David F. Axelrod is a partner in Vorys, Sater, Seymour and Pease, Columbus, Ohio. He was formerly an Assistant U.S.
Attorney for the Southern District of Florida. He is Vice-Chair of the Committee on Civil and Criminal Tax Penalties, ABA
Tax Section and is a member of the U.S. Sentencing Commission Practitioners Advisory Group.
Lisa A. Kuca is president of Sentencing Specialists in Fredericksburg, VA. She is a consultant to federal criminal
practitioners. A member of the U.S. Sentencing Commission Practitioners Advisory Group, she was a probation officer
in the Southern District of Florida from 1987 to 1996. She is an NACDL Associate Member. The authors gratefully acknowledge invaluable assistance in the preparation of this column by Lisa
Pierce Reisz, of Vorys, Sater, Seymour and Pease.
White-Collar Offenders' Most Frequently Asked Questions The most frequently asked questions by convicted white-collar offenders (after "Am I going to jail and for how long?") are, "When can I have my first conjugal visit?" and "Can I bring my golf clubs?" Seriously, clients do ask questions about imprisonment and supervision that seem superficial and trivial, but reflect real concern about how their sentences will affect them. Many are personal. Most are sincere.
Such questions initiate the myriad of telephone calls to the Bureau of Prisons (BOP) requesting help in matters that we, who do not face sentencing and imprisonment, take for granted. Business travel, being allowed to hunt and vote, placing credit card calls, and even selecting the best kind of sneaker, all become important issues for a client beginning life as a convicted felon. Clients may also have previously undisclosed problems, such as a medical condition or an addiction. Many such issues may be addressed before sentencing. With preparation and thought, you can help ease your client's transition to incarceration and, later, supervised release.
According to the U.S. Sentencing Commission's 1995 Annual Report, 62.2 percent of those convicted of fraud are sentenced to imprisonment. Imprisonment is also imposed in 56.5 percent of embezzlement cases, 31.1 percent of criminal tax cases and 73.6 percent of money-laundering convictions. Therefore, sophistication in post-conviction issues has become almost as important as trial prowess. Advance consideration of your client's questions about incarceration also has the side-benefit of decreasing the frequency of otherwise daily calls from prison. Helping your client with the unknown will reassure her and help prepare her for what, most likely, will be one of the worst experiences of her life. [The use of feminine pronouns throughout is not intended to exclude males as potential criminal defendants.]
Below, we address some frequently asked questions. For ease of presentation, they are grouped into three categories: (1) The Presentence Investigation Report (PSI) and Sentencing Hearing; (2) In the Prison System; and (3) Probation/Supervised Release. We apologize for sometimes stating the obvious, but do so because it is so often overlooked.
Presentence Report and Sentencing Hearing
The PSI is probably the most misunderstood and underestimated component in the post-conviction process. Its significance does not diminish after sentencing. The PSI is the first document the BOP reviews regarding every new inmate. The BOP uses the PSI to determine the facility at which your client will serve her sentence, security, and custody levels. The PSI dictates each inmate's visitation privileges. It also affects eligibility for educational opportunities, drug/alcohol treatment, and medical care. Participation in some of these programs can result in shorter sentences. The report is also used to determine the level of supervision an inmate will receive once she is on probation or supervised release. The following are typical questions white-collar offenders ask their attorneys regarding the PSI:
Should you [my attorney] go with me when I meet the probation officer? Will that have a negative effect on the presentence report?
Your client will ordinarily feel more comfortable having you present during her initial interview with her probation officer, and that is usually a good idea. Rule 32 of the Federal Rules of Criminal Procedure entitles defense counsel to be present during all meetings between the probation officer and the defendant. Nevertheless, probation departments in some districts ask attorneys to waive, in writing, their right to be present during such interviews, something you obviously should resist.
Your presence may serve several purposes:
(1) You can offer comfort, support and reassurance to your client;
(2) You may need to run interference between a difficult client and the probation officer (or between an ordinary client and a difficult probation officer); and
(3) You may need to try to protect the client's interests in pending civil litigation, tax matters, or an appeal.
A word of caution -- avoid answering too many questions for your client! Too much interference or involvement by defense counsel may be misunderstood as an attempt to hide something or shade the facts.
