THE TOUGH GETTING TOUGHER
Todd Bussert, Esq.

As discussed in the preceding submission, the Federal Bureau of Prisons (BOP), in response to a December 16 directive from the Department of Justice (DOJ or Justice), has discontinued its longstanding practice of designating low-risk, short-term offenders directly to Community Corrections Centers (CCCs). At the same time, the BOP adopted a new interpretation of 18 U.S.C. § 3624(c) that sets limits on CCC placement restricting pre-release transfers -- except of RDAP or ICC graduates -- to no more than the last ten percent (10%) of a prisoner’s sentence up to six (6) months. One hundred and twenty five directly committed CCC prisoners are slated for transfer as a result of these changes; numerous legal challenges are underway; and prisoners’ rights groups are rallying to devise a measured response. While the true impact of these policy changes is as yet unclear, DOJ, in what many characterize as a politically motivated effort to increase punishments for high-profile, corporate white-collar offenders, has significantly curtailed re-entry opportunities for most of the 164,000 men and women currently under federal correctional supervision.

Newsweek’s Michael Isikoff first reported this story on December 20, the same day that BOP Director Kathleen Hawk Sawyer sent a memorandum to federal judges informing them of the changes. Focusing principally on direct CCC placements, Isikoff indicates that Justice intended the policy move to assist federal prosecutors with securing stiffer punishments in cases involving white-collar defendants, who were perceived as taking advantage of the practice as a means of avoiding “actual prisons.” The new policy, unfortunately, sweeps far more broadly.

CCCs are not the exclusive domain of white-collar offenders. Courts commonly recommended the direct CCC placement of eligible defendants for a host of compelling reasons, like enabling a family’s primary breadwinner to continue working or keeping a nonviolent offender close to an infirm relative. As BOP spokesperson Judy Garrett told the New York Times, “There are a lot of drug offenders, single moms and ordinary folks who aren’t wealthy people who have benefited from this. It’s not just Enron types.” Moreover, amendments to the Federal Sentencing Guidelines, made as part of the 2001 economic crimes package as well as in response to the Sarbanes-Oxley Act of 2002, carry heavy penalties for serious white-collar defendants. Such penalties precluded direct CCC placement, which was only available to those qualified minimum-security prisoners serving relatively short (e.g., six months or less) sentences. See Community Corrections Manual (P.S. 7300.09).

Media accounts raise two other aspects of the policy move: 1) Justice’s feigned ignorance of well-established procedure and 2) what has become a public rebuke of Director Hawk Sawyer. According to Newsweek, aides to Attorney General Ashcroft reported ignorance of the direct CCC commitment practice until a West Virginia federal judge brought it to their attention via a complaint letter in 2001. However, as BOP officials told the Times, direct commitments, which usually called for a judicial recommendation at sentencing (in which Justice Department prosecutors always participate), were used for more than 20 years. In fact, both bureau program statements and DOJ publications long laid out the practice. See e.g., Security Designation and Custody Classification Manual (P.S. 5100.07) and A Judicial Guide to the Federal Bureau of Prisons (1995). Indeed, the Solicitor General’s Office’s May 2001 brief in Correctional Services Corp. v. Malesko, 122 S. Ct. 515 (2001) explicitly cites BOP policy when noting that “the BOP employs [CCCs] as an alternative to ‘institutional confinement for certain short-term offenders’.”

As troubling as Justice’s supposed lack of knowledge is Deputy Attorney General Larry Thompson’s reported reprimand of Director Hawk Sawyer—a trained professional who has dedicated 26 years of service to one of this nation’s largest correctional systems—for the administration of a practice that pre-dated her appointment by more than a decade. Although some may find fault with the BOP and its policies, direct CCC commitments were not only consistent with the bureau’s authority to designate an offender’s place of imprisonment, but they were also a sensible use of bed space in the midst of unyielding population pressures. Sadly, the Justice Department’s interest in punishing the Fastows of the world, like this country’s failed War on Drugs, may well have a disproportionate impact on those already afforded the least protections.

BOP community corrections officials in Washington, D.C. confirm that the bureau provided statistical information to the Justice Department concerning the potential impact of a change in the direct CCC placement policy. Importantly, these same officials assert that Justice made no inquiry into the impact of modifying pre-release policies, which affect the vast majority of those currently incarcerated. Traditionally, bureau personnel considered 18 U.S.C. § 3624(c) when preparing and reviewing halfway house packages, but wardens and community corrections managers regularly recommended/granted pre-release halfway house stays greater than ten percent of a prisoner’s sentence. See PS 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure (Dec. 16, 1998). The practice was viewed as a means of relieving institutional overcrowding while affording prisoners the greatest opportunity to reintegrate into the community. Now, barring completion of the RDAP or ICC, federal prisoners can expect to receive halfway house placement for no more than the last ten percent of their sentence up to six (6) months total (e.g., 24 month sentence = 2.4 months or less in a CCC). Although this change is not seen as modifying § 3624(c)’s home confinement allowance, it will undoubtedly disadvantage those persons requiring extra time and assistance to establish employment and residency or simply to identify and secure necessary resources before being released to the street.

FederalCURE and several other concerned organizations have already heard of scheduled halfway house placement dates being pushed back as a direct result of the DOJ directive. For many, this sudden and unexpected news has substantially influenced release plans and had consequences ranging from the loss of prospective jobs to exasperating delays in family reunifications. FederalCURE is working to ascertain and address difficulties that individuals and families are experiencing due to the recent policy changes and welcomes comments and information. It will update developments through this newsletter as well as on its listserve.

*FederalCURE member Todd Bussert is a Connecticut attorney who frequently speaks and writes on federal sentencing and prison-related issues. He can be reached at tbussert@bussertlaw.com.