Digger
05-13-2002, 05:47 AM
Refining Federal Sentencing Practice
By Robert J. Dvorak, Chair,
Criminal Law Section,
Milwaukee Bar Association
Criminal defense lawyers are accustomed to redefining the meaning of victory. Since the United States Sentencing Guidelines were implemented, a victory no longer means obtaining probation for a lower level drug dealer. Now victory means limiting relevant conduct, obtaining favorable adjustments and, maybe, getting a departure. It means getting your client down to level 24 rather than level 26. Victory means that the judge now has the option of sending your client to prison for 51-63 months rather than 63-78 months, unless a mandatory minimum applies. In that case, all of your hard work might save your client only 3 months.
Adverse appellate decisions and legislation require counsel to explore other avenues. With sentencing, we need to start looking at what else we can do. One area to consider is the Bureau of Prisons (BOP). By understanding the designation process, prison programs and rules, you can have a meaningful effect on your clientÆs quality of life in the institution and you may open the door for furloughs and early release.
This article is meant to provide a brief introduction to the BOP, and to alert lawyers to the fact that there is more at stake at sentencing than the Guideline range.
I. The Bureau of Prisons.
The Bureau of Prisons is an executive branch agency, within the Department of Justice and is directed by Kathleen Kawk Sawyer in Washington, D.C. The BureauÆs web page is a great source of information, including facility locations, some policy statements (P.S.) and statistics. The address is ôhttp://www.bop.gov/ö.
The Bureau is divided into six geographic regions, each with a regional director, staff and regional counsel. The regional office oversees the administration of the institutions in its area. This ranges from food, health and chaplains, to litigation and sentencing computations.
Wisconsin is in the North Central Region. The regional office's address and telephone number are: Gateway Complex Tower II, 8th Floor, 4th & State Avenue, Kansas City, Kansas 66101-2492; 913/621-3939. The Assistant Regional Counsel is Darryl Kosiak.
II. The Designation Process
Designation is an ongoing process. An initial assessment is made by the office of the Community Corrections Manager (CCM). These findings are passed on to the Regional Designator, who may refine the process. The findings are again reviewed by the institution, usually within ten days of the inmate's arrival. The institution will continue to periodically reevaluate the inmate. This portion of the article will focus on the initial CCM assessment.
The manager of the CCM office for our area is Mitch Huffman, Community Corrections office, 200 West Adam Street, Suite 2915, Chicago, Illinois 60606; 312 / 886-2114; 312/ 886-2118 (FAX). Both Mr. Huffman and Gerri Urbanek are very helpful in answering questions and making things work.
The CCM calculates a security classification by completing an "Inmate Load and Security Designation Form (BP-337)" (ILSD). A copy of the form is appended to this article. The form is scored based on information from the Judgment, the Presentence Investigation (PSI) and an intake form prepared by the U.S. Marshall. The CCM will also consider timely submissions from defense counsel. The designation process is generally accomplished within three days of the receipt of the above documents.
A brief review of the ILSD will demonstrate areas where you can help your client. The top portion of the form is identifying information. Unless there is some dispute about citizenship or name, the information is pretty basic. However, the "Security Designation Data," Item 1-16, involve factual determinations and interpretations where counsel can be of some help.
Security classification is determined by the consideration of "Sentence Limitations" and "Public Safety Factors," (Items 1 and 2 of the ILSD), the total points scored on the ILSD (Items 3-13) and "Remarks" (Item 16), sometime referred to as "Management Variables" that allow for the exercise of some discretion.
Items 1 and 2 set a base line classification. Item 1 will most often not be an issue. Misdemeanants do not often find themselves in prison. "YCA" the Youth Corrections Act, has been repealed. Therefore, this section will only apply to individuals still under a YCA sentence who find themselves back in the system following some rule violation. Item 1F, parole term violators, refers to old law inmates ( those sentenced prior to November 1, 1987, when parole was abolished). Item 1E, "Study" refers to people in custody for competency evaluations.
