BOP Placements of Prisoners in Community Correction Centers (CCC)
also Called Halfway Houses
However, in December 2002 the Office of Legal Counsel (“OLC”)of
the Department of Justice (the “DOJ”) wrote a memorandum ordering
the BOP to change that policy. Instead, the BOP was to place inmates in
halfway houses for the last six months or the last 10% of their sentence,
whichever is the lesser of the two. In heavy-handed fashion, the DOJ issued
this order around Christmas 2002, claiming it was simply a “reinterpretation”
of the law.
The BOP’s Discretion in Halfway House Placement
WylieLaw believes that John Ashcroft’s DOJ overstepped its authority when it had the BOP change its policy. A bipartisan Congress granted discretionary authority to the BOP concerning the placement of Federal inmates in halfway houses. The United States Constitution dictates that there should be a Separation of Powers between the three branches of Government (Executive, Judicial, Legislative) and that each shall be a check and balance on the other. Therefore, when the Legislative Branch (Congress) lawfully mandates discretionary authority to the Bureau of Prisons, the Executive Branch (DOJ) cannot lawfully mandate a change in that authority.
Title 18, Section 3621(b) of the United States Code, grants the BOP the discretion to designate the placement of an inmate in “any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise…” The same statue also grants the BOP discretion to transfer an inmate from one correctional facility to another “at any time” during the sentence.
Prior to December 2002, the BOP had exercised this broad grant of discretion to transfer inmates into halfway houses for up to the last six months of their sentences. The DOJ December 2002 memo removed that broad grant of discretion by directing the BOP to make such transfers at the lesser of the last six months or the last 10% of an inmate’s sentence.
The DOJ attempted to justify its directive by relying, in part, on Tile 18 U.S.C. 3624(c). That statute directs that, at the last 10% of a prisoner’s sentence, or at the last six months, the BOP is obligated to take all practical measures to assure successful transition of the prisoner to the community. The DOJ asserted that this language restricted the BOP from exercising any discretion to place a prisoner in a halfway house at any earlier point in their sentence.
However, as numerous courts have explained, this is simply a misreading of the statute. That statute simply obliges that the BOP assure community transition towards the end of the sentence. But the mere fact that the BOP has the obligation to place prisoners in such conditions facilitating community re-entry at the end of the sentence does not prevent the BOP from having the discretion to place prisoners in halfway houses at some earlier time. The point of 18 U.S.C. 3624(c) is to oblige that the prisoners are aided in community transition as they near the end of their sentence. However, if the BOP wants to aid in that transition for a particular prisoner at any earlier time, they have still have the lawful power to do so, and the DOJ cannot lawfully remove that discretionary authority.
Only two Circuit Court of Appeals – the First & Eighth Circuits – have rendered decisions regarding this specific issue. Both ruled in favor of the inmates, holding that the obligation imposed upon the BOP to facilitate community re-entry towards the end of the sentence does nothing to restrict its lawful discretion to make a halfway house placement earlier in the inmate’s sentence.
Aside from being incorrect as a matter of law, the directive of the DOJ
to limit the BOP’s discretion in halfway house placement is simply
bad public policy. Halfway Houses are important transitional facilities,
where prisoners can be more productive, obtain work, and better transition
their life as they return to their family and their community. For many
prisoners, this transitional time is absolutely essential. The DOJ directive
ordering the BOP to change its policy on halfway house placement deprives
prisoners of this important transitional time and increases the hardships
suffered by the prisoners and their families, during an already difficult
period of their lives.
The December 2002 policy change on halfway house placement, in addition to stripping away the discretion given to the BOP, may also have violated the requirements of the Administrative Procedure Act (the “APA”). Generally, the APA requires that an administrative agency cannot make a substantive rule change without first giving notice of the rule, and allowing for a period of public comment. Here, when the BOP instituted the December 2002 policy, it did not comply with these requirements.
However, the key legal issue in determining whether the requirements of the APA apply is whether the rule change is “substantive” or is merely “interpretive”. If the rule is deemed to be merely an “interpretive” change, then the requirements of the APA do not apply. Courts take varying views on when an administrative rule change is “substantive” on the one hand, or “interpretive” on the other, and the jurisprudence in this area has not been consistent.
In the case of the BOP December 2002 policy, it is important to understand that, usually, if a court decides that it was unlawful for the DOJ to take away the BOP’s discretion, then it finds the December 2002 Policy erroneous on that ground alone. Therefore, it does not reach the issue of whether the policy’s implementation failed to meet APA requirements. Only those courts that have already decided that the December 2002 DOJ directive was proper reach the question of whether the APA applies. As these courts regard the BOP rule change as simply a correction in a misreading of the law, they typically conclude that the APA does not apply.
The Halfway House Rule Change is a Possible Violation of the Ex Post Facto Clause
The implementation of the December 2002 Policy on halfway houses may also violate the Ex Post Facto Clause of the Constitution. The Ex Post Facto Clause prohibits the Government from passing a rule or law which increases the punishment, retroactively, for an act that was committed prior to the passage of that law.
However, as with the APA issue above, courts generally do not even reach the Ex Post Facto question unless they decide that the DOJ was correct in its interpretation and interplay of 3621(b). and 3624(c) Further, courts that have already ruled in favor of the DOJ on early Halfway House placement, have typically ruled in favor of the DOJ regarding an Ex Post Facto claim. Most often, these Courts find that the December 2002 policy change was merely an interpretive change not a substantive change.
Further still, as time moves on, it is less likely that an individual who is sentenced to a short Federal Sentence (less than 60 months) would have committed his/her crime prior to December 2002. In Petitions where the crime committed occurred prior to December 2002, an Ex Post Facto claim would still exist. However, where the criminal conduct occurred subsequent to December 2002, no Ex Post Facto claim would exist. It is also important to note that some courts have stated that the important date for the Ex Post Facto analysis is not the date of the commission of the crime, but rather, the sentencing date.
