[Federal Register Volume 69, Number 159 (Wednesday, August 18, 2004)]
[Proposed Rules]
[Pages 51213-51215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18747]



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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 570

[BOP Docket No. 1127-P]
RIN 1120-AB27


Community Confinement

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes new 
rules announcing its categorical exercise of discretion for designating 
inmates to community confinement when serving terms of imprisonment.

DATES: Comments are due by October 18, 2004.

ADDRESSES: Our email address is [email protected]. Comments should be 
submitted to the Rules Unit, Office of General Counsel, Bureau of 
Prisons, 320 First Street, NW., Washington, DC 20534. You may view an 
electronic version of this rule at http://www.regulations.gov. You may 
also comment via the Internet to BOP at [email protected] or by using 
the http://www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include the BOP Docket No. 
in the subject box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The proposed rules would, as a matter of 
policy, limit the amount of time that inmates may spend in community 
confinement (including Community Corrections Centers (CCCs) and home 
confinement) to the last ten percent of the prison sentence being 
served, not to exceed six months. The only exceptions to this policy 
are for inmates in specific statutorily-created programs that authorize 
greater periods of community confinement (for example, the residential 
substance abuse treatment program (18 U.S.C. 3621(e)(2)(A)) or the 
shock incarceration program (18 U.S.C. 4046(c)). The Bureau announces 
these rules as a categorical exercise of discretion under 18 U.S.C. 
3621(b).
    Before December 2002, the Bureau operated under the theory that 18 
U.S.C. 3621(b) created broad discretion to place inmates in any prison 
facilities, including CCCs, as the designated places to serve terms of 
``imprisonment.'' Under that theory, the Bureau generally accommodated 
judicial recommendations for initial CCC placements of non-violent, 
low-risk offenders serving short prison sentences. Consequently, before 
December 2002, it was possible for such inmates to serve their entire 
terms of ``imprisonment'' in CCCs.
    On December 13, 2002, the Department of Justice's Office of Legal 
Counsel (OLC) issued a memorandum concluding that the Bureau could not, 
under 18 U.S.C. 3621(b), generally designate inmates to serve terms of 
imprisonment in CCCs. OLC concluded that, if the Bureau designated an 
offender to serve a term of imprisonment in a CCC, such designation 
unlawfully altered the actual sentence imposed by the court, 
transforming a term of imprisonment into a term of community 
confinement. OLC concluded that such alteration of a court-imposed 
sentence exceeds the Bureau's authority to designate a place of 
imprisonment. OLC further opined that if section 3621(b) were 
interpreted to authorize unlimited placements in CCCs, that would 
render meaningless the specific time limitations in 18 U.S.C. 3624(c), 
which limits the amount of time an offender sentenced to imprisonment 
may serve in community confinement to the last ten percent of the 
prison sentence being served, not to exceed six months. By memorandum 
dated December 16, 2002, the Deputy Attorney General adopted the OLC 
memorandum's analysis and directed the Bureau to conform its 
designation policy accordingly.
    Thus, effective December 20, 2002, the Bureau changed its CCC 
designation procedures by prohibiting Federal offenders sentenced to 
imprisonment from being initially placed into CCCs rather than prison 
facilities. The Bureau announced that, as part of its procedures 
change, it would no longer honor judicial recommendations to place 
inmates in CCCs for the imprisonment portions of their sentences. 
Rather, the Bureau would now limit CCC designations to pre-release 
programming only, during the last ten percent of the prison sentence 
being served, not to exceed six months, in accordance with 18 U.S.C. 
3624(c).
    The Bureau's change was challenged in the Federal courts. District 
courts addressing the legality of the Bureau's changed policy have been 
sharply divided. Some courts have upheld the policy, see, e.g., Cohn v. 
Federal Bureau of Prisons, 2004 WL 240570 (S.D.N.Y., Feb. 10, 2004); 
Benton v. Ashcroft, 273 F. Supp. 2d 1139 (S.D. Cal. 2003); while others 
have rejected it, see, e.g., Monahan v. Winn, 276 F. Supp. 2d 196 (D. 
Mass. 2003); Iacoboni v. United States, 251 F. Supp. 2d 1015 (D. Mass. 
2003); Byrd v. Moore, 252 F. Supp. 2d 293 (W.D.N.C. 2003). The courts 
that disagreed with the re-interpretation concluded that 18 U.S.C. 
3621(b) grants the Bureau broad discretion to designate offenders to 
any facility, including CCCs. See, e.g., Iacaboni, 251 F. Supp. 2d at 
1025; Byrd, 252 F. Supp. 2d at 300-01. But see Cohn, 2004 WL 240570 at 
*3 (``the BOP's interpretation that a CCC is not a place of 
imprisonment, and therefore not subject [to] Congress' general grant of 
discretion to the BOP under Sec.  3621(b), is at a minimum a 
permissible interpretation of the statute'').
    Because various courts have held that the Bureau has discretion 
under 18 U.S.C. 3621(b) to place offenders sentenced to a term of 
imprisonment in CCCs, the Bureau considers it prudent to determine how 
to exercise such discretion. Accordingly, the Bureau has considered how 
to exercise that discretion in a manner consistent with the text of 
Section 3621(b), Congressional objectives reflected in related 
statutory provisions, and the policy determinations of the U.S. 
Sentencing Commission expressed in the U.S. Sentencing Guidelines. 
Based on those considerations, the Bureau has determined to exercise 
its discretion categorically to limit inmates' community confinement to 
the last ten percent of the prison sentence being served, not to exceed 
six months. This categorical exercise of discretion is permissible 
based on the Supreme Court's recognition that, even when a statutory 
scheme requires individualized determinations, the decisionmaker has 
authority to rely on rulemaking to resolve certain issues of general 
applicability (unless Congress clearly expresses an intent to withhold 
that authority). See Lopez v. Davis, 531 U.S. 227, 243-44 (2001); 
American Hospital Association v. NLRB, 499 U.S. 606, 612-13 (1991). The 
Bureau will continue to make a case-by-case determination of the 
particular prison facility (i.e., non-community-confinement facility) 
to which it will designate each individual inmate.
    Section 3621(b) authorizes the Bureau to designate as the place of 
a prisoner's imprisonment any available facility that meets minimum 
standards of health and habitability ``that the Bureau determines to be 
appropriate and suitable.'' 18 U.S.C. 3621(b). Section 3621(b) provides 
a nonexclusive list of factors that the Bureau is to consider in 
determining what facilities are ``appropriate and suitable,'' including 
(1) the resources of the facility; (2) the nature and circumstances of 
the offense; (3) the

