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7th Circuit Reaffirms Voluntariness of BOP’s Inmate Financial Responsibility Program

In a ruling of significance to the approximately 218,000 prisoners in the Bureau of Prisons (BOP), the Seventh Circuit has reaffirmed that a federal prisoner cannot be ordered by his or her sentencing court to participate in the BOP’s Inmate Financial Responsibility Program (IFRP).

Federal prisoner Ondray McKnight was convicted of various offenses arising from the organized distribution of con-trolled substances, and was sentenced by the district court to 300 months in prison, ten years of supervised release and a $1,000 fine, which the court ordered to be paid through the IFRP. McKnight appealed both a jury instruction regarding the conduct and credibility of a government informant who testified against him, as well as the mandatory IFRP participation.

The Court of Appeals noted that it could engage in only a “limited review” of jury instructions, “asking only ‘if the instructions as a whole were sufficient to inform the jury correctly of the applicable law,’” quoting United States v. Curry, 538 F.3d 718, 731 (7th Cir. 2008). In its brief, the government cited Lewis v. United States, 385 U.S. 206 (1966), which held that a federal narcotics agent did not violate the Fourth Amendment when he misrepresented his identify and conducted an undercover purchase of drugs from the defendant. “[I]t has long been acknowledged ... that in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents....” The Seventh Circuit agreed, finding “that the district court did not commit reversible error by issuing the deceptive investigative practices jury instruction in this case,” and affirmed McKnight’s conviction.

Regarding the IFRP claim, the government “concede[d] that sentencing Mr. McKnight to participate in the IFRP constitutes plain error.” Because McKnight did not challenge that aspect of his sentence before the district court, however, he was only able to seek relief under the “plain error” doctrine of United States v. Munoz, 610 F.3d 989 (7th Cir. 2010).

The appellate court noted that in United States v. Boyd, 608 F.3d 331 (7th Cir. 2010) [PLN, Nov. 2011, p.33], it had previously held that the IFRP is a voluntary program. “The IFRP can be an important part of a prisoner’s efforts toward rehabilitation, but strictly speaking, participation in the program is voluntary.... [A]n inmate in the Bureau of Prisons’ custody may lose certain privileges by not participating in the IFRP, but the inmate’s participation cannot be compelled.”

McKnight requested only modification of his sentence, which the Court of Appeals held was consistent with Munoz and Boyd. Accordingly, the Seventh Circuit modified the sentence rather than remanding the case to the district court, “striking the mandatory requirement that Mr. McKnight participate in the IFRP.”

The government moved for rehearing en banc, which was denied by the appellate court on February 6, 2012. Judge Richard Posner and two other circuit judges dissented, noting that with respect to the jury instruction issue, “the appeal presents an important question that deserves the attention of the full court: the propriety of gratuitous jury instructions in criminal cases, which is to say instructions that do not address an issue in the case. Such instructions are apt to confuse jurors, and when as in this case they are proposed by a party rather than given on the initiative of the trial judge, they may be intended to confuse, and in the present case to undermine the efficacy of an instruction desired by the opposing party and given by the judge.”

The government then filed a petition for writ of certiorari with the U.S. Supreme Court, which was denied on June 11, 2012. See: United States v. McKnight, 665 F.3d 786 (7th Cir. 2011), cert. denied.

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Related legal case

United States v. McKnight