BOP LEGAL ASSISTANCE

Our federal criminal lawyers offer expert BOP legal assistance for inmates and their families. We have helped clients obtain favorable designations and placement in the facility of their choice, helped qualified inmates get approved for BOP programs that can cut the inmate’s sentence, and obtain necessary extensions on a reporting or surrender date.

Our lawyers also guide BOP inmates and their families through the complicated and often frustrating bureaucracy of the BOP. The BOP is required to consider requests and complaints from inmates or their attorneys based on issues relating to the inmate’s confinement. Inmates also have several ways to request a sentence reduction, an early release, or to be transferred to a lower security facility or a halfway house. In some cases, inmates can file lawsuits in court when the BOP fails to act.

If you or a loved one is an inmate at a BOP facility and needs help, we can provide some guidance.

The BOP’s Administrative Remedy Program allows inmates or attorneys acting on behalf of inmates “to seek formal review of an issue relating to any aspect of his/her own confinement.” Inmates can submit a request for necessary medical treatment they are not receiving, dietary needs that are not being met, work reassignments, security concerns, facility transfers, or to be placed in certain programs.

The process usually begins by submitting a BP-8 form, also known as an informal complaint or “cop-out,” to a staff person such as a case manager or counselor. If the issue cannot be resolved informally, an inmate can file a formal complaint through a BP-9 form, which ultimately goes to the warden. Appeals from the warden’s decision are filed through a BP-10 and BP-11. There are strict time limits for filing claims and appeals.

For example, many inmates often lack adequate medical treatment because the BOP lacks specialists or doesn’t have an accurate understanding of the inmate’s medical conditions. Sometimes these concerns can be resolved by requesting a medical appointment with a specialist, but other times it takes a formal request for something more, like requesting a transfer to a medical facility or to be able to go outside of prison to get treatment. In that case, an inmate would submit a transfer or medical furlough request through the Administrative Remedy Program.

Understanding this system or having an attorney who understands the system is important because there is so much at stake. The difference between a low security facility and a penitentiary, for example, is the difference between having a number of privileges in a more open living space or living in a small cell with less freedoms. When the BOP makes an arbitrary decision denying an inmate’s request, the inmate may be able to challenge the decision in court.

There are several ways an inmate can get time off their sentence, including requests for sentence reductions and petitions for early release. Most BOP inmates, for example, are entitled to at least some time off their sentences in the form of “good time credit.” If an inmate serves their sentence without disciplinary issues, they can get up to 15% off of their total sentence.

Some sentence reduction or early release programs are exclusively operated by the BOP, meaning they are the ultimate decision makers when an inmate requests a release or reduction. Some situations, however, give inmates the ability to file motions with the court. Below are some of the options inmates have for seeking early release or sentence reductions.

One way to request a sentence reduction or early release from prison is through the BOP’s Compassionate Release Program or filing a motion with the court for compassionate release under 18 U.S.C. § 3582(c)(1)(A).

Under the Compassionate Release Program, an inmate can request that the BOP file a motion with the sentencing court to reduce the inmate’s sentence. Inmates must submit a request to the warden through the administrative remedy program or through a “cop out,” and the warden makes the decision whether to deny or grant the request.

To qualify for the Compassionate Release Program, inmates must present “extraordinary and compelling reasons” supporting a sentence reduction in one of the following categories:

1. The inmate has a terminal illness or a physical or mental health condition that makes them unable to care for themselves;
2. The inmate is over 65 years old and has served a substantial part of their sentence;
3. The inmate’s child or spouse needs a caregiver and there are no alternative caregivers available; and
4. Other reasons as determined by the BOP.

If the warden denies an inmate’s request for compassionate release, the inmate can appeal the warden’s decision or file a motion directly with the court after 30 days of the warden receiving the request. Filing a motion with the court under § 3582(c)(1)(A)(i) is a good option for inmates whose reasons don’t fall in one of the BOP’s four categories above because most courts have their own power to determine what circumstances constitute “extraordinary and compelling reasons” outside of those four categories.

