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 Avoid Catching New Charges In Prison 

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Michael Santos

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INTRODUCTION

The team at Prison Professors has vast personal experience with the criminal justice system. The team works with people going through all phases of the criminal justice system on a daily basis. 

Many of the people we help are serving time in prison, and many others are out of prison on probation and supervised release. 

One of the most challenging things that could happen while a person is serving time in jail or prison, or while they are on home confinement, probation, or supervised release, is to face new criminal charges.

Click here for our recent series on PROBATION & SUPERVISED RELEASE

DISCUSSION

Out of Scranton, Pennsylvania, news recently came out that 3 men who are serving time at the Federal Correctional Institute – Schuylkill (FCI Schuylkill) are facing new criminal charges for unlawful possession of a prohibited object. The charges relate to cell phones, which people are not allowed to have while in a federal correctional facility.

Pro-Tip: Prison Professors, an Earning Freedom company, regularly works with clients dealing with incident reports and infractions while serving time in prison. If you or a family member needs assistance in this regard, please get in touch with our mitigation experts. 

The United States Attorney’s Office for the Middle District of Pennsylvania filed charges against 3 men:

  • a criminal information against Matthew Davis for possessing a Samsung cellphone on September 4, 2021; 
  • a criminal information against Keon White for possessing an LG cell phone on October 27, 2021; and 
  • criminal information against Antwain Hill for possessing a Samsung cellphone on November 4, 2021.

Pro-Tip: Criminal Information complaints are only allegations. We must emphasize that all persons charged with a crime are presumed to be innocent unless and until found guilty in court. The presumption of innocence does not change just because the people charged are serving time in prison.

Under federal law, it is illegal for inmates to possess cellphones, as their use in a federal correctional facility creates significant security-related issues for the institution and the community.

As with all serious disciplinary infractions, the Federal Bureau of Prisons (BOP) is investigating these cases. Davis, White, and Hill will likely suffer severe consequences imposed by the BOP, which are separate and apart from the consequences they may suffer due to the new federal criminal charges. Among the BOP consequences that Davis, White, and Hill can face are loss of good time credits, loss of phone and commissary privileges, time in segregated housing, and loss of other privileges.

It is both newsworthy and instructive to learn about these new criminal charges because, in many cases of prohibited cellphone possession in a prison facility, the US Attorney’s Office does not file new charges. Instead, prosecutors often rely on the BOP’s own process for dealing with disciplinary infractions.

The BOP Disciplinary Process

To manage federal prison facilities and the people in its custody, the federal BOP has an extensive “inmate discipline program.” The BOP’s inmate discipline program is authorized by 18 U.S.Code Section 4042(a)(3).

The BOP states that its program “helps ensure the safety, security, and orderly operation of correctional facilities, and the protection of the public, by allowing Bureau staff to impose sanctions on inmates who commit prohibited acts.” 

The inmate discipline program is an administrative process, not a court process. Therefore, the rights of a person subject to this disciplinary process are very, very limited. 

Still, the BOP promises not to impose sanctions on people in a capricious or retaliatory manner.

The inmate discipline program applies to sentenced and pre-sentenced individuals in BOP custody. It also applies to sentenced and pre-sentenced individuals designated to any prison, institution, or facility that has an agreement with the BOP. 

Click here to learn more about the federal BOP Inmate Discipline Program: 

What Should I Know About the Disciplinary Code?

Charges Under 18 US CODE Section 1791-PROVIDING OR POSSESSING CONTRABAND IN PRISON

Section 1791, 18 US Code provides:

(a)Offense.—Whoever—

(1)in violation of a statute or a rule or order issued under a statute, provides to an inmate of a prison a prohibited object, or attempts to do so; or

(2)being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object;

Shall be punished as provided in subsection (b) of this section

Additional Time In Prison? 

The maximum sentence a person may face for a violation of Section 1791 depends on the type of prohibited object involved in the case. 

The maximum prison sentences under this statute range from up to 6 months in prison to up to 20 years in prison.

