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Ninth Circuit Strikes Down BOP Regulation Precluding Early Release for Prisoners Who Complete Drug Treatment

Ninth Circuit Strikes Down BOP Regulation Precluding Early Release for Prisoners Who Complete Drug Treatment

by Brandon Sample

The U.S. Court of Appeals for the Ninth Circuit held that the federal Bureau of Prisons (BOP) violated the Administrative Procedures Act (APA) in promulgating a regulation that precludes up to one year of early release for certain offenders who complete the BOP’s Residential Drug Abuse Program.

The appellate court’s decision came in a consolidated appeal from habeas corpus petitions filed by Charles Arrington and 17 other current and former prisoners at the Federal Correctional Institution in Sheridan, Oregon. The plaintiffs alleged that the BOP’s promulgation of 28 C.F.R. § 550.58(a)(1)(vi)(B) was “arbitrary and capricious” because prison officials had failed to provide sufficient rationale for their decision to categorically exclude from early release those whose current offense is a felony and “involved the carrying, possession or use of a firearm.”

In denying the prisoners’ habeas petitions, the district court found that the BOP had provided two rational reasons to support the regulation: (1) the increased risk that offenders with convictions involving firearms might pose to the public and (2) the need for uniformity in the application of the regulation. The BOP’s alleged need for uniformity stemmed from patchwork application of a prior rule that sought to exclude prisoners with offenses involving firearms from early release based on the BOP’s construction of the term “crime of violence” in 18 U.S.C. § 3621(e).

Noting that courts “are limited to the explanations offered by the agency in the administrative record,” the Ninth Circuit rejected the BOP’s public safety rationale in support of the regulation because it was “entirely absent from the administrative record.”
Rather, the appellate court explained, the BOP first articulated this justification in a brief to the Supreme Court, which was “precisely the type of ‘post hoc rationalization’ of appellate counsel that we are forbidden to consider in conducting review under the APA.”

Turning to the BOP’s second rationale, the Ninth Circuit concluded that prison officials’ need for uniformity in applying the regulation fared a “little better” because it was, at least, included in the administrative record. Nevertheless, the Court of Appeals held that the district court had erred in relying on this reason to support the challenged regulation.

According to the Ninth Circuit, the BOP’s “general desire for uniformity provides no explanation for why the Bureau exercised its discretion to achieve consistency through the promulgation of a categorical exclusion rule.” For example, the BOP could have achieved uniformity through a rule that included prisoners with nonviolent convictions involving firearms, thus making them eligible for early release. Yet the BOP chose to categorically exclude such offenders. The BOP’s failure to explain why it exercised its discretion to “select one rather than the other” rendered the regulation invalid.

Accordingly, the judgment of the district court was reversed and the case was remanded with instructions to grant the habeas petitions. See: Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008).

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Related legal case

Arrington v. Daniels