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Defense Lawyers Seeking Cushy Prisons, Not Softer Mercy Pleas

Monday, December 16, 1991
By Tracy Thompson, The Washington Post

WASHINGTON – Tears used to work. Packing the courtroom with relatives, preferably babies, could be effective. At the least, someone being sentenced for a federal crime once was able to make a subtle plea for mercy by wearing nice clothes to court and looking penitent.

Times have changed. Today, as more people accused of federal crimes are going to prison for longer terms, one sign of the times is contained in the current issue of the Champion, a magazine for defense lawyers.

“How to Get Your Client Into Club Fed,” it reads — more evidence that, for many, the question no longer is, “Can I avoid prison?” but “Can I get the top bunk?”

The “where” question is vital. If the answer is the Atlanta Federal Penitentiary, the prisoner will enter a grim, 19th century edifice and find triple tiers of barred cells stacked like rabbit hutches.

But federal prison also can mean relatively genteel work camps with tennis courts instead of fences, dormitories, quiet libraries and the opportunity for college course work.

There is no question that the chances of ending up in a federal prison have increased. There are approximately 60,000 inmates in federal prison today, up 10 percent from 1989, according to the Bureau of Prisons. The current ratio of 274 inmates per 100,000 population is a record high, a trend fueled by the drug crisis and an emphasis on federal drug prosecutions.

Moreover, a recent study in the Georgetown Criminal Law Review of 800 cases in the Midwest concludes that sentences, on average, are more than twice as long as those imposed before sentencing guidelines came into widespread use in 1989.

The guidelines are the single most important reason for the change in sentencing, because they reduce judicial discretion. Instead of listening to character witnesses and tearful pleas, judges now must calculate prison terms using a formula that measures things such as severity of the crime and even the gram weight of the narcotics seized in drug cases.

With fewer options for keeping clients out of prison or reducing their sentences, defense lawyers still can make themselves useful, the Champion article said. But, it added, lawyers are finding “very little guidance” in trying to help clients with “the other side of the confinement equation,” a euphemism for what joint lies ahead.

The options are summarized in a volume published by the Bureau of Prisons titled Facilities 1991. A sort of Michelin guide to the 67-institution federal prison system, it describes the accommodations at each facility, from the minimum-security camp at Petersburg, Va., temporary home of former D.C. mayor Marion Barry, to the maximum-security prison at Marion, Ill.

Unlike the usual travel guide, however, Facilities 1991 makes no effort at hype. Bureau spokesman Dan Dunne said that is intentional, since the bureau is sensitive on this topic.

“The bureau is interested in dispelling the Club Fed myth,” Dunne said. Even though some prisons are better than others, the fact is they are all prisons, he said, “and they all involve the loss of freedom.”

Where a person will wind up already is largely determined by the time of arrest or arraignment. The basis for prison assignments is sentence length, which, in turn, is pegged to the type of crime and whether the defendant has a record. But there’s still leeway, especially for first offenders. Defense attorneys freely admit they are looking hard at the angles available.

“The very best thing that a federal judge can do to help your client get into Club Fed is to pick up the telephone and call the direction of the [Bureau of Prisons] … and then follow up that call with a detailed personal letter,” write the article’s authors, lawyers Alan Ellis and Alan J. Chaset Jr. They are post-conviction experts with offices in Alexandria, Va., Mill Valley, Calif., and Philadelphia.

But, they add, don’t get your hopes up: “We can count on the fingers of one hand the number of times we’ve been able to have that happen.”

More common, Dunne said, is for lawyers to ask the judge to jot down a recommendation in the paperwork that goes to the bureau. Though every federal prison these days is crowded – the system is running at 163 percent of capacity – Dunne said the bureau makes an effort to take the judge’s recommendation into account.

In drug prosecutions, which make up the bulk of the criminal cases tried in federal court here, prison time, and thus prison placement, is directly affected by the amount of drugs involved in the case – and not just the amount of which the defendant is formally found guilty, either.

A part of the sentencing guidelines called “related conduct” allows the judge to consider criminal conduct beyond what’s contained in the actual criminal charge. Prison time – and prison assignments – can change accordingly.

R. Kenneth Mundy, the lawyer who represented Barry on charges of cocaine possession and perjury, always checks the government’s lab reports on drugs “to make sure they’re not jacking up the quantity.”

Local defense lawyer G. Allen Dale never lets his clients talk to a probation officer alone.

“The probation officer might just say, ‘Tell me what happened.’ The guy is charged with (possessing) 10 grams, and that’s all government knows about,” Dale said. “Then the defendant says, ‘I started a couple of years ago, and I’ve probably sold a couple of kilos.’ They include that in ‘related conduct.’”

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus