Download BOP's Authority to Place Offenders in Community Confinement: A Sentencing Issue and more Exercises Federal Courts in PDF only on Docsity!
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Office of the Principal Deputy Assistant Attorney General
U.S. Department of JuQ.
Office of Legal Couns~l · l.
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Washington, D.C. 20530
December 13~ 2002
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MEMORANDUM FOR LARRY D. THQMPSON DEPUTY ATTORNEY G.ENERAL ~ ~)^ ...^ NV""'^ ·"'<·--..^ ..-^ ~
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Re: Bureau ofPrisons practice ofplacing in community confinement certain offenders who have received selltences of imprisonment
Your office has infonned us that whel) a federal offender whom the B':Jreau of Prisons ("BOP'} deems to be low-risk and nonviolent receives a short sentence of imprisonm~nt, BOP often places that offender in a community corrections center, halfway house, or other (onn of "community confine1_11ent,,, rather than in prison. Your office has asked us to advise you wliether BOP ha.s general authority, either upon the recommendation of the sentencing judge or otlierwise, to place such an offender directly in community confinement at the outset of his sentence or to transfer him from prison ~o community confinement during the course of his sentence.
We conclude below that BOP. has no such general authority. As we explain, BOP's statutory authority to iμipleinent sentences of imprisonment must be c.onstrued, wherever possible, to comport with the legal requirements that govern the.federal courts' sentencing orders. Community confinement does not.constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory auth9rity to place in community confinement an offender who has been se)Jtenced to a term of imprisonme!lt. ~OP's practice is therefore unlawful.
I.
We begin by examh:~ing whether federal C<?Urts have authority under the Sentencing Guidelines to order that the types of sentences at issue here be satisfied by community confjnement.
A.
The authority to sentence federal offenders to terms of imprisonment rests with tlie federal courts under the provisions of the Federal Criminal Code and the Sentencing Guidelines promulgated thereunder. See 18 U.S.C. §§ 3553, 3581-3582 {2000); Williams v. United States,- 503 U.S. 193, 200-01 (1992). The Seritencing Guidelines were promulgated by the U.S. Sentencing Commission pursuant to the mandate of th7 Sentencing Refonn Act of 1984, which
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sought to eliminate arbitrary discrepancies in federal sentencing. 1 Subject to the court's authority to depart from Guideline sentencing ranges when certain criteria are satisfied, see 18 U.S.C. § 3553(b), federal courts are bound by the provisions of the Sentencing Guidelines when they impose sentences on federal offenders. See Koon v. United States, 518 U.S. 81, 92 (1996); Stinson v. United States, 508 U.S. 36, 42 (1993)•
. The Sentencing Guidelines contain base offense levels of increasing severity (from level I to level 43), depending upon the seriousness of the offense and the characteristics of the , , offender wjth respect to specified criteria. The sentencing ranges applicable to the respective offense levels are set forth in a Sentencing Table that is published with the Guidelines. The. Sentencing Table is divided into four different Zones, ranging from Zone A (for the shortest. , sentences) to Zone D (for the most severe sentences).
The BOP practice at issue here applies to Zone C and Zone D sentences. Zone C encompasses base offense levels 11 and 12 which, in the case of offenses falling into Criminal History Category I (the most favorable criminal history category), establish sentencing ranges of 8 to 14 months of imprisonment and I 0 to 16 months of imprisonment, respectively. Zone D demarcates permissible sentences for base offense levels 13 through 43 and, again assuming Criminal History Category I, provides for a sentencing range of ~ 2 to 18 mont\ls of imprisonment for offense level 13, and up to life impriso~ent for offense level 43. 2
For Zone C sentences, section SCl.l(d) of the Guidelines provides that the minimum · term may be satisfied either by a simple "sentence of imprisonment,~· U.S. Sentencing Guidelines Manual § SC 1.1 (d)( 1 )~ or by a "sentence of imprisonment that includes a tenn of supervised release with a condition that substitutes community confinement or home detention," id. § 5CI.I(d)(2}. In the latter case (sometimes referred to as a "split sentence,,), section SCl.l{d} requires "that at least one-half of the minimum tenn [be] satisfied by imprisonment." Id. The Guidelines state that "community confinement" "means residence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility; and participation in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during.non-residential hours.,, Id. § 5Fl.1, .Application Note 1.
For Zone D sentences, section 5Cl.l{f) requires that the minimum tenn be satisfied by a simple sentence of imprisonment. U.S.S.G. § SCl.l(f).
(^1) See Pub. L. No. 98-473, Title II, Ch. II,§ 217, 98 Stat. 1837, 2017 (1984), reprinted in 1984 U.S.C.C.A.N. 1837, 2017. • (^2) United States Sentencing Commisslon, Guidelines Manual, Sentencing Table (Nov. 2001).
