Thursday, June 12, 2014

Bond: How A Chemical Weapons Case Should Finally Bring An End To The BOP’s Failure To Respect State Judgments Ordering State Sentences To Run Concurrently With Federal Sentences

Whether state and federal sentences run concurrently or consecutively can be one of the most misunderstood and confusing areas of federal sentencing law. Much of the problem has its roots in the Bureau of Prisons (BOP) interpretation of the federal statutes and its willingness to execute sentences as de facto consecutive even when the only judge to have spoken on the issue – the state judge –ordered the state sentence to run concurrently. The Government Accountability Office found that, in fiscal year 2011, BOP failed to grant relief in 386 out of 488 prisoner requests for concurrency. Some of us hoped the BOP’s assumption of sentencing authority would change with Setser, where the Supreme Court found that federal judges have authority to order sentences concurrently with or consecutively to unimposed state sentences. In doing so, the Court rejected the BOP – an executive branch agency – as the proper decision-maker because determining whether a sentence runs concurrently or consecutively is a judicial function. Due to a peculiarity of the Setser case, the BOP continues to assume the judicial role of creating de facto consecutive sentences when the federal judgment is silent on the issue. The sad history of this area of the law shows how the Supreme Court’s recent opinion in Bond, interpreting the chemical weapons statute to require deference to the States’ role in law enforcement, may be the silver bullet to finally end BOP over-reaching into the judicial function of deciding how much actual time a prisoner serves.

Pre-Setser Concurrent And Consecutive Chaos

Prior to Setser, federal concurrency issues were a huge mess, mostly because the courts paid insufficient attention to the Supreme Court’s wise and simple rules from the Ponzi case (involving the schemer whose name now lives in infamy). In 1922, the Court set out the two principles of comity that guide our analysis of concurrent-consecutive problems with state and federal prosecutions to this day. First, the Court set out the underlying concept that state and federal criminal systems are equal and require mutual respect. Ponzi, 258 U.S. at 259 (state and federal sovereignties require “a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.”). Second, the Court analogized the treatment of defendants to commercial liens, meaning that the jurisdiction with priority satisfies its interest first, then the secondary interest kicks in, unless there is a transfer of custody, usually by writ of habeas corpus ad prosequendum, in which case the interest would revert to the primary jurisdiction upon satisfaction of the borrowing jurisdiction’s interest. Ponzi, 258 U.S. at 260 (“The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.”).

In 1987, the Sentencing Reform Act created a statutory superstructure that provided very little guidance regarding implementation of concurrent and consecutive sentences. This lack of guidance led to two problems that have caused terrible injustices over the years. First, the Circuits split on whether the federal court had authority under 18 U.S.C. §3584(a) to run a sentence concurrently with or consecutively to a yet-to-be-imposed state sentence. Second, federal sentences do not begin until the prisoner arrives at the federal institution under 18 U.S.C. § 3585(a). But the BOP interprets 18 U.S.C. § 3585(b) to only provide pretrial credit for time that is not credited against another sentence. As a consequence, the availability of fully concurrent sentences becomes dependent on the timing of prosecutions, which the Supreme Court in Wilson called arbitrary because “We can imagine no reason why Congress would desire the pretrial detention credit, which determines how much time an offender spends in prison, to depend on the timing of his sentencing.”

To account for the anomaly created by the BOP’s interpretation of the statutes on pretrial credit, two stopgap measures have evolved. First, the Sentencing Commission has promulgated commentary under U.S.S.C. 5G1.3 and 5K2.23 calling for adjustment of sentences or departure to compensate for pretrial time not credited by the BOP under § 3585(b). Second, the BOP has interpreted the designation authority under 18 U.S.C. § 3621(b) to allow nunc pro tunc designation to the state facility, which in effect achieves a concurrent sentence but, if denied, creates a de facto consecutive sentence. And, although the third sentence of §3584(a) refers to existing undischarged terms of imprisonment, the BOP interprets the third sentence – which presumes that silence by the federal judge means a consecutive sentence was intended – to apply even where the state sentence had not yet been imposed and the state judge later imposed the state sentence to run concurrently with the federal sentence.

As a consequence of the BOP’s interpretations, the following scenario has become relatively common:

• The state arrest places the defendant in primary state custody;
• The federal prosecutor files a writ of habeas corpus ad prosequendum;
• The federal judge imposes sentence with no order that the sentence should be concurrent or consecutive;
• The defendant returns to state court where the state judge imposes a sentence concurrent with the federal sentence;
• Because the state time is credited to the state sentence, and the federal sentence does not commence until the state sentence is satisfied, the sentence becomes a de facto consecutive sentence by the way the BOP executes the sentence, even though no judge ever ordered the sentence to run consecutively.

