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Judge Alvin K. Hellerstein has become the latest federal judge in New York to find that the Bureau of Prisons was wrong to adopt a more restrictive policy on placing inmates in halfway houses. Saying the bureau failed to follow the correct procedure for implementing such a policy, the Southern District judge granted a prisoner a writ of habeas corpus ensuring that he would finish the last six months of his term in a community confinement center. The decision will be published Wednesday. Several other judges have reached the same conclusion about the policy. In January, Southern District Judge Richard J. Holwell ruled in Zucker v. Menifee, 03-10077, that the U.S. Justice Department’s interpretation of the relevant statutes is “in conflict with plain meaning, agency practice and legislative history.” Similar rulings have been made by Southern District Judges Denny Chin and Kimba Wood and Eastern District Judge I. Leo Glasser. Southern District Judge Charles L. Brieant, however, has upheld the Bureau of Prison’s more restrictive policy, which was issued in late 2002. The issue before Judge Hellerstein in Crowley v. The Federal Bureau of Prisons, 04 Civ. 363, arose after the judge sentenced William Crowley to 29 months in prison, with a recommendation that he serve the final 18 months in a confinement center. Judge Hellerstein made that recommendation after determining that Mr. Crowley had provided the government with substantial assistance by cooperating in an investigation against his co-defendants. The judge also took note of the fact that Mr. Crowley was suffering from Crohn’s disease and would receive better treatment out of prison. He also said Mr. Crowley would be better able to help his family if held at a confinement center, that he had fully accepted responsibility for his crimes and had shown “substantial and tangible remorse” through “unstinting and dedicated service as a volunteer worker at neighboring hospital facilities.” When Mr. Crowley was sentenced in Feb. 21, 2002, it was the longstanding policy of the Bureau of Prisons to transfer prisoners to community confinement centers for the final six months of their terms and, in rare circumstances, longer. But in December 2002, the Justice Department, which had previously believed that the Bureau of Prisons had “open-ended authority” under 18 U.S.C. �3621(b) to designate the institution to which a prisoner can be assigned, issued a memorandum saying the bureau policy was unlawful and its power to transfer inmates to confinement centers was limited to the final 10 percent of a sentence or six months, whichever is less. The change would limit Mr. Crowley to 2.9 months at a confinement center, 10 percent of his 29-month sentence. Lack of Procedure One problem, Judge Hellerstein said, was that the Bureau of Prisons (BOP) failed to follow the requirements of the Administrative Procedures Act when it made the change. “The BOP interpreted the statute against its own settled policy, and then followed it, rather than issue a regulation relying on BOP expertise and experience and following notice-and-comment procedures,” the judge wrote. If the new policy could be considered a regulation, the judge said, it was invalid under the Administrative Procedure Act, but the analysis is different if it is not a regulation but is a “changed interpretation” of �3621(b). The question, Judge Hellerstein said, then becomes the degree of deference a court is required to give to an agency’s interpretation. He found the change was not entitled to a great degree of deference. “The BOP’s new procedure does not rest in any part on its experience or expertise,” he said, because the memorandum from the Justice Department’s legal counsel argued “not that restricting access to [community confinement centers] has proven a better strategy for the rehabilitation of inmates or for accomplishing any other policy goal, but rather that the BOP’s decision is based in statutory interpretation.” And even if the bureau’s new policy is lawful, the judge said, the ex post facto clause of the U.S. Constitution forbids subjecting Mr. Crowley to a harsher sentence based on a change that occurred after he was sentenced. Assistant U.S. Attorney Lawrence Heath Fogelman represented the Bureau of Prisons. Charles A. Ross of Brafman & Ross represented Mr. Crowley.

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