"Real Time" Designation, Proximity to Home & The Importance of Judicial Recommendations

Seasoned federal practitioners may recall a time, not so long ago, when the designation of federal offenders was largely a local affair. Community Corrections Offices would process designation packages of newly sentenced defendants and forward placement recommendations to the Regional Designator for final approval. That design ended around early 2006 with the activation of the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas, which centralized and consolidated the designation process. Designation teams divided by referring district court(s) have assumed the Community Corrections Office role, and a team of designators (Hotel Team) serves the Regional Designator function.

While the DSCC has certain efficiencies that, among other things, have resulted in a substantial reduction in the average time to complete an initial designation, there appears to be a growing trend of the BOP placing prisoners far from home, well beyond the 500-mile radius from release residence that has historically guided placement. Said differently, with increasing frequency there are reports of prisoners being designated dispersedly throughout the country. There is no official explanation for this trend. However, several considerations seem relevant.

Overcrowding is no doubt a factor. According to the Bureau’s FY 2013 Congressional Budget—Buildings and Facilities:

The BOP continues to face unprecedented challenges in managing the growing federal inmate population […].  Thus far in FY 2012, the federal inmate population totals 217,051, and system-wide crowding is at 38 percent over rated capacity, with 53 percent and 49 percent at high and medium security institutions respectively (data as of February 2, 2012). The net increase in inmates this year is projected to be 5,000 by the end of FY 2012, with an additional 6,500 in FY 2013.
The BOP projects that the inmate population will continue to grow for the foreseeable future.[…]
Rated capacity is the baseline used to calculate prison crowding, and assists in managing the BOP’s inmate population to distribute the population throughout the system efficiently and equitably. (Emphasis added).

Lack of available bed is a pressing issue throughout the BOP. But the problem existed well before the DSCC. Why may population pressures now effect designations more than in years past? The answer seems to lie in the implementation of “real time” designations and, to a lesser extent, detachment from the realities of regional proximity and reduced institutional accountability.

Under the former Regional Director model, designation determinations were shaped, in part, by projected population reports. These reports provided officials insight into where and when population shifts would occur. As an example, a Regional Designator would know that ten prisoners were scheduled to be transferred from FCI X in three weeks. These forecasts thus facilitated knowing assessments about available bed space relative to when a newly sentenced prisoner was scheduled to report/arrive at a facility. The Designator could account for the fact that beds occupied today would be vacant shortly.

Under the DSCC model, designations are made in “real time.” Officials evaluate the situation at the moment that a prisoner’s designation paperwork is processed into the BOP’s computer system. This static snapshot approach fails to account for the fluidity of population shifts. Consequently, there is a greater chance of far-flung prisoner placement since primary consideration is given to where beds are available at a particular moment. That a bed may be available at a facility closer to the prisoner’s home the next day, week or month is immaterial, which implicates a third factor.

While centralization affords economies of scale, it is unrealistic to think that designation officials sequestered in an office complex outside of Dallas, processing thousands of designations each year, have a meaningful appreciation for facility location relative to prisoners’ families’ residences in other parts of the country. Being situated in the Northeast, I often offer the example of driving from Hartford, Connecticut to FCI Ray Brook (NY) versus FCI Fairton (NJ). Although nearly equidistant, the difference between driving through the Adirondacks in the winter as opposed to down the New Jersey Turnpike is stark. Such considerations likely resonate less with someone at a computer terminal in Texas than they might with the former Regional Designator in Philadelphia. Along these lines, the detached approach that the DSCC engenders serves to skew the truly onerous aspects of far-flung placements on individual prisoners and their loved ones.

A final factor is the BOP ceasing the practice of providing courts written notice when and why it does not follow a judicial recommendation(s) concerning prisoner placement or programming. Absent this measure of accountability, the Bureau is freer to designate prisoners as it sees fit. In a September 2005 letter to the Federal Judiciary (shortly before the DSCC was fully operational), then BOP Harley Lappin reported that the agency accommodated “approximately 75 percent” of judicial recommendations. That same year, the U.S. Court of Appeals for the Third Circuit, in Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) — a useful decision concerning the importance of judicial recommendations, observed that “regional counsel of the BOP [acknowledged] at oral argument that the BOP follows judicial recommendations in approximately 85-90 percent of all cases.” Yet, during a panel presentation with which I was recently involved, a BOP official instructed that the agency followed or partially followed 66 percent of judicial recommendations. Notable too about that presentation, the official reported that of the 94,621 initial designations made from June 2011 through March 2012, courts made a total of 40,563 recommendations, that is, in well less than half the cases.

All of the above speaks to the necessity of unambiguous judicial recommendations. Pursuant to 18 U.S.C. § 3621(b)(4), the BOP must consider statements by the sentencing court “concerning the purposes for which the sentence to imprisonment was determined to be warranted” or recommending a type of penal or correctional facility as appropriate.” Experience suggests that in terms of achieving a court’s express intentions, the most advantageous recommendations are those that comport with BOP policy (for example, the BOP will not accomodate a recommendation for designation of a medium-security prisoner to a minimum-security institution, or for a removable alien’s participation in RDAP). Furthermore, where the recommendation concerns facility placement, it is helpful if courts provide the BOP with alternate options tied to the underlying purpose. For instance: “It is recommended that the defendant be designated to FCI X to permit his placement in the [insert] vocational program and to facilitate regular family visitation since the defendant has [young children, elderly parents, a large family, etc.]. Alternatively, it is recommended that the defendant be designated to FCI Y or FCI Z to facilitate regular family visitation.” The more complete the recommendation, the greater likelihood of accommodation.

Note that recommendations for RDAP participation are mainly important when the defendant may enter the program within the first 18 months of federal custody. RDAP-eligible prisoners serving long sentences do not require such recommendations, as they will be transferred to an RDAP facility at the appropriate time. Similarly, and as will be discussed in a later post, there is no purpose in courts recommending a defendant’s participation in sex offender treatment or placement at one of the BOP’s Sex Offender Management Programs (SOMPs). As to the latter, officials at the DSCC determine who will be designated to SOMPs based on review of a defendant’s PSR and application of unwritten criteria.

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