Imagine that your FCPA compliance efforts have gone badly. Really badly. And now you’re one of the growing number of executives headed to prison. To which prison will you be sent? We received this question from a gloomy reader who would prefer, presumably, to remain anonymous.
David Anders, a white collar criminal defense lawyer and partner with Wachtell, Lipton, Rosen & Katz, kindly agreed to explain the prison assignment process.
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“The Bureau of Prisons (BOP) exclusively decides to which facility a prisoner is desig-nated after being sentenced. Defense counsel can, and often does, request particular facilities in geographic areas that make family visits easier. And judges can, and often do, make recommendations to the BOP, included in the judgment of conviction, that a defendant should be designated to a particular facility or to a facility in a particular geo-graphic area. But the decision ultimately rests with the BOP and it is unreviewable. Bernie Madoff, for example, requested to be assigned to a prison in Otisville, New York, about 70 miles from New York City. And the judge recommended that he stay in the Northeast. But the BOP sent him to Butner Federal Correctional Complex, a me-dium security prison in North Carolina. Similarly, when Martha Stewart was sentenced, she was sent to prison in West Virginia, even though Judge Cedarbaum granted her re-quest to recommend that she be assigned to a facility in Danbury, Connecticut near her home.
Another consideration is what level of security exists at a particular facility to which a defendant is designated. The options are minimum, low, medium, and high. Minimum security facilities, as described by the Federal Bureau of Prisons have “dormitory hous-ing, a relatively low staff-to-inmate ratio, and limited or no perimeter fencing.” Low se-curity institutions, on the other hand, have double-fenced perimeters, mostly dormitory or cubicle housing, and strong work and program components, with a higher staff-to-inmate ratio. Medium security facilities have greater protections:
“strengthened perimeters (often double fences with electronic detection systems), mostly cell-type housing, a wide variety of work and treatment programs, an even higher staff-to-inmate ratio than low security FCIs, and even greater internal controls.”
While one might expect an elderly white collar defendant to be designated to a minimum security facility, on the thought that such a person doesn’t present much of a flight or security risk, that is not always the case. One of the factors that BOP considers is the length of the sentence. When a sentence exceeds a certain number of years, the pris-oner cannot be designated to a minimum or sometimes even a low security facility. Thus, white collar defendants who are sentenced to significant terms of imprisonment do not serve those sentences in “Club Fed” or similar facilities; they serve those sen-tences in medium security prisons with other serious felons.
Douglas Murphy of American Rice, sentenced to 63 months after his FCPA conviction, is serving his sentence at the Federal Correctional Institution in El Reno, a medium security facility. However, David Kay, who was tried with Murphy, is serving his 37 month sentence at Texarkana, a low security facility. Another example is Adelphia Communications founder John Rigas, who was 79 years old when he was convicted of securities fraud. He is serving his 15 year sentence at medium security Butner where he is not scheduled to be released until 2018. Other factors the BOP considers include the nature and circumstances of the crime, and the history and characteristics of the prisoner, including prior offenses, tendency towards violence and escape history. The same process applies whether the defendants are white collar criminals or violent offenders.”