November 11, 2004

Terry v. Menifee, No. 04-4505, 004 WL 2434978 (S.D.N.Y. Nov. 1, 2004) follows Goldings v. Winn and Elwood v. Jetter

We posted on Elwood v. Jetter here, and on Goldings v. Winn, here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)"), here ("A Healthy Exchange on Goldings v. Winn"), and most recently here ("Goldings v. Winn: Update from Peter Goldberger via BOP Watch").

Now this in via Howard O. Kieffer at BOPWatch:

On November 1, 2004, Chief Judge Michael B. Mukasey (SDNY), in Terry v. Menifee, No. 04-4505, 2004 WL 2434978 (S.D.N.Y.), found that the statutory interpretation underlying the BOP's current policy regarding limiting CCC placement to the last 10% of one's sentence to be erroneous.
The court found that the BOP is entitled to deference ("some deference") in its interpretation and, while making it clear to note that it was not requiring placement in a CCC, it granted the petition and required reconsideration for CCC placement consistent with the factors BOP considers, etc. The Court stated that: The First and Eighth Circuits, the only Courts of Appeals that have spoken on the matter so far, have invalidated the BOP's new policy on the ground that the BOP's interpretation of the statutes is erroneous. See Elwood v. Jetter, No. 04-2253, 2004 WL 2331643 (8th Cir. Oct. 18, 2004); Goldings v. Winn, 383 F.3d 17, No. 03-2633 (1st Cir. Sept. 9, 2004). The SDNY in Terry ordered the respondent (Warden) to reconsider, promptly and in good faith, the appropriateness of transferring Mr. Terry to a CCC in light of the factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002. It bears emphasis that this order's effect is to restore discretion to the BOP under it's pre-December 2002 policy over designation and transfer of federal prisoners. The order does not purport to establish Mr. Terry's entitlement to placement in a CCC.
As Todd Bussert, who has participated in several of these cases, also wrote at BOPWatch:
Judge Mukaskey's is one in a long line of written opinions from the SDNY invalidating the rule change, dating back to Judge Wood's decision in Greenfield v. Menifee [in] October, 2003. Notably, while the vast majority of the judges within that district have granted relief to the petitioner-prisoners, that is, directing BOP to reconsider their halfway house placement dates in a manner consistent with Judge Mukaskey's order, the government has not appealed one of its losses.

In terms of the proposed change published in the Federal Register in August, which Howard previously posted to the list, officials at the Rules Unit in Washington report that the earliest a new rule, with an effective date, might be issued is late January, and maybe not until next Spring.

Given that the October 18 deadline for comments has passed, those interested in seeing BOP's halfway house practices return to their pre-December 2002 form are encouraged to contact your Congressperson and express a position. Who knows, maybe the new AG will have a different opinion about the legality of BOP's historic practices than his/her predecessor.

Not believing that they have been previously posted at BOPWatch, comments from the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, responding to the August notice, can be found on FAMM's site here.

Also, recently wrote about the "The Halfway House Debate." The article, includes some compelling findings by the Urban Institute about bipartisan support for reentry initiatives.
If anyone has any information as to how this has played out with any inmates housed at MDC-Guaynabo, please leave a comment to this post, or e-mail PRACDL.

Thanks to BOPWatch and it's great contributors for the information.