To obtain a downward adjustment for acceptance of responsibility, your client must present her version of the offense. If possible, it is ordinarily a good practice to submit your client's version in writing, although some probation officers may not allow this. In a written statement, your client can demonstrate acceptance of responsibility and express remorse for her conduct while avoiding detailed discussion of the offense. Sometimes, it may also be beneficial for your client to show remorse by voluntarily participating in a treatment program and/or beginning to make restitution before it is ordered. Such affirmative steps toward rehabilitation and contrition go beyond what is required (or even expected) for acceptance of responsibility, and should be well received by the probation officer and the court. Having the offender take the initiative in such matters is usually beneficial.
What happens if the probation officer doesn't like me?
The probation officer's influence on your client's sentence cannot be overstated. The probation officer has unlimited access to the U.S. Attorney and the investigative agencies, and can be subtly influenced by their comments. Furthermore, the probation officer has ex parte access to the sentencing judge and court staff. Your client's interaction with her probation officer is crucial. A positive experience with the probation officer may result in a favorable disposition. Negative interaction is a recipe for disaster.
You should prepare your client, in advance, for her first encounter with the probation officer. She should understand that the probation officer will ask very personal questions about family, employment, health (physical and mental) and finances. The reasons for such questions should be explained to your client before the probation officer's first interview. A client who appears for her interview with a thorough understanding of the process will most likely conduct herself appropriately.
Explain to your client the schedule established by the court and local rules. The client should understand the importance of complying with all deadlines imposed by the probation officer. Avoid canceling appointments and failing to submit documents on time. Follow up with your client to ensure that she is complying with the probation officer's requests. Any perceived lack of cooperation can be extremely damaging.
Honesty and forthrightness are essential. During the probation officer's conversations with the investigating agents, spouses and parents, most skeletons will be revealed. Nevertheless, your client should understand that candor, while essential, may cause certain difficulties. For example, the admission of drug or alcohol dependency is such a "double-edge sword"; it may result in a reduction in prison time and enable your client to participate in treatment programs while incarcerated, but required aftercare may also make supervised release more difficult.
I have a 5K1.1 (Substantial Assistance) agreement with the government. How important is this interview with the probation officer?
The PSI is no less important simply because a defendant has agreed to cooperate with the government. There is no guarantee that her cooperation will reach the government's standards for substantial assistance, which dictates the filing of a 5K1.1 motion. Furthermore, assuming that substantial assistance is rendered and the appropriate motions are filed, the prosecutor can still recommend a sentence that falls far short of your client's expectations. In such instances, the PSI may be beneficial and support the sentence you are requesting (or somewhere between). It is important to remember the PSI remains the primary resource the BOP uses in most decisions that affect an inmate's daily existence.
Will the things the prosecutor stipulated to in the plea agreement determine my sentencing range?
It is advantageous to begin the sentencing process with agreement on factors that influence the application of the Sentencing Guidelines. Nevertheless, stipulated facts are not binding on the court.1 The probation officer will apply the sentencing guidelines to the evidence as she views it, independent of those stipulations. Furthermore, stipulated facts in the plea agreement may, in some instances, be a red flag for the probation officer. She may contact the prosecutor seeking justification for what appear to be unreasonable or unsupported stipulations. Be certain that you know, in advance, what the prosecutor's response will be.
Does my conviction mean that I will I lose my Social Security benefits?
Certain convictions will result in the suspension of Social Security benefits (disability or retirement) during the term of imprisonment. The Social Security Act bars payment of Social Security benefits to anyone who has been sentenced to imprisonment for a felony conviction.2 Upon beginning supervised release, your client may have payments reinstated by presenting her release papers to a Social Security office. Social Security benefits are not affected by a probationary sentence, even following a felony conviction.
Most of my assets have been forfeited. Can I still be sentenced to pay a fine and make restitution?
Probably. Section 5E1.2(a) of the Federal Sentencing Guidelines requires the court to impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine. Therefore, the forfeiture of a defendant's assets does not necessarily insulate her from a fine.3 Similarly, section 5E1.1 of the guidelines requires a court to enter a restitution order if authorized under 18 U.S.C. 3663-3664 and without exception for a defendant who has forfeited her assets.
Since April 24, 1996, the Mandatory Victim Restitution Act ("MVRA") has required federal courts to order defendants, in most felony cases, to make restitution "to each victim in the full amount of each victim's losses . . . without consideration of the economic circumstances of the defendant" (emphasis added), and without consideration of any compensation received by the victim from other sources.4 Sections 3664(f)(2) and (3)(B) provide a very limited escape clause, permitting the court to consider the defendant's financial resources in establishing the schedule by which restitution is to be paid. If the defendant's economic resources are insufficient for the payment of restitution, the court may order mere "nominal periodic payments." The MVRA was ruled unconstitutional in United States v. Kemp 5 where the court referred to it as "so unworkable as to be something to laugh at" and "so fundamentally flawed and confused that it cannot be interpreted or judicially nudged into constitutionality."6
What if I can't afford the cost of confinement or supervision?
The Federal Sentencing Guidelines require the imposition of "an additional fine amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered."7 However, this requirement is subject to the defendant's ability to pay. Therefore, if the defendant establishes that she is presently unable, and is unlikely to become able, to pay this additional fine, even on an installment basis, the court may reduce or waive the fine altogether.8 In that event, the court must impose an alternative sanction. The guidelines suggest that community service is the preferred alternative.9
What factors determine whether I will be permitted to self-surrender?
The court has authority to release your client pending the execution of her sentence under 18 U.S.C. 3141(b). Under 18 U.S.C. 3143(a), your client will be permitted to remain at liberty only if the court finds by clear and convincing evidence that she is not likely to flee and does not pose a danger to the community. Immediate imprisonment is even more likely if your client has been convicted of: (1) a crime of violence; (2) an offense punishable by life imprisonment or death; (3) most drug crimes punishable by imprisonment of ten years or more; or, (4) at any time, two or more of the foregoing offenses.10
Nevertheless, trial judges are encouraged by the BOP to authorize self-surrender in certain cases.11 In general, this includes individuals who have been on, and complied with all terms of, pre-trial release, and other eligible offenders who are deemed by the court to be worthy of self-surrender.12 Courts have commented on the fiscal benefits of permitting self-surrender.13
In the Prison System
Businessmen and women are the only defendants who believe almost everything they hear about incarceration, including myths about "country club" prisons. Once incarceration becomes inevitable, they immediately focus on having familiar amenities incorporated into prison life. They have illusions of operating businesses from pay telephones while working on laptop computers. Their questions may seem silly, but it is important to realize they are about to undergo dramatic changes in their lifestyles. White-collar defendants typically are middle-aged, self-reliant and accustomed to making their own decisions. Therefore, the prospect of being controlled by another party is frightening.For present purposes, we assume that your client is eligible for a low security institution, and is fortunate enough to be permitted to self-surrender. The following are typical questions asked by white-collar defendants about entering and living in the federal prison system:
The judge recommended Eglin, so how did I end up in Marion?
Many defendants are surprised to learn that judicial recommendations for designation have no binding effect on the BOP. Although such recommendations receive consideration, formal designation decisions are made by local Community Corrections Managers (CCMs) and confirmed by the BOP Regional Designator.14
What factors will influence my designation? Where will I serve my time? Can I go to a "country club" prison?
CCMs consider a number of factors to ensure that inmates are placed in appropriate facilities, and to ensure the security of BOP personnel and other inmates. Using a defendant's PSI, a CCM evaluates the severity of the offense conduct. In doing so, the CCM looks beyond the plea agreement and conviction to the defendant's most severe documented behavior. BOP considers it irrelevant that your client was convicted of a lesser offense if the PSI documents that she was involved in a more serious offense.
Other factors will influence your client's designation, including: (1) the expected length of incarceration; (2) any prior commitments (custodial sentences); (3) any outstanding detainers; (4) a history of escapes or attempted escapes; and, (5) any history of violence. There are also subjective factors, known as "management variables," that may negatively affect your client's designation and custody classification. When BOP personnel do not believe that an inmate's security score accurately reflects her security risk, they may assign a management variable which permits her to be placed in a higher level institution, even if that designation is outside normal guidelines.15 Consideration is also given to factors relating to the individual defendant, including the proximity of her family and/or attorneys, and programming needs (e.g., drug treatment). Therefore, barring overpopulation issues, defendants who pose only a minimal security risk will ordinarily be eligible for designation to a minimum security institution. However, you should immediately disabuse your client of the notion that such institutions in any way resemble a country club. A minimum security institution is still prison, as your client will discover.