Item 2, "Public Safety Factors" (PSF) can result in a security rating which will override mitigating factors, similar to a mandatory minimum sentence. Item 2B, "Disruptive Group" covers membership in those gangs shown to be a threat to the safe operations of the BOP. It does not apply to membership in any gang. For example, being a member of the Gangster Disciples will not necessarily affect your designation, at least not for now. Membership in the Aryan Brotherhood, on the other hand, will affect your designation. The gang list is constantly re-evaluated as the prison population changes.
Item 2C, "Greatest Severity Offense, " applies to inmates with a "High Severity" rating under Item 7, discussed below. Your client's conduct during the offense of conviction can increase the rating from a "High Security" level to the "Greatest Severity" level. It is important to correct any inaccurate statements on the PSI that describe your client's role. A statement in the PSI that your client was a leader or organizer, or that your client supervised anyone, will affect his or her rating. The fact that your client did not receive an Aggravating Role adjustment (U.S.S.G. 3B1.1) is not dispositive here. CCM will make an independent determination based on the information at hand. Remember, the goal of CCM is to assess risk and safety, not determine punishment.
Sex offenders, Item 2F, are generally considered high risk inmates. There is currently only one federal correctional institution providing sex offender treatment (FCI Butner in North Carolina). It is difficult to get a bed, but with a good candidate and some effective lobbying, you may succeed in positioning your client to enter the program when a spot is available.
Item 2I, "Sentence Length" is a score based upon the sentence stated in the Judgment. For purposes of PSF, a sentence of 25 years (300 months) will mean a High Security classification. A sentence of more than 120 months will usually mean an initial placement to at least a low security facility, unless this PSF is waived by the Regional Director. Other sentences are scored in item 8, below.
Item 2K, "Violent Behavior" applies only to women. Any woman who has two prior serious incidents of violence within the last 5 years will be assigned to a high security level. The female classification system differs from that of males for a number of reasons, including the comparatively small female prison population, BOP's empirical data on female inmates and limited placement options. Remember that the assessment process is subjective. The CCM will review all of the facts concerning incidents of past violent behavior to arrive at a score for the current attitude of the inmate. CCM will consider the nature of the incident, the inmate's role, how long ago the incident happened and the number of incidents. Counsel should make sure, for example, that any information in the PSI concerning the violent behavior of co-defendants is not erroneously attributed to your client.
Item 2L, "Escape Risk" also currently applies to women only. A woman with a serious escape within the last 10 years will be assigned to a high security facility.
Item 2M, "Prison Disturbance." Here counsel can correct inaccurate information and present mitigating factors relating to your client's role in any prison disturbance.
Item 3 simply identifies the local U.S. Marshall's office. Item 4 is the sentencing judge's last name.
Item 5, "Recommended Facility / Program, " insures that any judicial recommendations regarding treatment or placement are noted and considered. BOP is committed to honoring judicial recommendations, but they remain a recommendation. If the recommendation cannot be accommodated, usually due to the security and programming needs of the offender, BOP is required to send a letter of explanation to the judge.
Item 6, "Type of Detainer," is scored where another jurisdiction has placed a hold on the client for a pending case or where another jurisdiction is seriously considering charges. The score is based on an "Offense Severity Scale" which is found in Appendix B of the "Security Designation and Custody Classification Manual" (P. S. 5100.06). A Copy of P.S. 5100.06 relating to "Type of Detainer" and Appendix B are appended to this article. Mitigating factors need to be communicated to the CCM by counsel.
The better practice is to resolve any existing and potential detainers before the CCM assessment. The timing of the disposition of other cases can make a material difference in both the federal sentence and the BOP designation. Here is an example. Your client, a cocaine addict, is indicted in federal court for conspiracy to deliver cocaine. While released on bail, she successfully completes drug treatment and puts her life in order. Prior to her arrest on the federal warrant, she had a forgery charge pending in the state court. She also has a prior conviction for operating under the influence, first offense, which though not a crime in Wisconsin, nonetheless counts as a prior conviction. See, U.S.S.G. 4A1.2, comment (n.5). Though she went to trial on the federal drug charge, the judge continued her bail following her conviction. She now wants to take advantage of the two point Acceptance/ Safety Valve adjustment under U.S.S.G., 2D1.1(b) (6) and 5C1.2. If she is convicted on the state case before her federal sentencing, she will not only be moved to Criminal History Cate-gory II, she will also lose her chance for the two point adjustment. On the other hand, if she enters the institution with a detainer, her security classification will be adversely affected.
