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A controversial U.S. Department of Justice policy that severely curtails the placement of federal prisoners in halfway houses unlawfully limits the discretion of the Bureau of Prisons, according to the 1st U.S. Circuit Court of Appeals, the first appellate court to look at the issue. The policy sparked controversy because it forced the bureau to ignore judges’ recommendations for halfway-house placement of many incoming prisoners, and because it reduced the transition period for thousands of prisoners nearing the end of their sentences. Dozens of district court cases have gone both ways. In an April decision, Panchernikov v. Fed. Bureau of Prisons, No. 04-2531, Judge Richard M. Berman noted that judges in California and Illinois had upheld the policy, while judges in Massachusetts, Alabama, Maryland and the majority of judges in his district, the Southern District of New York, came down the other way. “The decision was everything I hoped for-and more,” Charles W. Rankin said of the 1st Circuit’s Sept. 3 ruling in Goldings v. Winn, No. 03-2633. Rankin of Boston’s Rankin & Sultan, argued before the 1st Circuit on behalf of amicus curiae National Association of Criminal Defense Lawyers, Criminal Justice Act Foundation and Families Against Mandatory Minimums Foundation. Federal prisoner Morris M. Goldings represented himself, but was not present at oral argument. Goldings’ and Rankin’s victory may not make much difference in the lives of federal prisoners if the bureau pushes through a new rule that it proposed on Aug. 18. The rule would make the Justice Department policy permanent, not because it is mandated by federal statute (the argument advanced by the department in 2002 but rejected by the 1st Circuit), but as an exercise of the bureau’s discretionary authority. The department’s 2002 policy said that federal prisoners should be placed in halfway houses at the end of their sentences, and then only for 10% of the total sentence, or six months, whichever is less. The policy put an end to two long-standing practices of the bureau: first, giving some prisoners a lengthy end-of-sentence transition period in halfway houses, and second, placing some nonviolent offenders in halfway houses for a substantial portion of their sentences, often at the recommendation of sentencing judges. Rankin said the decision was more than he hoped for because the court ruled that the bureau had the discretionary authority to resume both practices. Goldings, formerly a prominent Boston lawyer, pleaded guilty in 2002 to fraud and money laundering offenses involving the taking of millions of dollars, according to Rankin. An inmate at the Federal Medical Center Devens in Ayer, Mass., Goldings could not be reached for comment. Neither the department, the bureau, nor the Massachusetts U.S. Attorney’s Office, which argued the case for the government, would comment, except to say that the ruling was under review. But the bureau’s Aug. 18 Federal Register notice of proposed rule-making reveals some of its reasons for favoring a strict numerical formula. The bureau said that the rule would “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 bureau also argued that the rule would ensure that there are halfway-house openings for all offenders nearing the end of their sentences. Peter Goldberger of the Law Offices of Peter Goldberger in Ardmore, Pa., thinks the real motivation behind the 2002 policy and the proposed rule is to “create the appearance of being tough on crime.” Goldberger has litigated several suits at the district level and assisted Rankin in briefing the Goldings case. He said that it has been difficult getting a precedent-setting ruling despite many victories at the trial level because, contrary to its usual policy, the government has not appealed adverse rulings. He said the amicus curiae plan to file objections to the proposed rule.

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