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Federal BOP’s Exclusions from Early Release Incentive for Substance Abuse Program Completion Struck Down

by Stephen G. Yagman

The U.S. Ninth Circuit Court of Appeals has invalidated the federal Bureau of Prisons’ (BOP) policy statement, 28 C.F.R. § 550.58(a)(1)(iv)(2000), see 65 Fed.Reg. 80745-01 (Dec. 22, 2000), that denies prisoners who have been convicted of the categorical crimes of homicide, forcible rape, robbery, aggravated assault and sexual abuse of a minor, one year off their sentences for successful completion of the BOP’s substance abuse treatment program.

Jerry Crickon was serving a 151-month sentence at the federal prison camp in Sheridan, Oregon for conspiracy to possess with intent to distribute methamphetamine. In March 2007, he received notice that he qualified for participation in the BOP’s Residential Drug Abuse Program, but was also informed that he was not eligible for the incentive offered in 18 U.S.C. § 3621(e), which ordinarily provides one year’s early release for successful completion of the nine-month program. The only reason cited for Crickon’s ineligibility for the early release incentive was his 1970 conviction for voluntary manslaughter.

The U.S. District Court denied Crickon’s § 2241 habeas corpus petition for an order that he be allowed to receive the early release incentive, despite the fact that his manslaughter conviction was 38 years old, and Crickon appealed to the Ninth Circuit.

The Court of Appeals’ unanimous opinion chronicles the history of Congress’s directives “to require the BOP to ‘make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse[,]’” and the later provision of incentives for successful completion of the program, so that “the BOP may reduce the sentence by up to one year for an inmate who successfully completes the program. 18 U.S.C. § 3621(e)(2)(B).”

Beginning in 1995, the BOP promulgated rules to implement the early release incentive and continued to do so until it issued a final rule in 2000. However, the final rule categorically excluded from eligibility for the early release incentive all prisoners who had been convicted of homicide, forcible rape, robbery, aggravated assault and sexual abuse of a minor, no matter how stale the convictions.

In 2008 the Ninth Circuit struck down the categorical exclusion from the early release incentive of prisoners convicted of offenses involving firearms, because the BOP’s policy violated the federal Administrative Procedure Act (APA), which required the BOP to have an “administrative record [that] contains [a] rationale explaining the Bureau’s decision to categorically exclude prisoners with convictions involving firearms from eligibility for early release under § 3621(e).” See: Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) [PLN, June 2009, p.44].

With the BOP having learned nothing from Arrington, it followed the same path and practice with respect to other categorically excluded convictions, and contended on appeal that it had its reasons for doing so. But the Ninth Circuit found those reasons must have appeared in the administrative record during the time the implementing regulations were being promulgated, not offered afterwards as post hoc rationalizations.

The appellate court’s reasoning was simple: “The APA provides that a ‘reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A)[,]” and since the BOP had made no findings, “we may ‘not supply a reasoned basis for the agency’s action that the agency itself has not given[,]’” or “‘infer an agency’s reasoning from mere silence.’”

The Ninth Circuit held that as the BOP had not articulated any reason at all for counting “stale” convictions against prisoners, or for the categorical exclusion of certain convictions from the early release incentive, all such exclusions were illegal. The “BOP rule encompassed in 28 C.F.R. 550.58(a)(l )(iv)(2000) is invalid because the BOP failed to provide any rationale for the categorical exclusion generally, and because the rationale provided for considering any prior conviction, regardless of age, is premised upon a mistake of law.”

The Court of Appeals also found that “[b]eyond explaining that it decided upon the four identified categories of convictions because of the variation in violence level that may be found in state convictions, ... the BOP provided no explanation for its decision to look to prior convictions as the appropriate basis to determine categorical exclusions.”

Further, “the BOP’s expressed belief that it was ‘acting in accordance with Congressional intent’ is difficult to square with Congress’s expressed intent to provide an incentive to encourage maximum participation in the BOP’s substance abuse treatment programs.”

The Ninth Circuit summed up by stating, “Because the BOP failed to articulate in the administrative record the rationale underlying its decision to adopt a categorical exclusion of inmates with specific prior convictions, we conclude that the BOP’s promulgation of the categorical exclusion in § 550.58(a)(l)(iv) did not comply with the APA.”

The district court’s denial of Crickon’s habeas corpus petition was reversed and the case remanded for further proceedings, including for “the BOP to reconsider Crickon’s eligibility for early release under § 3621(e)(20)(B) without regard to his prior conviction for voluntary manslaughter.” See: Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009).

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Related legal case

Crickon v. Thomas