The best result will be obtained by disposing of the federal case first, and obtaining the federal judge's consent to allow her to voluntarily surrender to the federal correctional facility.
The fact that the judge did not remand her following her conviction would suggest that self-surrender is a possibility. By surrendering herself, she will receive a 6 point reduction in her ILSD score (See, Item 12, below). She will also be free to travel to state court to resolve the forgery case. Because the ILSD is prepared within three days after receipt of the Marshall's report, PSI and Judgment, the state case must be resolved within a day or two after her federal sentencing. A certified copy of the state judgment can then be faxed to the local CCM office. It is best to discuss any such plan with your CCM office so that they know what is forthcoming, and can take your efforts into account. For example, they will tell you to make sure that the state sentence is significantly less than and concurrent to the federal sentence so that there is no room to question whether the state sentence will have been satisfied prior to the completion of the federal sentence.
Item 7, "Severity of Current Offense," like Items 6 and 9, is scored in part by reference to the "Offense Severity Scale," P.S. 5100.06, Appendix B. However, each of these Items is based only in part on the offense of conviction. The PSI is carefully reviewed to identify any aggravating or mitigating circumstances. For example, even where a weapons charge is dropped as part of a plea negotiation, the brandishing of a weapon will be reflected in this score. Conversely, where your client is convicted of a weapons related enhancer or an offense based on Pinkerton liability, she may not be scored as highly if it is clear that your client was never in the possession or proximity of a weapon. A copy of P.S. 5100.06 relating to "Severity of Current Offense" is attached to this article.
Item 8, "Expected Length of Incarceration," is the sentence rendered by the court less the sentence credit provided for by 18 U.S.C. 3624. Section 3624 authorizes credit of up to 54 days for each year served, provided that the prisoner "has displayed exemplary compliance with institutional disciplinary regulations." The expected sentence is, therefore, calculated by multiplying the sentence by 0.85. A difference of one or two months in a sentence can materially affect the security level.
Item 9, "Types of Prior Commitments" means prior jail time served and is tied to the "Offense Severity Scale" referred to above. It also considers mitigating circumstances.
Items 10 and 11, "History of Escape or Attempts" and "History of Violence," apply to men and women. The form distinguishes between minor and serious incidents, so it is important to make certain that the PSI is accurate and contains all mitigating circumstances.
Item 12, "Precommitment Status," is the only item where points can be deducted. Three points are deducted if your client was released on her own recognizance, without sureties. Six points are deducted for voluntary surrender. Counsel should always request voluntary surrender for clients released on bail pending sentencing.
Tallying Items 3-12 yields the following security levels:
Points Security Level
0-7 Minimum
8-11 Low
12-18 Medium
> 18 High
Remember that violent behavior, threat to a government official or any other factor in Item 1 or 2 can trump the result obtained by scoring points.
III. Prison Classification.
Federal Correctional Institutions are designated "Minimum Security," "Low Security," "Medium Security" and "High Security." The level depends upon factors such as the type of perimeter, number of towers or external patrols, detection devices, security of housing area, types of living quarters, and level staffing.
"Minimum Security" institutions, also called "Federal Prison Camps, " have dormitory housing, a relatively low staff-to-inmate ratio, and no fences. They are work and program oriented and many are located near larger institutions or military bases where inmates are employed.
"Low Security" institutions usually have double-fenced perimeters, mostly dormitory housing and are work or program oriented. The staff-to-inmate ratio is higher than at a "Minimum Security" institution.
