Lock Down Underestimates Inmates’ Understanding of 3553(a) Factors

BOP ordered a lock down prior to Biden's inauguration, underestimating the inmate's understanding of 3553(a) factors surrounding sentencing.

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In the run up to Biden’s Inauguration the BOP ordered the prisons locked down. They cited security concerns. But the lockdown didn’t take into account the inmate population’s new understanding of the sentencing factors, particularly 18 USC 3553(a).

First notification of the lockdown from an online support group consisting of loved ones of inmates. They were spreading informationthat the Bureau of Prisons was going into lockdown in the days before the inauguration. The Federal Prisons later confirmed that they were implementing temporary security measures:

(BOP) – For the majority of the past twelve months, the BOP has been operating under a modified operational model to promote social distancing and mitigate the spread of COVID-19. We recognize that this pandemic has placed a heavy burden on inmates and their families in terms of limited movement and the public’s restrictions in being able to freely visit with loved ones. However, in light of current events occurring around the country, and out of an abundance of caution, the decision has been made to secure all institutions. This measure is being taken to maintain the security and orderly running of our institutions, as well as to ensure the continued safety of staff, inmates, and the public.

In securing the facilities, the hope is that this prudent measure is for a short period and that operations will be restored to their prior status as soon as practical. We will continue to monitor events carefully and will adjust operations accordingly as the situation continues to evolve. Recognizing that communication with families is important, although it will be limited, inmates will be provided with access to telephones and email.

There is no specific information that triggered this decision. This action is precautionary, and is not in response to any significant events occurring inside our facilities. We appreciate everyone’s cooperation and assistance during this period and encourage the public to monitor this website for updated information on visiting schedules and institution operations.

Bureau of Prisons, Temporary Security Measures Implemented

While the Federal Bureau of Prisons indicated that there was no particular reason for the lockdown, the end came following the day after the inaugural address:

If the prisons being locked down was in part due to the incident on January 6, 2021 that honestly doesn’t make sense. First of all, prisons have fences. If the incarcerated persons are going to riot and break things and fight, what would that get them? At best, it gets them to the barbed wire surrounding the prison, excepting minimum security camps.

prison fence, razor ribbon, wire
Breaking news: These exist!

But even worse, this idea doesn’t take into account a very important lesson. This lesson is one that every incarcerated person just learned. Starting a prison riot would be awful for their resentencing factors.

What Are 3553(a) Sentencing Factors?

Once a person either pleads guilty or is found guilty by a judge or a jury, sentencing is the next step. The law says that a Federal Court must start by considering the Federal Sentencing Guidelines. The guidelines include the offense level and the criminal history category. From there, the court can consider the factors in 18 USC 3553(a). Those factors include:

  • the nature and circumstances of the offense and the history and characteristics of the defendant;
  • the need for the sentence imposed to:
    • reflect the seriousness of the offense;
    • deter criminal conduct;
    • protect the public; and
    • provide the defendant with needed correctional treatment in the most effective manner;
  • the kinds of sentences available;
  • the kinds of sentence and the sentencing range established for—
    • the applicable category of offense;
    • in the case of a violation of probation or supervised release, the applicable sentencing guidelines or policy statements . . . ;
  • any pertinent policy statement;
  • the need to avoid unwarranted sentence disparities among similar cases;
  • the need to provide restitution to any victims.

The sentencing judge takes these factors into consideration while making the decision. The nature and circumstances of the offense are especially important, as well as the history and characteristics of the defendant.

Resentencing Options and 3553(a) Factors

Over the past few years, several options have become available for incarcerated persons to reduce their sentences. Several have used 3553(a) in order to determine whether the court should use their discretion in order to grant the requested relief.

Amendment 782: The Two Level Reduction

In 2014, the Sentencing Commission voted and passed Amendment 782, otherwise known as the two-level reduction. This Sentencing Guidelines Amendment gave incarcerated persons the ability to seek a reduction in their base offense level for drug crimes. This, in turn, could lead to a reduction in the overall sentence for certain drug offenders. The United States Sentencing Commission determined that this should be applied retroactively, so persons in prison could receive the benefit of the change in the guidelines.

The text of the statute that allowed incarcerated persons to go forward was 18 U.S.C. 3582(c)(2). That text reads as follows:

in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Modification of a Term of Imprisonment, 18 U.S.C. 3582

Compassionate Release Under 18 U.S.C. 3582(c)(1)(A)

Similarly, the court can grant a reduction to an inmate under the “compassionate release” statute of 18 U.S.C. 3582(c)(1)(A) if the court finds several things to be true:

The court may not modify a term of imprisonment once it has been imposed except that—
(1)in any case—
(A)the court…may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—(i)extraordinary and compelling reasons warrant such a reduction…and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission;

Modification of a Term of Imprisonment, 18 U.S.C. 3582

In both situations the 3553(a) factors are consulted. The 3553(a) factors are basically a tool of discretion. And as many incarcerated persons just learned, the 3553(a) factors, specifically the characteristics of the person and the offense committed, weigh heavily in determining eligibility for relief. Many compassionate release requests were denied not because of the lack of the presence of the virus at the facility, but because the 3553(a) factors did not lead the court to grant a release. Specifically, the courts have shown the characteristics of the person and the type of offense alleged to weigh heavily in these situations. While the inmates may not have known about 18 USC 3553(a), they definitely do now for whatever comes next.

I am confident that there will be some amount of criminal justice reform that comes from the upcoming White House administration. I am also confident that whatever sort of reforms come will involve 3553(a).

The Incarcerated Population Will Remember 3553(a)

No one was going to riot in the federal prisons during the time of temporary security measures. Such an action would not improve their situation. Such a choice would have proven nothing. The choice to risk any chances for future reforms would have been devastating to the prison population. Prison riots do not create sentence reductions.

Already this year, I’ve had individuals tell me how surprised they are about the 3553(a) factors. These individuals share they wish they had more knowledge at sentencing. Given the impact of potential sentencing reform and the amount of denials of compassionate release this year because of the 3553(a) sentencing factors, I think that we can safely assume that the incarcerated persons got the message.