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place of con~nement for the imprisqnment portion of the sentence." Id. at 778 n.23 (emphasis in original). Similarly, the Sixth Circuit ruled that where the distri<?t court had sent~nced a · defenelant "to be imprisoned for a term often months," the district co~rt could not substitute community confinement for imprisonment. Un~ted States v. Jalili, 925 F.~d 889, 892-893 (6th Cir. 19!?1). Language iq tlie court's order purporting to make this substitution was instead to be '.'stricke~ from the order as mere surplusage." Id. at 893.^4 •
. In sum, it is clear that federal courts violate the Guidelines if they order that (1) an offend~r sentenced to a Zone C or Zpne D s!mple sentence of imprisonment serve his sentence in .community confinement, or (2) that an offender sentenced tq a Zone C split sentence serve the imprisonment portion of his sentence in c~mmunity confinement.
II.
Having determined that a federal court violates the Guidelines if it orders tliat asentence of imprisonment be satisfl~d by community confinement, we now address ·whether .$OP, either on its own initiative or in response tQ a federal c.ourt recommendation, has genera}.~uthority to implement a Zone C or Zone D sentence of imprisonment by placing an offender in community confinement. ·
A.
The Sentencing Reform Act of 1984 not only ~uthorized the SentenCing Guidelines; it. also re:wrote the provisions governing BOP's in;iplementat~on of sentences.^5 Under·sectio~ 3621 ·of title 18, BOP is responsible for administering thcr sentences of imprisonment that federal courts iinpose on (ederal offenders:
(a).COMMITMENT TO CUSTODY OF BUREAU OF PRISONS. -A' p~rson who has been sentenced to a term of imprisonment pursuant to the pro- visions of s.ubchapter p of chapter 227 shall be committed to the custody of the Burea~.of Prisons until the expiration of the term imposed, Qr until earlier releasedJor,satisfactofy behavior pursuant to th~ provisions of section 3624.
(b) PLACE OF. IMPRISONMENT. -The Bureau of Prisons shall
. ~esignate the place of the prisoner~s imprisonment. The Bureau may desig-
, 4 The Sixtlt'Circuit did rule in United S~ates v. Strozier, 940 F.2d 985 (6~ CU:. 1~91), !}!at, for purposes of · a_Guidelines provision requiring that a court "order a tenn of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed," tlie period of collUQunity confmement should be iricludeci in detennining ~e le~gth of the ~entence of impri_sonment. Both the Sixth and Seventh Circuits have .dc;teimin.ed, however, that that ruling on~ separate Guidelines provision should not guid~ the meaning of section SCl.t, See Rasc'?J, 963 F.2d at 137; $wigert, 18 F.3d at 446. ·
s See Pub:L. No. 98-473, Title II, Ch. II,§§ 212, 217, 98 Stat. 1837, 1~87, 2007, 2017 (1984).
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nate any available penal or correctional facility that meets the minimum standards of health and pabitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, consid
0 ering-
(1) the resources of the facility contemplated;
(2) the nature and circumstances of th~ offense;
(3) the history and characteristics of the prisoner;
(4) any statement made by the court that imposed the sentence -
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facilit~ as appropriate; and
(5) any pel}inent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
18 U.S.C. § 3621 (2000). In addition, section 3622 authorizes BOP to "release a prisoner from the place of his imprisonment for a limited period,, under specified conditions for purposes that include employment, training, and education. Id.§ 3622. Section 3624(c) further provides that BOP "shall, to the extent practicable, assure that a prisoner serving a term of imprisonnient spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community." 18 U.S.C. § 3624(c) (2000). It also specifies that "home confinement" m~y be used for this purpose. See id.
B.
Both BOP's authority under title 18 to implement sentences of imprisonment and tJte federal courts' sentencing authority under the Guidelines were conferred by the Sentencing Reform Act of 1984. It is theref~re especially appropriate that they be construed to produce ~ harmonious interpretation. See, e.g., Reno v. Koray, 515 U.S. 50, 56-57 (1995). Because BOP is merely administering the sentences of imprisonment that the federal courts impose pursuant to the Guidelines, we believe that BOP's authority must be construed, wherever possible, to comport with the legal requirements that govern the sentencing orders. Construing BOP's authority in this way will also promote Congress's objective of eliminating arbitrary disparities in punishment between offender~ convicted of the same offense. See supra pp. 1-2 & n.1.