"Medium Security" institutions often have double fences with electronic detection systems, vehicle patrols and in some cases, armed towers. Housing is cell-type, and the staff to inmate ratio is higher than "Low Security."
"High Security" penitentiaries are highly secure. The perimeters are either walled or doubled-fenced, outfitted with electronic detection devices and armed observation towers, and are vehicle patrolled. Housing is a mixture of multiple and single cells. There is close staff supervision and movement control. Work and other programming is still offered, but under tight security. Marion FCI, once the flagship of the "High Security" penitentiaries, has been displaced by the new "administrative-maximum security" facility in Florence, Colorado.
Simple things make a difference. Being able to do your own laundry can help maintain a sense of privacy and dignity. The ability to move from the building to another without escort and in the absence of razor wire and armed towers is less oppressive than the alternative. Given the behaviors which land people in a "Medium" or "High Security" facility, it is reasonable to expect that your client's neighbors in a "Minimum" or "Low Security" facility will be more sociable. Finally, the lower the classification, the better your client's ability to obtain a temporary release for the purpose of tending to a dying relative, obtaining medical treatment, contacting prospective employers, or going to school or work outside of the institution. See, 18 U.S.C, s3622.
III. Client Contact.
Attorney/client communications are not automatically afforded confidential status. Telephone calls are only assured confidentially if the call originates from the institution and is placed by institution staff on secured lines at the inmate's request. Therefore, if you want to discuss legal matters with your client, you need to instruct your client to request the call or you must contact the client's agent in the institution and ask the agent to instruct your client to request a call at a designated time. Unless your client has requested a private call and it has been so approved, do not assume that the call is protected by confidentiality.
The only protection that will be afforded written communications from the lawyer to the client is that your letter will be opened in the presence of the inmate to ensure that prison officials do not read it. However, this protection is afforded only when the outside of the envelope is marked "SPECIAL MAIL-OPEN IN THE PRESENCE OF THE IN-MATE" and the name and status of the responsible attorney appears on the outside of the envelope. (28 C.F.R. s540.19 (a). Note that a firm envelope which does not have the individual lawyer's name on it is not sufficient.
By Robert J. Dvorak, Chair,
Criminal Law Section,
Milwaukee Bar Association
Criminal defense lawyers are accustomed to redefining the meaning of victory. Since the United States Sentencing Guidelines were implemented, a victory no longer means obtaining probation for a lower level drug dealer. Now victory means limiting relevant conduct, obtaining favorable adjustments and, maybe, getting a departure. It means getting your client down to level 24 rather than level 26. Victory means that the judge now has the option of sending your client to prison for 51-63 months rather than 63-78 months, unless a mandatory minimum applies. In that case, all of your hard work might save your client only 3 months.
Adverse appellate decisions and legislation require counsel to explore other avenues. With sentencing, we need to start looking at what else we can do. One area to consider is the Bureau of Prisons (BOP). By understanding the designation process, prison programs and rules, you can have a meaningful effect on your clientÆs quality of life in the institution and you may open the door for furloughs and early release.
This article is meant to provide a brief introduction to the BOP, and to alert lawyers to the fact that there is more at stake at sentencing than the Guideline range.
I. The Bureau of Prisons.
The Bureau of Prisons is an executive branch agency, within the Department of Justice and is directed by Kathleen Kawk Sawyer in Washington, D.C. The BureauÆs web page is a great source of information, including facility locations, some policy statements (P.S.) and statistics. The address is ôhttp://www.bop.gov/ö.
The Bureau is divided into six geographic regions, each with a regional director, staff and regional counsel. The regional office oversees the administration of the institutions in its area. This ranges from food, health and chaplains, to litigation and sentencing computations.
Wisconsin is in the North Central Region. The regional office's address and telephone number are: Gateway Complex Tower II, 8th Floor, 4th & State Avenue, Kansas City, Kansas 66101-2492; 913/621-3939. The Assistant Regional Counsel is Darryl Kosiak.
