-prone inmates, security risks, i.e. death row or terrorists/gang members. FDFCDC 99 9

12 4/5/2016 Inmate Security Designation and Custody Classification Policy MEN Minimum: 0-11 points Low: points Medium: points High: 24 or more points WOMEN Minimum: 0-15 points Low: points [no Medium] High 31 or more points William O Hannity 24 year old high school drop out. Detained throughout the proceedings. Convicted of Threatening the President conviction for DUI probation (1 point) 2012 conviction for indecent exposure 1 year jail w/ 300 days deferred (2 points) Security Scoring 1 Voluntary Surrender no (0 points) yes (-3 points) 2 Severity of Current Offense Lowest (0 points) Low Moderate (1point) Moderate (3 points) High (5 points) Greatest (7 points) FDFCDC

13 4/5/2016 Security Scoring 3 Criminal History Score (PSR) 0-1 (0 points) 2-3 (2 points) 4-6 (4 points) 7-9 (4 points) (6 points) 13 + (10 points) 4 Documented History of Violence (minor / serious) None (0 / 0 points) > 15 years (1 / 2 points) years (1 / 4 points) 5 10 years (3 / 6 points) < 5 years (5 / 7 points) Security Scoring 5 History of Escapes / Attempts (minor / serious) None (0 points) > 15 years (1 / 3 points) years (1 / 3 points) 5 10 years (2 / 3 points) < 5 years (3 / 3 points) 6 Existing detainer None (0 points) Lowest/ Low Moderate (1 point) Moderate (3 points) High (5 points) Greatest (7 points) Security Scoring 7 Age 55 years + (0 points) years (2 points) years (4 points) < 25 years (8 points) 8 Education H.S. Grad/GED (0 points) working on GED (1 point) no degree, no work (2 points) 9 Drug / Alcohol Abuse None / > 5 years (0 points) < 5 years (1 point) FDFCDC

14 4/5/2016 Designation Bureau attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence If an inmate is placed at an institution that is more than 500 miles from their release residence, generally, it is due to specific security, programming, or population concerns. When an inmate is referred for a re-designation transfer, these same criteria are applied in making a decision for transfer to a new facility. Inmates are designated or re-designated based on: The level of security and staff supervision the inmate requires The level of security and staff supervision the institution provides The medical classification care level of the inmate and the care level of the institution Inmates are designated or re-designated based on: The inmate's program needs (e.g., treatment, educational/vocational training, individual and/or group counseling, medical/mental health treatment), and Various administrative factors (e.g., institution bed space capacity; release residence; judicial recommendations; separation needs; and security measures needed to ensure protection of victims, witnesses, and the general public). FDFCDC

15 4/5/2016 Inmates are designated or re-designated based on: Any request for transfer must originate with an inmate's institution Unit Team at his or her current facility The DSCC evaluates referrals submitted by institution staff and makes decisions based on the information provided by the institution Inmates are encouraged to work closely with members of their institution Unit Team to determine if transfer to a facility closer to their release residence may be possible FDFCDC

16 Federal Bureau of Prisons Website = Time Computation The BOP is solely responsible for calculating federal terms of imprisonment. See United States v.wilson, 503 U.S. 329 (1992). 18 U.S.C. 3585(a) dictates that [a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. Barber v. Thomas, 130 S. Ct (2010), held that the calculation method used by the Bureau of Prisons to determine the amount of "good time" earned on federal criminal sentences is lawful. [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations....[c]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence. The BOP's method, which the Court upheld, interprets "term of imprisonment" in the statute to mean entire imposed sentence" in some places, but "time actually served" when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner's release date. 18 U.S.C. 3624(b)(1) Good conduct time is credited at 54 days per year, pro rated, pursuant to PS In reality, the BOP gives your client 47 days per year after the first year s credit. So while the statute calls for an inmate to serve 85% of the sentence imposed, the BOP credit s the amount of time actually served. So, the BOP makes the inmate serve approximately 87.5% of their time. For instance, on a 60 month sentence, the maximum good time credit is 235 days instead of 270 days and on a 120 month sentence, the maximum good time credit is 470 days not 540 days. Your client must have (1) either a GED, High School diploma or better, or be working towards one, and (2) a sentence of one year and a day, to qualify for the maximum allowable good time. So 12 months equals 365 days served, 12 months and a day equals 312 days (366 days - 54 days). 1 FDFCDC 104

