Paulsen: BOP violation of the APA creates an opening for prisoners formerly disqualified from the DAP sentence reduction
The Ninth Circuit ruled in favor of federal prisoners yesterday, culminating a decade of litigation regarding eligibility for the one-year sentence reduction authorized by 18 U.S.C. § 3621(e). The statute creates an incentive for prisoners who successfully complete the Bureau of Prisons's residential drug and alcohol treatment program (DAP). Although the statute only makes the sentence reduction available to prisoners convicted of nonviolent offenses, the BOP expanded the disqualification to prisoners who did not commit a categorical "crime of violence," including prisoners convicted of being felons in possession of a firearm and drug traffickers with a gun bump.
In Paulsen v. Daniels, available here, the court held that the BOP violated the Administrative Procedure Act's notice-and-comment requirements in promulgating October 1997 rules that, as a matter of agency discretion, disqualified weapons possessors from eligibility for the sentence reduction. As a remedy, the prisoners disqualified before the October 1997 rules became final on December 20, 2000, are categorically eligible under the previous rules. Understanding the court's ruling, and applying it outside of the Ninth Circuit, require review of the litigation's history. The short question to ask is whether your client was determined to be ineligible for the sentence reduction before December 20, 2000, based on mere possession of a firearm. If so, there is a potential remedy.
In 1990, Congress mandated appropriate substance abuse treatment "for each prisoner the BOP determines has a treatable condition of substance addiction or abuse," including prison residential treatment lasting between six and twelve months. 18 U.S.C. § 3621(b) and (e). In 1994, Congress, recognizing prisoners’ general unwillingness to volunteer for such treatment, created an incentive to encourage federal prisoners to participate in DAP. The statutory amendment authorized reduction of incarceration for prisoners "convicted of a nonviolent offense" who successfully completed the program. 18 U.S.C. § 3621(e)(2)(B).
The BOP proceeded to promulgate various rules limiting the availability of this sentence reduction. The first 1995 regulation used the Section 924(c) definition of "crime of violence" to define "nonviolent offense." However, in program statements, the BOP disqualified prisoners with simple gun possession even though the case law categorically excluded such offenses from being "crimes of violence." The prisoners prevailed in the majority of jurisdictions that followed the Ninth Circuit's favorable decisions in Downey and Davis. This is important because in the jurisdictions in which we won this issue -- all except the Fourth and Fifth Circuits -- the default rule is that prisoners convicted under Section 922(g) and drug traffickers are categorically eligible under the statute and the 1995 regulation.
In response to the split in the Circuits, in October 1997, the BOP promulgated a new regulation and program statement disqualifying the same prisoners on a different ground -- as an exercise of BOP administrative discretion. The BOP provided no notice-and-comment period before putting the rules into effect; in fact, the rules were put into effect before they were published. The validity of the new rules resulted in another Circuit split. In the Ninth Circuit, the court held in Bowen that the new rule could not be applied retroactively to prisoners who had been determined eligible prior to the rule change. However, the prisoners who only challenged prospective application of the new rules lost in Bowen, becoming part of the Circuit split over whether the new rules were inconsistent with the statute. The Supreme Court in Lopez resolved the split on the substance of the new rules in favor of the BOP. But in footnote 6, the Lopez Court left open the the question whether the 1997 rules were promulgated in violation of the Administrative Procedure Act. On December 20, 2000, the rules approved in Lopez became final.
After Bowen and three more trips to the Ninth Circuit in different guises (Gunderson, Grassi, and Grier, 46 Fed.Appx. 433), Judge Haggerty of the District of Oregon finally reached the merits of the APA claim and granted 57 habeas petitions. The court found that the interim rule was invalid as to prisoners who had been disqualified during the period before the rules became final. Bohner v. Daniels, 243 F.Supp.2d 1171 (D.Or. 2003). Because the new rule was invalid, the prisoners became eligible under the former rule, which had never been properly repealed. The Paulsen decision strengthens and affirms Bohner.
In the Ninth Circuit, we should be advocating for any clients in the Downey and Davis classes who were denied eligibility (or had eligibility granted, then withdrawn) before the rule became final on December 20, 2000. Although the BOP has implemented Circuit Court decisions in the past by Operations Memorandums, the only way to be sure the benefit is available is by following the case administratively or by litigation, if necessary. Outside the Ninth Circuit, the same APA argument should benefit gun possessors disqualified under the 1997 interim rule who would have been eligible under the Circuit split -- prisoners in all Circuits except the Fourth and Fifth. In those Circuits on the wrong side of the split, for the prisoners to prevail, it would probably take a decision by the Supreme Court resolving the initial split in favor of the prisoners.
The most important thing to remember is that, without attorney advocacy, the likelihood of prevailing drops drastically. And remember that, even if the client has started supervised release, courts have been reducing or modifying the term of supervised release based on the BOP's unlawful denial of the incentive. Paulsen specifically recognized that the possibility of altered supervised release -- in the interest of justice under 18 U.S.C. § 3583(e) -- defeats BOP claims of mootness.