II. The Designation Process
Designation is an ongoing process. An initial assessment is made by the office of the Community Corrections Manager (CCM). These findings are passed on to the Regional Designator, who may refine the process. The findings are again reviewed by the institution, usually within ten days of the inmate's arrival. The institution will continue to periodically reevaluate the inmate. This portion of the article will focus on the initial CCM assessment.
The manager of the CCM office for our area is Mitch Huffman, Community Corrections office, 200 West Adam Street, Suite 2915, Chicago, Illinois 60606; 312 / 886-2114; 312/ 886-2118 (FAX). Both Mr. Huffman and Gerri Urbanek are very helpful in answering questions and making things work.
The CCM calculates a security classification by completing an "Inmate Load and Security Designation Form (BP-337)" (ILSD). A copy of the form is appended to this article. The form is scored based on information from the Judgment, the Presentence Investigation (PSI) and an intake form prepared by the U.S. Marshall. The CCM will also consider timely submissions from defense counsel. The designation process is generally accomplished within three days of the receipt of the above documents.
A brief review of the ILSD will demonstrate areas where you can help your client. The top portion of the form is identifying information. Unless there is some dispute about citizenship or name, the information is pretty basic. However, the "Security Designation Data," Item 1-16, involve factual determinations and interpretations where counsel can be of some help.
Security classification is determined by the consideration of "Sentence Limitations" and "Public Safety Factors," (Items 1 and 2 of the ILSD), the total points scored on the ILSD (Items 3-13) and "Remarks" (Item 16), sometime referred to as "Management Variables" that allow for the exercise of some discretion.
Items 1 and 2 set a base line classification. Item 1 will most often not be an issue. Misdemeanants do not often find themselves in prison. "YCA" the Youth Corrections Act, has been repealed. Therefore, this section will only apply to individuals still under a YCA sentence who find themselves back in the system following some rule violation. Item 1F, parole term violators, refers to old law inmates ( those sentenced prior to November 1, 1987, when parole was abolished). Item 1E, "Study" refers to people in custody for competency evaluations.
Item 2, "Public Safety Factors" (PSF) can result in a security rating which will override mitigating factors, similar to a mandatory minimum sentence. Item 2B, "Disruptive Group" covers membership in those gangs shown to be a threat to the safe operations of the BOP. It does not apply to membership in any gang. For example, being a member of the Gangster Disciples will not necessarily affect your designation, at least not for now. Membership in the Aryan Brotherhood, on the other hand, will affect your designation. The gang list is constantly re-evaluated as the prison population changes.
Item 2C, "Greatest Severity Offense, " applies to inmates with a "High Severity" rating under Item 7, discussed below. Your client's conduct during the offense of conviction can increase the rating from a "High Security" level to the "Greatest Severity" level. It is important to correct any inaccurate statements on the PSI that describe your client's role. A statement in the PSI that your client was a leader or organizer, or that your client supervised anyone, will affect his or her rating. The fact that your client did not receive an Aggravating Role adjustment (U.S.S.G. 3B1.1) is not dispositive here. CCM will make an independent determination based on the information at hand. Remember, the goal of CCM is to assess risk and safety, not determine punishment.
Sex offenders, Item 2F, are generally considered high risk inmates. There is currently only one federal correctional institution providing sex offender treatment (FCI Butner in North Carolina). It is difficult to get a bed, but with a good candidate and some effective lobbying, you may succeed in positioning your client to enter the program when a spot is available.
Item 2I, "Sentence Length" is a score based upon the sentence stated in the Judgment. For purposes of PSF, a sentence of 25 years (300 months) will mean a High Security classification. A sentence of more than 120 months will usually mean an initial placement to at least a low security facility, unless this PSF is waived by the Regional Director. Other sentences are scored in item 8, below.
Item 2K, "Violent Behavior" applies only to women. Any woman who has two prior serious incidents of violence within the last 5 years will be assigned to a high security level. The female classification system differs from that of males for a number of reasons, including the comparatively small female prison population, BOP's empirical data on female inmates and limited placement options. Remember that the assessment process is subjective. The CCM will review all of the facts concerning incidents of past violent behavior to arrive at a score for the current attitude of the inmate. CCM will consider the nature of the incident, the inmate's role, how long ago the incident happened and the number of incidents. Counsel should make sure, for example, that any information in the PSI concerning the violent behavior of co-defendants is not erroneously attributed to your client.