Inmates can also file a motion for release or sentence reduction under § 3582(c)(1)(A)(ii), a separate law, if they: 1) are at least 70 years old, 2) have served at least 30 years in prison, and 3) are not a danger to the safety of the community. Like compassionate release motions, inmates must first submit a request to the warden and wait 30 days before filing with the court.

Whether an inmate is requesting an early release through the courts or through the BOP, the judge or warden will consider a number of factors including the nature of the inmate’s offense, the inmate’s criminal history and risk of re-offending, unresolved detainers, disciplinary history, and other factors. Since the First Step Act of 2018, thousands of inmates have filed motions for compassionate release with the courts, and thousands of inmates have gone home early.

Read about our firm’s experience getting inmates released early through filing motions for compassionate release.

Certain inmates who were sentenced under older, harsher drug laws can file a motion for a sentence reduction under the Fair Sentencing Act. The Fair Sentencing Act reduced the sentences for crack cocaine offenders and eliminated the five-year mandatory minimum for crack possession. Inmates are eligible to file a motion if they were sentenced under one of the old laws that has since been amended.

The Second Chance Act created a home confinement program for the BOP to give inmates an opportunity to serve the rest of their sentences under home confinement. One example is the BOP’s Elderly Offender Pilot Program. To be eligible, inmates:

1. must be at least 60 years old.
2. must not be serving a life sentence or have a prior conviction for a crime of violence, sex offense, or certain crimes implicating national security.
3. must have completed at least 2/3 of their sentence.
4. must not have a history of violence or conduct that could be considered a sex offense.
5. must not have escaped or attempted to escape a BOP facility in the past.
6. must show that releasing an inmate to home confinement will reduce the government’s costs of incarceration.
7. must be determined by the BOP to not be a substantial risk of committing future crimes or creating a danger to the community.

Inmates may also be eligible if they can show that they have a terminal illness or can’t take care of themselves and if they can meet the requirements above. This requires submitting an opinion by a medical doctor that the inmate is diagnosed with a terminal illness or needs to be in an assisted living facility.

Under 18 U.S.C. § 3624(c), inmates in BOP custody are generally eligible for release to home confinement or residential community confinement, sometimes referred to as a community correctional facility, residential reentry center, or “halfway house,” when they have 6 to 12 months or less left of their sentence. Under extraordinary or emergency circumstances, the Department of Justice can expand the home confinement program at the BOP so that more inmates can qualify and be released to home confinement earlier in their sentences.

Additionally, inmates can accumulate “earned time credits” and potentially get into home confinement or a halfway house early if they complete certain BOP programs, such as the RDAP program or other “Evidence-Based Recidivism Reducing Programs.” These programs include literacy courses, occupational education, prison employment. (such as through UNICOR), parenting programs, mental health treatment, and other programs.

Under special circumstances, some inmates can get temporarily released under the BOP’s furlough program. An inmate can apply for a furlough based on emergency circumstances, such as a “family crisis” or an urgent need for medical care. Other furloughs are routine, such as a transfer furlough between facilities, furloughs for routine medical care, and furloughs to appear in court. In rare cases, the BOP can grant furloughs for inmates to participate in religious activities, educational programs outside prison, and “establish or reestablish family and community ties.”

There are several requirements an inmate must meet when applying for a furlough, such as their having a low or minimum security designation. The length of time an inmate has served or has left to serve also dictates what kind of furlough they are eligible for, as long-term inmates are generally only eligible for emergency furloughs. Inmates may not be eligible if they have been convicted of a violent crime or if their release “could attract undue public attention, create unusual concern, or diminish the seriousness of the offense.” Because of these requirements, it’s always a good idea to have an experienced post-conviction attorney help prepare your furlough request.

The BOP’s Residential Drug Abuse Program, referred to as RDAP, is a very popular rehabilitation program in the BOP because eligible inmates can get up to year taken off of their sentences if they complete the program successfully. The program is designed for inmates who have substance abuse issues and has a good track record of helping inmates address those issues.

To qualify for the 1-year sentence reduction from RDAP under the BOP’s regulations, an inmate must:

1. Have a “substantiated diagnosis for a substance use disorder.”
2. Have completed RDAP successfully, meaning they complete a course of activities while in a special unit for RDAP inmates and while in a halfway home upon their release.
3. Comply with the Financial Responsibility Program

Inmates who are not eligible for early release through RDAP include unlawful immigrants subject to ICE detainers, pretrial inmates, nonfederal inmates, inmates who are serving sentenced for crimes of violence or have prior convictions for violent crimes or sex offenses.

Because the RDAP program offers up to a year off an inmate’s sentence, many inmates try to get into the program, even if they lack a documented diagnosis for substance abuse. For those reasons, the BOP makes it hard for inmates to get in the program, and the inmate must be referred to the program or submit documentation supporting their request. An attorney can help navigate this process, especially because the BOP is skeptical of inmate requests.

Having an experienced federal defense attorney can make a big difference when it comes to the conditions a defendant will have to serve their sentence under. Prior to a defendant’s sentencing hearing, for example, an attorney can put their client in a better position to get assigned a certain facility or qualify for certain BOP programs, such as those that can result in a sentence reduction. An attorney can also help an inmate file a lawsuit against the BOP or represent an inmate in a disciplinary proceeding within the BOP.

A defendant can put themselves in a much better position for serving their sentence if they retain an experienced federal defense attorney to advocate for them before they are sentenced. After a defendant pleads guilty in a federal criminal case, the U.S. Probation Office will prepare a “pre-sentencing investigative report,” referred to as the “PSR.” The PSR contains all of the relevant information about the case and the defendant, such as the facts of the case, the defendant’s criminal history and other background information, and the possible penalties the judge can impose.

The information in the PSR can be crucial, not only because it can result in a higher sentence, but because the BOP relies on the information in the PSR to determine a defendant’s security classification and eligibility for certain programs, including programs that can lead to an early release. For example, if the PSR states that a defendant was involved in violent conduct or had a firearm, they may not be eligible for the RDAP program. An attorney can also try to object to parts of the PSR at the sentencing hearing, such as the parts discussing the defendant’s criminal history.

Additionally, an attorney can advocate for certain recommendations from the judge at the sentencing hearing. For example, an attorney can show the judge that their client has substance abuse issues, and a judicial recommendation can often help the client get into RDAP. An attorney can also request that the judge recommend certain medical treatment, accommodations, and even specific facilities, such as a medical facility or facility closer to the client’s home.

As discussed above, an attorney can help an inmate navigate the BOP’s complicated Administrative Remedy Program. The attorney can submit requests for transfers, request that an inmate’s risk level be re-evaluated, and provide documentation or expert testimony regarding an inmate’s medical or dietary needs that are going untreated. An experienced attorney can also make sure the inmate’s requests are being submitted on the right BP forms and before each deadline.

When the BOP improperly denies an inmate’s request for something like medical treatment, an attorney can file a lawsuit against the BOP to get the inmate relief. When filing a lawsuit against the BOP based on an administrative decision, however, an attorney must comply with all of the requirements of the Prison Litigation Reform Act (“PLRA”).

These requirements include “exhausting” your administrative remedies, meaning you have appealed a denial all the way up the chain to the central office in Washington, D.C. There are also requirements that an inmate must show they have been injured or that injury is imminent, and an inmate may be blocked from filing future lawsuits if they file multiple lawsuits that don’t comply with the requirement or that the court considers frivolous.

