Fumo's future in agency's hands

Here's who has no say in determining where former State Sen. Vincent J. Fumo will serve his time in prison:

The judge, the prosecutors, the defense attorneys, Fumo himself, his fiancée, his children, or anyone else who loves, hates, or knows him.

Here's who has all the say:

The federal Bureau of Prisons.

That's it.

Others can plead, suggest, recommend, or implore - and some have - but the BOP decides.

The bureau runs the largest prison system in the nation, operating nearly 200 institutions from New York to Houston and Honolulu. Theoretically, Fumo "could end up anywhere," said Marc Mauer, executive director of the Sentencing Project, a Washington group that promotes changes in sentencing laws.

But the outcomes of other cases, and the BOP guidelines for classifying prisoners, offer an indication of where the once-powerful politician could serve his 55-month sentence beginning Aug. 31. And they pose a cautionary tale for incoming inmates who, like Fumo, cite dire health problems and hope to stay close to home.

Fumo has asked to be sent to the minimum-security institution in Lewisburg, Pa., 120 miles northwest of Philadelphia.

"The Bureau of Prisons will do what the Bureau of Prisons feels it should do, based on its own evaluation," said Dennis Cogan, Fumo's defense attorney.

Take the case of master swindler Bernard L. Madoff, sentenced in June to 150 years. Madoff's attorney asked the judge to recommend that his client be sent to the prison in Otisville, N.Y., about 70 miles from his home in Manhattan.

The judge wouldn't go that far, but did recommend that Madoff stay in the Northeast.

BOP officials ignored both suggestions. They put the 71-year-old Madoff in a medium-security prison in Butner, N.C. Madoff's heavy sentence likely determined his fate.

The home-decor guru Martha Stewart asked to serve her sentence for insider trading at the prison in Danbury, Conn., not far from her home in Westport. The judge recommended that she go there.

BOP administrators sent Stewart to a prison in rural Alderson, W.Va.

In cases like that, placement can seem a mystery. But more and more, assignment can be swayed by the simple fact of where beds are available - the federal system is becoming as crowded as the state prisons.

"We try to place offenders at facilities as close to their homes as possible," said BOP spokeswoman Linda Thomas. "But it doesn't guarantee it would happen."

The bureau confines 207,000 inmates in settings that range from minimum to maximum security. Every new inmate, be he stone-cold killer or white-collar thief, is evaluated for placement.

Authorities consider numerous factors, high among them the nature of the crime and the length of sentence, Thomas said. They review prior offenses, tendency toward violence, and escape history.

For Fumo, now out on bail, that is good news.

He was convicted in March on all 137 counts of conspiracy, fraud, tax violations, and obstruction of justice.

But he is not violent. He has no prior convictions - his 1980 conviction of scheming to put no-show workers on the state payroll was tossed out. And his 55-month sentence, which provoked outrage among people who thought it lenient, is on the short end for federal inmates.

Just as important, Fumo was not taken away in handcuffs on the day of his sentencing. He will enter the system through what is called a "voluntary surrender," presenting himself at the prison gate, as directed by authorities.

A voluntary-surrender order is key to lowering the "security score" that the BOP will compile, according to Alan Ellis, a California defense lawyer and authority on inmate classification.

All that makes Fumo a likely candidate for a minimum-security institution. Some of those prisons do not even have fences. Within the system, they carry the designation of "camp" instead of institution, complex, or penitentiary.

"It may sound to the average person, 'It's a camp, it's terrific - they're going to be building dollhouses or something,' " Cogan said. "It's nothing like that. It's prison."

Camps often are beside larger, higher-security prisons, and they may hold a few hundred inmates, often including white-collar felons.

Fumo's case is complicated in another way: His health is lousy, according to his doctors. And at 66, he's older, entering a prison system where the average age is 38.

Fumo has had a serious heart attack. He battles coronary-artery disease, diabetes, and kidney disease. He has undergone heart surgery and four back operations. He takes medications for anxiety and depression and to help his heart, blood sugar, and cholesterol.

"I can't imagine the stress that someone with his medical problems will undergo facing long confinement," wrote Frederick Simeone, one of Fumo's doctors.

At Fumo's July 14 sentencing hearing, the defense asked U.S. District Judge Ronald L. Buckwalter to recommend that Fumo be sent to the camp at Lewisburg. That would keep him close to family and to the Geisinger Medical Center.

The Lewisburg camp has no perimeter fence, its 562 inmates judged not to be risks for escape or to the community. The camp sits beside the high-security, 952-inmate penitentiary that once held mob boss John Gotti.

John Manenti, the BOP's northeast regional medical director, testified that on a scale of 1 to 4, with 1 being the healthiest, Fumo would rank a 2. Typically in those cases, Manenti said, prison personnel provide primary care, but specialists and hospital services are available.

The judge agreed to recommend that Fumo go to Lewisburg, but he noted the BOP often disregards such suggestions.

In fact, citing poor health as a reason for particular placement may be risky. The bureau operates a half-dozen major medical prisons - none nearby. The closest would be in Massachusetts, the farthest away in Minnesota, Missouri, or Texas.

"It's likely that someone like Fumo is going to go at least initially to one of the medical facilities," said Malvern defense attorney Thomas Bergstrom. "That's my experience with older prisoners."

Bergstrom represented former Philadelphia City Councilman Rick Mariano, who in 2006 was sentenced to 61/2 years for corruption. Bergstrom had asked that Mariano be confined near Philadelphia, the judge concurred - and the BOP obliged, sending Mariano to the camp at Fort Dix.

The BOP should strive toward "keeping the person connected with their family and community," said Mauer, of the Sentencing Project. "It's not clear how high on the priority list that is. All sorts of people are all over the place."

Philadelphia lawyer L. George Parry tried to have one client, former City Treasurer Corey Kemp, moved closer to home from the prison at Devens, Mass., 40 miles west of Boston. But "the Bureau of Prisons gave that the back of its bureaucratic hand."

Parry never got the chance to ask the judge to recommend a prison assignment. Kemp was handcuffed and led from the courtroom upon being sentenced to 10 years for corruption in 2005.

In those cases, Parry said, new inmates are not quickly shipped to prison. Instead, they are held for assignment - then can spend a couple of weeks chained in a marshals' van, moving across the country as inmates are dropped off and picked up, spending the nights in local jails.

"It's kind of like a dysfunctional Greyhound bus line for felons," he said.

Fumo should be spared that trek through his voluntary-surrender order.

Parry said he rarely asked judges to recommend certain prisons for clients, because "in my experience as a prosecutor and a defense lawyer, I never saw that it made much difference."

"It's like the Army," he said. "If you ask for a particular assignment, they will make sure you get the polar opposite."