Item 2L, "Escape Risk" also currently applies to women only. A woman with a serious escape within the last 10 years will be assigned to a high security facility.
Item 2M, "Prison Disturbance." Here counsel can correct inaccurate information and present mitigating factors relating to your client's role in any prison disturbance.
Item 3 simply identifies the local U.S. Marshall's office. Item 4 is the sentencing judge's last name.
Item 5, "Recommended Facility / Program, " insures that any judicial recommendations regarding treatment or placement are noted and considered. BOP is committed to honoring judicial recommendations, but they remain a recommendation. If the recommendation cannot be accommodated, usually due to the security and programming needs of the offender, BOP is required to send a letter of explanation to the judge.
Item 6, "Type of Detainer," is scored where another jurisdiction has placed a hold on the client for a pending case or where another jurisdiction is seriously considering charges. The score is based on an "Offense Severity Scale" which is found in Appendix B of the "Security Designation and Custody Classification Manual" (P. S. 5100.06). A Copy of P.S. 5100.06 relating to "Type of Detainer" and Appendix B are appended to this article. Mitigating factors need to be communicated to the CCM by counsel.
The better practice is to resolve any existing and potential detainers before the CCM assessment. The timing of the disposition of other cases can make a material difference in both the federal sentence and the BOP designation. Here is an example. Your client, a cocaine addict, is indicted in federal court for conspiracy to deliver cocaine. While released on bail, she successfully completes drug treatment and puts her life in order. Prior to her arrest on the federal warrant, she had a forgery charge pending in the state court. She also has a prior conviction for operating under the influence, first offense, which though not a crime in Wisconsin, nonetheless counts as a prior conviction. See, U.S.S.G. 4A1.2, comment (n.5). Though she went to trial on the federal drug charge, the judge continued her bail following her conviction. She now wants to take advantage of the two point Acceptance/ Safety Valve adjustment under U.S.S.G., 2D1.1(b) (6) and 5C1.2. If she is convicted on the state case before her federal sentencing, she will not only be moved to Criminal History Cate-gory II, she will also lose her chance for the two point adjustment. On the other hand, if she enters the institution with a detainer, her security classification will be adversely affected.
The best result will be obtained by disposing of the federal case first, and obtaining the federal judge's consent to allow her to voluntarily surrender to the federal correctional facility.
The fact that the judge did not remand her following her conviction would suggest that self-surrender is a possibility. By surrendering herself, she will receive a 6 point reduction in her ILSD score (See, Item 12, below). She will also be free to travel to state court to resolve the forgery case. Because the ILSD is prepared within three days after receipt of the Marshall's report, PSI and Judgment, the state case must be resolved within a day or two after her federal sentencing. A certified copy of the state judgment can then be faxed to the local CCM office. It is best to discuss any such plan with your CCM office so that they know what is forthcoming, and can take your efforts into account. For example, they will tell you to make sure that the state sentence is significantly less than and concurrent to the federal sentence so that there is no room to question whether the state sentence will have been satisfied prior to the completion of the federal sentence.
Item 7, "Severity of Current Offense," like Items 6 and 9, is scored in part by reference to the "Offense Severity Scale," P.S. 5100.06, Appendix B. However, each of these Items is based only in part on the offense of conviction. The PSI is carefully reviewed to identify any aggravating or mitigating circumstances. For example, even where a weapons charge is dropped as part of a plea negotiation, the brandishing of a weapon will be reflected in this score. Conversely, where your client is convicted of a weapons related enhancer or an offense based on Pinkerton liability, she may not be scored as highly if it is clear that your client was never in the possession or proximity of a weapon. A copy of P.S. 5100.06 relating to "Severity of Current Offense" is attached to this article.
