This is an area of the law that many attorneys are not familiar with, and so do not know to check or advise their clients about. The result is sometimes that a defendant serves YEARS more time in prison than is necessary, all because of a simple oversight or just not knowing that something can be done.

View of Federal prison including flagstaff in yard

What is a pending charge?

Sometimes, when a case begins, the defendant is charged in state court with some offense and then, for any number of reasons, the case “goes federal,” and the defendant is indicted under the federal system. If that state charge is never disposed of either with a conviction or a dismissal, then it could remain “pending.”

Other times, a defendant is awaiting the conclusion of a state charge when he or she is picked up on an unrelated federal charge. The federal case proceeds, and nobody ever does anything with the state case because it is not worth the state’s time, given the severity of the federal case.

In either case, a pending charge, even something as petty as a simple assault case, can remain in the system, and if it does, it can have disastrous consequences for a federal inmate.


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What is a Detainer?

A detainer may stem from a state charge or even a state investigation in which no charges have even been filed. (This is different from an immigration detainer.) A state agency normally notifies the Bureau of Prisons or a national computer database that a matter is pending, regardless of the progress of the matter to that point. Thus that agency is notifying the world that as soon as the federal system is done with that person, this agency wants him or her. The Bureau of Prisons then treats the detainer the same way that they treat a pending charge.

What Difference Does it Make?

Under the rules that govern how sentence credits are given by the Federal Bureau of Prisons, an inmate normally receives credit for the time he served in jail before sentencing, receives credit for up to 54 days per year for good time, and even up to one year off for participation in a drug treatment program (RDAP) in some cases.

HOWEVER, if a pending charge or a detainer shows up in the Bureau of Prisons’ computer system, the Bureau of Prisons will not and can not give any of those credits.

For an inmate sentenced to 10 years, for example, not receiving these sentence credits could mean that he or she would serve all 10 years, instead of only about 8.5 years had all sentence credits been given.

Defendants serving federal sentences should not trust their own recollection of whether there is or might be a pending charge or detainer. There are two reasons for this: Sometimes, even if the inmate knows that the charge was dropped, it could still remain in the system as if it had not been. Additionally, in some circumstances, there are charges pending that a defendant may not even have been aware of. Finally, the BOP’s computer system could just show a pending charge or detainer by mistake! It happens! And when it does, the inmate does not get his or her sentence credits.

What Should the Inmate Do?

Every inmate in the Bureau of Prisons should go to his counselor, case manager, or unit team leader, and ask him or her to check in their computer system to see if the system shows any pending charges or detainers. If not, the inmate should check up on it every six months to a year to make sure that none show up. If a pending charge shows up in the system then the Bureau of Prisons can retroactively take away all sentence credits past and future! This also happens.

If the counselor, case manager, or unit team leader says that there is a pending charge or detainer, the inmate needs to get, for each pending charge,

  • the case number,
  • the court and/or arresting agency,
  • the nature of the charge,
  • and the date of the charge.

Then, call an attorney with experience in this field immediately!


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What Can an Attorney Do?

An experienced attorney can take all of the information about the pending charge, and, in most cases, get all of them dismissed or otherwise disposed of such that they will no longer be pending. The attorney will then provide the required information to the Bureau of Prisons, who will then remove the pending charges or detainers from their system. As soon as all of this is done, the counselor or case manager will re-calculate the projected release date, which will often result in a HUGE reduction in the amount of time the inmate has left to serve. In some cases, inmates who have served many years on their sentences already will find that their release date is now just around the corner instead of several years down the road!

What Will This Cost?

Different attorneys charge different rates for their services. Some will charge more or less, and it almost always varies based on experience. I have found that a good arrangement that works for me and my clients is to bill at my rate of $425.00 per hour with a 10 hour minimum. I have found that in most cases of this sort, everything that needs to be done is often done in around 10 hours of my time. Only in rare cases is it much less or much more.

Please call me at (512) 693-9LAW or email me with questions or for more information. To email me, just click on the “Contact Us” link here or at the top of the page, and I would be glad to talk to you.

by Chad Van Cleave