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A Justice Department initiative aimed at ensuring jail time for white collar criminals has ignited a firestorm of legal challenges nationwide and a strong rebuff from a D.C. federal court judge. In December, the Justice Department concluded that for the past 15 years the Federal Bureau of Prisons had misinterpreted federal sentencing law by allowing certain low-level offenders to serve their time in halfway houses. As a result, Deputy Attorney General Larry Thompson ordered that any felons who were in halfway houses and still had 150 days or more left on their sentences should be transferred to federal prisons. Since then, defense attorneys have lodged more than two dozen objections in federal courts across the country. On Jan. 24, Judge Ellen Segal Huvelle, who presided over one of about six such challenges filed in the U.S. District Court for the District of Columbia, became the first federal judge to block the transfer of a convict from a halfway house to a prison. Huvelle said that she fashioned check forger Shawna Culter’s original sentence based on an “explicit” understanding with the BOP that Culter would serve her time in a halfway house. “[T]his is a case in which the government’s long-standing interpretation and application of the law � as well as specific representations regarding this petitioner’s eligibility for halfway house placement � affirmatively misled the court into imposing a particular sentence,” Huvelle wrote. Thus far, Huvelle has been the only judge to issue a final ruling blocking a transfer. Other federal judges � including those in New York, North Carolina, Tennessee, California, and Maryland � are still mulling over the arguments. Some judges have granted requests for stays or temporary restraining orders, while others have allowed offenders to be transferred before ruling on the merits of their challenge. The government, meanwhile, has maintained in nearly all of the cases that federal judges do not have the authority to decide where offenders are placed, but can merely make recommendations. In addition, prosecutors have argued that the government is not tampering with offenders’ sentences, but is only fixing a long-term error in Bureau of Prisons policy. “[B]ecause a halfway house is not equivalent to a term of imprisonment . . . the defendant has no legitimate expectation or entitlement to have her sentence carried out in such a way that she would be serving the entire sentence at a halfway house rather than in prison,” said Robert Okun, chief of the U.S. Attorney’s Special Proceedings Section in the District, according to a transcript of a Jan. 21 hearing before Judge Huvelle. DOJ spokesman Mark Corallo says there was no change in policy. Rather, Deputy Attorney General Thompson ordered the Bureau of Prisons to follow the law. “There is no ambiguity here,” Corallo says. “The government should have to follow the law.” Thompson’s directive, Corallo says, was prompted by a 2001 tax case in West Virginia in which U.S. District Judge Joseph Goodwin tried to sanction a prosecutor for arguing that the defendant could not be sentenced to a halfway house. Huvelle’s ruling was fine-tuned to speak to just Culter’s case, but the 20-page opinion has already been cited in numerous other challenges � including one scheduled for a hearing on Feb. 10 before U.S. District Judge Gladys Kessler. Channing Phillips, spokesman for U.S. Attorney Roscoe Howard Jr., says his office, working alongside Main Justice, has not decided whether to appeal Huvelle’s decision. WHAT CONSTITUTES ‘IMPRISONMENT’? The new Bureau of Prisons policy mandates that federal offenders can serve no more than six months or 10 percent of their overall term in a halfway house. BOP officials said last month that 132 halfway house detainees would be affected by the new rule. Forty-five of those are women. Most of the transfers were to take place by the end of January. Some defense lawyers argue that the DOJ’s move is just a misguided attempt by the Bush administration to show the public that it is getting tough on white collar criminals in the wake of monstrous financial scandals. They add that most of those affected by the change are not former chief executives or financial officers of multimillion-dollar companies, but lower-level employees charged with less-egregious offenses. “This gives the public the perception that they’re cracking down on something,” says Raag Singhal, a criminal defense lawyer from Fort Lauderdale, Fla., and co-chair of the corrections committee at the National Association of Criminal Defense Lawyers. “But what they are cracking down on is not Enron or the type of cases that affect someone’s pension.” D.C. defense lawyer Margaret Colgate Love, who co-authored an NACDL amicus brief filed in a New York case, says she is concerned the time limits placed on halfway house stays could hamper efforts to help offenders re-enter society. “It is going to make it extremely difficult [for the government] to keep up the regular practice of helping people transition back to the community through halfway houses,” says Love. Former prosecutor Preston Burton, now a partner at D.C.’s Caplin & Drysdale, says he sees the move as “just another encroachment on judicial discretion.” It has been common practice for the past 17 years � at least in the District � for the Bureau of Prisons to follow judges’ recommendations that certain low-level defendants serve their time in a halfway house. Many of these offenders fall under Zone C of the Federal Sentencing Guidelines, which calls for a sentence of between 10 and 16 months, with half of that term “satisfied by imprisonment.” Defense lawyers say an offender in this category is usually someone with a job, a family that is dependent upon his or her income, and no prior criminal history. According to Huvelle’s ruling, halfway houses were considered a form of “imprisonment” by the Bureau of Prisons. Until now, Huvelle noted, the government had never “objected to, or disputed the legality of,” a judge’s recommendation to place an offender in a halfway house, and the Bureau of Prisons had done so 93 times for Zone B or Zone C offenders in D.C. cases since 1999. In addition, Huvelle wrote that it was common for federal prosecutors to agree that certain offenders could be sent to halfway houses as part of a plea deal. “These practices were entirely routine, and were all but taken for granted by all participants: the BOP, the Probation Office, the U.S. Attorney’s Office, the defense bar, and the judiciary,” Huvelle wrote. D.C. JUDGE TAKES A STAND Last year, Deputy Attorney General Thompson asked the DOJ’s Office of Legal Counsel to look at the issue of whether the BOP had the authority to place certain offenders serving short prison terms directly into a halfway house. M. Edward Whelan III, principal deputy assistant attorney general in the legal counsel office, submitted a nine-page memo to Thompson on Dec. 13 stating that the BOP practice was illegal. Within a week, Thompson moved to curtail the practice by notifying the BOP, which in turn sent word to federal judges and inmates of the policy change. Thompson also decided that any person currently serving more than 150 days in a halfway house would be transferred to federal prison. Defense lawyers nationwide moved to prevent their clients from being transferred. Some filed habeas corpus petitions, others filed motions for temporary restraining orders. In the District, Federal Public Defender A.J. Kramer filed a motion on behalf of Culter, who had 174 days left of her year-long sentence. Culter pleaded guilty last year to stealing nearly $15,000 from her employer, the American Liver Foundation, and an office neighbor. Kramer asked that Huvelle resentence Culter because her original sentence was based on inaccurate information, violating Culter’s right to due process. At a Jan. 21 hearing, it was apparent that Huvelle was upset with the DOJ’s new position. In particular, Huvelle made it clear that she worked carefully to design a sentence for Culter � who had a series of psychological and family-related troubles � that would allow her access to social services and employment. The judge said she cleared her recommendation with probation officials before sentencing Culter to the Fairview Community Corrections Center in the District. In her opinion, Huvelle said that she could have departed downward from the sentencing guidelines in order to guarantee that Culter would not serve any time in a detention facility. Instead, Huvelle wrote, she opted for a more stringent sentence, one that called for Culter to serve her sentence in the more structured environment of a halfway house. “Everything that [Culter] has done since reporting there has only confirmed the Court’s belief that halfway house placement was the best available sentencing option for her,” Huvelle wrote.

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