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Richard Bistrong
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Eric Carlson
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Richard Bistrong: Why do judges sentence defendants to ‘a year and a day’ in prison?

Former Louis Berger executive James McClung was sentenced this month to a year and a day in jail for violating the FCPA. If “a year and a day” sounds familiar, it should.

In 2009, Frederic Bourke was sentenced to a year and a day in prison for conspiring to violate the FCPA. 

In 2002, Richard Pitchford was sentenced to a year and a day in prison for an FCPA offense.

And in 1998, Herbert Tannenbaum was jailed for a year and a day for conspiracy to violate the FCPA.

What’s that extra day about?

Is the judge being petty and cruel by making the sentence more than a year? Not at all. The judge is actually showing mercy.

Here’s why.

A federal prison inmate can only receive “good time” credit (early release) of up to 54 days for displaying “exemplary compliance with institutional disciplinary regulations” if his or her sentence is more than a year.

So the sentence of a year and a day is a judicial gift. It’s wonderful news for the defendant in the midst of an otherwise enormous catastrophe.

Frederic Bourke, for example, reported to Englewood Camp, a minimum-security facility in the southwest suburbs of Denver, Colorado, on May 10, 2013 to serve his year-and-a-day sentence. The federal bureau of prisons shows Bourke’s release date as March 21, 2014. That’s about 50 days before his full sentence would have ended, and evidence of “good time” credit.

There used to be parole in the federal system. It allowed for about 30 percent or even 40 percent early release time. But in the Sentencing Reform Act of 1984, Congress eliminated federal parole for all prisoners convicted on or after November 1, 1987. In its place is the “good time” credit available to those defendants sentenced to “a term of imprisonment of more than 1 year.”

“Good time” credit is a big deal on the inside. A day in prison ends with the standing count. Inmates stand in their cells, and the Correctional Officers come around and count everyone to make sure that the population is all accounted for and in their cells. Then it’s lights out and you usually hear someone say “another day down.”

That “day down” can’t be taken for granted. A lot can go wrong in prison — a health crisis, the suspension of privileges, even disciplinary action just for being at the wrong place at the wrong time.

A fellow GED and ESL instructor (that was my job when I was incarcerated) qualified for a community service day, when he could work outside the prison on a local project. That’s a nice way to spend a day and contribute to society.

What he didn’t know was on that same day, Homeland Security was going to conduct a routine interview with him on the future of his immigration status. When they showed up at the prison and he wasn’t there, there was some turmoil among staff as to his locale.

He was swiftly returned to the prison and abruptly put in the Special Housing Unit (SHU) until there was a proper accounting for what happened. The SHU is solitary confinement and he was there for a month. When he was released from the SHU, staff were apologetic and shared how it was an internal communication issue — he did nothing wrong.

As far as I know, his month in the SHU didn’t impact his “good time” credit. But the story illustrates how easily and arbitrarily things can wrong in prison.

White collar inmates including those sentenced for FCPA violations have often come from a background as business leaders, where they commanded a staff and had great discretion. In prison, however, all control is ceded to the institution. Each day brings potential peril, and with the end of each day comes gratitude. 

Being sentenced to a year and a day and thereby becoming eligible to return home fifty-four days earlier, well, that’s fifty-four less daily opportunities for something to go terribly wrong.

James McClung — and before him FCPA defendants Frederic Bourke, Richard Pitchford, and Herbert Tannenbaum — received one more day on their prison sentences. For each defendant, that day was a valuable judicial gift.

_____

Richard Bistrong is a contributing editor of the FCPA Blog and CEO of Front-Line Anti-Bribery LLC. He was named one of Ethisphere’s 100 Most Influential in Business Ethics for 2015. He consults, writes and speaks about compliance issues. He can be contacted by email here and on twitter @richardbistrong. He’ll be a speaker at the FCPA Blog NYC Conference 2016.

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