The BOP’s jerry-rigged solution using nunc pro tunc designations to state institutions under § 3621(b) creates profound statutory and separation of powers problems. The BOP contacts the sentencing judge ex parte and asks for a statement of intent, even though the statute on finality should foreclose amendment of the sentence regarding concurrency (18 U.S.C. § 3582(c)), and even though the right to counsel applies to post-sentencing actions that affect time in custody (Mempa v. Rhay,389 U.S. 128 (1967)).

The worst part of the BOP’s system is that, regardless of the judicial recommendation, the BOP arrogates to itself the decision whether the judicial recommendation should be followed. The BOP rules assert that the BOP makes the decision on concurrency by its discretionary designation to the state facility, not the judicial recommendation after imposition of a silent judgment (Program Statement 5160.05 at 5-6). The BOP, an executive branch agency, decides if the state sentence, ordered to run concurrently by a state judge, should run consecutively based on the BOP’s evaluation of sentencing factors.

The BOP de facto consecutive sentences inspired a chorus of concern by courts:

• Judge Norris concurring warned practitioners of the sentencing trap that resulted in years in prison that “neither the federal nor the state sentencing court anticipated” (Del Guzzi, 980 F.2d at 1271);
• Judge Fletcher joined the Second and Eighth Circuits in calling for congressional action to address “serious separation of powers questions” when the BOP creates de facto consecutive sentences (Reynolds, 603 F.3d at 1160-61).

Unfortunately, none of the courts chose to construe the vague sentencing statutes to avoid constitutional problems by either construing concurrent sentences under § 3585(b) as not “another" sentence, or construing § 3621(b) to require nunc pro tunc designation to honor the state judgment, or construing § 3584(a) to require respect for the state sentence. Then along came Setser.

Setser Only Answers Half The Question

It looked like Setser could be the solution to the legal mess of federal concurrency law. Although certiorari was granted to resolve the conflict over the sentencing judge’s authority to impose sentence consecutively to or concurrently with a yet-to-be-imposed state sentence, the case initially looked like it could lead to a return to Ponzi’s principles of comity. If a state judge determined the state interest was satisfied by a concurrent sentence, what possible interest did the federal government have in making the state time consecutive? The Court quoted from Ice: “In our American system of dual sovereignty, each sovereign – whether the Federal Government or a State – is responsible for the administration of its own criminal justice system.” The State has the only relevant interest in requiring as much, or as little, as was necessary to satisfy the State’s interests in punishing the state crime.

But the Setser case did not turn out to be a great vehicle for review. The pattern superficially appeared normal: state arrest; federal writ and sentence; followed by state concurrent sentence. The federal judge ordered the unimposed state sentence to run consecutively to the federal sentence. The wrinkle is that there were multiple state sentences, one of which the state judge ordered to run consecutively, the other concurrently. As a consequence, here’s how the advocacy broke down: both the defendant and the government took the position that the federal judge had no authority to impose a sentence concurrent or consecutive to a yet-to-be-imposed sentence, arguing that only the BOP had the authority to make that call. The Court appointed an amicus curiae attorney to argue that the federal judge, not the BOP, had the authority to decide. Nobody argued the Ponzi comity position that, if the statute did not authorize the federal court to address unimposed sentences, the state judge’s assessment of the concurrency question should be determinative.

With no one arguing comity, Justice Scalia’s opinion provides the building blocks for a return to Ponzi but not the clarity needed to change BOP practices. The Court held that the federal judge had inherent authority to decide whether sentences should be consecutive or concurrent with yet-to-be-imposed sentences. Scattered through the opinion, the Court repeatedly finds the concurrency decision to be a purely judicial function and that the BOP – as an executive agency – has no business making sentencing decisions.

• “Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.”

• “. . . Congress contemplated that only district courts [as opposed to the BOP] would have the authority to make the concurrent-vs.-consecutive decision . . . .”

• “§ 3621(b) . . . is a conferral of authority on the Bureau of Prisons, but does not confer authority to choose between concurrent and consecutive sentences.”

• “[T]he Bureau is not charged with applying [the sentencing factors of] § 3553(a) . . . . It is much more natural for a judge to apply the § 3553(a) factors in making all concurrent-vs.-consecutive decisions, than it is for some such decisions to be made by a judge . . . and others by the Bureau of Prisons . . . .”

• “[S]entencing [should] not be left to employees of the same Department of Justice that conducts the prosecution.”

• “Yet-to-be-imposed sentences are not within the system . . . and we are simply left with the question whether judges or the Bureau of Prisons is responsible for them. For the reasons we have given, we think it is judges.”