17 REMEMBER - A client who does not have at least a GED is only eligible for a maximum of 42 days of Good Conduct Time per year. Residential Drug Abuse Treatment Program (RDAP) - a 500 hour program where inmates are placed in a class that lives together, separated from the general prison population. - takes six to twelve months to complete. - inmate must have (1) verifiable drug abuse problem (2) No serious mental health issues (3) within 36 months of release (4) agree to participate (sign agreement) (5) appropriate security level - inmate cannot have a crime of violence. Early release based on successful completion of RDAP 1. Pursuant to 18 U.S.C. 227(d), an inmate who is sentenced for a non-violent offense, has a substance abuse problem and successfully completes a residential drug abuse treatment program, may qualify for an early release not to exceed twelve (12) months. 2. Inmates who are not eligible for early release. (see 18 U.S.C. 3621(e)(5)(B) and 28 C.F.R (2000)): a. INS/ICE detainees; b. Inmates with prior felony or misdemeanor convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping or child sexual abuse offenses; c. Inmates whose current offense has an element of physical force, carry, possession of a firearm, sexual abuse offenses; d. Current offense that by it s nature or conduct present a serious potential risk or physical force against the person or property of another; e. Offenses for which a guideline enhancement was applied to the offense level for the use or threatened use of force or firearm. 2 FDFCDC 105

18 *** In the Ninth Circuit be aware that the BOP complies with Arrington v. Daniels, 516 F. 3d 1106 (9 th Cir. 2008) and they have a written response for inmates who are both in and out of circuit. The BOP has actually changed their policy because of Arrington and every Circuit but the Ninth have held against the holding. See Bellreng v. Grondolsky, 2009 U.S. Dist. LEXIS (D NJ, Dec. 11, 2009); Fletcher v. Johns, 2011 U.S. Dist. LEXIS (D NC, July 22, 2011). The Ninth Circuit has reversed BOP decisions regarding some crimes of violence that would prevent early release (Abbott v. Federal Bureau of Prisons, 771 F. 3d 512 (9 th Cir. 2014) as well as uphold BOP decisions (Peck v. Thomas, 697 F. 3d 767 (9 th Cir. 2012)). Concurrent Versus Consecutive Time 18 U.S.C governs the amount of jail time credited to a federally sentenced inmate. Defendant shall be given credit toward the service of a term of imprisonment time he has spent in office detention prior to the date the sentence commences - - (1) as a result of the offense for which the sentence was imposed... that has not been credited against another sentence. 18 U.S.C. 3585(b). (Emphases added) While the Attorney General through the Bureau of Prisons possesses the sole authority to make credit determinations pursuant to 18 U.S.C. 3585(b) [United States v. Whaley 148 F. 3d 205 (2 nd Cir. 1998)], circuit courts have held that district courts have concurrent authority to grant credit for time served in official detention. Based on the deletion of all references to Attorney General in 3585 manifested congressional intent to withdraw the Attorney General s exclusive authority. See United States v. Beston, 936 F. 3d 361 (8 th Cir. 1991) rehearing denied 1991 US App LEXIS With that said, the Bureau of Prisons would never know to give a client the complete credit he is due because they would never know about the previous jail time that the client served in state custody on the same matter. Circuit courts have held that under 18 U.S.C. 3585(b), a defendant shall be given credit toward his term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. See United States v. Becak, 954 F. 2d 386 (6 th Cir. 1992). Although a district court can not order that a federal sentence begin when a defendant was arrested by the state for the same conduct underlying the federal offense. The Ninth Circuit has recently affirmed the BOP s denial of jail credit for a federal inmate who had previously served state time for a related charge. See United States v. Schleining, 9 th Cir. No.: , June 27, 2011) Because the BOP determines jail credit, the district court may accomplish the same end by departing downward in it s federal sentence. The proper way to ensure that Gonzalez served a total of 156 months would have been for the court to increase the downward departure it granted him and sentence him to 129 months. United States v. Gonzalez, 192 F. 3d 350 (2 nd Cir. 1999). A District Court has the authority under U.S.S.G. 5G1.3 (c) to adjust a federal sentence for time served on 3 FDFCDC 106

19 a state sentence in a way that is binding on the BOP, whether it is called a departure, a credit or an adjustment. See Ruggiano v. Reish, 307 F. 3d 121 (3 rd Cir. 2002). In United States v. Pray, 373 F.3d 358 (3 rd Cir. 2004), the defendant served 4 months in state time custody for a drug offense and was later convicted on related federal drug offense district court may depart downward on federal sentence to credit defendant with state time, which was completed (and therefore not undischarged in accordance with U.S.S.G. 5G1.3). Likewise, a district court could not credit defendant in his federal case with the time he had served in his state case, in accordance with 5G1.3, but could accomplish the same result with a departure. See United States v. Rosado, 254 F. Supp. 2d 316 (SDNY 2003) where defendant was convicted of distributing heroin, and where defendant had served 7 months in state custody on the conviction that was relevant conduct in the federal sentence, defendant was granted a 7 month downward departure to account of state time already served through a departure. A district court in the Northern District of New York held that the BOP improperly denied good time credit for the period of the federal sentence served concurrently with the state sentence. [(See Hill v. Corwin (ND NY 9:10-cv-553, June 9, 2010)]. 4 FDFCDC 107

20 Facilities The BOP consists of 122 institutions, 6 regional offices, a Central Office (headquarters), 2 staff training centers, and 26 community corrections offices as well as 14 privately operated facilities. In 2010 there were 115 institutions. As of January 15, 2015, there are 196,343 total federal inmates. Compared to August 20, 2015 (pre drugs minus 2 releases) there were 206,860 inmates. Compared to May 22, 2014, there were 217,180 inmates and March 3, 2011, when the BOP housed 210, 039 inmates. 5 security levels Minimum - Low - Medium - High - Admin - Also called Federal Prison Camps. Usually near a larger institution or military base. Low staff to inmate ratios. Inmates typically work at the larger institution or military base. Very low risk of assault or escape. Fenced facility. BOP programs and work (UNICOR) stressed. Dorm or cubical housing. Significantly more secured than a Low. Monitored/controlled movement of inmates. Cell housing rather than dormitory. Penitentiaries. Highly secured facility. Close control of inmates movement and programing. Long term incarcerations. Facilities that have special missions, i.e. medical, transfers, treatment programs (STOP), dangerous/escape-prone inmates, security risks, i.e. death row or terrorists/gang members. *** Keep in mind that there are no female medium facilities 5 FDFCDC 108

21 Inmate Classification and BOP Designation All designations and time computations now take place at the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. See Program Statement Prisoners are classified by the BOP according to procedures set forth in Program Statement P See U.S. Dep t of Justice, Bureau of Prisons, Program Statement P (Sept. 2006). All biographical data for a particular prisoner is entered into the BOP SENTRY system. This results in a security score based on the individual s characteristics. This score determines the minimum security level permitted. The Bureau attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence. If an inmate is placed at an institution that is more than 500 miles from their release residence, generally, it is due to specific security, programming, or population concerns such as a separation order. When an inmate is referred for a re-designation transfer, these same criteria are apply in making a decision for transfer to a new facility. The placement authorized by the security score may be overridden, to the benefit or detriment of the individual prisoner, by variables known as Public Safety Factors or Management Variables. A custody level is also assigned to each inmate within any given security level institution. SECURITY SCORING The BOP uses the Presentence Investigation Report, the Judgment and Commitment Order including the Statement of Reasons, a United States Marshall report (USM 129) and any information available to the BOP from the Central Inmate Monitoring system (CIM). The categories for the Security Designation scoring are: (1) Voluntary Surrender? No (0 points) Yes (-3 points) (2) Severity of Current Offense? Lowest (0 points) Low Moderate (1 point) Moderate (3 points) High (5 points) Greatest (7 points) (3) Criminal History Score in PSR? 0-1 (0 points) 2-3 (2 points) 4-6 (4 points) 7-9 (6 points) (8 points) 13+ (10 points) 6 FDFCDC 109

