Tuesday, February 5, 2013

Practical Tips For Those Who Face Federal Custody Time, Part II: How To Minimize Problems In Custody And Stay Under The Radar

Most of our clients are college educated, are businessmen or professionals, have never been charged with a crime before and have never been incarcerated. For those individuals who are facing federal prison time -- even if it appears they should be eligible for probation -- one of the biggest fears is how they would cope with being in federal prison or camp and mingle with the general population on a daily basis. We have interviewed several of our white collar clients who have spent time in federal custody on tips for how they were able to successfully serve their time if the federal judge decides to impose a custody sentence.

In addition, we have received requests for representation after they have been sentenced when they were surprised by a 6-month or 1 year custody time because the federal judge did not accept the prosecutor’s recommended sentence set forth in the plea agreement. The fear that some clients have is best addressed in advance and for everyone to work for the best possible result and prepare for the worst.

For some clients who are facing a 10-year sentence and where the evidence is overwhelming, there are cases where an early plea disposition is the best result possible.  Sentencing in the federal system is similar to a small trial and is an art. We have other clients where a plea is not a possibility and trials are necessary. However, in either case, there is a risk of incarceration if the case is not a reject or the case is not dismissed before trial. As of March 23, 2013, there are 217,929 incarcerated in federal prison according to the Bureau of Prisons. In California alone, there are 163,000 in state prisons.

For those who need some guidance on what to expect for federal custody, we offer our clients guidance. Of course, the best result is for a rejected case, a win at trial or motion phase or a probationary sentence. If there is the possibility of federal prison time, preparation helps. Especially since our clients who have had almost no exposure to the criminal justice system cannot believe how the prison industrial complex has become a major industry in the United States and how there are routine deprivations of rights and privileges. This is even more common in the county and state facilities.  Almost every client we have had feels they need to write a book or make a movie on the criminal justice system. However, when the politicians and public think that we need to be “tough on crime,” these are not easy issues to raise with the public during an election.

Let us hope that you or your family member’s case will not result in incarceration. However, if it occurs – whether while awaiting trial or post-trial or plea agreement – there are unwritten rules to be considered. For example, one of our physician clients was in custody pending trial and had two bail motions denied when we were retained. The client filed numerous complaints with the Los Angeles County Sheriff’s Office about treatment, moldy food, violation of regulations and policies, and unfair treatment. Our client was correct on all these issues, however, the complaints resulted in something called “diesel therapy” and other administrative sanctions. Somehow, the client was taken to the wrong facility for a court appearance and made to wait in a freezing room all day in handcuffs. Even a court order was not followed on the transport. The judges only have so much jurisdiction over the federal Bureau of Prisons or the County Jails or the Department of Corrections. We were able to obtain results by going to the legal department, obtaining court orders, negotiating with staff ourselves and persuading our client that making complaints will be detrimental unless it is done properly.

The staff at facilities believe that this is their house and you are a guest following their rules. Even if it is taxpayer supported, they do not want complaints about the food, the soap, the facilities, and so on. This does not mean that we agree with the prison administrators but we want those in custody to know that viewpoint so they do not cause themselves additional aggravation. 

For educated persons who are not experienced in the jails and prisons, how are they to navigate this new territory? This is a different planet. Often it is not so dangerous and interminably boring and isolating. There is a risk of becoming institutionalized and depressed. There is also a race based culture (especially in state prisons) that needs to be navigated. If you or your family member is educated, that can be a great benefit to the other inmates who are not well-educated. Finally, there are new terms to learn.
There will be a separate article about how to prepare for federal prison at the preliminary stages while your attorney is reviewing the PSR (presentence investigation reports) and ensuring that they are correct, preparing yourself prior to surrender (visiting physicians, dentists, getting copies of your medical records), putting money in your account, addressing concurrent sentences, and so on.


Here are tips from some white collar clients who have served time for the first time and successfully navigated it and came out well and, in some cases, better than when they went in. The universal agreement was that unlike regular life where educated people ask for what they want and make complaints when rules are broken, in federal prison staying under the radar should be your main goal.   The less your face and name is known to the staff the better off you will be. 

Here are some suggestions of how to achieve such UNDER THE RADAR STATUS.  

1.  Avoid asking for things from staff. Talk to other inmates and avoid going to your counselor or other Correction Officers (“Co’s”).

2.  Make your “call outs.” Every day (often between 2pm and 4pm) the next day’s call out will be posted in your unit.  If you see your name on the call out, you will see where you are going to and whom you are seeing.  Make sure you make all your call outs. If for some reason you think you will not be able to make your call out, immediately inform your Co or the counselor of your predicament.  Not going to your call out can result in an incident report being filed and you might have disciplinary actions against you as a result. (This means loss of phone time, email or loss of visitation or commissary.)

3.  Stay out of conflicts with other staff and especially other inmates. Before you think about filing a complaint against anyone, talk to old timers or shot callers about your issues and pick your battles wisely.

4.  Mind your own business. Remember, you are in prison and so don't get involved in other inmate issues, worry about yourself. Stay out of other people’s conversations (ear hustle).
Be respectful to staff and to other inmates.  Being respectful includes but not limited to the following: tone of voice, body language, and using foul language. For people who have been incarcerated or are from a gang culture, “respect” is a concept that is very important to them.

5.  Take daily showers and take care of yourself in hygiene matters. Depression is common in prison and there can be a tendency not to take good care of yourself or fear of going to the showers. However, part of being a good cell mate is staying clean. Other inmates will object to having a cell mate or being around someone who is not taking a shower on a daily basis. Wash your hands, wear flip flops when taking a shower, etc. so you do not get sick or get any skin conditions. Wash your personal clothes using either the facility laundry or the washer, dryers that are available.

6.  Clean up after yourself in public areas – sink area, toilet, microwave, and so on. Keep your living (bed) area clean (cell or dorm). This will help keep disputes with fellow inmates and cellmates (cellies) to a minimum.  On facility laundry days, replace your sheets, blankets and pillow cover. Make your bed after you get organized in the morning.

7.  Keep company with few people that you feel are not trouble makers.

8.  Don’t keep in your locker items that are not yours or that you did not buy in the store.

9.  Program your day – have a daily routine.  Exercise, spend time with others, spend time relaxing, reading, entertainment - (TV or Radio)

10.  Get into educational programs – learn new skills.

11. Get a good job. You will be required to have a job. If you have education, seek out the best job you can find. Make sure that your education level has been properly addressed in the PSR.

12.  Exercise and walk a great deal. Most of our clients exercised a great deal and became fit, lost excess weight and used their time to their benefit the best they could.

13.  Use the facility psychology department is available for you to use to help deal with any psychological issues while in BOP custody.

14.  If you qualify for the Residential Drug Abuse Program (RDAP) program due to drug or alcohol use – even if in the past when you committed your offense, take advantage of it. It can cut time off your sentence and can be a very useful group therapy tool to assist you in understanding yourself better. This is something that a federal judge can recommend if you handle it during the sentencing phase of your case. 

15.  Stay busy and stay positive. This is a very stressful time but you will get through it. 

We have sometimes had clients delay sentencing and surrender simply because of their own stress about their family, finances and other issues. Later, they wished they had moved things along more quickly and gotten everything done with sooner. Every case is different but to the extent that fear is causing you to worry about the custody, seek help and advice from attorneys or their staff or psychological therapy about preparing yourself for custody and addressing your fears (some of which may be real but some of which may be irrational).

Posted by Tracy Green, Esq.


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