Federal Bureau of Prisons Violates Federal Law
Geoff Mousseau
May 12, 2009
Recently, the former sheriff of Orange County was found guilty of a single felony count after a jury trial. Michael Carona, formerly known as "America´s Sheriff," was initially relieved that he had been found not guilty of several other felony counts. His relief, however, was brief.
In preparation for sentencing, the Federal Probation department recommended that this former Sheriff be sentenced to more than 5 years in prison. If this news was not severe enough, the prosecutors in the case requested a sentence that was even longer. The Sheriff´s lawyers asked for lenience and requested that the Court sentence him to "no more than 21 months." As will be discussed later, the request by the Sheriff´s lawyers was a mistake and suggests that they are unfamiliar with BOP programs.
Both the Probation department recommendation and the request by the prosecutors were based on Federal Sentencing Guidelines. Federal Sentencing Guidelines were designed to create uniform sentencing lengths throughout the country. For this reason, and despite the name, the Federal Sentencing Guidelines were actually a set of mandatory rules that were mechanically followed.
In practice, these "Guidelines" virtually eliminated the ability of Federal judges to exercise discretion over the sentencing process.
The request for leniency by the Sheriff´s lawyers was based on two recent decisions by the United States Supreme Court.
Recently, the United States Supreme Court intervened in this process. As a result of two Supreme Court decisions, Federal judges again have discretion in sentencing. Rather than blindly follow the binding requirements contained in the Federal Sentencing Guidelines, courts are now required to "consider" the guidelines when designing sentence lengths. Studies show that the majority of federal sentences are still within the ranges called for by the guidelines. This may be a result of the fact that few Federal judges have used any other method for sentencing during their careers on the bench. Still, some sentences are actually shorter than those that would have been required if the "Guidelines" were still mandatory.
The few instances where Federal judges have been convinced to be lenient gives hope to all those facing sentencing. For this reason, the lawyers for "America´s Sheriff" requested that the Court sentence their client to "no more than 21 months."
What these lawyers apparently do not know is that, by requesting a sentence of 21 months, their client would serve more time in prison than if he were sentenced to a longer term of up to 36 months.
It is generally known that a sentence of a year-and-a-day results in less time behind bars than a sentence of a year. This phenomenon is due to the fact that inmates can qualify for "good time" credit against their sentence only if their sentence is more than a year.
Other than "good time" credit, there is only one program in the Federal Prison System that provides for a reduction to the length of a sentence. That program, RDAP, is known generically as the "drug program," however participation in the program is virtually unlimited. This is a very sought-after program that can result in up to an 18 month reduction in sentence length.
However, there is one important limitation.
In order to qualify, one must have received a sentence of at least 24 months. Or, put another way, the BOP categorically excludes all inmates sentenced to less than 24 months from participating in the RDAP program.
By requesting a sentence of 21 months, rather than 24 months, this particular client will not qualify for RDAP and will, therefore, spend more time in prison than if he was sentenced to more time.
How could nationally recognized criminal defense experts be unaware of this categorical exclusion?
Under federal law (the Administrative Procedure Act) the BOP is required to publicize regulations and program statements that categorically exclude inmates from any BOP program. This rule was recently upheld by the 9th Circuit Court of Appeal in the case of Arrington v. Daniels.
The BOP does not comply with this federal law. As a consequence, prisoners are being held in federal custody for months longer than they should be. Not only does the BOP flagrantly violate this provision of federal law, resulting in significant harm to inmates, the BOP vigorously opposes any application by inmates for relief from the courts.
In preparation for sentencing, the Federal Probation department recommended that this former Sheriff be sentenced to more than 5 years in prison. If this news was not severe enough, the prosecutors in the case requested a sentence that was even longer. The Sheriff´s lawyers asked for lenience and requested that the Court sentence him to "no more than 21 months." As will be discussed later, the request by the Sheriff´s lawyers was a mistake and suggests that they are unfamiliar with BOP programs.
Both the Probation department recommendation and the request by the prosecutors were based on Federal Sentencing Guidelines. Federal Sentencing Guidelines were designed to create uniform sentencing lengths throughout the country. For this reason, and despite the name, the Federal Sentencing Guidelines were actually a set of mandatory rules that were mechanically followed.
In practice, these "Guidelines" virtually eliminated the ability of Federal judges to exercise discretion over the sentencing process.
The request for leniency by the Sheriff´s lawyers was based on two recent decisions by the United States Supreme Court.
Recently, the United States Supreme Court intervened in this process. As a result of two Supreme Court decisions, Federal judges again have discretion in sentencing. Rather than blindly follow the binding requirements contained in the Federal Sentencing Guidelines, courts are now required to "consider" the guidelines when designing sentence lengths. Studies show that the majority of federal sentences are still within the ranges called for by the guidelines. This may be a result of the fact that few Federal judges have used any other method for sentencing during their careers on the bench. Still, some sentences are actually shorter than those that would have been required if the "Guidelines" were still mandatory.
The few instances where Federal judges have been convinced to be lenient gives hope to all those facing sentencing. For this reason, the lawyers for "America´s Sheriff" requested that the Court sentence their client to "no more than 21 months."
What these lawyers apparently do not know is that, by requesting a sentence of 21 months, their client would serve more time in prison than if he were sentenced to a longer term of up to 36 months.
It is generally known that a sentence of a year-and-a-day results in less time behind bars than a sentence of a year. This phenomenon is due to the fact that inmates can qualify for "good time" credit against their sentence only if their sentence is more than a year.
Other than "good time" credit, there is only one program in the Federal Prison System that provides for a reduction to the length of a sentence. That program, RDAP, is known generically as the "drug program," however participation in the program is virtually unlimited. This is a very sought-after program that can result in up to an 18 month reduction in sentence length.
However, there is one important limitation.
In order to qualify, one must have received a sentence of at least 24 months. Or, put another way, the BOP categorically excludes all inmates sentenced to less than 24 months from participating in the RDAP program.
By requesting a sentence of 21 months, rather than 24 months, this particular client will not qualify for RDAP and will, therefore, spend more time in prison than if he was sentenced to more time.
How could nationally recognized criminal defense experts be unaware of this categorical exclusion?
Under federal law (the Administrative Procedure Act) the BOP is required to publicize regulations and program statements that categorically exclude inmates from any BOP program. This rule was recently upheld by the 9th Circuit Court of Appeal in the case of Arrington v. Daniels.
The BOP does not comply with this federal law. As a consequence, prisoners are being held in federal custody for months longer than they should be. Not only does the BOP flagrantly violate this provision of federal law, resulting in significant harm to inmates, the BOP vigorously opposes any application by inmates for relief from the courts.
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