My address of record is in Florida, but my family is moving to California. Can I be designated to a facility near them?
Probably. The BOP does consider an inmate's desire to be close to family and friends during incarceration. Therefore, the BOP tries to place each inmate at the appropriate facility nearest her family. The BOP also has procedures to assist an inmate whose family moves during incarceration, and who wishes to be transferred to a facility nearer them.
With what kind of people will I be incarcerated?
While it would be entirely unrealistic to characterize the large and diverse federal inmate population, BOP statistics provide a general impression of the nature of the offenders housed in its facilities:
The BOP also describes the inmate population by age and race:
Can I go to a boot camp?
Possibly, but be prepared to wait. Non-violent offenders who have been sentenced to between a year and 1 day to 30 months are eligible, but must receive a judicial recommendation to participate.16 Non-violent offenders with 30 to 60 months remaining on their sentences may apply for admission through their case managers. Nevertheless, the boot camp will contact the sentencing judge for an opinion whether boot camp is appropriate.17
There is no age limit for boot camp. Inmates of age 50 and older have completed the program. However, all new participants must undergo a physical fitness test to ensure their eligibility and to place them in an appropriate fitness group. If an inmate's fitness improves, she is reassigned to the next highest training level. So far, no camp participant is known to have suffered a heart attack or been injured as a result of her age. After completing the program, inmates are sent to a halfway house to finish their sentences.18
I have a serious medical condition. Can I wait until after my surgery to self-surrender?
No. Once the court has set a defendant's self-surrender date, it becomes binding, and a defendant who fails to report becomes a fugitive. There are two options in this situation. First, verify your client's medical condition for the judge and request that she be permitted to surrender after recovering from surgery. If the judge refuses, she must report to her designated BOP facility or local U.S. Marshal's office on the date ordered. Once she is within the BOP's jurisdiction, you may request a medical furlough to permit her to obtain treatment. Don't count on your client receiving the furlough, however. The BOP has its own medical personnel whom it will have provide medical care whenever possible.
My spouse is also incarcerated in a federal facility. Can I write him?
Each warden has discretion as to what kinds of correspondence are permissible. As nonsensical as it seems, there may be cases where one spouse is permitted to correspond, while the other is not.19 Wardens enjoy similar discretion regarding whether the spouse who is released first may visit the other.20
My father died. Can I get a furlough to attend the funeral?
This decision is also within the discretion of the warden.21 Funeral furloughs are not unusual, provided the inmate can pay the costs associated with transportation both ways.22 The costs may include airfare for one or two marshals, hotel accommodations, food, etc. Obviously, an inmate who is viewed as a flight risk is unlikely to receive this dispensation.
Will the BOP be able to treat my high blood pressure?
Each BOP facility has medical personnel on hand or available in the surrounding community. Inmates with extraordinary medical needs are eligible for designation or transfer to one of the four medical centers operated by the BOP. In extreme medical emergencies or where BOP resources are grossly inadequate to treat an inmate, a medical furlough may be granted.23 The government will bear the expense of the furlough if it is necessary to obtain treatment not otherwise available.24 However, in all but truly extraordinary cases, the BOP likely will conclude that it can provide the needed treatment. An inmate must bear all costs associated with obtaining second opinions and elective care.
I received my designation letter today from the United States Marshal. I can self-surrender either at the marshal's office or at the institution. Does it matter?
Absolutely! Always have your client surrender at the institution! Otherwise, while awaiting transportation to her designated facility, your client will experience high-level security restraints. Furthermore, transportation to the institution is rarely direct, and there may be many stops along the way. Consequently, while in transit, your client may spend many nights at local jails under conditions much worse than those at her designated facility. In that event, you should expect many telephone calls from your client and her family, complaining about the accommodations and inquiring when she will reach her destination.
