THE U.S. Bureau of Prisons’ recent practice of refusing to permit inmates to be placed in halfway houses until they have served 90 percent of their sentences is contrary to statute and the bureau’s own legal analysis, a Southern District federal judge has ruled.

The decision will be published on Wednesday.

On the strength of his findings, Southern District Judge Richard J. Holwell on Wednesday ordered the Bureau of Prisons to reconsider its determination not to assign an inmate serving 2 years in prison for involvement in a money laundering scheme to a halfway house prior to May 2.

On that date, Abraham Zucker, an inmate of a minimum security federal prison in Otisville, N.Y., will have served all but 10 percent of his prison term. If assigned to a halfway house, Mr. Zucker would be able to travel to work during the day but be confined in the evenings.

In Zucker v. Menifee, 03-10077, Judge Holwell rejected the Bureau of Prisons’ legal analysis, which was based on an opinion issued by the U.S. Department of Justice’s Office of Legal Counsel in December 2002.

Judge Holwell disagreed with two legal conclusions in the Office of Legal Counsel memorandum: that the Bureau of Prisons’ authority to place a prisoner is limited by statute to sending inmates to a prison, and that a specific statute restricts the bureau from assigning an inmate to a halfway house, or community correctional center, for more than 10 percent of his or her term and, in any event, for no more than six months.

The Office of Legal Counsel’s interpretation of the two statutes is “in conflict with plain meaning, agency practice and legislative history,” Judge Holwell concluded.

Southern District Assistant U.S. Attorney John P. Cronan, who represented the Bureau of Prisons, could not be reached for comment.

In finding no legal impediment barring the bureau from sending federal inmates to halfway houses for longer than 10 percent of their terms, Judge Holwell reached the same conclusion of at least two of his Southern District colleagues – Judges Denny Chin and Kimba Wood – as well as Eastern District Judge I. Leo Glasser.

Southern District Judge Charles L. Brieant, however, has upheld the 10 percent limit on halfway house commitment.

The bureau’s authority to designate the setting for prisoner’s confinement is broadly described in 18 U.S.C. �3621(b) as “any available penal or correctional facility” that the agency “determines to be appropriate and suitable.” The bureau contended that its authority was circumscribed by the first sentence of �3621(b), which states that “the Bureau of Prisons shall designate the place of the prisoner’s imprisonment.”

Rejecting that analysis, Judge Holwell wrote, “nowhere in the U.S. Code is it suggested that a sentence of community confinement should be regarded as anything but a sentence of imprisonment for the purpose of �3621(b).”

Judge Holwell also rejected the bureau’s second argument that 18 U.S.C. �3624(c) limits its authority to assign a prisoner to a halfway house to the last 10 percent of his or her term. Justice Holwell said the statute states that the bureau shall, to the extent practicable, “assure” that prisoners spend a “reasonable part of their sentences,” not to exceed 10 percent, preparing for reentry into the community.

Judge Holwell agreed with Mr. Zucker’s argument that rather than being a restriction, �3624(c) confers upon prisoners “a limited right” to a reasonable means of transition back to community life at the end of their terms.

Mr. Zucker was represented by Peter Goldberger of Ardmore, Pa., Todd A. Bussert of Naugutuck, Conn. and Richard Willstatter of White Plains.