District judge orders Federal Bureau of Prisons to disregard Justice Department directive

07/26/03

U.S. District Judge Charles Butler Jr. is the latest federal jurist to
take the Justice Department to task over its abrupt order to the Federal
Bureau of Prisons to stop following judges' recommendations that certain
defendants be sentenced to halfway houses.

Butler's ruling came in a lawsuit filed by four south Alabama convicts who
received sentences of under a year and had been recommended for halfway
houses when the Bureau of Prisons changed its policy last December. Butler
barred the Bureau of Prisons from insisting the convicts report to prisons
instead and told bureau officials to reassign them as if the policy had
never changed.

The ruling here makes at least a dozen around the country that have found
fault with the Bureau of Prisons' discontinuation of a 37-year-old
practice of using halfway houses for low-level offenders, in contrast to
at least nine other courts that have upheld it. Several of those rulings
have been appealed, including one in Massachusetts in which the judge gave
the bureau essentially the same directives Butler did.

Most -- if not all -- of the original cases involve some of the 125
federal inmates whose halfway house sentences were affected when the
policy changed. How the Justice Department will respond to the rulings
against it and how the cases are decided by higher courts will determine
whether federal district judges can effectively continue to use halfway
houses as alternatives for nonviolent, petty criminals.

The halfway house issue flared up in December when the Justice
Department's Office of Legal Counsel issued a memo telling the Bureau of
Prisons that it had broken the law for years by adhering to judges' wishes
with regard to placing fringe offenders in work-release facilities.

Community corrections centers, as halfway houses are often called,
typically allow inmates to serve time while receiving drug treatment and
keeping their outside jobs, which in turn lets them support their families
and more quickly pay restitution for their crimes.

"I think most courts find halfway houses an attractive option, as does the
Bureau of Prisons. But they're really being hamstrung by Justice," said
Todd Bussert, co-chairman of the corrections committee for the National
Association of Criminal Defense Lawyers, which has fought the policy
change.

Butler wrote that the Justice Department lawyers "created ambiguity where
none exists" by mixing up the language written by the U.S. Sentencing
Commission with how Congress wrote the federal statutes that govern
prisons.

To clear up any equivocations, the 17-page order relies upon the Oxford
English Dictionary in determining that being imprisoned and being in a
correctional facility are pretty much the same thing in terms of serving
out a sentence.

"Although the Sentencing Commission may have created a distinction between
'imprisonment' and 'community confinement,' Congress did not," the judge
wrote.

He went on to say that the manner in which the Justice Department told the
Bureau of Prisons to change the policy violated the Administrative
Procedures Act, a law requiring significant procedural shifts such as this
to be opened to public comment prior to enactment. Several of the other
successful challenges have won on similar grounds.

Butler stopped short of calling the Bureau of Prisons' new policy
unconstitutional, something the convicts had alleged. In fact, he said,
the agency still can deny a judge's request that a defendant get halfway
house time. It just can't do so based on the faulty reasoning in the memo
from Attorney General John Ashcroft's legal advisers' office, Butler
wrote.

Justice Department officials did not immediately return a phone call
seeking comment. A Bureau of Prisons spokeswoman said the agency will do
whatever various judges instruct it to do but that, in general, prison
officials continue to follow the direction they received from Ashcroft's
office.

Bussert said the Justice Department's move to all but eliminate halfway
houses is part of a broader effort to give judges less discretion in
sentencing. For several years, many federal judges have expressed
frustration at the lack of flexibility they have in meting out punishment,
a cry heard this year when the Justice Department set up a system to
review the records of judges who rule against federal prosecutors in
certain cases.

To get around such parameters, judges have resorted to creative
arrangements such as the one the Butler put together earlier this year, in
which he sentenced a criminal to five years of probation, on the condition
that the probation be served in a halfway house.

That skirts the bureau's authority, to a degree, said Mobile lawyer Dom
Soto, who represented one of the plaintiffs in the other halfway house
case. Justice Department officials have not yet mounted a major challenge
to such a maneuver, however.
 

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