Self-surrender is also important for reasons entirely separate from your client's short-term convenience, namely, it will favorably affect her security classification score. In turn, this will affect the institution to which she is designated. Voluntary surrender creates a presumption in favor of minimum security classification and camp designation.25
Do I have to pay my fine and/or court-ordered restitution while I am in jail?
It depends upon what the court orders. 18 U.S.C. 3572(d) states that a person sentenced to pay a fine shall make such payment immediately, unless, in the interest of justice, the court provides for payment at a later date or in installments. Typically, installment payments must be made in equal monthly payments over the period provided by the court.26 The Sentencing Guidelines suggest that "[t]he length of the installment schedule generally should not exceed twelve months, and shall not exceed the maximum term of probation for the offense."27 In addition, the guidelines state that "[t]he defendant should be required to pay a substantial installment at the time of sentencing."28 In determining what a defendant can pay, courts have considered a defendant's ability to earn income while in prison.29 Thus, the court may require your client to pay some or all of her fine or restitution while in prison.
What do I bring?
BOP regulations on this subject have recently changed. Most institutions no longer allow inmates to bring clothes or footwear. Your client should bring an inexpensive watch, eyeglasses (many institutions do not allow contact lenses), and a money order of sufficient amount to purchase clothes at the commissary and start her telephone account. She can also bring a plain wedding band and her legal papers (although not too many). It is also wise for your client to bring a few days' supply of any prescription medication, and a letter from her physician explaining the reason for it. It is also helpful to bring a list of names, addresses, and telephone numbers of people for her visitation, telephone, and correspondence lists.
If not permitted to self-surrender, your client should wear (or bring) a comfortable pair of clothes and shoes. In either case, the client should become familiar with her United States Marshal number which becomes her identification number for the duration of post-conviction life.
What will happen to me the first day?
Your client should say her good-byes before arrival at the institution. Upon arrival, she will be asked to present her self-surrender papers, and then will be escorted away for initial intake. A breathalyzer test will be administered. Therefore, advise your client to have any "off-to-prison blowout" several days before reporting. A few Bloody Marys before arrival will result in several days in segregated housing. She will be strip-searched and issued temporary clothing (usually a humiliating jumpsuit and slippers). Her clothes will be inventoried and sent home. The intake process includes a health questionnaire and an interview by an intake officer. The officer will inquire whether there is any reason why the inmate should not be allowed in the general population. The client will be subjected to psychological tests from which a profile will be developed, which is used to determine whether she is suicidal. There will be a brief interview with a health care professional, who often will confiscate any medication brought by your client. Your client will then be informed where she can pick up prison-issued medication.30 Once an inmate is medically, psychologically, and safety cleared, she is then issued bedding, toiletries and assigned a bunk. Clothing will be issued, and telephone and commissary accounts will be established. She will also undergo orientation and an initial "team meeting," involving the case and unit manager and a counselor. She will be given a physical examination and assigned a job. Obviously, this process takes more than one day, and sometimes takes several weeks.31
What are the sleeping arrangements? Will I have my own room and get to choose my roommate? Will I be safe?
In most camps, inmates are housed in buildings called "units" with sleeping arrangements in two, four and six-person cubicles. However, each facility is different. Almost all have bunk beds. Priority for bottom bunks is given those with seniority or health problems (as determined by an institutional physician). Most units also have television room(s), a laundry room, and writing or "quiet" rooms. The bunks are military style. Although nothing is guaranteed, camp life is generally safe, with relatively few violent incidents.
What kind of commissary privileges will I have? What can I buy there?
Initially, your client will need to purchase casual clothing, including sweat suits, gym shoes, and, perhaps, a radio. Thereafter, an inmate may purchase snacks (potato chips, crackers, tuna, soft drinks, etc.), toiletries, and additional clothing up to a monthly maximum of approximately $150 (not including postage stamps and telephone calls).
How much money should I have in my Bureau of Prisons account? How do people send me money?
The largest expenditures are usually for long distance calls. The amount needed will vary with the inmate. If there is too much money in an inmate's account, the BOP will levy on it to satisfy the inmate's fine or restitution. Prison accounts do not bear interest. Money is credited to a prison account immediately if received in the form of a postal money order. Money sent by check or other money order may take several weeks to clear. Inmates are not permitted to have currency in any amount.32
Can my spouse send me food, clothes, tapes, or books?
