Thursday, August 18, 2011

A Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues

Based on years of litigation with the Bureau of Prisons, we have prepared a Guide posted here aimed at helping federal defenders provide the best representation for their clients both before and after sentencing. The tangle of sentencing statutes and BOP policies and practices can be daunting, but we need to be on top of the issues – including their history and litigation status – to advocate appropriately for the best presentence report, the best sentence, and – if all else fails – the best shot at successful habeas litigation.

The Guide reviews programs well known to all such as the Second Chance Act, the Residential Drug Abuse Program, and boot camp. We hope to provide another level of understanding of these areas for effective advocacy. For example: How do we use the BOP’s refusal to implement the Second Chance Act’s expansion of pre-release community corrections from six to twelve months at sentencing? What are the types of decisions at sentencing that might make a difference for RDAP eligibility? What is the current status of gun possession and prior conviction RDAP litigation? How can we use the BOP’s unilateral abolition of its once-great boot camp program to argue for a lower sentence based on the “kinds” of available sentences?

We also discuss the current litigation status and suggested practices for that most screwed up of federal sentencing areas, state and federal concurrent and consecutive sentences. For those facing the nightmare of the BOP’s unlawful “death rattle rule” for prisoners who have extraordinary and compelling reasons for second look resentencing, we have some ideas for legal challenges to the BOP’s rules. We have also updated information related to classification issues and habeas corpus procedures.

We hope the information in the Guide can provide a baseline for our federal advocacy related to BOP policies and practices. The Guide is easily searchable and can be linked as a Favorite right next to the BOP’s site. For those interested in the cost to taxpayers from the BOP’s failure to implement ameliorative statutes, the written testimony in 2009 to the House subcommittee on crime referenced in footnote 1 of the Guide is linked here.

The Guide can always be improved based on experience in the field. For defenders with ideas to add, please email us and let us know how we can make it better.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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