Vol. 11, No. 14
Covering Cases Published in the Advance Sheets through April 5, 2004

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

The BOP and "Good Time" Credits

Caught in the Middle - The Escalating Fight Over Plea Bargains

The Feeney Amendment

Lack of Concrete Benefits to Defendant Held Not Sufficient to Invalidate Proffer Agreement

“A Day in the Life of a PDA-Enabled Lawyer”

For those busy lawyers still struggling to find the right hardware and software to make PDA’s more useful in court and on the run, we highly commend to your attention an excellent online article written by Nashville lawyer Barry Neil Shrum - which can be accessed by ckicking here.


White v. Scibana, 314 F.Supp.2d 834 (W.D. Wisc. 04/23/04) (Judge Crabb)

This is an important ruling that could affect the computation of “good time credits” of all Federal prisoners. Here, Judge Crabb held that the Federal Bureau of Prisons has been incorrectly deducting seven days a year from the good time credits that should be available to Federal prisoners under 18 U.S.C. § 3624(b) and 28 C.F.R. § 523.20. While that seven day difference per year may seem small, on a 10-year sentence the aggregate difference is 70 days - more than two months of potential extra freedom for tens of thousands of Federal prisoners.

The specific question addressed in this case was whether Federal prisoners are entitled to a good time credit of 54 days for each year of a prisoner’s term of imprisonment (which is about 15% of 365 days), as § 3624(b) provides; or whether they are entitled to only 47 days of good time credit per year, as the Federal Bureau of Prisons (BOP) calculates under a complex formula set forth in its Sentence Computation Manual (SCM) which is contained in its 258-page Program Statement No. 5880.28. The issue actually breaks down to the difference of computing this good credit time at time of sentencing or as the BOP argues, after an inmate has served the time he seeks to receive credit for having served.

That issue is decidedly not new. For years, Stephen R. Sady, the Chief Deputy Federal Public Defender for the District of Oregon (who probably is the foremost defender of the rights of Federal prisoners in America) has advocated that the BOP has been misinterpreting § 3624(b). His article, “Misinterpretation of the Federal Good Time Statute Costs Prisoners Seven Days Every Year,” published in the September/October 2002 issue of the NACDL’s Champion Magazine, is a scholarly work that collects and synthesizes the legal underpinnings of his thesis in a comprehensive and compelling manner. A copy of that article has been posted on our Web site.

In his article, Mr. Sady presented an exhaustive review and analysis of the plain language of § 3624(b), as well as the clear intent of Congress as evidenced by its legislative history. He then concluded that the BOP had “mangled” the plain language of the good time statute and had trumped Congress’s stated intent by departing from the 54 days of good time credits provided for in § 3624(b). He also explained that, by giving credit only against the actual time served, the BOP’s calculations “must be based on a complex formula (that no one really understands) that reduces the good time by seven days a year.” (Emphasis added).

However, Mr. Sady also acknowledged that, realistically, there will be strong pressures against changing the BOP’s flawed interpretation - in part because of “the administrative convenience - and perhaps embarrassment - of the jailers.”

Section 3624(b) states that:

“[A] prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term”

In a classic example of bureaucratic aggrandizement, the BOP decided to seize the reins from Congress and tell it that, contrary to common sense and the unequivocal statements of the sponsors of § 3624(b), the good time credits would not be applied to the “term of imprisonment,” but rather only to time actually served. Thus, under the BOP’s logic, a prisoner with a 10-year sentence cannot receive 540 days of good time because his time actually served would be less than 10 years, once the good time is counted.

In 1996, Yancey White was convicted of some drug crimes and he was sentenced to 10-years in prison, which he is currently serving at FCI Oxford, WI. As required, BOP officials advised White of his expected release date in February, 2005, which reflected a maximum of 47 days of good time credits for each year he would spend in prison. White objected, arguing that his release date should be in December, 2004 and should reflect 54 days of good time conduct for each year spent in prison, as set forth in § 3624(b). White then pursued the full range of administrative remedies required by the BOP; and after the BOP refused to change its position, White filed the instant action in the Wisconsin district court.

Judge Crabb concluded that White had raised a substantial question about the validity of the BOP’s method of calculating good conduct time; and she granted White’s defense counsel, Michael Gonring of Madison, WI, permission to file a brief in support of White’s habeas petition. Mr. Gonring’s brief reiterates many of the compelling arguments raised by Mr. Sady; and a copy of that brief can be accessed by clicking here.

After reviewing the record and the briefs before her, Judge Crabb concluded that the language of § 3624(b) was clear and unambiguous; and that the BOP “does not have discretion to interpret a statute that is unambiguous.” Accordingly, she concluded that the BOP “did not have the authority to promulgate a regulation that uses ‘time served’ as the basis for the [good conduct time] calculation”; and she granted White’s habeas petition.