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history and characteristics of the prisoner; (4) any statement by the 
sentencing court about the purposes for which the sentence of 
imprisonment was determined to be warranted or recommending a type of 
penal or correctional facility as appropriate; and (5) any pertinent 
policy statement issued by the Sentencing Commission under 28 U.S.C. 
994(a)(2). The statute further commands that ``there shall be no 
favoritism given to prisoners of high social or economic status'' in 
Bureau designation decisions. 18 U.S.C. 3621(b). The legislative 
history makes clear that, although the listed factors are 
``appropriate'' for the Bureau to consider, Congress did not intend, by 
listing some considerations,'' ``to restrict or limit the Bureau in the 
exercise of its existing discretion.'' S. Rep. 225, 98th Cong., 1st 
Sess. 142 (1983). In addition to the listed factors, the Bureau has 
determined that it is appropriate to consider the policies of the 
Sentencing Commission reflected in Sentencing Guidelines (as well as 
policy statements promulgated under 28 U.S.C. 994(a)(2)) and 
congressional policies reflected in related statutory provisions.
    In deciding to limit inmates' community confinement to the last ten 
percent of the prison sentence, not to exceed six months, the Bureau 
has carefully considered all of the statutorily-specified factors, as 
well as the additional considerations that it identified as pertinent. 
The Bureau viewed the following considerations as most significant:
     These proposed rules promote consistency in the Bureau's 
designation of inmates to places of confinement. Congress, in enacting 
18 U.S.C. 3621(b), codified its intent that the Bureau not show 
favoritism in making designation decisions: ``In designating the place 
of imprisonment or making transfers under this subsection, there shall 
be no favoritism given to prisoners of high social or economic 
status.'' 18 U.S.C. 3621(b). Indeed, eliminating unwarranted 
disparities in sentencing was a primary purpose of the Sentencing 
Reform Act of 1984. See S. Rep. No. 225, 98th Cong., 1st Sess. 52 
(1983). However, the Bureau's system before December 2002, which 
allowed individualized CCC decisions for each inmate upon initial 
prison designation, created the possibility that it would 
unintentionally treat similar inmates differently. These differences in 
treatment would not only be unfair to the inmates, but they ``could 
invite [charges of intentional] favoritism, disunity, and 
inconsistency'' against the Bureau. Lopez, 531 U.S. at 244. These 
proposed rules promote Congress' goal of eliminating unwarranted 
disparities in the sentencing and handling of inmates and also 
eliminate any concern that the Bureau might use community confinement 
to treat specific inmates leniently.
     The proposed rules are also consistent with Section 
3621(b)'s instruction that the Bureau consider facility resources in 
making designation determinations. 18 U.S.C. 3621(b)(1). Based on its 
experience, the Bureau has concluded that the resources of CCCs make 
them particularly well suited as placement options for the final 
portion of offenders' prison terms. CCCs offer increased community 
access and greater integration with the community. As Congress has 
itself recognized, those characteristics of CCCs mean that they 
``afford the prisoner a reasonable opportunity to adjust to and prepare 
for the prisoner's re-entry into the community.'' 18 U.S.C. 3624(c). By 
ensuring that offenders sentenced to prison terms not be placed in CCCs 
except during the last ten percent of their prison sentences (not to 
exceed six months), the proposed rules will help ensure that CCCs 
remain available to serve the purposes for which their resources make 
them best suited.
     These proposed rules are supported by the Bureau's 
