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U.S. Department of Justice

Office of the Deputy Attorney General


The Deputy Attorney General

Washington, D.C. 20530

December 16, 2002


MEMORANDUM
   
TO: Kathleen Hawk Sawyer
Director
Federal Bureau of Prisons
   
FROM: Larry D. Thompson
Deputy Attorney General
   
SUBJECT: Community Corrections Center Placement of Offenders Sentenced to Terms of Imprisonment Under Federal Sentencing Guidelines

It has come to my attention that the Federal Bureau of Prisons (BOP) has a policy of accommodating judicial requests (and occasionally acting on its own) to place low-risk, non-violent offenders with short terms of imprisonment in a community corrections center (CCC), even where such placement expressly contravenes the United States Sentencing Guidelines. It is my understanding that BOP adheres to this policy by interpreting the term "imprisonment" in 18 U.S.C. 3621 (2000) and U.S.S.G. 5C1.1 (2001), to encompass CCCs, facilities in which offenders are free to leave the institution during approved hours for the purpose of participating in employment and other community programming activities. Recently, I asked the Office of Legal Counsel (OLC) to assess the legality of BOP's practices.

OLC has now issued a formal opinion finding that BOP's policy is unlawful. Accordingly, BOP immediately should take all steps necessary to ensure that its sentencing placement decisions are in full compliance with the governing law. In addition, BOP should transfer to an actual prison facility all federal offenders currently residing in a CCC who, as of today, have more than 150 days remaining on the imprisonment component of their sentence. BOP shall give at least 30 days written notice to each such offender prior to the transfer.

I.

The OLC opinion concludes that BOP is obligated to adhere strictly not only to statutory directives, but also to all placement requirements and policies set forth in the Federal Sentencing Guidelines. As you know, the purpose of implementing the Guidelines was to enhance the rationality and uniformity in federal sentencing by eliminating, to the maximum extent possible, the "unjustifiably wide range of sentences" imposed on offenders who share similar criminal histories and who are convicted of similar crimes under similar circumstances. Koon v. United States, 518 U.S. 81, 92 (1996). To ignore the Guidelines is to promote the very disparity in sentencing that the Guidelines seek to eliminate.

Under the unambiguous language of U.S.S.G. 5C1.1(d), federal offenders sentenced under Zone C of the Guidelines may have their minimum term satisfied either by (i) a sentence of imprisonment, or (ii) a sentence of imprisonment that substitutes community confinement or home detention for part of the term of imprisonment. In the latter case -- i.e., "split sentences" -- at least one-half of the minimum term must be satisfied by imprisonment. Id. 5C1.1(d)(2). As for Zone D offenders, their minimum term must in all circumstances be satisfied by a sentence of imprisonment. Id. 5C1.1(f). The OLC opinion states unequivocally that the mandatory period of imprisonment required for offenders sentenced under Zones C or D of the Guidelines may not be substituted by confinement in a community corrections center as imprisonment and community confinement are simply not synonymous.

II.

The OLC opinion additionally notes that, while BOP does have limited statutory authority in 18 U.S.C. 3624(c) to transfer an offender to a CCC prior to his release so as to "afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community," there are firm restrictions on such transfers. Specifically, the transfer may not exceed the lesser of (i) the last ten percent of the sentence imposed on the offender, i.e., the period of time in which the offender was committed to the custody of the BOP, or (ii) six months. The OLC opinion concludes that there are no bases for disregarding these time limitations.

III.

Another concern regarding BOP's CCC placement policies is its potentially disproportionate, and inappropriately favorable, impact on so-called "white-collar" criminals. In promulgating the Sentencing Guidelines, the Sentencing Commission sought to increase the likelihood of incarceration for white-collar offenders. Such individuals -- even those guilty of serious economic crimes -- frequently enjoyed lenient sentences under pre-Guidelines practice. As the Guidelines explain:

Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the Commission's views are "serious."

The Commission's solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. The Commission concluded that the definite prospect of prison, even though the term may be short, will serve as a significant deterrent, particularly when compared with pre-guidelines practice where probation, not prison, was the norm.

U.S.S.G. Ch. 1 , Pt. A, 4(d).

BOP's current placement practices run the risk of eroding public confidence in the federal judicial system. White collar criminals are no less deserving of incarceration, if mandated by the Sentencing Guidelines, than conventional offenders. Indeed, such individuals are often better educated and more rational than other criminals and are thus more likely to weigh the risks of possible courses of action against the anticipated rewards of criminal behavior. As many studies have shown, the prospect of prison -- more than any other sanction -- is feared by white collar criminals and has a powerful deterrent effect. Moreover, white collar crimes often involve not only a high level of intent and calculation, but are committed over an extended period of time, making the punitive dimension of prison especially deserved in many cases. With this memorandum, and the accompanying OLC opinion issued last week, I am confident that the Department of Justice is taking an important step towards ensuring the proper and fair enforcement of the law.


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