On January 14, 2005, the Director of the Bureau of Prisons unilaterally announced the termination of the federal boot camp program. The boot camp statute, guideline, and regulations established a terrific rehabilitative program that permitted non-violent defendants with minor prior records to reduce their actual time in custody from 30 months to 6 months, with extended community confinement after successful completion of the intensive boot camp's requirements. For prisoners with sentences of 30 to 60 months, the period of community confinement at the end of the sentence would generally total 12 months, significantly more than the 10 percent provided by statute.
The BOP’s actions appear to be patently illegal. Early on, Judge Saris from the District of Massachusetts entered an injunction based on violation of the Administrative Procedure Act and the Ex Post Facto Clause, as blogged here
. Although a number of other district courts have expressed frustration with the nullification of the boot camp sentencing option, they have refused to grant relief. The BOP has also engaged in a successful strategy of attempting to moot litigators by placing plaintiffs in state boot camp programs, as occurred in the Massachusetts case.
So, how should defense counsel respond to the elimination of this benefit for clients? There are a number of approaches that depend on our client’s situation.
The first and most important is for defendants who are either being sentenced in the first instance or being resentenced. If they would qualify for the boot camp program under the published criteria, we have a powerful argument that, under the Booker
advisory guidelines, the reasonable sentence is achieved by an equivalent sentence through structuring of prison time and creative conditions of supervised release. For example, in a case in which we obtained a resentencing based on termination of boot camp, the district judge reduced the 30-month sentence to a year and a day and added a 6-month halfway house condition with an extensive community service obligation.
This type of creative sentencing is required by Booker
’s reference to Section 3553(a) factors, such as the kinds of sentences available and the need to provide correctional treatment in the most effective manner. This type of sentencing is also strongly supported by the 1994 Department of Justice study that concluded that non-violent offenders with minor or no criminal history were being systematically over-incarcerated (available here
). The DOJ study acknowledged that the same prisoners for whom boot camp was designed are receiving sentences greater than necessary to achieve the deterrence and rehabilitative purposes of sentencing.
But what about the defendants who have already received boot camp sentencing? If you have a defendant within the closing window for individuals who were sentenced after the termination decision was made but before it was announced, there is relief available under Section 2255. In United States v. McLean
, Judge Aiken granted a Section 2255 motion based on the fact that her sentence was imposed after the decision had been made to terminate the federal boot camp program (2005 WL 2371990). The material mistake of fact provided the court with jurisdiction to grant relief.
What about folks whose sentences preceded the boot camp termination or individuals who have a boot camp recommendation after the termination was announced? For these individuals, litigation may be appropriate. First, the BOP has placed litigators into state boot camp programs. So, for example, a defendant serving a 60-month sentence who is supposed to go to boot camp at 24 months before his or her projected release date may be able to negotiate for relief in the form of referral to a state boot camp. Further, if you can persuade a judge to follow the sentencing option available under the statutes and guidelines, regardless of the BOP’s administrative action, you may be able to litigate successfully during the time prior to voluntary surrender to obtain a direct commitment to a state boot camp. And even if your client has already lost the benefit, the harm from the illegal over-incarceration can still be remedied by favorable litigation that becomes a basis for a discretionary reduction in the period of supervised release, as in Mujahid
For those clients who escape the procedural pitfalls, we may be able to litigate the ultimate issues to eventually obtain declaratory and injunctive relief in the form of an order that the boot camp program be reinstated. The BOP’s unilateral elimination of a sentencing guideline, expressly authorized by Congress, raises severe separation of powers problems and violates a number of statutes. These issues are currently on appeal before the Ninth Circuit in Serrato v. Clark
, CA No. 06-15167. The legal arguments are set out in the memo linked here
, which layers our position under the Sentencing Reform Act, the Administrative Procedure Act, Retroactivity Doctrine, the Ex Post Facto Clause, and the Separation of Powers Doctrine.
Termination of the boot camp program is a classic abuse of Executive Branch power. Despite BOP claims that the decision was carefully made and based on studies, the decision was made in less than a week and involved no studies whatsoever. In deposition testimony, the BOP executives claimed that there was no consideration of termination until November 16, 2004, when the idea was put up on a brainstorming pad of paper. By November 22, 2004, my client was being told by her case manager that the program was terminated. No new BOP studies had been conducted since the Lewisberg study of 1996, which determined that boot camp was both effective and cost-efficient.
We need to be especially careful to assure that our clients are not victimized by this abuse of executive authority. Prevention is the best cure; but if litigation is necessary, we should be prepared to assure that our clients do not suffer longer incarceration and deprivation of effective rehabilitative treatment. The BOP should not be permitted to unilaterally thwart a sentencing option established by Congress and the Sentencing Commision to mitigate punishment for first-time, non-violent offenders.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon