The question raised by one of the listserve members was as follows:
The initial answer provided by Howard O. Kieffer was as follows:Once a person is in BOP custody, can an attorney help them get transferred from a camp to 1/2 house or home detention?
One client is young man with fraud conviction & no priors who didn't make it at boot camp (not sure why he wanted boot camp as his sentence was 1 yr & 1 day). Anyway, now he is at Jesup & the family wants to hire me to help him get 1/2 house or home detention. He has served 6 months...I don't want to take their money if there is nothing I can do--I always understood that it was up to the case mgr & warden at the institution to make that transfer...Other client is 65 yr old grandmother with severe heart problems.(documented). She was originally designated to Alderson, but now has been transferred to FMC Ft. Worth. She has a 15 month sentence for perjury--no prior record.Any insight very appreciated.
Absent other facts, the Bureau's current practice is to limit CCC placement to 10% of the sentence as imposed. I would caution you not to take the money - at least under the scenario that you have posted.Then Peter Goldberger, one of the attorneys in Goldings made the following comment:
I would be happy to discuss this area generally with you, as I am sure a few others here would, as we work regularly in this area.
As one of the attorneys to whom Howard is referring, I guess I should respond, too. It is actually unusual for me to disagree with Howard on questions like this, but in this instance I do. The BOP's current practice, limiting CCC placement to the last 10% of the good-time-adjusted sentence (so it is actually even less than "10% of the sentence as imposed"), is based on a legal misinterpretation of the governing statutes. Most judges have ruled that the BoP's current interpretation is wrong -- including most notably a unanimous panel of the First Circuit on 9/9 in Goldings v Winn. Most judges say that the BoP has full discretion to grant more than 10%, and have noted that before the Ashcroft Justice Dept imposed this new, bogus interpretation in 12/02 the BoP routinely gave up to 6 months in many cases.Howard O. Kieffer replied:
If you want to challenge the current policy on legal grounds, a knowledgeable post-conviction attorney can definitely help. Most of the unsuccessful challenges have been brought pro se, or by lawyers who didn't know what they were doing. As one who has followed this litigation pretty closely from the beginning (and who has won many of them), I am not aware of any cases out of the Southern District of Georgia, where Jesup is located. (There is some good Northern District precedent, however.) That's what matters, since the vehicle you use is a habeas petition under sec 2241.
If all you're asking is whether a lawyer can help by intervening with the unit team, however, I would agree that the answer is probably No. In addition, based on the facts you gave, your client is probably not a good CCC candidate anyway. Many CCCs don't take referrals with serious health issues. And I'm guessing she's not going to be using the CCC as a base to look for a job. You and she might be better off suggesting that they give her the full 10% in home confinement, and that they send her directly there. If you're interested in the litigation option, however, you can contact me, or any of several other attorneys on this list.
-- Peter Goldberger, Ardmore, PA
I absolutely agree with Peter. However, I was ignoring (for a moment) the unlawful practice (I said practice - NOT policy) that the Bureau is still intent on relying on, because of the stated facts: short sentence and (in the other client's case) health issues.Todd Bussert, another of the attorneys in Goldings, then added the following:
On a practical note, these are not particularly good facts for this type of litigation - and time would be short - so it really depends upon resources - not just dollars, but knowledge. Do contact Peter, if the resources are there.
One additional note of caution: The Bureau requires inmates that it is transferring to CCCs sign a statement that they are responsible for their own medical care. While in reality, this probably is not true (as they are still in BOP custody), no signature - no transfer. If the inmate won't be seeking employment while at the CCC (because of documented health reasons or disability), most CCCs will be vigilant in seeing that they are moved to home confinement (if they otherwise qualify) as soon as possible (so they can generate income from a working inmate who will pay 25% subsistence).
By the way, even on a short year and a day sentence, the ICC (boot camp) would have had a significant benefit (if successfully completed).
Just to throw in my two cents, as someone also involved with this litigation: In terms of anyone on this list considering, or offering advice on, this type of litigation, it is important to recognize that prevailing on the legal merits (i.e., obtaining a decision that holds the 10% restriction unlawful) does NOT automatically mean that a federal prisoner serving a sentence of 70 months or less (those for whom the 10% restriction is a real issue) will receive a six-month halfway house placement. As Peter notes, judges invalidating the 10% rule have found that BOP does have discretion to provide more in terms of halfway house placement. At the same time, almost every court has referred the issue back to the petitioner's parent institution for a reconsidered CCC date. And, though many BOP institutions, prior to December 2002, regularly made pre-release CCC transfers of six months before a prisoner's projected release date, that was not necessarily the norm at every institution, nor what one should expect on reconsideration.Whether or not one's reconsidered date is made in good faith (i.e., without regard to the policy change and consistent with the institution's past practices) is another question entirely, and one into which many courts have been reluctant to inquire further.
Also, there are CCCs that accept retired individuals and/or those on disability; they simply want 25% of the benefits check. As many on this list can attest, securing a direct home confinement placement is not easy since most CCCs, which oversee the home confinement, want to 'get a feel' for a person before approving the move. Finally, the need to assume responsibility for medical care can often be handled by a family member in the community sending a letter to the case manager taking on the financial burden.
And Howard O. Kieffer concluded with the following:
I hope this helps you all a bit. Thanks to BOPWatch for the exchange, and particular thanks to the learned attorneys in this matter for sharing your knowledge with us all.And Todd is just as right. In my initial response - as someone involved in this type of litigation - I knew there was an absence of facts in what was initially presented. Accordingly, one couldn't even consider whether retroactivity was an issue or many other things that are also fact driven. At the end of the day, the time that it takes to pursue these remedies, the shortness of the sentence and the great amount of discretion that would still remain - even if successful (before becoming moot) seemed to indicate that it wasn't the best case for expending great resources.
One thing that this discussion has shown is that we have great resources. I am sure that Lynn never contemplated getting this type of discourse. We have even made some of the blogs with this one. Thanks again to Lynn, Peter and odd.
- Howard O. Kieffer
As a final matter, I would urge all of you to sign up for BOPWatch since you can get a lot of very helpful information for your clients as well as many hints on how to help them best. Furthermore, you can ask questions about particular matters and get lots of ideas on how best to deal with it.