BOP Litigation Update

A chronic frustration in federal criminal defense is the Bureau of Prisons’s tendency to increase the length of sentences after the prison door clangs shut. Although the sentences are being served in our cases, we have been slow to adjust to the many issues and potential remedies for over-incarceration that adds centuries of time, at the cost of millions in tax dollars, never ordered or contemplated by the sentencing judge or Congress. The culture is changing: more attorneys understand that correcting errors in the execution of the sentence may be as important as motions, trial, and sentencing practice. The best cure is prevention to the degree possible, for example by recognizing potential problems in the presentence report. But litigation -- whether in the sentencing district or the district where the sentence is being served -- may well be the only way in which to address institutional errors that cost our clients dearly.

For the past three years, we have been providing an annual update on BOP litigation issues. Attached here is the latest version covering the following areas:

• Miscalculation Of The Federal Good Time Statute By Seven Days For Every Year Of The Prison Sentence (page 2-3):
• The Termination Of The Federal Boot Camp Program (page 3-5);
• Deprivation Of Community Corrections Placement Based On The Department Of Justice’s Misreading Of The BOP’s Designation Discretion (page 5-6);
• Eligibility For The One-Year Sentence Reduction For Successful Completion Of Residential Substance Abuse Treatment Under 18 U.S.C. § 3621(e)(page 6-8);
• Credit For Time Served While Section 1326 Defendants Are In Administrative Immigration Custody (page 8-9);
• Constitutional Violations In Prison Disciplinary Proceedings (page 9);
• The BOP’s Tendency To Ignore State Concurrent Sentences And Administratively Convert Them Into De Facto Consecutive Sentences (page 9-12);
• Challenging BOP Misadministration Of The Sentence Through A Petition For Writ Of Habeas Corpus Under 28 U.S.C. § 2241, Usually After Exhaustion Of Administrative Remedies (page 12-14);
• Designation And Red-Flag Issues In The Presentence Investigation Report (page 14-17).

There are two recent litigation developments that should also be noted, one dealing with the BOP’s sex offender regulation and program statement, the other with anticipating problems regarding clients’ medical issue while in custody.

In Simmons v. Nash, 361 F.Supp.2d 452 (slip opinion here), a New Jersey district court judge entered declaratory and injunctive relief against the BOP’s interpretation of the sex offender notification statute. Under 18 U.S.C. § 4042(c), the BOP provides notice and requires registration for prisoners "convicted of any of the following offenses," listing federal sex crimes and "any other offenses designated by the Attorney General as a sexual offense." The BOP, by means of a regulation and program statement, expanded the statutory language beyond the offense of conviction to include any prior state convictions for sex offenses. Immanuel Simmons, litigating pro se, insisted that his 1983 prior state court conviction could not trigger the federal notice and registration requirements.

The district court agreed. The court held that the statute unambiguously limited its application to the offense of conviction. The court relied heavily on the Fifth Circuit’s ruling in Henrikson v. Guzik, which construed the adjacent provisions of § 4042(b) as applying only to the offense of conviction for crimes of violence and drug trafficking. In the absence of legislative authorization, the BOP lacked the power to expand the scope of sex offender notice and registration, by regulation and program statement, beyond the offense of conviction.

In another district court opinion, Massachutses District Court Judge Nancy Gertner demonstrated that an ounce of prevention is worth a pound of cure. Defenders too often receive frantic calls from prisoners and their families regarding declining health and untreated medical conditions in federal prisons. In United States v. Pineyro, 2005 WL 1177833 (slip opinion here), the defendant, after fifteen month of pretrial detention, faced a 46-57 month guideline range for being a felon in possession of a firearm. Mr. Pineyro suffered from a complex and rare medical condition – heterotopic ossification – a disease causing excessive and painful bone growth.

Defense counsel moved for a downward departure under U.S.S.G. § 5H1.4, putting on detailed evidence regarding the physical infirmity and the suffering caused by lack of adequate treatment in pretrial detention. The critical piece of the analysis was that – as it so often does – the BOP gave bland assurances that the BOP "can provide the necessary and appropriate treatment for Mr. Pineyro." Interestingly, the BOP opinion came after a BOP medical study ordered by the court under 18 U.S.C. § 3552(b), over defense objection. Nevertheless, the court imposed a time served sentence.

Judge Gertner analyzed her sentence both under the guidelines and under the § 3553(a) post-Booker advisory guidelines. On the medical issue, the court rejected the blithe assurances so often heard regarding our medically vulnerable clients, stating:

"The BOP has not remotely met its burden of showing that it can provide the defendant with 'needed...medical care, or other correctional treatment in the most effective manner.' 18 U.S.C. § 3553(a)(2)(D)(italics supplied). It offered no treatment plan comparable to what Pineyro is presently receiving. Its conclusion that it can provide the "necessary and appropriate treatment" is not only vague, it does not meet the statutory requirements (that Pineyro receive 'the most effective' treatment)."

A timely reminder of the importance of addressing our clients’ medical conditions up front to avoid the difficulties of finding a remedy later.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon