Thursday, July 03, 2008

Tablada v. Thomas, No. 07-35538 (7-3-08). How to calculate "good time" shows BOP at its worst. Should good time of 54 days a year (85%) be calculated on the sentence imposed (the measurement used for example in calculating criminal history scores) or rather on the time actually served. The former is easy; the latter is complicated. The former gives a few days break to inmates; the latter takes the harshest interpretation possible. The former saves the government millions of dollars annually; the latter costs millions. Yet, under the deference given to agencies, the BOP interpretation continues because BOP is supposed to have the expertise. A number of challenges have been raised against the calculations, all of which have been denied by the 9th. Here, petitioner argues that because BOP never complied with the APA requirement to articulate a rational basis for its interpretative decision, it should be struck down. The BOP concedes the procedural infirmity, but argues that business should continue as usual. The 9th (Gutierrez joined by Berzon and Bea) agree. It would be too much trouble essentially to change the calculations, and the interpretation is somewhat rational, and has been applied even-handedly. The 9th finds the BOP's approach as outlined in its policy statements persuasive, and so denies the petition. The BOP will fix the procedural remedy. In the meantime, inmates languish for a not unreasonable agency interpretation.


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