Item 8, "Expected Length of Incarceration," is the sentence rendered by the court less the sentence credit provided for by 18 U.S.C. 3624. Section 3624 authorizes credit of up to 54 days for each year served, provided that the prisoner "has displayed exemplary compliance with institutional disciplinary regulations." The expected sentence is, therefore, calculated by multiplying the sentence by 0.85. A difference of one or two months in a sentence can materially affect the security level.
Item 9, "Types of Prior Commitments" means prior jail time served and is tied to the "Offense Severity Scale" referred to above. It also considers mitigating circumstances.
Items 10 and 11, "History of Escape or Attempts" and "History of Violence," apply to men and women. The form distinguishes between minor and serious incidents, so it is important to make certain that the PSI is accurate and contains all mitigating circumstances.
Item 12, "Precommitment Status," is the only item where points can be deducted. Three points are deducted if your client was released on her own recognizance, without sureties. Six points are deducted for voluntary surrender. Counsel should always request voluntary surrender for clients released on bail pending sentencing.
Tallying Items 3-12 yields the following security levels:
Points Security Level
0-7 Minimum
8-11 Low
12-18 Medium
> 18 High
Remember that violent behavior, threat to a government official or any other factor in Item 1 or 2 can trump the result obtained by scoring points.
III. Prison Classification.
Federal Correctional Institutions are designated "Minimum Security," "Low Security," "Medium Security" and "High Security." The level depends upon factors such as the type of perimeter, number of towers or external patrols, detection devices, security of housing area, types of living quarters, and level staffing.
"Minimum Security" institutions, also called "Federal Prison Camps, " have dormitory housing, a relatively low staff-to-inmate ratio, and no fences. They are work and program oriented and many are located near larger institutions or military bases where inmates are employed.
"Low Security" institutions usually have double-fenced perimeters, mostly dormitory housing and are work or program oriented. The staff-to-inmate ratio is higher than at a "Minimum Security" institution.
"Medium Security" institutions often have double fences with electronic detection systems, vehicle patrols and in some cases, armed towers. Housing is cell-type, and the staff to inmate ratio is higher than "Low Security."
"High Security" penitentiaries are highly secure. The perimeters are either walled or doubled-fenced, outfitted with electronic detection devices and armed observation towers, and are vehicle patrolled. Housing is a mixture of multiple and single cells. There is close staff supervision and movement control. Work and other programming is still offered, but under tight security. Marion FCI, once the flagship of the "High Security" penitentiaries, has been displaced by the new "administrative-maximum security" facility in Florence, Colorado.
Simple things make a difference. Being able to do your own laundry can help maintain a sense of privacy and dignity. The ability to move from the building to another without escort and in the absence of razor wire and armed towers is less oppressive than the alternative. Given the behaviors which land people in a "Medium" or "High Security" facility, it is reasonable to expect that your client's neighbors in a "Minimum" or "Low Security" facility will be more sociable. Finally, the lower the classification, the better your client's ability to obtain a temporary release for the purpose of tending to a dying relative, obtaining medical treatment, contacting prospective employers, or going to school or work outside of the institution. See, 18 U.S.C, s3622.
III. Client Contact.
Attorney/client communications are not automatically afforded confidential status. Telephone calls are only assured confidentially if the call originates from the institution and is placed by institution staff on secured lines at the inmate's request. Therefore, if you want to discuss legal matters with your client, you need to instruct your client to request the call or you must contact the client's agent in the institution and ask the agent to instruct your client to request a call at a designated time. Unless your client has requested a private call and it has been so approved, do not assume that the call is protected by confidentiality.
The only protection that will be afforded written communications from the lawyer to the client is that your letter will be opened in the presence of the inmate to ensure that prison officials do not read it. However, this protection is afforded only when the outside of the envelope is marked "SPECIAL MAIL-OPEN IN THE PRESENCE OF THE IN-MATE" and the name and status of the responsible attorney appears on the outside of the envelope. (28 C.F.R. s540.19 (a). Note that a firm envelope which does not have the individual lawyer's name on it is not sufficient.