statutory obligation to consider ``any pertinent policy statement 
issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).'' 
18 U.S.C. 3621(b)(5). Although guidelines, which are promulgated under 
28 U.S.C. 994(a)(1), are distinct from policy statements promulgated 
under Section 994(a)(2), the Bureau believes that both reflect 
sentencing policy determinations made by the Sentencing Commission and 
therefore that the Bureau should also take cognizance of guidelines in 
making placement designations. Under Sentencing Guideline 5C1.1, where 
a sentence of imprisonment is required for defendants whose guidelines 
range falls within Zones B or C of the Sentencing Table, the Guideline 
authorizes ``community confinement'' only as a condition of supervised 
release that substitutes such confinement pursuant to a schedule set 
forth in the Guideline (or as a condition of probation). See USSG Sec.  
5C1.1(c) and (d). That Guideline thus reflects the Commission's policy 
determination generally to restrict the availability of community 
confinement in lieu of imprisonment to those situations. Federal case 
law decisions have supported this conclusion by finding that 
``imprisonment'' portions of split-sentences under USSG Sec.  5C1.1(c) 
and (d) cannot be satisfied through ``community confinement.'' See, 
e.g., United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995); United 
States v. Swigert, 18 F.3d 443, 445 (7th Cir. 1994); United States v. 
Serafini, 233 F.3d 758, 762 n.2, and 777-78 (3d Cir. 2000). 
Additionally, because the term ``imprisonment'' is used without further 
qualifications throughout USSG Sec.  5C1.1, the Bureau has no basis for 
believing that the Commission contemplated ``community confinement'' as 
an option in any other ``imprisonment'' sentence context. The Bureau 
has determined to consider the Commission's expressed distinction in 
this area and to make facility-designation decisions in a fashion that 
is consistent with, rather than frustrates, the Commission's policy 
determinations.
     These rules are also supported by consideration of the 
congressional sentencing policy as reflected in related statutory 
provisions. Most significant, 18 U.S.C. 3624(c) requires the Bureau to 
ensure that inmates spend the final portion of their prison sentences 
``under conditions that will afford the prisoner a reasonable 
opportunity to adjust to and prepare for the prisoner's re-entry into 
the community.'' 18 U.S.C. 3624(c). Congress clearly indicated its 
preference that such conditions exist during the last ten percent of 
the prison sentence being served, not to exceed six months. Id. Whether 
or not Section 3624(c) precludes the Bureau from designating a prisoner 
to community confinement for longer than the lesser of the last ten 
percent of the sentence or six months, it is consistent with the 
congressional policy reflected in that section for the Bureau to 
exercise its discretion to decline to designate a prisoner to community 
confinement for longer than that time period.
    In addition to furthering the sentencing policy reflected in 
Section 3624(c), the proposed rules further Congress' determination 
that one of the important purposes of sentencing is to deter criminal 
conduct. See 18 U.S.C. 3553(a)(2)(B). The Supreme Court has long 
sustained the theory that one purpose of criminal law is to deter 
future crimes. See, e.g., U.S. v. Benskin, 926 F.2d 562, 567 (6th Cir. 
1991). The degree to which the facility designation could undermine the 
deterrent effect of imprisonment sentences is a legitimate factor for 
the Bureau to consider in making specific facility designations. 
Because of a CCC's decreased security, and increased community access, 
a potential offender might reasonably perceive community confinement as 
a more lenient punishment than designation to a prison facility. That 
view, in turn, could affect a potential

