BOP Changes its Policy on Responding to Sentencing Recommendations

Judicial recommendations at sentencing can carry considerable weight with the Bureau of Prisons, favorably impacting, for example, designation to a particular facility or enrollment in a sentence-reducing program. Many of us believed that the BOP's policy (BOP Policy Statement 5070.10) requiring an automatic written explanation to the sentencing judge if his/her recommendation is not being followed exerted a positive effect on the rate of compliance with recommendations. All else being equal, isn't it easier to grant the judge's request rather than go to the trouble of writing a letter? Just recently, however, the BOP announced a change in its policy on responding to such recommendations. As of July 2, 2007, the BOP now only supplies an explanation to the sentencing judge upon request. Absent an affirmative request, the sentencing judge will not even be notified that the recommendation is not being followed. The change in policy was set forth in a letter dated June 4, 2007, from Harley Lappin, the Director of the BOP, to Paul Cassell, Chair of the Criminal Law Committee of the Judicial Conference. Explaining the change as a cost-control measure, the BOP advises that it will continue to maintain statistics on the rate of compliance with judicial recommendations, which is currently at 72%. Of course, now that the bureaucratic hurdle of automatically explaining to the judge why his/her recommendation is not being followed has been removed, it remains to be seen whether that rate of compliance will undergo a change for the worse. In the meantime, defense lawyers seeking a judicial recommendation at sentencing would be well-advised to ask the sentencing judge not only to make the recommendation to the BOP, but also affirmatively request an explanation from the BOP if the recommendation is not to be followed.