Opportunities to get prisoners in front of federal judges for resentencing are a growing part of our criminal justice system. With COVID-19, compassionate release motions became more frequent and changes in laws allowed defendants to get into court for the chance for either freedom or a reduced prison term. Oddly enough, the very prison records that have defined the defendant’s life while incarcerated could be the key to a successful outcome at resentencing hearings.
The Bureau of Prisons (BOP) is one of the least understood agencies in the federal government and has likely frustrated many attorneys who try to navigate issues for their clients. It operates 122 institutions throughout the United States, employing over 35,000 people and incarcerating over 150,000 prisoners. The BOP has extensive policies and procedures that lead to a vast amount of information on every prisoner in its care. The documentation collected on prisoners, put into context of the many challenges the BOP has as an agency, provide an opportunity for mitigation at a resentencing. It is important to know which records are important and how they can help defendants when filing various motions in court, including compassionate release, Incarceration Reduction Amendment Act (IRAA), and other resentencing situations (the Second Look Amendment Act (SLAA) expanded eligibility to people who were under 25 at the time of the crime (in other words, 24 years old or younger) and who have served at least 15 years of their sentence to ask the court for a reduced sentence).
Whatever the law or situation that brings you into court, prison records provide information that both prosecutors and defense attorneys have as a resource to support their respective positions. Often, prosecutors point to the prisoners’ disciplinary incidents as reasons for holding prisoners longer, while defense attorneys focus on programming and life skills learned in prison. These records provide a story, much like that of sentencing memos, which put into context the defendant’s life. At a resentencing, there is an opportunity to tell a story that can present the defendant in the best light possible as you advocate for a sentence reduction. The best approach for defense attorneys is to create a story that enhances the successes of the prisoner while addressing negative behavior head on.
In creating a positive story for the prisoner, highlight their rehabilitation efforts and put negative information, such as disciplinary infractions, into context. The prison environment, particularly in high-security penitentiary settings, influences the types and frequency of incident reports a prisoner receives.
While violations of prison rules are never sanctioned, certain infractions, like weapons possession that are often used as a means of protection, are more commonplace in penitentiary settings, and it is important to explain why this happens.
Some of the most important cases that are happening in federal law are occurring in DC Superior Court with IRAA cases. IRAA allows a person who committed a crime before the age of 25, and who has served a minimum of 15 years in prison, to apply to the DC Superior Court to have their sentence reduced to time served. These cases are as close to a parole hearing that a prisoner can have, but, rather than a parole board, there is just one person to convince, the judge. When speaking to an attorney who was representing an IRAA case, she told us that these cases allow the legal team to focus on a presentation of who the prisoner is as a person rather than the crimes that individual committed. Almost all defendants in these cases are serving life or decades-long sentences. They were convicted of serious crimes, usually murder or rape, but many have devoted their life in prison to better themselves through participation in meaningful programs and maintaining close relationships with family. Many of these prisoners have gone through the most punitive programs in the BOP, including the Special Management Unit (SMU), an isolative punishment that takes everything from them and places them in programming meant to change their behavior. As one warden explained the program, “the only thing these men have in this program is their dreams.”
Prisoners who are part of IRAA resentencing motions have spent the majority or all their incarceration in high-security, penitentiary settings. These prisons encompass significant violence and predatory gangs, making it extremely challenging, despite an inmate’s best efforts to avoid disciplinary infractions. In short, it is a difficult environment in which to live and navigate daily. As one prisoner told us, “Even angels would have a difficult time behaving themselves in hell.”
BOP documents are not always straightforward or easy to interpret. In fact, we often hear from attorneys that these records are like reading a foreign language. It sometimes may be necessary to have an expert familiar with BOP records and policies to translate their meaning in the form of a declaration. In our work, we have seen attorneys lift parts of the declaration to include in their own motions while still using the full context of the declaration as an exhibit. An expert who has a background in federal corrections can contextualize certain negative issues, like misconduct violations, and explain them in a way that the reader of the declaration can easily understand.
The first step is knowing which records to obtain from the BOP. The main records we view as valuable are the following:
• Presentence Investigation Report (PSR)
• PATTERN Score and Worksheet
• Security Classification and Custody (BP-337 and BP-338)
• Inmate Chronological Discipline Data (PD-15)
• Education Transcript (PEED)
• BEMR (Medical and PDS Mental Health Records)
• Individual Needs Assessment Progress Reports and Program Reviews
• Work History and Evaluations
Though not a BOP record, the PSR is used by the BOP to initially assess a security classification for the prisoner and can also be used as a baseline to measure growth and maturity during their time in prison. In addition, it provides valuable information on family history and presents the various issues the defendant faced, especially as a child and young adult. The PSR is almost always a part of the original case file, so it is the easiest to obtain.
The Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) Score and worksheet can provide a good overview of prisoner adjustment. Part of the First Step Act, PATTERN is a measurement tool of general recidivism risk and risk of future violence. PATTERN, like security classification assessments, is a point-based system that assigns measured points to categories like age (younger ages receive greater points), offense type, recency of violence, criminal history, and recency of disciplinary issues in prison. Points are subtracted for successful programming and engaging in productive activities while incarcerated.
The Security Classification and Custody reflects how the BOP assesses security risk. One of the most telling indicators of progress is when the prisoner is listed as a lower security classification than the institution in which they are housed. This higher security placement usually occurs when a Public Safety Factor, an overriding security classification variable, keeps the prisoner in a higher security prison when they could be housed in a lower security setting.
The Inmate Chronological Discipline Data (PD-15) is a chronological list of disciplinary infractions over the term of the prison sentence. The infraction is listed, along with the punishment associated with the infraction. In addition to looking at the severity of the infraction, it is important to also consider the recency of any infraction.
The document that balances the discipline information is the Education Transcript (PEED), which lists the various classes the prisoner has taken. The focus of the analysis on this document should be on the relevance of the programs to career opportunities on the outside and whether they reflect personal growth.
BOP Electronic Medical Records (BEMR) and Psychology Data Summaries (PDS) are the medical and mental health records for prisoners. These also provide context for mitigation. For instance, if the inmate suffers from physical handicaps that restrict their ability to program, this may be reason for a lack of program participation, something that would not be reflected in the education data transcript. Psychology records can also be reviewed and often provide personal observations and assessments regarding an inmate’s progress through certain programs offered by Psychology Services (challenge, drug awareness, etc.).
The Needs Assessment identifies programs that the BOP believes the prisoner should participate in and whether the prisoner refused or completed the program. In addition, the current work assignment and the classes identified as “Needs” under the First Step Act are listed.
Within the prison environment, not all jobs are equal. In reviewing the work history, it can be helpful to consider the jobs that require greater responsibility. One of those jobs is an assignment in Federal Prison Industries, otherwise known as UNICOR. Studies have shown that inmates who are employed in UNICOR have a lower recidivism risk. Some inmates also work in jobs, side-by-side with BOP staff, such as facility maintenance, powerhouse infrastructure, and food services. Work supervisors will occasionally write a letter of commendation for prisoners assigned to their details and/or provide favorable comments on the quarterly work evaluations, which can be useful in our declarations.
Obtaining other documents on the list may seem difficult, but there are ways to get them. Freedom of Information Act (FOIA) requests are one way, but that approach is also the most time-consuming. FOIA requests can take months or even more than a year to get. The two most reliable and efficient ways to get information are either through the prisoner or working with the counselor/case manager at the prison. Prisoners often receive copies of things like disciplinary reports and their education transcript, two essential document types for resentencing. Every six months, prisoners have a formal Unit Team meeting with their unit manager, counselor, and case manager. This meeting presents an opportunity for the prisoner to ask for copies of documents.
A defendant’s behavior and programming while incarcerated is important for many judges who are considering an inmate for release. This brings us to the most important document, the Inmate Chronological Discipline Data (PD-15). Almost all prisoners, particularly those in higher-level institutions, have disciplinary infractions. Prosecutors often present this information to negate a prisoner’s rehabilitation efforts and highlight how conduct in prison is representative of future behavior.
Attorneys need to understand that not all incidents are the same. There are different levels of offenses, ranging from greatest (100 Level) to low (400 Level). This classification of offenses is important to understand because many infractions are minor. The BOP has a program statement, Inmate Discipline Program, that defines these infractions.
Attorneys should also look at the recency of any of the disciplinary incidents. For many who are approaching a resentencing, the last infraction may have been several years ago, indicative of the prisoner’s growth and maturity. As prisoners grow older, they tend to incur fewer incident reports. The younger offenders are prone to more violence and disruption, whereas the older inmates prefer a more calm and harmonious existence in prison. It should also be noted that prisoners who are approaching a resentencing are often targeted or tempted by other prisoners who are resentful of someone else’s opportunity at freedom. When a prisoner has been incident-free for years, it is due to extraordinary discipline to keep from succumbing to the environment in which they live. Details like this need to be addressed when advocating for your client.
Weapons possession charges for inmates in penitentiaries are commonplace and are listed as a greatest-severity-level infraction. These high-security-level prison environments are volatile and unpredictable.
Prisoners often carry weapons (shanks), usually plastic, metal, or wood, as a means of protection. It is helpful to illustrate the type of violence in these settings to explain the practice of inmates who find it necessary to possess weapons for defensive purposes, while also acknowledging that doing so is against the rules. Without such context, one might conclude that inmates who possess weapons, a high-level offense, are violent by nature. However, simple weapons possession charges are not necessarily indicative of violence. For instance, although an inmate may possess a weapon, it is helpful to point out that they never used it in any fights or for aggressive purposes.
