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IFRP Payment Schedule May Not be Delegated to BOP by Sentencing Judge

The U.S. Court of Appeals for the Ninth Circuit has held that “where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering immediate payment impermissibly delegates to the BOP [Bureau of Prisons] the court’s obligation to set a payment schedule.” Consequently, the Court of Appeals reversed a district court’s order that let the BOP determine a prisoner’s Inmate Financial Responsibility Program (IFRP) payments.

As part of his federal prison sentence, Jack Richard Ward was ordered to pay a $1,000 Crime Victim Fund assessment and $27,885 in restitution. Once incarcerated, Ward took a job with UNICOR, the BOP’s prison industry program, and a portion of his wages was deducted for payment of his IFRP obligation. He filed motions with the sentencing judge, which were construed as a Section 2255 petition. The court moved to vacate its own restitution order, but after the government objected, ruled that it lacked jurisdiction to do so and let the original IFRP order stand.

Ward then instituted a habeas corpus proceeding, which was denied by the district court because 1) he had not exhausted his available judicial and administrative remedies, 2) he was participating in the IFRP program voluntarily and 3) the court had not required the BOP to set a schedule of IFRP payments, and thus did not delegate its authority in that regard.

On appeal, the Ninth Circuit found that “the district court erred in not waiving the exhaustion requirement, as Ward’s exhaustion of his administrative remedies would have been futile.” The Court of Appeals then considered the Mandatory Victims Restitution Act (MVRA), which directs a sentencing court to “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid.” 18 U.S.C. § 3664(f)(2). The Court found this to be non-delegable: “The district court simply does not have the authority to delegate its own scheduling duties – not to the probation office, not to the BOP, not to anyone else.”

The appellate court noted that it had previously “clarified the demarcation between impermissibly delegating authority to the BOP and the BOP’s independent power to administer the IFRP,” citing United States v. Lemoine, 546 F.3d 1042 (9th Cir. 2008). Lemoine held that a prisoner’s participation in the IFRP, although “voluntary,” could be encouraged by various sanctions and withholding of privileges by the BOP. [See, e.g.: PLN, March 2013, p.36; Nov. 2011, p.33].

The government argued that a district court may order “immediate payment” of a prisoner’s restitution obligation, citing United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002). However, the Ninth Circuit distinguished Martin because that case did not decide the issue of whether “immediate” payment delegated authority to the BOP or probation officials, but rather concluded that “the court had before it information regarding Defendant’s financial resources that it presumably considered and found insufficient to warrant periodic payments.” The Court of Appeals also observed that other circuits considering cases with similar factual circumstances had decided that “Orders directing ‘immediate’ payment under such circumstances are indistinguishable in principle from outright delegations of authority to the Bureau of Prisons.”

Therefore, the Ninth Circuit recognized that “For a restitution order to be lawful ... Section 3664 requires that the district court set a schedule in consideration of the defendant’s financial resources.” The appellate court concluded that “without a proper order the BOP does not have the authority to require a schedule of restitution payments collected while Petitioner is participating in the IFRP.”

The district court’s judgment was therefore reversed and remanded for further proceedings. See: Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012).

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Related legal case

Ward v. Chavez