22 (4) Documented History of Violence None (0 points/0 points) (minor/serious)? >15 years (1 point/2 points) years (1point/4 points) 5-10 years (3 points/6 points) <5 years (5 points/7 points) (5) History of Escapes/Attempts? None (0 points/0 points) (minor/serious)? >15 years (1 point/3 points) years (1 point/3 points) 5-10 years (2 points/3 points) < 5 years (3 points/3 points) (6) Existing detainer? None (0 points) Lowest/Low Moderate (1 point) Moderate (3 points) High (5 points) Greatest (7 points) (7) Age? 55 + (0 points) (2 points) (4 points) < 25 (8 points) (8) Education Level? High School Graduate/GED (0 points) Progress on GED (1 point) No Degree/Not Progressing (2 points) (9) Drug/Alcohol Abuse? None / >5 years (0 points) <5 years (1 point) The total of points assigned in these categories is the security score used for purposes of designation. Security Custody Men Women Level Level Minimum Community/Out 0-11 points 0-15 points Low Out / In points points Medium Out / In points no women s medium High In and Max. 24 or more points 31 or more points 7 FDFCDC 110

23 Practical Tips for each Category 1. The only way to reduce security points is to voluntarily surrender. If your client is close in points, argue to the Judge how significantly this can impact your client. This item allows for the subtraction of three points from the Security Point Total when the Judgment indicates the inmate was allowed to voluntarily surrender. For purposes of this item, voluntary surrender means the inmate was not escorted by a law enforcement officer to either the U.S. Marshals Office or the place of confinement. Additionally, this item applies only to post-sentencing voluntary surrender, and does not include cases where the inmate surrendered to the U.S. Marshals on the same day as sentencing. Voluntary Surrender Credit may only be applied to the initial term of confinement; it may not be applied to any subsequent Supervised Release, Mandatory Release or parole Violation return to custody. P chapter 4, page 6, September 12, The severity of the offense values are based on the Offense Severity Scale found in the BOP Policy Statement The points are assessed reflecting the most severe (documented) behavior regardless of the conviction. This information is taken from the PSR. Do your best to remove language regarding such behavior from the PSR if it is not properly documented. 3. The BOP takes the Criminal History Score from the Judgment first, then the PSR. If it is not listed in the Judgment or the PSR then the BOP may calculate this score on their own. It is imperative that you do not let the BOP designator score this on their own as they use the Criminal History section of the PSR as well as information from the LEIN, EPIC, CCH and other PSR s. There is significant room for double counting and for scoring multiple convictions as multiple points. 4. Under History of Violence, the severity of the act of violence is assessed by the underlying conduct, not by the finding or conviction. Make sure you fight to remove any behavior that is not properly documented. 5. Escapes are graded as minor when they involve minimal security and no violence or threat of violence, ie. walking away from a halfway house or work program. All of the Circuits have found that a walkaway escape does not constitute a violent felony or a crime of violence. See United States v. Ford, 560 F. 3d 420 (6 th Cir. 2009); United States v. Hart, 578 F. 3d 674 (7 th Cir. 2009); United States v. Jackson, 594 F. 3d 1027 (8 th Cir. 2010); and, United States v. Lee, 586 F. 3d 859 (11 th Cir. 2009). Escapes are serious if they occur from a higher security or have any violence or threat of violence. 8 FDFCDC 111

