Extending Self-Surrender

Following conviction, federal defendants, who were released on bond while their cases were pending, are often permitted to surrender voluntarily to their designated places of imprisonment. This practice has several tangible benefits. From the Bureau of Prisons’ perspective, it provides a cost savings since the agency does not have to transport a newly sentenced prisoner from a local jail to the correctional facility at which he will be housed. For the defendant, the practice affords further opportunity to get one’s affairs in order while also lessening one’s security point total since the BOP subtracts three points for self-surrender. The latter can often be the difference between qualifying for minimum-, as opposed to low-, security placement.

Occasionally, a defendant may need to seek an extension of the surrender date. The BOP cannot modify the date. That authority rests exclusively with the court. Among the reasons that an extension may be sought are to allow time for the BOP to complete a defendant’s designation (and assign a facility to which to report) — less of an issue in recent years; to permit a potential re-designation, where BOP has assigned a defendant inconsistent with a judicial recommendation; or to enable religious observance, where the surrender date falls on or just before a religious holiday. Another reason to postpone surrender is where a defendant’s medical circumstances necessitate immediate treatment or aftercare under the supervision of his primary care physician(s). A story out of Alabamahighlights this circumstance:
A federal prosecutor said Tuesday the government opposes Country Crossing casino developer Ronnie Gilley’s request to delay his trip to prison until after Christmas.
Gilley has already received two delays and wants another one to give him more time to recover from surgery.
Justice Department prosecutor Kendall Day said it court papers the federal prison system can provide Gilley with the post-operation care he might require.
Gilley was supposed to report to prison Aug. 27 to serve six years and eight months for offering millions in bribes to legislators to support pro-gambling legislation. U.S. District Judge Myron Thompson extended that until Sept. 24 to allow time for Gilley to have surgery at his expense rather than government’s. Gilley then sought another four months to recover. The judge pushed the prison reporting date back two weeks until Oct. 9, but asked prosecutors whether more time should be granted.
Day wrote that the U.S. Bureau of Prisons was ready to take care of the Gilley. “Moreover, if unforeseen circumstances arise and Gilley’s medical needs require treatment beyond what is available in a general population facility, the agency can provide the necessary medical care at a designated medical center,” he wrote.
The government’s claim that the BOP can adequately address a prisoner’s medical needs is a common, though faulty, refrain. Generally speaking, the quality of correctional health care is less than what most people presume to receive from a doctor in the community. What is perhaps more telling about the government’s position concerning Mr. Gilley, however, is the assertion that any treatment he might require “beyond what is available in a general population facility” can be provided “at a designated medical center.” This suggests that the BOP has determined that Mr. Gilley’s condition can be managed at a Care Level 2 facility, not at a Medical Center (Level 4) or an institution adjacent thereto (Level 3), which means that his condition will likely be managed through medication and that he will only be referred out to a community treatment provider in an emergency situation. Additionally, it indicates that the government has little appreciation for the time, expense and hardship (i.e., “diesel therapy” involved with transferring an ill prisoner from a standard correctional institution to a medical facility.
I have represented numerous individuals awaiting surrender to the BOP who required additional time to report due to changed medical circumstances (i.e., issues that arose after completion of the presentence investigation report), as well as those who have encountered difficulties obtaining appropriate medical care once in custody, including shortly after surrendering. The reality is that the Bureau of Prisons does not view medical care or accommodation, especially what is “medically necessary,” the way one might reasonably expect. Any newly sentenced defendant, particularly one facing more than six years’ confinement, is well advised to make every effort to enter custody as healthy as possible. It appears that in Mr. Gilley’s case, the Court has been properly sensitive to his undisclosed medical situation. Hopefully the Court will permit him to complete whatever course of aftercare doctors have prescribed and allow him to enter custody with a clean bill of health. Otherwise, there is a very distinct possibility that his situation might worsen in short order, with the Court being unable to meaningfully intervene.
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