Specifically, the statute reads as follows:

(b)Punishment.—The punishment for an offense under this section is a fine under this title or

(1)imprisonment for not more than 20 years, or both, if the object is specified in subsection (d)(1)(C) of this section;

(2)imprisonment for not more than 10 years, or both, if the object is specified in subsection (d)(1)(A) of this section;

(3)imprisonment for not more than 5 years, or both, if the object is specified in subsection (d)(1)(B) of this section;

(4)imprisonment for not more than one year, or both, if the object is specified in subsection (d)(1)(D), (d)(1)(E), or (d)(1)(F) of this section; and

(5)imprisonment for not more than 6 months, or both, if the object is specified in subsection (d)(1)(G) of this section.

More specifically, the possible maximum sentences above relate to the following prohibited objects:

Up to 20 years includes cases involving: 

  • a narcotic drug, 
  • methamphetamine, its salts, isomers, and salts of its isomers;
  • lysergic acid diethylamide or LSD; or 
  • phencyclidine or PCP.

Up to 10 years includes cases involving:

  • a firearm or destructive device or 
  • a controlled substance in schedule I or II, other than marijuana or a controlled substance subject to up to 20 years; 

Up to 5 years includes cases involving: 

  • marijuana or a controlled substance in schedule III (other than a controlled substance subject to up to 20 years); 
  • ammunition;
  • a weapon (other than a firearm or destructive device); or 
  • an object designed or intended to be used as a weapon or to facilitate escape from prison.

Up to one year includes cases involving:

  • alcohol or another controlled substance not covered above; 
  • any United States or foreign currency; or 
  • a phone or other device used by a user of commercial mobile service (cellphones). 

Up to 6 months includes cases involving:

  • any other object that threatens the order, discipline, or security of a prison or an individual’s life, health, or safety. 

This last category is a catch-all section designed to capture just about anything not covered explicitly under the harsher provisions above.

Punishment can also include fines, regardless of the type of object.

Contraband Cell Phones In Federal Prison

Because it is a cell phone involved in the Pennsylvania prison contraband case, defendants Davis, White, and Hill face a maximum penalty for this offense of one year of imprisonment under federal law.

A sentence for unlawful possession of a cellphone while incarcerated would only come after a conviction, either by guilty plea or criminal trial. A federal judge imposes a sentence after carefully considering the applicable federal sentencing statutes and the Federal Sentencing Guidelines.

Under the Federal Sentencing Guidelines, the sentencing judges consider and weigh many factors, including 

  • the nature, circumstances, and seriousness of the offense; 
  • the history and characteristics of the defendant; and 
  • the need to punish the defendant, protect the public and provide for the defendant’s educational, vocational and medical needs. 

For these reasons, the statutory maximum penalty for the offense is not always an accurate indicator of the potential sentence for a specific defendant.

While defendants Davis, White, and Hill face up to one year of imprisonment, they also face the possibility that the sentencing judge would add any such sentence to run consecutively to the prison sentence they are currently serving. Of course, the sentencing judge also has discretion not to impose an additional prison term.

Consecutive or Concurrent?

Whether to run a new prison sentence consecutively or concurrently is typically within the broad discretion of the sentencing judge. In some cases, federal statutes require that the new prison term run consecutively. That is the case when prosecutors file charges relating to controlled substances against people in prison. 

Subsection (c), 18 US Code Section 1791 provides as follows:

(c) Consecutive Punishment Required in Certain Cases.—Any punishment imposed under subsection (b) for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance. Any punishment imposed under subsection (b) for a violation of this section by an inmate of a prison shall be consecutive to the sentence being served by such inmate at the time the inmate commits such violation.

Therefore, Congress has determined that a consecutive sentence must apply in certain prison contraband cases involving controlled substances like meth and narcotics.

CONCLUSION

Cellphones and other contraband routinely make their way inside federal prisons. The federal government and the Bureau of Prisons seek to punish people involved with cellphones and other contraband in multiple ways, including loss of good days and time in segregation. 

Often, in particularly egregious circumstances, that means filing new charges against the violators. Other times, prosecutors file new charges to remind others to follow the rules. 

Getting involved with any contraband while serving time in federal custody is a huge gamble with a person’s freedom. 

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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