24 6. If there is a pending charge, points are added under the Detainer category based on the documented behavior. No points are added for ICE detainers. 7. The age of the client is now a factor, weighting against younger inmates. If the inmates age is unknown, a default score of 4 will be given. If the client is near a birthday that would change the category, I ask for a continuance of the sentencing hearing. 8. The Education Level requires that the inmate s education level be verified. Provide documentation to the probation officer if necessary. Every jail has GED books, but for verification, you must have your client take (not necessarily pass) at least one of the exams. 9. Client s disclosure to the PSR writer should suffice for this variable. Public Safety Factors (PSF) 1. Sentence Length (males only): Unless waived, a inmate with 10 years remaining on their sentence will be housed in a Low security institution. 20 years remaining will be housed in a Medium security facility and 30 years remaining in a High security facility. 2. Disruptive Group (males only): Any inmate who has been confirmed to be a member of a disruptive group (as identified by the BOP) shall be housed in a high security facility. 3. Greatest severity offenses (males only): Conviction for; aircraft piracy, arson, assault, car jacking, serious drug offenses, escape, espionage, explosives, homicide, robbery, sexual offenses, exporting sophisticated weaponry, threatening a governmental official. 4. Sex Offender: If the PSR or another official document clearly indicates behavior that is characterized as a sex offense, inmate can not receive a designation to a minimum security institution unless PSR is waived. 5. Threat to Government Official: Inmate can not receive a designation to a minimum security institution unless PSR is waived. 6. Deportable alien. 7. Violent behavior (females only): Inmate who has 2 prior convictions (or DHO actions for serious incidents of violence) within the last 5 years. Will be assigned to Carswell Admin Unit, unless waived. 8. Serious Escape: A female will be assigned to the Carswell Admin Unit. Males will receive at least a Medium security level designation. 9 FDFCDC 112

25 9. Juvenile violence: Must be documented behavior (not necessarily involving a conviction.) 10. Serious Telephone Abuse: If a telephone was used to facilitate a crime (drug trafficking, threats, acts of violence), the inmate will be assigned at least a Low security level designation. 11. Prison disturbance: A male inmate will be housed in a High security facility. A female will be housed at the Carswell Admin Unit. Waiver of Public Safety Factor An inmate may receive up to three PSF s. PSF s maybe waived after review and approval of the DSCC Administrator. When a PSF is waived causing a placement outside the normal guideline range, the DSCC Administrator will then determine the most appropriate security level for the inmate. Only the DSCC Administrator is authorized to waive a PSF. A request for the waiver of the PSF must be submitted to the DSCC on Form 409 (which can be found on the BOP website.) BOP Terms and Acronyms BOP = CCC = CCM = CIM = CSC = DHO = FCC = FCI = FMC = FPC = LSCI = MFCI = MINT = PSF = PSR/PSI = RDAP = RRC = SHU = SMU= SOTP = SOMP = UNICOR = USP = Bureau of Prisons Community Correction Center Community Correction Management (the office which manages RRC s, CSC s and CCC s) Central Inmate Monitoring Community Sanction Center Disciplinary Hearing Officer Federal Correctional Complex Federal Correctional Institution Federal Medical Center Federal Prison Camp Low Security Correctional Institution Medium Federal Correctional Institution Mothers Infants Nurturing Together Public Safety Factor Presentence Investigation Report Residential Drug Abuse Program Residential Reentry Center Special Housing Unit (pronounced like shoe ) (typically disciplinary solitary confinement) Special Management Unit (pronounced like smooth ) (strict visitation and communication policy) Sex Offender Treatment Program Sex Offender Management Program Prison Industry United States Penitentiary 10 FDFCDC 113

26 U.S. Department of Justice Federal Bureau of Prisons Program Statement OPI: CPD/ISM NUMBER: P DATE: 3/31/2006 SUBJECT: Good Conduct Time Under the Prison Litigation Reform Act RULES EFFECTIVE: 12/5/ PURPOSE AND SCOPE. To implement provisions of the Prison Litigation Reform Act of 1995 (PLRA) for awarding good conduct time (GCT). 2. SUMMARY OF CHANGES. This Program Statement has been revised, based on 28 CFR , to exempt aliens subject to a final order of removal, deportation, or exclusion from the satisfactory progress in a literacy program provision of the PLRA. 3. PROGRAM OBJECTIVE. The expected result of this program is: Good conduct time for inmates sentenced under the PLRA will be awarded in accordance with Title 18, U.S.C. 3624(b)(4) and 28 CFR DIRECTIVES AFFECTED a. Directive Rescinded P Good Conduct Time Under the Prison Litigation Reform Act (9/29/97) b. Directives Referenced P Institution Hearing Program (IHP) (4/23/97) P Inmate Discipline and Special Housing Units (12/29/87) P Literacy Program (GED Standard) (12/1/03) P Escapes/Deaths Notification (8/23/99) P Sentence Computation Manual (CCCA of 1984) (2/21/92) [Bracketed Bold- Rules] Regular Type - Implementing Information FDFCDC 114

