Judicial Recommendation to BOP for up to 6 Months Halfway House - Will the BOP Listen?

Prior to December 2002, the Bureau of Prisons allowed an inmate to be placed in a Community Corrections Center (CCC, a.k.a. halfway house) up to six months, regardless of the total length of the inmate’s sentence. On December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that the practice was not consistent with 18 U.S.C. § 3624(c), which in its opinion, limited an inmate’s placement in a halfway house to the lesser of six months or ten percent of the inmate’s sentence. The BOP adopted this interpretation of the statute. In light of decisions in other circuits, Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004), and Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004), the created new regulations noting the BOP could exercise its discretion to "designate inmates to CCC confinement only . . . during the last ten percent of the prison sentence being served, not to exceed six months," requiring that it consider various factors (resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence, concerning the purpose for the sentence for the sentence of imprisonment was determined to be warranted, or recommending a type of penal or correction facility as appropriate, and any policy statement issued by the Sentencing Commission. 28 C.F.R. § 470.20-21.

Recently, two circuits have ruled the BOP’s February 2005 regulation invalid as it restricts its discretionary transfer and placement in a halfway house to those serving the last 10% of their incarceration term. See Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. BOP, 432 F.3d 235 (3d Cir. 2005). These courts ruled that the BOP’s interpretation fails to consider the § 3621(b) factors "by excluding an entire class of inmates – those not serving the final ten percent of their sentences – from the opportunity to be transferred to a CCC." Fults, 442 F.3d at 1092.

In light of this developing law, it is recommended that among the request for judicial recommendations to be made at sentencing should be that the Bureau of Prisons consider placement of the client at a halfway house for 6 months. Several district courts are willing to include judicial recommendations (to include the 500-hour drug and alcohol - DAP - program, psychological treatment, vocational and educational training, participation in UNICOR, etc.). In the wake of Booker and the developing case law to "fix" Booker, a judicial recommendation of this sort will make a different to your client, especially if it is honored by the BOP. One client of this office has written asking for such a judicial recommendation, noting that his counselor explained to him that the BOP likely would honor the recommendation given his circumstances (completed 40-hour drug treatment program but he did not have a lengthy enough sentence for acceptance and completion of the 500-hour DAP program). Additions of judicial recommendations are more difficult after the entry of the judgment, and therefore, it is advisable to ask for these recommendations in the front end. Let's ask for the judicial recommendations then see if the BOP will listen.