The Court also reinforced the idea of comity, stating that a federal court’s “forbearance” – the same root word used in Ponzi – on deciding concurrency questions left the matter to the state. Compare Setser, 132 S. Ct. at 1472 n.6 (the district court may “forbear” from exercising the power to make the concurrent-consecutive decision regarding an anticipated sentence), with Ponzi, 258 U.S. at 260-61 (noting the “forbearance” of courts with co-ordinate jurisdictions that avoids interference with the principle of comity). Thus, the Court implicitly recognized respect for the state sentence by finding that the federal decision had to be made “up front.”

But tragically for some prisoners, without clear guidance on the subject, the BOP has returned to its judicial role of deciding concurrency in conflict with state court. Even after Setser, the BOP has continued its previous practice of creating de facto consecutive sentences even when the federal judgment is silent. And the Eighth Circuit in Elwell (716 F.3d at 484-87), without addressing Setser's comity and construction requirements, has upheld the BOP executive sentencing, stating the BOP “correctly interpreted the district court’s silence as requiring consecutive sentences pursuant to §3584(a), subjection to §3621(b) designation discretion based on a judicial recommendation.

Elwell is irreconcilable with the plain language of Setser. The third sentence of §3584(a) is the source of the error: “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Prior to Setser, the BOP and the Ninth Circuit in Reynolds interpreted this sentence to apply to unimposed sentences, so the BOP could assert federal supremacy to trump a state concurrent sentence. After Setser, the BOP’s interpretation is untenable: the Setser Court expressly read the third sentence to only apply to undischarged sentences imposed previously or at the same time as the federal sentence, not unimposed sentences. The Court found the federal court’s power over yet-to-be imposed sentences in judicial discretion because § 3584(a) did not encompass all sentencing authority, but only addressed multiple terms of imprisonment imposed, as stated in the subsection's first sentence, at the same time or "on a defendant who is already subject to an undischarged term of imprisonment." In explaining the scope of the subsection, the Court stated in Setser, "And the last two sentences of § 3584 (a) say what will be assumed in those two common situations if the court does not specify that the sentence is concurrent or consecutive." 132 S. Ct. at 1470. Notwithstanding the Setser Court’s direct statement that all three sentences of §3584(a) refer to already imposed sentences, the BOP continues to ignore the Court’s construction.

Bond To The Rescue?

So how does a case about the statutory implementation of the Chemical Weapons Convention solve the concurrent-consecutive statutory mess? In Bond, the government charged a jilted girlfriend, who smeared non-lethal chemicals on places her rival was likely to touch, with violation of the chemical weapons statute. Chief Justice Roberts’ majority opinion decided the question based on a basic rule of statutory construction that “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers.” When legislation affects the federal balance, “the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” There is of course nothing in §3584(a) that even suggests – never mind clearly states – that the federal government has the slightest interest in how much time a state defendant serves as punishment for a state crime.

The majority opinion required as a matter of statutory construction that there must be a “clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” The three concurring Justices would go straight to the absence of any constitutional authority under the enumerated powers of Congress to expand by treaty into an area of law enforcement reserved to the States. The basic premise of the opinion is irreconcilable with BOP executive action that thwarts a state concurrent sentence by requiring de facto consecutive service of the sentence in the face of a silent federal judgment: “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.”

The Bond opinion is heavily laced with references to the State’s primacy in matters of criminal law and the lack of any general federal police power. Any court that follows Bond’s reasoning should not be able to find any basis for construing the federal sentencing statutes to supersede the intention of a state court judge. Not only is the Supremacy Clause inapplicable to state criminal judgments, federal interference exceeds constitutional authority because, although the federal punishment is grounded in proper federal jurisdiction, no enumerated power confers on the federal government any say on how much, or how little, a state should punish a defendant for the violation of the state statute.


We federal defenders must be sure to anticipate concurrent-consecutive problems to avoid the need for BOP litigation. We need to determine primary jurisdiction, coordinate with state counsel – where applicable – to assure an effective criminal bankruptcy that accounts for all time in custody; request adjustments for undischarged sentences under U.S.S.G. § 5G1.3 and for discharged sentences under U.S.S.G. § 5K2.23, and request variances for good time credits that should have accrued for adjusted sentences so your client is not hurt by the vagaries of prosecutorial timing.

If worse comes to worse, and your client is being denied concurrent time based on the BOP’s call – not a judicial decision – have your client exhaust administrative remedies, then file for habeas corpus relief under 28 U.S.C. § 2241. The legal arguments are detailed in the brief linked here. Our clients will continue to serve unlawful consecutive sentences only as long as statutory and constitutional violations are tolerated without seeking judicial review. The Court's opinion in Bond has shown us the way, through habeas proceedings, to provide a remedy for unjust incarceration.

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


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