27 P /31/2006 Page 2 c. The rule cited in the Program Statement is contained in 28 CFR STANDARDS REFERENCED th a. American Correctional Association 4 Edition Standards for Adult Correctional Institution: rd b. American Correctional Association 3 Edition Standards for Adult Local Detention Facilities: 3-ALDF-1E-03 nd c. American Correctional Association 2 Edition Standards for Administration of Correctional Agencies: 2-CO-1E [GOOD CONDUCT TIME a. For inmates serving a sentence for offenses committed on or after November 1, 1987, but before September 13, 1994, the Bureau will award 54 days credit toward service of sentence (good conduct time credit) for each year served. This amount is prorated when the time served by the inmate for the sentence during the year is less than a full year. b. For inmates serving a sentence for offenses committed on or after September 13, 1994, but before April 26, 1996, all yearly awards of good conduct time will vest for inmates who have earned, or are making satisfactory progress (see Sec (b) of this chapter) toward earning a General Educational Development (GED) credential. c. For inmates serving a sentence for an offense committed on or after April 26, 1996, the Bureau will award (1) 54 days credit for each year served (prorated when the time served by the inmate for the sentence during the year is less than a full year) if the inmate has earned or is making satisfactory progress toward earning a GED credential or high school diploma; or (2) 42 days credit for each year served (prorated when the time served by the inmate for the sentence during the year is less than a full year) if the inmate has not earned or is not making satisfactory progress toward earning a GED credential or high school diploma. FDFCDC 115

28 P /31/2006 Page 3 d. Notwithstanding the requirements of paragraphs (b) and (c) of this section, an alien who is subject to a final order of removal, deportation, or exclusion is eligible for, but is not required to, participate in a literacy program, or to be making satisfactory progress toward earning a General Educational Development (GED) credential, to be eligible for a yearly award of good conduct time. e. The amount of good conduct time awarded for the year is also subject to disciplinary disallowance (see tables 3 through 6 in Sec of this chapter). 28 CFR refers to the Program Statement on Inmate Discipline and Special Housing Units. 7. AWARDING GCT a. Pursuant to the PLRA, in awarding GCT credit, the Education Department at each institution must consider whether the inmate, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or equivalent degree. See 28 CFR (b) in the Program Statement on Literacy Program (GED Standard). Once a determination has been made, the department enters the appropriate Education Information (EDI) assignment into SENTRY for each inmate. b. This rule provides that an inmate subject to the PLRA is to earn up to the full 54 days credit for GCT (prorated for a partial year at the end of the sentence) if the inmate has earned or is making satisfactory progress toward earning a GED credential. c. The rule further provides that an inmate subject to the PLRA is to earn up to 42 days credit for GCT per year (prorated for a partial year at the end of the sentence) if the inmate has not earned or is not making satisfactory progress toward earning a GED credential, unless, the inmate alien is subject to a final order of removal, deportation, or exclusion. d. If an inmate s status changes from GED UNSAT (unsatisfactory progress) to GED SAT (satisfactory progress), the annual rate of GCT will return to 54 days. Inmate Systems Management (ISM) staff must recalculate (RPC) the sentence computation to affect change. FDFCDC 116

29 P /31/2006 Page 4 e. An inmate alien subject to a final order of removal, deportation, or exclusion will earn GCT at the annual rate of 54 days (prorated for a partial year at the end of the sentence). After completion of the deportation hearing, the Case Manager or designee will enter the Case Management Activity (CMA) assignment into SENTRY and forward a copy of the order to ISM staff for inclusion in the Judgment and Commitment (J&C) file. ISM staff must recalculate the sentence computation. SENTRY will automatically change the annual GCT rate from 42 days to 54 days. f. The amount of GCT earned is subject to disciplinary forfeiture or disallowance. /s/ Harley G. Lappin Director FDFCDC 117

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