Results tagged “Bureau of Prisons” from New York Federal Criminal Practice
In United States v. Seminerio, 2010 WL 749840 (S.D.N.Y. February 22, 2010), the defendant had been designated to the low security facility at Butner to serve his sentence in connection with his conviction for honest services fraud, rather than a minimum security camp. SDNY Judge Buchwald ordered the BOP to "correct its records to reflect that the defendant did not commit a crime of violence" and further apprised the BOP "that the designation of the defendant [to Butner] is not consistent with the Court's intentions." The BOP's website indicates, however, that 74 year-old Mr. Seminerio is currently in Butner.
In United States v. Hatfield, 2010 WL 550392 (E.D.N.Y. February 16, 2010), after an evidentiary hearing conducted before a magistrate, EDNY Judge Seybert ordered the Queens Private Detention Center to provide anti-anxiety medication to a trial defendant, "as directed by prescriptions written by" the defendant's private psychiatrist, and at the defendant's expense. The magistrate's recommendation of court intervention into the defendant's medical care was based on concerns that he might not be able to assist in his own defense if the medication issue is not resolved.
As of the end of 2007, the Bureau of Prisons had rarely exercised its power to file a motion for a reduced sentence under the “compassionate release” procedures found in 18 U.S.C. § 3582(c)(1)(A), see here. And, as is apparent in a recent decision by EDNY Judge Garaufis in United States v. Traynor, 2009 WL 368927 (E.D.N.Y. February 13, 2009), little has changed – despite the fact that the Sentencing Commission issued a new policy statement in November 2007 clarifying that the provision should encompass both medical and non-medical reasons, and circumstances beyond an inmate’s terminal illness.
Facts
In 2005, defendant Traynor was sentenced to serve 120 months for committing bank robbery and attempted bank robbery. Since the sentence was imposed, defendant’s health has deteriorated significantly and he is now being treated for asthma, epilepsy, headaches resulting from multiple bullet wounds and glaucoma. Based on his health, defendant filed for a motion for reduced sentence under 18 U.S.C. § 3582(c).
“Extraordinary and Compelling Reasons”
Modification of an imposed term of imprisonment to permit early release may be granted to a prisoner in only three circumstances under 18 U.S.C. § 3582(c), the broadest of which – and the one at issue in Traynor – is where the reduction is both warranted by “extraordinary and compelling reasons” that are “consistent with applicable policy statements issued by the Sentencing Commission.” In the 2007 amended policy statement, the Commission clarified that “extraordinary and compelling reasons” include not just situations where the inmate is terminally ill, but also where he/she “is suffering from a permanent physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement” – reasons that arguably include Traynor’s current circumstances. The kicker is that any reduction on this ground must be precipitated by a motion from the Bureau of Prisons; it cannot be granted upon a motion of the defendant. And as Judge Garaufis notes, “the Bureau of Prisons ‘has chosen to restrict the application of 18 U.S.C. § 3582(c)(1)(A) to inmates suffering from a serious medical condition that is generally terminal, with a determinate life expectancy.’” In practice this means inmates that are literally at death’s door and have days or weeks to live.
Holding
Here, no such motion had been filed by the Bureau of Prisons, and Judge Garaufis accordingly concluded that he had no jurisdiction to grant any relief here, “even if Mr. Traynor's health is an ‘extraordinary and compelling reason’ warranting a reduction in his sentence.”
JaneAnne Murray Adds:
Similar motions by inmates have been denied by other New York district courts over the past year, although the Second Circuit has not yet addressed the issue of the reviewability of the BOP’s failure to exercise its power to seek early release. Given the cost of incarcerating inmates, especially ones that need constant and acute medical care, it is unfortunate that the Bureau of Prisons doesn’t choose to exercise its power to seek early release more often. But it is hardly surprising. The BOP is in the business of locking people up, and it prides itself on its ability to treat and accommodate all medical conditions and disabilities. By establishing a compassionate release policy that rests solely within the BOP's discretion to apply, Congress has spun a lot of wheels to purely symbolic effect. Perhaps, in the right case (probably not Traynor’s, whose health issues are not as compelling as some I have come across), a strong pitch can be made that the BOP’s failure to act is arbitrary and capricious. At least Congress got it right in the Second Chance Act last year, in which it directed the BOP to implement a limited pilot program for the early release of elderly, non-violent prisoners - details of which are available here. Experts estimate that fewer than 100 prisoners will qualify . . .
Lawyers: Matthew Traynor (pro se); AUSA Jeffrey Knox
On November 1, 2007, an amended policy statement, U.S.S.C. §1B1.13, goes into effect providing guidance to district courts granting "compassionate release" from prison under 18 U.S.C. § 3582(c)(1)(A). Whereas the current policy statement permits release for "extraordinary and compelling reasons," the new version fleshes out that phrase by delineating four medical and non-medical circumstances justifying early release, including where (i) the defendant is suffering from a terminal illness, (ii) the defendant is disabled to the extent that his/her ability to provide self-care in a prison environment is "substantially diminished," (iii) the only family member capable of caring for the defendant's minor child(ren) has died or is incapacitated, or (iv) the Director of the Bureau of Prisons determines that other "extraordinary or compelling reasons" exist.
An important caveat regarding these changes is that the motion for release must still be made by the Bureau of Prisons, and needless to say, its track record has been to exercise this discretion very rarely. Moreover, while the Second Circuit has not yet addressed whether the Bureau of Prisons' power in this area is reviewable, the Circuits that have addressed the issue have concluded it is not. See, e.g., Fernandez v. United States, 941 F.2d 1488, 1492-1493 (11th Cir.1991); Simmons v. Christensen, 894 F.2d 1041 (9th Cir.1989).
At the very least, where the kinds of circumstances described in the amended policy statement exist prior to sentencing, practitioners should cite the new policy in support of motions for variances below the applicable sentencing guideline.
The interaction between state and federal sentences is one of the thorniest of sentencing problems. Despite everyone’s best intentions, and clear statements on the record of the sentencing judge’s intent, the Bureau of Prisons (BOP) beats to its own drum on this issue, and absent the appropriate formula in the federal judge’s written judgment of conviction, may refuse to give a federal prisoner credit for time spent in state custody – a decision that could add years to an inmate’s period of incarceration.
The situation is neatly illustrated in the decision Judge Weinstein issued the other day in United States v. Jenkins, 2007 WL 2827574 (E.D.N.Y., October 2, 2007). Jenkins was arrested and incarcerated on a state charge in New Jersey. At the time, he was awaiting sentencing in a federal case before Judge Weinstein. The government “borrowed” him into federal custody by means of a writ so that his federal sentence could be imposed. >The federal court imposed a sentence of 27 months, but denied Jenkins’s request that his federal sentence run concurrently with his state sentence, since the state sentence had not yet been imposed. Jenkins was returned to state custody, after which the state court imposed a three-year term of imprisonment to run concurrently with the federal one. Despite the state judge’s clear intent that both sentences run concurrently, the BOP lodged detainers against Jenkins for the completion of his federal sentence once his state sentence was served – effectively rendering both sentences consecutive. This is because the BOP ignores the state court judge’s intent, and relies exclusively on the intent of the federal sentencing judge, as expressed in the federal judgment of conviction. If the federal judgment is silent as to concurrency, the BOP takes the position that the federal sentence must run consecutively with the state sentence.
Jenkins moved under 28 U.S.C. § 2255 for an amended federal judgment directing that his federal and state terms of incarceration run concurrently. In his decision, Judge Weinstein highlights a number of procedural hurdles Jenkins must surmount: whether § 2255 was the appropriate vehicle for the petition; the fact that Jenkins’s circumstances did not come within the narrow class of cases in which the court is authorized to amend its judgment of conviction; the fact that a state court’s specification that a state sentence run concurrently with the existing federal sentence is not binding on federal authorities; and the fact that only the BOP has the power to designate the place of imprisonment, and thus the power to designate a state institution for service of a federal sentence.
The judge did an end-run around these problems, however, by denying Jenkins’s application but “recommending” that the BOP grant Jenkins’s application to designate his state correction facility nunc pro tunc (i.e. retroactive to the date of initial incarceration) as a federal prison and credit time served in state custody to his federal sentence. While the court used the word “recommend,” Judge Weinstein noted the BOP usually follows such recommendations. Moreover, if the BOP does not give “full and fair consideration” to Jenkins’s application, the court invited Jenkins to file a petition under 28 U.S.C. § 2241 (a habeas corpus provision for petitions challenging the manner in which one’s sentence is being executed). One can hardly doubt that the BOP will choose the path of least resistance here.
The case highlights the gravity and complexity of the problems presented by simultaneous state and federal sentences. Practitioners encountering this issue in a case would do well to read the BOP’s publication on the subject, and formulate a strategy that minimizes the risk or severity of serving consecutive time.
Judicial recommendations at sentencing can carry considerable weight with the Bureau of Prisons, favorably impacting, for example, designation to a particular facility or enrollment in a sentence-reducing program. Many of us believed that the BOP's policy (BOP Policy Statement 5070.10) requiring an automatic written explanation to the sentencing judge if his/her recommendation is not being followed exerted a positive effect on the rate of compliance with recommendations. All else being equal, isn't it easier to grant the judge's request rather than go to the trouble of writing a letter? Just recently, however, the BOP announced a change in its policy on responding to such recommendations. As of July 2, 2007, the BOP now only supplies an explanation to the sentencing judge upon request. Absent an affirmative request, the sentencing judge will not even be notified that the recommendation is not being followed. The change in policy was set forth in a letter dated June 4, 2007, from Harley Lappin, the Director of the BOP, to Paul Cassell, Chair of the Criminal Law Committee of the Judicial Conference. Explaining the change as a cost-control measure, the BOP advises that it will continue to maintain statistics on the rate of compliance with judicial recommendations, which is currently at 72%. Of course, now that the bureaucratic hurdle of automatically explaining to the judge why his/her recommendation is not being followed has been removed, it remains to be seen whether that rate of compliance will undergo a change for the worse. In the meantime, defense lawyers seeking a judicial recommendation at sentencing would be well-advised to ask the sentencing judge not only to make the recommendation to the BOP, but also affirmatively request an explanation from the BOP if the recommendation is not to be followed.
See Archives for all posts since September 2007.