Inmates generally are not permitted to receive anything from family and friends other than letters and paperback books.33 Hardback books are permitted if mailed from a bookstore or publisher.34 Inmates may also receive magazine and newspaper subscriptions.35 Playgirl, Playboy, Penthouse, etc., are prohibited.36
What kind of telephone privileges will I have?
Your client will receive a personal telephone identification number within a few days after entering prison.37 She will also be directed to complete a telephone list, containing the names, addresses, and telephone numbers of approved contacts. The list may include as many as 30 names.38 Inmates are permitted to place collect calls or to pay through their prison accounts.39 They may not use calling cards or call "800" numbers, and may not make conference calls. Telephone calls are routinely monitored.40 An unmonitored call to an attorney must be arranged through an inmate's counselor or case manager. 41
Is my mail confidential? How can I receive confidential mail? Can I write to a family member who is in another facility?
All incoming mail is opened and checked for contraband (under BOP regulations, postal stamps are contraband).42 Depending on the type of institution, outgoing mail may be sealed except for inmate-to-inmate correspondence.43 Such correspondence requires approval by the warden, and may authorized in the warden's discretion where, for example, both inmates are immediate family members, or parties in a civil case.44 Such correspondence is routinely inspected at both the sending and receiving institutions.45
Mail on attorney letterhead, marked "special mail -- open only in the presence of the inmate," will be opened in the inmate's presence, checked for contraband and for qualification as special mail. If so designated, staff will not copy or read it.46
How often can I have visitors? Is my family searched? Can they bring me anything?
Visitation rules vary from institution to institution.47 The usual restrictions concern time and number of visits.48 Inmates ordinarily submit a visitation list for approval by their counselors. Only visitors on the list are permitted.49 Immediate family members will be placed on the list if verified in the PSI.50 The names of other relatives and friends must be submitted on a form, and may be approved after verification.51 Adult visitors are usually required to present identification, and may be asked to submit to a search.52 Purses, attorneys' briefcases, etc. may also be searched.53 Family members are not permitted to bring anything to an inmate when they visit.
Probation/Supervised Release
A common misconception is that release from prison equates to "freedom." Consequently, many inmates are entirely unprepared for the restrictions that will be placed on them by the Probation Department. Supervision of Federal Offenders, Monograph 109, the ,em>United States Parole Manual, and Guide to Judiciary Policies and Procedures, Vol. X, Probation Manual, Ch. IV (1993), provide probation officers with guidelines for managing offenders on "supervised release."An inmate is released after serving approximately 85 percent of her sentence. She is eligible for placement in a halfway house six months before being released. Eligibility is based on: (1) the perceived need for a transitional period; (2) the length of incarceration; and, (3) availability. The longer an inmate has been incarcerated, the more halfway house time she will ordinarily receive. The final 10 percent of an inmate's sentence, up to six months, may be served on electronic monitoring or in home confinement.54
What is expected of me while I'm on probation/supervised release?
Standard conditions for probation and supervised release are established under 18 U.S.C. 3563(a). In addition to the standard conditions, the court can impose special conditions of supervision. The following are samples of frequently imposed special conditions of supervision:
(1) The defendant shall participate in an approved treatment program to include urinalysis for drug and/or alcohol abuse as directed by the United States Probation Office. Participation may include residential placement if deemed necessary.
(2) The defendant shall submit to a search of his person, property, or place of residence, conducted in a reasonable manner and at a reasonable time as requested by the probation officer.
(3) The defendant shall be required to provide full financial disclosure to the probation officer as requested.
(4) The defendant shall be prohibited from incurring new credit charges or opening additional lines of credit without approval of the probation officer.
(5) The defendant shall not engage in any business that offers securities/investments or business opportunities to the public. The defendant is further prohibited from engaging in telemarketing, direct mail, or national advertising campaigns for business purposes.
Special conditions of supervision may occasionally be imposed to assist your client. For example, at sentencing, a self-employed defendant may be given special travel privileges as needed to conduct her business. In addition, if your client intends to "cooperate" with law enforcement authorities while on probation, the AUSA or defense counsel should ensure that permission to cooperate is incorporated as a special condition of supervision. Otherwise, the probation officer must prohibit your client from cooperating until the court gives written approval.