BOP Recently Enacted Regulation On Halfway House Placement: 28 CFR 570.21
The Bureau of Prisons, on February 14, 2005, codified a rule in the Code of Federal Regulations (28 CFR 570.21) that purports to implement a BOP policy to eliminate any possibility of CCC placement beyond the 10% - 6 month date. The rule is intended to address the fact that many courts have ruled that its interpretation of the law on this matter is erroneous.
Specifically, the commentary accompanying the proposed rule acknowledges that “…various courts have held that the Bureau has discretion under 18 U.S.C. 3621(b) to place offenders sentenced to a term of imprisonment in CCCs [halfway houses]…” and it is, in the Bureau’s judgment, “… prudent to determine how to exercise that discretion.” As such, “…the Bureau has determined to exercise its discretion categorically to limit inmates’ community confinement to the last ten percent of the prison sentence being served, not to exceed six months.”
Thus, rather remarkably, the rule states that, notwithstanding the holding of many courts that the BOP has discretion to place a prisoner in a halfway house at any time during the sentence, including prior to the last 10% of the sentence, the BOP will nonetheless refuse to exercise such discretion but will “categorically” limit such placement to the last 10% of the sentence.
Generally, a court must give deference to an agency promulgation of a rule such as this, unless the rule is deemed to be “arbitrary and capricious.” Thus, it is normally difficult for a court to find sufficient grounds to strike down an agency rule.
However, one court has recently ruled just that. In Drew v. Menifee, 2005 U.S. Dist. LEXIS 3243 (S.D.N.Y. February 25, 2005) (Pitman, M.J.), the court ruled that, although it was true that the BOP had the authority to “categorically” exercise its discretion pursuant to 3621(b), it could not do so in a manner that ignored the statutory command that the BOP take certain factors into account in exercising this discretion, specifically, factors including the resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, statements made by the sentencing court, and policy statements issued by the Sentencing Commission.
The court found that the BOP ignored these factors in exercising its discretion under 3621(b). By ignoring the factors enumerated in the statutory command of 3621(b), the court concluded that the BOP acted arbitrarily and capriciously, explaining that “any other result would allow the agency to ignore the law.”
WylieLAW argued a case before the 2nd Circuit Court of Appeals in the Summer 2005 on behalf of an inmate seeking to overturn the February 2005 rule. As of October 2005, the Court had not issued a decision. There is also a case presently being raised in the 8th Circuit that will make similar arguments opposing the BOP’s change in halfway house release time.
It remains to be seen whether these and other courts will follow the Drew decision and overrule the BOP’s February 2005 ruling or if they will follow other District Court rulings finding in favor of the BOP. If the case law develops in such a way that the reasoning of the court in Drew is followed, then the February 14, 2005 rule may do no nothing at all to salvage the unlawful and mistaken December 2002 Policy, and prisoner petitions may therefore still be successful. (Note however that these Petitions may no longer be able to allege a violation of the APA, because the BOP followed APA requirements in implementing the February 14 rule). However, if the courts generally allow the February 14 rule to stand, then prisoner petitions on the question of halfway house placement would have much less success in providing earlier placement.
Court Decisions on Halfway House Placements
As noted above, to date, only two Courts of Appeals have made decisions directly on these Petitions.
These two Courts of Appeals are the First Circuit, in Goldings v. Winn, 383 F.3d. 17 (1st Cir. 2004) and the Eighth Circuit, in Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004). Both issued opinions favoring the inmates. These Courts have ruled that the December 2002 Policy was an erroneous interpretation of the relevant statutory scheme, and accordingly, ordered that the BOP conduct a new pre-release review consistent with its policy and practice in existence prior to December 2002.
Below is a non-exhaustive list of District Court Judges in the Second Circuit who have ruled on this issue. Please forward to WylieLaw any other decisions that should be noted in this list.
To date, it seems these Judges have ruled in favor of granting the requested relief to prisoners related to these petitions:
Judge Janet Bond Arterton (D. Conn.), Judge Harold Baer (SDNY), Judge Deborah Batts (SDNY), Judge Robert Berman (SDNY), Judge Catherine C. Blake (Maryland), Judge Naomi Buchwald (SDNY), Judge Denny Chin (SDNY), Judge Michael J. Davis (D. Minn.), Magistrate Judge Michael H. Dolinger (SDNY), Judge I. Leo Glasser (EDNY), Judge Alvin Hellerstein(SDNY), Judge Richard Holwell (SDNY), Judge Joseph E. Irenas (New Jersey) Judge Gerard E. Lynch (SDNY), Chief Judge Michael Mukasey (SDNY), Judge Michael A. Ponsor (Mass.), Judge Shira Scheindlin (SDNY), Judge Sidney Stein (SDNY), Judge Robert Sweet (SDNY), Judge Jack B. Weinstein (EDNY), Judge Kimba Wood (SDNY);
While these Judges are among those who have ruled against the petitions:
Judge Robert Blackburn (Colorado), Judge Charles Brieant (SDNY), Judge Richard Casey (SDNY), Judge P. Castel (SDNY), Judge Thomas Griesa (SDNY), Judge Barbara Jones (SDNY), Judge Larry McKinney (SD Indiana), Judge William Pauley (SDNY), Judge Freda Wilson (New Jersey), Judge Richard Young (SD Indiana).
Halfway House Placement
At a Court hearing, the Honorable Judge Shira Scheindlin ruled in favor of the WylieLaw client and ordered the BOP to throw out the positive drug test and to allow the WylieLaw client to remain at the Halfway House.