Castellini: BOP enjoined from terminating boot camp
Judge Saris in the District of Massachutses has entered a preliminary injunction prohibiting the Bureau of Prisons from terminating the boot camp program.
In 1990, Congress created the boot camp program, also known as the Shock Incarceration Program, codified at 18 U.S.C. § 4046. The Sentencing Commission promulgated U.S.S.G. § 5F1.7 the following year, giving sentencing judges discretion to recommend placement in boot camp. To qualify, the defendant must be serving a relatively short sentence for a non-violent offense and have no more than a minor criminal history. Under the BOP’s regulations, qualified prisoners can receive up to six months of sentence reduction and extended home confinement after serving six months of the term of imprisonment in a regimented, military-style facility and a follow-up period in a halfway house.
The boot camp program has been a significant benefit for many Federal Defender clients, not only reducing time of actual incarceration, but promoting positive social skills and outlook in aid of rehabilitation. Then, on January 14, 2005, without any warning or notice, the BOP unilaterally announced -- in a memorandum to judges, prosecutors, and defenders -- that the program was being terminated.
Richard Castillini received a 21-month sentence with a judicial recommendation for boot camp placement. After the BOP announced termination of the program, he filed a civil action in Massachutses requesting a preliminary injunction based on violation of the statute, violation of the notice-and-comment provisions of the Administrative Procedure Act, and violation of the Ex Post Facto Clause. Judge Saris granted relief based on the latter two theories in the opinion, which is available here.
Defenders need to be aware that, at least for those whose offense conduct precedes compliance with the APA, relief is available. However, there are several layers of additional arguments that should foreclose termination of the program in the absence of Congressional action.
First, by analogy to line-item veto legislation, the agency action violates the separation of powers. In Clinton, the Court held that, once legislation is enacted, the Executive Branch is not entitled to repeal the law as promulgated by the Legislative Branch. The BOP does not have authority under Article I, Section 7, to, in effect, repeal the boot camp statute.
Second, the statute does not authorize termination of the program. The BOP’s discretion is limited to determination of who is placed in the program and how it operates, but does not include express authority to end the program altogether. The Castellini court found that the statute permitted termination, based on Lincoln v. Vigil, a case involving allocation of Indian health care funds among several programs. This part of the opinion conflicts with the Supreme Court’s suggestion in a Bureau of Prisons case that, where agency action forecloses any exercise of discretion, the agency would "be making a nullity of the statute." Lopez v. Davis (footnote 4)(citing INS v. Yueh-Shaio Yang); see also United States v. Miller, 722 F.2d 562 (9th Cir. 1983) ("The existence of discretion requires its exercise") (citing Dorszynski v. United States). At the very least, the doctrine of constitutional avoidance would require the statute to be construed in a manner that did not create the separation of powers problem (Clark v. Martinez).
Third, even at the second prong of Chevron deference, the termination of the program is unreasonable. The agency claimed the boot camp program was ineffective and too expensive. The BOP cited studies that are irrelevant because they evaluate state programs that do not have the screening, incentives, and follow-up the federal program has; the BOP also ignored studies demonstrating the federal program in fact saves money and results in slightly lower recidivism.
These arguments are elaborated in the memorandum in support of relief from the termination of boot camp in a case pending in the District of Oregon, available here. If you have clients adversely affected by the boot camp termination and need to commence litigation, contact Lynn Deffebach at the Oregon Federal Public Defender office for documents and consultation.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
In 1990, Congress created the boot camp program, also known as the Shock Incarceration Program, codified at 18 U.S.C. § 4046. The Sentencing Commission promulgated U.S.S.G. § 5F1.7 the following year, giving sentencing judges discretion to recommend placement in boot camp. To qualify, the defendant must be serving a relatively short sentence for a non-violent offense and have no more than a minor criminal history. Under the BOP’s regulations, qualified prisoners can receive up to six months of sentence reduction and extended home confinement after serving six months of the term of imprisonment in a regimented, military-style facility and a follow-up period in a halfway house.
The boot camp program has been a significant benefit for many Federal Defender clients, not only reducing time of actual incarceration, but promoting positive social skills and outlook in aid of rehabilitation. Then, on January 14, 2005, without any warning or notice, the BOP unilaterally announced -- in a memorandum to judges, prosecutors, and defenders -- that the program was being terminated.
Richard Castillini received a 21-month sentence with a judicial recommendation for boot camp placement. After the BOP announced termination of the program, he filed a civil action in Massachutses requesting a preliminary injunction based on violation of the statute, violation of the notice-and-comment provisions of the Administrative Procedure Act, and violation of the Ex Post Facto Clause. Judge Saris granted relief based on the latter two theories in the opinion, which is available here.
Defenders need to be aware that, at least for those whose offense conduct precedes compliance with the APA, relief is available. However, there are several layers of additional arguments that should foreclose termination of the program in the absence of Congressional action.
First, by analogy to line-item veto legislation, the agency action violates the separation of powers. In Clinton, the Court held that, once legislation is enacted, the Executive Branch is not entitled to repeal the law as promulgated by the Legislative Branch. The BOP does not have authority under Article I, Section 7, to, in effect, repeal the boot camp statute.
Second, the statute does not authorize termination of the program. The BOP’s discretion is limited to determination of who is placed in the program and how it operates, but does not include express authority to end the program altogether. The Castellini court found that the statute permitted termination, based on Lincoln v. Vigil, a case involving allocation of Indian health care funds among several programs. This part of the opinion conflicts with the Supreme Court’s suggestion in a Bureau of Prisons case that, where agency action forecloses any exercise of discretion, the agency would "be making a nullity of the statute." Lopez v. Davis (footnote 4)(citing INS v. Yueh-Shaio Yang); see also United States v. Miller, 722 F.2d 562 (9th Cir. 1983) ("The existence of discretion requires its exercise") (citing Dorszynski v. United States). At the very least, the doctrine of constitutional avoidance would require the statute to be construed in a manner that did not create the separation of powers problem (Clark v. Martinez).
Third, even at the second prong of Chevron deference, the termination of the program is unreasonable. The agency claimed the boot camp program was ineffective and too expensive. The BOP cited studies that are irrelevant because they evaluate state programs that do not have the screening, incentives, and follow-up the federal program has; the BOP also ignored studies demonstrating the federal program in fact saves money and results in slightly lower recidivism.
These arguments are elaborated in the memorandum in support of relief from the termination of boot camp in a case pending in the District of Oregon, available here. If you have clients adversely affected by the boot camp termination and need to commence litigation, contact Lynn Deffebach at the Oregon Federal Public Defender office for documents and consultation.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 4/14/2005 12:20:00 PM
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