Tag Archives: 18 usc 3624

Bad Cases Make Hard Law – LISA Newsletter for September 12, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root

Thinking About a Report… And a Big White Bear – Update for July 15, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE FSA CREDIT’S BIG WHITE BEAR

whitebear171129Some say that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear

[Some say it was first raised by Fyodor Dostoevsky’s Winter Notes on Summer Impressions, an 1863 account of his travels in Western Europe. Choose whichever origin story you like. As crusty old Judge Miller used to lecture us young lawyers, “you pays your money and you takes your chances”].

Last week, the Dept of Justice issued its annual report on the First Step Act, and puts both Tolstoy and Dostoevsky to shame. The Report manages in 50 pages to explore the FSA’s nooks and crannies without ever thinking about (let alone mentioning) the Act’s big white bear: Prisoners are amassing large numbers of FSA credits that they are being denied their right to use because the BOP’s sloth in expanding halfway house capacity has resulted in there simply being no room in the halfway house inn.

There’s a lot in the Report worthy of mention, and I intend to cover more of it this week. But first, a discussion of what the Report does not say.

FSA credits (previously called “ETCs” for “earned-time credits” or “FTCs” for “federal time credits”) are awarded to prisoners for successful completion of evidence-based recidivism reduction programs (“EBRRs,” in the BOP’s acronym-heavy bureaucratic speak). Such credits entitle prisoners to one of two benefits. First, the BOP may (but is not required to) apply up to 365 credits to shorten the inmate’s sentence by up to a year. Second, the BOP shall use any credits not used to shorten the sentence to place the prisoner in a halfway house or home confinement (known as “residential reentry centers” or “RRCs”).

This second option, enshrined in 18 USC § 3624(g)(2), says that “[a] prisoner shall be placed in prerelease custody as follows…”

The problem is that there isn’t nearly enough halfway house space to accommodate people now entitled to longer stays. It’s not like no one saw this coming: inmates have been complaining in my email for a year that they are being denied use of their FSA credits because of a lack of halfway house space. Walt Pavlo wrote about it in Forbes six months ago. NBC reported on it last month.

Unsurprisingly, the BOP has fought hammer and tong against any suggestion that it was violating First Step, arguing in courthouses across America that despite the Act, it had the discretion to decide whether the FSA credits earned by an inmate were gold bullion or play money.

planning240715This brings us to Alphonso Woodley, a BOP “adult in custody” who had amassed a pile of FSA credits (something over 450, even after 365 had been applied to reduce his sentence by a year). The BOP, however, told him he couldn’t be sent to an RRC in the Orlando, Florida, area because there was no bed space. Al said to the BOP, “That’s your problem,” and filed a 28 USC 2241 habeas corpus action.

The BOP rolled out its tired refrain that designation of prisoners to RRCs was its exclusive prerogative. The district court conceded that this was generally true, but where a prisoner had a statutory right to placement, the BOP had no choice. The First Step Act guaranteed Al designation to an RRC under 18 USC 3624(g)(2) as long as he had credits to spend and met the statutory criteria. Everyone agreed Al met the criteria. The judge called that game, set and match.

He wrote that the BOP’s

excuse for delaying petitioner’s transfer to an RRC is that bed space is not available in a particular RRC until September. No such condition concerning bed availability is included among the requirements for eligibility under § 3624(g), however, and thus immediate placement in prerelease custody is nevertheless required under § 3632(d)(4)(C)… That statute uses the mandatory “shall” (as distinguished, for instance, from the provision in § 3624(g)(3) that the BOP “may” transfer a prisoner to early supervised release). Numerous courts have held that the BOP has no discretion to delay or refuse transfer of an eligible prisoner to prerelease custody, which transfer is mandatory.

The court said that the BOP is required by the Act to “ensure there is sufficient prerelease custody capacity to accommodate all eligible prisones,” suggesting that the Bureau’s failure to plan ahead does not excuse its noncompliance with the law. To the court, it was fairly simple:

“Because the BOP’s failure to transfer petitioner to prerelease custody violates federal law, the Court grants the petition for relief.”

whitebear2407715The BOP probably doesn’t like that big white bear, the fact that it is required to deliver on RRC placement despite the agency’s utter failure over five years to ensure that there was enough RRC space. But as Dostoevsky or Tolstoy (or both) figured out, just because you can force yourself to not think about it doesn’t mean it isn’t there.

Dept of Justice. First Step Act Annual Report – June 2024

Woodley v. Warden, Case No 24-3053, 2024 U.S. Dist. LEXIS 87521 (D. Kan. May 15, 2024)

– Thomas L. Root