What is home confinement like? Do I have to wear one of those bracelets?
There is a difference between home confinement and electronic monitoring. Home confinement, imposed as either a condition of release, or as a "punishment" component of a sentence, requires your client to spend most non-working hours at home. She will ordinarily be permitted to attend weekly religious services and go grocery shopping, and special dispensation for other "outings" may be granted by the probation officer. No electronic monitoring device is involved. The "inmate" ordinarily is instructed to check in, by telephone, at specified times.
Electronic monitoring requires the inmate to wear an anklet, which transmits an electronic signal to a monitoring center through a device attached to the telephone. Call forwarding, call waiting, and three-way calling are prohibited. Any break in the signal triggers an alarm at the monitoring center. The time at which the break occurs is checked against the approved times for the defendant to be absent from her residence. If the time is unapproved, the probation officer is notified.
I'm self-employed and operate my business in New York and Florida. I also have residences in both places. May I travel while on supervision for work purposes? Must I ask my probation officer for permission every time I wish to travel? Can the probation officer prohibit me from conducting my business? Will the probation officer permit me to continue working with my partner, who was a co-defendant?
Travel is usually prohibited for the first 30 to 90 days of supervision, depending on the district. After that, travel for any purpose within the continental United States is permitted if approved by the probation officer. Whether permission is granted ordinarily will depend on how well the defendant complies with the other conditions of supervision. Delinquency in making payments toward a fine or restitution usually results in denial of permission to travel. Required aftercare and community service may also interfere with proposed travel. Travel outside the United States must be approved by the court, and should be requested well in advance.
The conditions imposed on a self-employed individual vary. Both the business and the proposed activity must comport with reason and common sense. A defendant will ordinarily be permitted to continue a legitimate, pre-existing business unless it requires a professional license, is deemed sensitive (such as the securities business -- see the sample conditions of probation discussed above), or was involved in the offense of conviction.
Can my civil rights be restored after a felony conviction?
The answer to this question is primarily a matter of state law.55 Convicted felons ordinarily lose certain rights, including the rights to vote, hold public office, serve on a jury, and possess firearms. Most states provide some means to lift those restrictions after completion of the individual's sentence. In some states, civil rights are restored automatically on release from prison. Elsewhere, offenders are required to seek relief from a court or follow an administrative procedure. In such cases, the offender may be required to show rehabilitation. In some states, federal felons can have their civil rights restored only by obtaining a pardon. Finally, in some states, federal felons lose certain rights permanently.
The right to vote is almost never lost permanently. In most states, if lost at all, the right to vote is suspended only during imprisonment. In such cases, the right is either automatically restored upon expiration of the sentence, or may be restored through an administrative or court procedure.
The right to sit on a jury is one of the hardest to regain. For instance, in Vermont, the right to sit on a jury is lost following a sentence of imprisonment. The right can be restored by pardon, but it is unclear whether restoration for a federal felon would require a federal or state pardon. Similarly, 28 U.S.C. 1865 precludes a convicted felon's service on a federal jury unless the felon's civil rights have been restored.
In some states, the right to hold office is lost on conviction. In Arizona, a first-time offender has this right restored automatically upon completion of her sentence, although repeat offenders must apply to the court or obtain a pardon. However, in some other states, this right cannot be restored even by obtaining a pardon.
The right to hold federal office or employment may also be restricted by federal law. Generally, a felony conviction does not automatically bar federal employment, but may nevertheless be considered. In most cases, the greater the relationship between the offense and the job, the more likely a felon will be precluded from employment. In addition, in many states, a felony conviction will result in revocation or denial of occupational or professional licenses.
Both state and federal law restrict a felon's ability to possess a firearm. Such restrictions vary by state and by the crime involved. For federal felons, this firearms disability continues even if their firearms rights are restored under state law.56 For federal felons, federal firearms rights may be restored only under federal law.57 This may be accomplished through a pardon, or through the restoration program of the Bureau of Alcohol, Tobacco and Firearms (ATF). The ATF's restoration program is presently unfunded, however, and the agency will not process restoration applications, even for individuals who offer to pay processing costs.