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exceed six months, of the last 10% of the tenn of his sentence- would be rendered null with respect to community confinement.^6
In addition, consistent with the federal courts of appeals' reading of section SCl.1, see supra p. 3, we do not believe that a community corrections center or halfuray house is a "place of •.. i~EriSO!JJl!~n!" within.the.ordinary-meaning of that phrase; As we understand it, residents of a community corrections cer;iter or halfway house, although still in federal custody, are generally not confi.ned to the facility throughout the day but are instead able to pursue outside employment, training, and education. 7 Indeed, as we understand BOP's policy statement on community corrections centers ("CCCs"), inmates placed in CCCs nonnally become eligible for weekend and evening leave passes after the second week of confinement. BOP PS 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure, 17.a(l)-(2) (Dec. 16, 1998), available at http://www.bop.gov/progstat/7310_04.html. Reading section 3621(b) as a whole, therefore, we understand the discretion afforded to BOP, under the second sentence, to "designate any available penal or correctional facility that meet~ minimum standards of health and habitability ... [and] that [BOP] detennines to be appropriate and suitable" to be constrained by the requirement in the first sentence that such facility be a place ofimprisonment. 8
We acknowledge that section 362l(b)(4)(B) provides specifically that BOP may consider, in detennining which penal or correctional facility to designate, a judicial statement
(^6) Your office has advised us that BOP, in exercising its authority under section 3624(c), has sometimes not abided by the time limitation set forth in that section. The authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period "not to exceed six months, of the last 10 per centum of the tenn to be served," 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation. (^7) See, e.g., Bailor v. Salvation Army, 51 F.3d 678, 683 (7th Cir. 1995) (describing freedom of residents of halfway house); United States v. Chavez, 204 F.3d 1305, 1315 (11th Cir. 2000)("We have previously held that. confinement to a halfway house at night with the requirement that a defendant work at a job or seek employment during the day is a liberty 'markedly different from custodial incarceration in a penitentiazy."' (citing Dawson v. Scott, SO F.3d 884, 888 (11th Cir. 1995)); United States v. Dighera, 185 F.3d 875 (fable), 1999 WL 390870, at * (10th Cir. June 1. 5, 1999) ("We have previously distinguished sentences involving physical confmement, such as incarceration at a prison camp, from non-secured custody such as placement at a halfway house."); Richardson v. Steffa, 105 F.3d 669 (Table), 1997 WL 10964, at *I (10th Cir. Jan. 14, 1997)("underthecommunitycorrections program, [plaintiff] was able to work in the Denver community at good jobs, travel about the community unescorted, and maintain business and social contacts"). (^8) We assume arguendo that a community corrections center, halfway house, or other form of community confinement may constitute a "penal or correctional facility" under the provisions of 18 U.S.C. § 3621(b). We note, however, that that tennis not defined. In a 1992 opinion in which we concluded that BOP has authority under section 3621 to contract with the private sector for the operation of secure facilities, we declined to <lraw a distin~tion between residential community facilities and secure facilities with respect to BOP's contracting-out authority. See Statutory Authority to Contract with the Private Sector for Secure Facilities, 16 Op. O.L.C. 65, 70- 71 (1992). That opinion, however, did not address the distinct question whether a community corrections center constitutes a "place of imprisonment" under section 3621, nor did it have occasion to consider the line of cases discussed in Part I.B, supra, holding that community confinement does not constitute imprisonment.
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"recommending a type of penal or correctional facility as appropriate." But any contention that · this provision clearly indicates that BOP has authority to have an offender serve a sentence of imprisonment in community confinement depends on two mistaken premises - the premise that there are not various types of places ofimprisonment, but see 28 C.F.R. § 500.l(d} (listing various types), and the premise that BOP is required to give effect to a judicial recommendation. . Section 3622, which provides for temporary release of prisoners, likewise does not provide clear authority to support BOP's practice. In particular, each of the subparts of section 3622 presupposes that an offender is in a "place of •.. imprisonment," and none authorizes extended placement of a prisoner in community confinement. Subsection 3622(a) permits release of a prisoner for no more than 30 days for various purposes, including attending to important family matters (e.g., attending a funeral or visiting a dying relative), obtaining medical treatment, or contacting a prospective employer. Subsection 3622(b), in authorizing the release of a prisoner to "participate in a training or educational program in the community," provides that the prisoner shall "continu[e] in official detention at the prison facility.;, And subsection 3622(c) provides that a prisoner. who obtains temporary release for purposes of "paid employment," shall "continu[e] in official detention at the penal or correctional facility."
We therefore conclude that the BOP practice is not lawful.
In sum: When a federal -offender receives a Zone C or Zone D sentence of imprisonment, section 3621 and section 3622 of title 18 do not give BOP general authority to place the offender in community confinement from the outset of his sentence. Nor do they give BOP general authority to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence.
?YI.~~ .:JlI M. Edward Whet.an III Principal Deputy Assistant Attorney General
