Wednesday, May 25, 2016


A new report from the Justice Department's Inspector General finds that federal prisoners are routinely held for months, and for a few unfortunate inmates, even years passed the release dates of the sentences handed out by federal judges. In effect the incompetence of the Federal Bureau of Prisons (BOP) is arbitrarily lengthening prison sentences for those caught within the web of the criminal justice system. Every defense lawyer and every federal judge should be angered by the report. 

Federal Prisoners Singing
for Freedom
At federal sentencing hearings prosecutors and defense counsel often argue over minute details of how to apply the infamous sentencing grid of the federal sentencing guidelines in which the number of levels given to the defendant may add months or years of imprisonment. Despite numerous Supreme Court decisions stating that Federal Judges have sentencing discretion, the truth is that the sentencing guidelines dictate most federal sentencing decisions and that federal judges have limited discretion in sentencing

Prisons must inform federal judges in some circumstances of early releases of inmates, but there's no set procedure by BOP for informing judges of late releases that may require prisoner compensation and that randomly circumvent the federal judge's sentence. In fact neither the judge, the defense lawyer nor the prosecutor may ever find out. The report notes that the federal prison system does "not have a process to consider whether to notify the sentencing court of an untimely release." Yet the report also specifies that the prison system does have a process to timely notify the relevant federal probation office, despite making no effort to notify the federal sentencing judge, the prosecutor nor the defense counsel. This makes no sense. If all the parties were notified at least defense counsel would have an opportunity to file an emergency motion for a renewed sentencing hearing. 

Clearly BOP has been given too much arbitrary power. No wonder so many federal defendants refuse jury trials because they believe the game of justice is rigged for guilt. Everyone involved in the criminal justice system needs to rein BOP in by first requiring BOP to give notice of any unilateral enhanced sentencing to all of the parties involved and second to establish judicial review even if limited in scope of BOP release date procedures. Another important step would be for BOP to send its release date schedule to all concerned parties within ten days of an inmate's arrival into the prison system and to require any subsequent amendment of that date to be given to all parties within ten days of the change with an explanation of why the date was changed and how the new date is consistent with the federal judge's original sentencing order.

The report is another blow to the notion of fair sentencing in America. At federal sentencing defense counsel should ask the judge to include in the sentencing order time limits for BOP action on release dates with demands that the federal judge, defense counsel and prosecutor be notified should the release date be changed with an explanation as to why it was changed. 

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