Some federal benefits may be revoked upon a felony conviction, including grants, licenses, and contracts. However, welfare, Social Security, retirement, health, disability, and public housing benefits are not generally affected by a conviction, other than as described above. n
Notes
1. U.S.S.G. 6B1.4(d).2. 42 U.S.C. 402(x) (Supp. 1997).
3. See United States v. Ruth, 946 F.2d 110 (10th Cir. 1991); United States v. Walker, 900 F.2d 1201, 1207 (8th Cir. 1990).
4. 18 U.S.C. 3664(f)(1)(A), (B).
5. 938 F. Supp. 1554, 1566 (N.D. Ala. 1996)
6. But see United States v. Dean, 949 F. Supp. 782 (D. Ore. 1996) (upholding the MVRA and ordering the defendant to make restitution). The MVRA, Kemp and Dean are discussed in detail in Jody Tabner Thayer, New Restitution Law Called 'Unworkable,' 'Flawed,' 'Horrific'," [Current Reports] Crim. Prac. Man. (BNA), at 20 (Jan. 15, 1997).
7. U.S.S.G. 5E1.2(i).
8. U.S.S.G. 5E1.2(f).
9. Id.
10. See 18 U.S.C. 3143(a) and 3142(f)(1).
11.See Guide to Judiciary Policies and Procedures, Vol. X, Probation Manual, Ch. III at 48-49 (1993).
12. Id.
13.See United States v. Mostrom, 11 F.3d 93, 96-97 (8th Cir. 1993)(Bright, C.J., concurring); see also BOP Policy Statement 5410.21; A Judicial Guide to the Federal Bureau of Prisons, at 11-12 (U.S. Dept. of Justice, BOP 1995).
14. See 18 U.S.C. 3621(b).
15. Guide to Judiciary Policies and Procedures, Vol. X, Probation Manual, Ch. III at 47-48 (1993).
16. BOP Policy Statement 5390.07.
17. See generally 28 C.F.R. 524.30-524.33.
18. See generally id.
19. See 28 C.F.R. 540.17.
20. See 28 C.F.R. 540.44(d).
21. See 18 U.S.C. 3622(a)(2).
22. See BOP Policy Statements 5280.07 and 5538.04; 28 C.F.R. 570.42.
23. 18 U.S.C. 3622(a)(3); 28 C.F.R. 570.32 and 570.41.
24. 28 C.F.R. 570.33(b).
25. See BOP Policy Statement 5100.4; A Judicial Guide to the Federal Bureau of Prisons, at 11-12 (1995).
26. 18 U.S.C. 3572(d).
27. U.S.S.G. 5E1.2(g).
28. Id.
29. See United States v. Burrows, 48 F.3d 1011, 1019 n.12 (7th Cir.), cert. denied, 115 S. Ct. 2632 (1995); United States v. Williams, 996 F.2d 231, 234 (10th Cir. 1993). See also 28 C.F.R. 545.10-545.11 (1996)
30. See 28 C.F.R. 522.21
31. See 28 C.F.R. 522.20-522.21.
32. See 28 C.F.R. 540.23.
33. See 28 C.F.R. 540.71(a).
34. Id.
35. Id.
36. See 28 C.F.R. 540.71(b)(7).
37. 28 C.F.R. 540.100.
38. 28 C.F.R. 540.101.
39. 28 C.F.R. 540.105.
40. 28 C.F.R. 540.102.
41. Id.
42. 28 C.F.R. 540.14(a).
43. 28 C.F.R. 540.14(c).
44. 28 C.F.R. 540.17.
45. Id.
46. See 28 C.F.R. 540.18-540.19.
47. See 28 C.F.R. 540.40, et seq.
48. 28 C.F.R. 540.42-540.43.
49. 28 C.F.R. 540.44.
50. Id.
51. Id.
52. 28 C.F.R. 511.12
53. Id.
54. See 18 U.S.C. 3624(c).
55. See Civil Disabilities of Convicted Felons: A State by State Survey, Office of The Pardon Attorney (1996).
56. Beecham v. United States, 114 S. Ct. 1669 (1994).
57. See 18 U.S.C. 921(a)(20).
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