If you have a potential beneficiary of the Paulsen decision and need consultation or forms, you can contact Lynn Deffebach at the Federal Defender office in Portland, Oregon (lynn_deffebach@fd.org).
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
In Paulsen v. Daniels, available here, the court held that the BOP violated the Administrative Procedure Act's notice-and-comment requirements in promulgating October 1997 rules that, as a matter of agency discretion, disqualified weapons possessors from eligibility for the sentence reduction. As a remedy, the prisoners disqualified before the October 1997 rules became final on December 20, 2000, are categorically eligible under the previous rules. Understanding the court's ruling, and applying it outside of the Ninth Circuit, require review of the litigation's history. The short question to ask is whether your client was determined to be ineligible for the sentence reduction before December 20, 2000, based on mere possession of a firearm. If so, there is a potential remedy.
In 1990, Congress mandated appropriate substance abuse treatment "for each prisoner the BOP determines has a treatable condition of substance addiction or abuse," including prison residential treatment lasting between six and twelve months. 18 U.S.C. § 3621(b) and (e). In 1994, Congress, recognizing prisoners’ general unwillingness to volunteer for such treatment, created an incentive to encourage federal prisoners to participate in DAP. The statutory amendment authorized reduction of incarceration for prisoners "convicted of a nonviolent offense" who successfully completed the program. 18 U.S.C. § 3621(e)(2)(B).
The BOP proceeded to promulgate various rules limiting the availability of this sentence reduction. The first 1995 regulation used the Section 924(c) definition of "crime of violence" to define "nonviolent offense." However, in program statements, the BOP disqualified prisoners with simple gun possession even though the case law categorically excluded such offenses from being "crimes of violence." The prisoners prevailed in the majority of jurisdictions that followed the Ninth Circuit's favorable decisions in Downey and Davis. This is important because in the jurisdictions in which we won this issue -- all except the Fourth and Fifth Circuits -- the default rule is that prisoners convicted under Section 922(g) and drug traffickers are categorically eligible under the statute and the 1995 regulation.
In response to the split in the Circuits, in October 1997, the BOP promulgated a new regulation and program statement disqualifying the same prisoners on a different ground -- as an exercise of BOP administrative discretion. The BOP provided no notice-and-comment period before putting the rules into effect; in fact, the rules were put into effect before they were published. The validity of the new rules resulted in another Circuit split. In the Ninth Circuit, the court held in Bowen that the new rule could not be applied retroactively to prisoners who had been determined eligible prior to the rule change. However, the prisoners who only challenged prospective application of the new rules lost in Bowen, becoming part of the Circuit split over whether the new rules were inconsistent with the statute. The Supreme Court in Lopez resolved the split on the substance of the new rules in favor of the BOP. But in footnote 6, the Lopez Court left open the the question whether the 1997 rules were promulgated in violation of the Administrative Procedure Act. On December 20, 2000, the rules approved in Lopez became final.
After Bowen and three more trips to the Ninth Circuit in different guises (Gunderson, Grassi, and Grier, 46 Fed.Appx. 433), Judge Haggerty of the District of Oregon finally reached the merits of the APA claim and granted 57 habeas petitions. The court found that the interim rule was invalid as to prisoners who had been disqualified during the period before the rules became final. Bohner v. Daniels, 243 F.Supp.2d 1171 (D.Or. 2003). Because the new rule was invalid, the prisoners became eligible under the former rule, which had never been properly repealed. The Paulsen decision strengthens and affirms Bohner.
In the Ninth Circuit, we should be advocating for any clients in the Downey and Davis classes who were denied eligibility (or had eligibility granted, then withdrawn) before the rule became final on December 20, 2000. Although the BOP has implemented Circuit Court decisions in the past by Operations Memorandums, the only way to be sure the benefit is available is by following the case administratively or by litigation, if necessary. Outside the Ninth Circuit, the same APA argument should benefit gun possessors disqualified under the 1997 interim rule who would have been eligible under the Circuit split -- prisoners in all Circuits except the Fourth and Fifth. In those Circuits on the wrong side of the split, for the prisoners to prevail, it would probably take a decision by the Supreme Court resolving the initial split in favor of the prisoners.
The most important thing to remember is that, without attorney advocacy, the likelihood of prevailing drops drastically. And remember that, even if the client has started supervised release, courts have been reducing or modifying the term of supervised release based on the BOP's unlawful denial of the incentive. Paulsen specifically recognized that the possibility of altered supervised release -- in the interest of justice under 18 U.S.C. § 3583(e) -- defeats BOP claims of mootness.
If you have a potential beneficiary of the Paulsen decision and need consultation or forms, you can contact Lynn Deffebach at the Federal Defender office in Portland, Oregon (lynn_deffebach@fd.org).
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 6/28/2005 08:08:00 AM
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