In closing on disciplinary issues, it is important for the judge to know that the prisoner was punished for their actions and to hold it against them at sentencing is doubling that punishment. Prisoners will fall short at times, but some of the punishments—such as being placed in Special Housing Units, loss of visitation, and loss of phone privileges—are very punitive.
Educational programming is also an important factor when highlighting a prisoner’s rehabilitation. The BOP does not require that prisoners participate in education programs, except for 240 hours toward obtaining a GED when a high school diploma has not been verified in the PSR. Prisoners who take it upon themselves to improve their lives through educational programming and other productive activities do so voluntarily in an environment that is filled with despair, violence, and a lack of hope.
The types of programs prisoners engage in while in prison reflect rehabilitation and provide an argument for the prisoner’s potential for success if released from prison. Focus should be placed on classes where a trade skill is learned that is viable and marketable beyond prison. Enrollment, participation, and completion of vocational training programs like culinary arts, plumbing, HVAC, or computer skills/programming are representative of the types of classes offered by the BOP at some institutions. Likewise, programs that demonstrate maturity and growth include Threshold, a faith-based program, and Challenge, which focuses on addressing those with substance abuse histories or mental health concerns and illnesses.
Some prison experience is also not always available in BOP records but may be crucial for translating into a declaration. For instance, working in recreation as a referee, in faith-based activities, as mentors, as suicide-watch companions, and in other activities can positively highlight an inmate’s adjustment, while also demonstrating the level of trust they have earned from BOP staff. As an example, prisoners who are hand-selected by staff to officiate and referee sporting events must demonstrate a calm demeanor, respect from peers, and effective communication and decision-making skills.
One additional variable we found that complements a declaration is direct interaction with the prisoner. It is important to get their perspective on some of the issues that are reflected in the documentation. This interaction can be accomplished through a legal call with the offender and their counsel. Valuable information is often gleaned from these calls, particularly as it relates to disciplinary infractions and challenges the person faced in prison. Speaking with the prisoner also allows them to present their own story that they want to tell.
The BOP is one of the most troubled agencies in the federal government and identifying these for the court provides an opportunity to present mitigating factors for having the prisoner stay in institutional conditions. There are several great resources for the challenges facing the BOP such as the Office of Inspector General (OIG) and the Government Accountability Office (GAO) reports. Issues such as medical care, staff shortages, staff corruption, overuse of solitary confinement, and violence in prison are all part of ongoing reports by OIG and GAO. Some of these reports may be relevant to prisoners who, in addition to their incarceration, faced the challenges presented in these reports.
The BOP is currently experiencing a staffing shortage crisis, which includes medical personnel. Various OIG reports have described some of the deficiencies pertaining to medical care within the BOP, and those should be a part of the motion or the declaration. We have witnessed some judges who have shared their concerns regarding BOP medical care. Likewise, some judges are empathetic to certain defendants who have chronic medical conditions that might result in a designation to an administrative facility, whereas the individual might otherwise be eligible for much lower security placement. This is particularly true for female defendants as there is only one female medical center in Carswell, TX, meaning that many women placed there would be far from home.
Presenting all this information to the court can be a daunting task. First, it is time-consuming to dissect the meaning of many of these reports and nearly impossible to provide the context that comes with experience of working in a prison. To both make the best presentation to the court and conserve resources, a BOP expert can be engaged to assist in preparing for resentencing. A declaration that condenses the information in various BOP reports can be helpful to the court rather than just the submission of documents.
Prisoners will be more forthcoming with someone who understands prison and can speak the language of corrections. Credentials will be important. The expert not only must have BOP experience but must have had a wide range of responsibilities while there. Case management, a position that interacts most with prisoners and measures their growth while in prison, is one of the most important positions the expert must have held.
Prosecutors will typically rely on the BOP documents without any context. If they too want to engage an expert, they will likely have someone from the BOP provide that information. That BOP professional will likely provide information strictly based on BOP policy without much context. In fact, if the government does present its expert, it can often be an advantage to the defense because of this lack of context.
Judges, usually naturally inquisitive, may welcome in-court testimony from an expert. Few people even understand the BOP and its vast policies. In these cases, attorneys will want an expert who can state policy and provide context while not directly advocating for the prisoner. The job of the attorney is to advocate, and a good expert will simply stick to being a reliable source of information.
In closing, we would also like to share some insight into what to convey to a defendant who is facing a term of imprisonment. Attorneys should explain to their clients that during imprisonment, the BOP creates a lengthy paper trail of documents. Also, there are opportunities during the term of incarceration to get back in front of a judge because of a request for compassionate release or a change in laws. Those BOP documents may one day be used to assist the defendant in getting out of prison. Have the defendant think about the information we provide here and consider how they want their story to be told.
Originally published on April 19, 2023 by Walt Pavlo and Maureen Baird.
Published in Criminal Justice: Volume 38, Number 1, ©2023 by the American Bar Association.