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offender's calculus of the costs and benefits of committing a crime. 
Consequently, the perceived lenient treatment that may have occurred 
under the Bureau's system before December 2002--allowing terms of 
imprisonment to initially be served in CCCs--risked eroding Congress's 
goal of deterring criminal activity. These rules will ensure the 
Bureau's designation policy does not undermine the deterrent role that 
Congress intends Federal criminal law to serve.

Where To Send Comments

    You can send written comments on this rule to the Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First Street, NW., 
Washington, DC 20534; or via e-mail to [email protected].
    We will consider comments received during the comment period before 
taking final action. We will try to consider comments received after 
the end of the comment period.
    We do not plan to have oral hearings on this rule. All the comments 
received remain on file for public inspection at the above address.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866 and, 
accordingly, it was reviewed by OMB.
    BOP has assessed the costs and benefits of this rule as required by 
Executive Order 12866 section 1(b)(6) and has made a reasoned 
determination that the benefits of this rule justify its costs. This 
rule will have the benefit of eliminating confusion in the courts that 
has been caused by the change in the Bureau's statutory interpretation, 
while allowing us to continue to operate under revised statutory 
interpretation. There will be no new costs associated with this 
rulemaking.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
we determine that this rule does not have sufficient Federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by 
approving it certifies that it will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This rule pertains to the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 570

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
propose to amend 28 CFR part 570 as set forth below.

Subchapter D--Community Programs and Release

PART 570--COMMUNITY PROGRAMS

    1. Revise the authority citation for 28 CFR part 570 to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 751, 3621, 3622, 3624, 4001, 
4042, 4081, 4082 (Repealed in part as to offenses committed on or 
after November 1, 1987), 4161-4166, 5006-5024 (Repealed October 12, 
1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 
510.

    2. Amend part 570 by adding subpart B, consisting of Sec. Sec.  
570.20 and 570.21 to read as follows:

Subpart B--Community Confinement

Sec.
570.20 What is the purpose of this subpart?
570.21 How will the Bureau decide when to designate inmates to 
community confinement?


Sec.  570.20  What is the purpose of this subpart?

    (a) This subpart provides the Bureau of Prisons' (Bureau) 
categorical exercise of discretion for designating inmates to community 
confinement. The Bureau designates inmates to community confinement 
only as part of pre-release custody and programming which will afford 
the prisoner a reasonable opportunity to adjust to and prepare for re-
entry into the community.
    (b) As discussed in this subpart, the term ``community 
confinement'' includes Community Corrections Centers (CCC) (also known 
as ``halfway houses'') and home confinement.


Sec.  570.21  When will the Bureau designate inmates to community 
confinement?

    (a) The Bureau will designate inmates to community confinement only 
as part of pre-release custody and programming, during the last ten 
percent of the prison sentence being served, not to exceed 6 months.
    (b) We may exceed these time-frames only when specific Bureau pre-
release programs allow greater periods of community confinement, as 
provided by separate statutory authority (for example, residential 
substance abuse treatment program (18 U.S.C. 3621(e)(2)(A)), or shock 
incarceration program (18 U.S.C. 4046(c)).

[FR Doc. 04-18747 Filed 8-17-04; 8:45 am]
BILLING CODE 4410-05-P