Because these requirements are so complicated, and because failure to comply with them can mean an inmate forfeits their claim forever, it is best to consult with an attorney before filing a lawsuit under the PLRA. It is also important to know what you are asking for—one can either ask for monetary damages or injunctive relief, which means the court would require the BOP to take a certain action or refrain from taking a certain action.

If the inmate can show that they have been intentionally or negligently injured by the BOP, they may be entitled to damages by filing a lawsuit under the Federal Tort Claims Act. If the inmate’s injury involves a violation of their constitutional rights, or if the conditions of their confinement rise to the level of “cruel and unusual punishment,” they may be able to file a Bivens claim.

An attorney familiar with the BOP’s procedures can also help in regard to inmate disciplinary proceedings. Inmates have a right to have a staff representative represent them or to hire an attorney when they are being accused of violating the BOP’s rules, even if the violation does not result in new criminal charges. They also have other important rights, including the right to know what they are being accused of and the opportunity to defend themselves by presenting evidence.

Violations can be classified as Low Severity, Moderate Severity, High Severity, and Greatest Severity. When an incident occurs, there is usually an investigation and incident report prepared. If the alleged violation is Moderate or Low Severity, the inmate or the inmate’s lawyer can “informally” resolve the incident. Depending on the nature of the violation, there may be a disciplinary hearing to determine if an inmate is guilty of the violation and, if so, what the penalty will be. Penalties can include losing good time credit, loss of privileges (such as phone, email, commissary, recreation), being placed in a higher security facility, expulsion from certain programs or work assignments, paying a fine, or being sent to isolation.

There is also a system in place for appealing those penalties if the inmate loses at his hearing. In some cases, criminal acts while in custody can lead to new criminal charges outside of the prison.

Our firm has an impressive track record in helping federal inmates obtain sentence reductions, favorable facility designations, and enrollment in RDAP and other programs while in custody of the BOP. In several cases, we have been able to get these results by getting certain information included in the PSR or by obtaining a judge’s recommendation at the client’s sentencing hearing. Recently, for example, we were able to get our client assigned to a minimum security, all-female prison camp that has better measures in place to prevent transmission of COVID-19. This was important to our client because she has several medical conditions.

Since the First Step Act passed, we have helped several inmates obtain early releases and sentence reductions. During the COVID-19 pandemic, for example, we were able to get several inmates released, including inmates who had served less than half of their sentence and inmates who had already tested positive for COVID-19.

Compassionate Release is not limited to inmates who are vulnerable to COVID-19, however, as our firm has also helped inmates get released early based on their excessive sentence. In one recent case, for example, we were able to get a client released from prison after 15 years after he was sentenced to 64 years for armed bank robbery. We won our motion by arguing that our client would never have received such a long sentence under today’s laws. We have also been able to help inmates released after serving life sentences by showing that they are elderly, not dangerous, and suitable candidates for early release.

If you have a loved one serving time in a federal prison, an experienced federal defense lawyer can help them get the treatment they need, enroll in the programs they want, and petition for sentence reductions or early release. Contact our firm if you would like us to consult with you regarding your loved one’s options while in custody or if you need assistance navigating the BOP’s confusing regulations. You can also retain us to represent your loved one in court, including motions for sentence reductions. We are also able to represent clients before their sentencing hearing to try to get them the lowest sentence possible or to help them get recommended to a certain facility or for RDAP.

News outlets report that the latest COVID-19 relief bill to pass through Congress will restore Pell grants for prisoners seeking higher education through student loans.

The Fourth Circuit in United States v. McCoy became the latest U.S. Court of Appeals to hold that district courts have the independent discretion to determine whether an inmate has shown “extraordinary and compelling reasons” warranting a sentence reduction or early release from prison.

In United States v. Taylor, the Eleventh Circuit held that inmates who were sentenced to a mandatory minimum for a crack cocaine offense are eligible for a sentence reduction even if their offense involved other drugs that would have triggered the same mandatory minimum sentence.