Presentation to Federal Public Defenders

1. Presentation to Federal Public Defenders Art Beeler – Instructor North Carolina Central University Retired Complex Warden FBOP March 15, 2013

2. Presentation to FPD’s • Grey Wall of Silence • The Grey Wall of Silence was documented in 1988 by a former correctional officer and researcher, which in parts says that correctional workers are suspicious of all outsiders. (Kauffman 1988) • Some research since 1988 says this is not as strong as Kauffman documented, but there is no doubt this exists among many correctional workers.

3. Presentation to FPD’s • Building Relationships • As many correctional workers are suspicious of outsiders, the building of positive relationships whenever possible is of benefit to you and your client. • Start with the Unit Team. Case Manger, Counselor and Unit Manager. • Refrain from getting into confrontation with a staff member. If Unit staff is not available, ask to see the Executive Assistant. Know that there is one Executive Assistant for the Complex at Butner.

4. Presentation to FPD’s • Use www.bop.gov to learn of policy before requesting something for your client. If it is discretionary as many issues are, prepare a letter to the Warden indicating why you would like for your client to be provided X. • Know that each institution has what are known as institutional supplements to implement policy – but not to replace it.

5. Presentation to FPD’s • Compassionate Release • Governed by Program Statement 5050.46 • 28 CFR 571.60 • Whenever possible go to the bop website and look up the policy along with procedure. CFR provides for policy, website gives procedures as well as policy.

6. Presentation to FPD’sProcess for Compassionate Release • Inmate applies for Compassionate Release. • At medical facilities there is generally a multi-disciplinary committee which reviews the inmate’s application. (At other institutions this is done by unit team, but vast majority of applications are from MRC’s) • This committee reviews the application and makes a recommendation to the Warden to recommend or not recommend compassionate release.

7. Presentation to FPD’s Process for Compassionate Release • If the Warden recommends Compassionate Release, a package of material to include sentencing information and medical information is forwarded to the Regional Director. The Regional Director may approve the recommendation or deny it. • If approved by the Regional Director, the recommendation is forwarded to the Office of the General Counsel. The General Counsel coordinates with Medical to determine if the cited health condition warrants consideration.

8. Presentation to FPD’s Process for Compassionate Release • The OGC reviews or obtains input from a host of stakeholders but primarily USPO’s and United States Attorney Offices. These offices and the constituencies they represent may provide an opinion regarding the proposed compassionate release. • The General Counsel discusses the case and recommendation with the Director. If the Director concurs with the recommendation a motion is prepared to the Sentencing Court. If the Director does not concur, OGC prepares a memo to the inmate indicating the denial (non-appealable).

9. Presentation to FPD’sProcess for Compassionate Release • If the Warden does not recommend Compassionate Release, the inmate may appeal. If the inmate is so infirmed he/she is not able to write an appeal, a staff member will be assigned to assist. The program statement governing appeals is: PS 1330.17. • Policy gives time periods to answer appeals. By experience, most Wardens do not wait the entire period to answer the appeal.

10. Presentation to FPD’sProcess for Compassionate Release • If denied at the local level, the inmate files an appeal to the Regional Director and ultimately the Office of General Council. OGC is the final authority for reconsideration.

11. Presentation to FPD’s • Recently Human Rights and FAMM published a report: The Answer is No: Too Little Compassionate Release in US Federal Prisons

12. Presentation to FPD’s • The major findings are there are too few and the processing takes too long. • I, from a personal standpoint, would agree there are ways to streamline the process, which the Director agreed would be reviewed. • But there is one finding in particular I personally would caution against.

13. Presentation to FPD’s • The report suggests this process be moved from being administrative to judicial. • From my experience, I would argue against making this an adversarial process. • Although the report intimated there was no process for Wardens when they made recommendations, it is my contention they deal with risk analysis everyday.

14. Presentation to FPD’s • Generally the three things a Warden has to consider. • Risk Analysis • Medical Need • Resources

15. Presentation to FPD’s • In closing Compassionate Release Consideration is a complex analysis where compassion, public safety, depreciation of the seriousness of the offense behavior or previous offense behavior, victim rights, medical need and resources are all considered.

16. References • Kauffman, K. (1988). Prison Officers and Their World. Cambridge, MA: Harvard University Press • Klofas, J. (1984). “Reconsidering Prison Personnel: New Views of the Correctional Officer Subculture.” International Journal of Offender Therapy and Comparative Criminology 28(3): 169-175.

17. References • Program Statement 5050.46, Compassionate Releases • Program Statement 1330.17, Administrative Remedy Process • Human Rights Watch (November, 2012). The Answer is No; Too Little Compassionate Release in US Federal Prisons, New York