Combined, Mr. Sady’s article, Mr. Gonring’s brief, and Judge Crabb’s decision represent a powerful attack on the BOP’s method of calculating good time credits; and, if Judge Crabb’s decision is upheld on appeal and applied in other jurisdictions, not only will it impact the release dates of most current Federal prisoners, it will almost certainly lead to an explosion of copy-cat lawsuits by present and possibly many former inmates in the Federal system seeking to capitalize on this ruling - a factor that itself may become the insurmountable obstacle to widespread acceptance of this holding.

In sum, this is a significant ruling that could have far-reaching effects. However, before prisoners (and defense counsel) rush off to file, en masse, similar lawsuits, we note three cautionary factors: (a) clearly the BOP’s method of computing good time credits is now resting on extremely thin ice, and this decision may even force the BOP to change Program Statement 5880.28; but there will also be a lot of political pressure to affirm the BOP’s position, by legislation or otherwise; (b) until the BOP responds to this decision, a prerequisite to any similar challenges will be the exhaustion of all administrative remedies at the BOP level; otherwise the courts will simply throw out the lawsuits and possibly establish some broad and ill-advised precedents; and (c) prisoners and former prisoners who have failed to pursue the administrative remedy cycle will probably be deemed to have waived all rights to complain about the BOP’s erroneous calculation of good time credits.

Other useful resources on this topic include the following:


U.S. v. Parra, 302 F.Supp.2d 226 (S.D.N.Y. 2004) (Judge Leisure)

The defendant in this case was charged with a conspiracy to distribute cocaine. On three separate occasions he met with prosecutors in proffer sessions, pursuant to a standard proffer agreement (which are sometimes called “Queen for a Day” agreements), a copy of which is annexed to the Court’s decision. (Id., at 240-41).

Although statements made during proffer sessions are generally inadmissible in criminal proceedings (pursuant to the provisions of Fed.R.Evid. 410 and Fed.R.Crim.P. 11(f) (2002)), the Government moved in limine for a ruling allowing it to introduce at trial statements made by the defendant during those proffer sessions, for the purpose of impeaching him or rebutting arguments on his behalf that contradict the proffer statements.

The defendant opposed the Government’s motion on eight different grounds, most of which the Court rejected out of hand as contrary either to the facts of the case or to some well-established principle of the law on the topic of proffer statements.

However, the defendant did raise one argument, which the Court said had “some visceral appeal.” That argument, which was discussed in some detail, was the defendant’s claim that a Proffer Agreement is a one-sided agreement that should be invalidated under contract law principles because of a lack of consideration. He argued that the Government offers no benefit to a defendant who signs a Proffer Agreement and that by meeting in a proffer session with the defendant the Government “essentially promises nothing in return.” (Id., at 238).

Ultimately, the Court rejected the defendant’s argument, and granted the Government’s motion in limine. While it acknowledged that general principles of contract law require the parties to “exchange bargained-for promises,” it also concluded that “Courts reviewing contracts do not scrutinize the adequacy of consideration, but simply verify that some consideration, however minimal, has been provided.” (Id.)

While the parties did not cite, and the Court could not find, any cases addressing the issue of consideration in proffer agreements, the Court concluded:

“Judges in this Court have found uniformly that a defendant receives something of value by signing the form proffer agreement. In particular, a defendant ‘the opportunity to be heard’ by the government, an opportunity to which the defendant otherwise has no right. This Court agrees that Parra received a benefit by assenting to the Proffer Agreement. As the government notes, "the Proffer Agreement is the first step towards a potential cooperation agreement," and, without the Agreement, Parra owned no entitlement to that first step.

“Parra's more intricate argument, that the Proffer Agreement is invalid because it does not state, in writing, the benefit of the bargain offered by the government, does not persuade the Court that the Agreement is void. The Agreement does not state precisely that the government agrees to listen to the defendant, but does state the following: ‘The Client has agreed to provide the Government with information, and to respond to questions, so that the Government may evaluate Client's information and responses in making prosecutive decisions." . . . The Court agrees that the written statement of the bargain set forth by the government in paragraph (1) is minimal, but it sufficiently memorializes the benefit the government confers. . . . Thus the Court is satisfied that the Proffer Agreement sets forth consideration and is not invalid on that ground.” (Id., at 239) (Internal citations omitted).


ACLU Challenge to "National Security Letter" Authority

In an extraordinary and disturbing sealed case that brings home some of the hidden dangers of the Patriot Act, the American Civil Liberties Union (ACLU) has challenged the FBI’s unchecked authority to issue “National Security Letters” (NSLs), which demand the right to review sensitive customer records from Internet Service Providers and other businesses without judicial oversight. Before the Patriot Act, the FBI could use the NSL authority only against suspected terrorists and spies. Thanks to Section 505 of the Patriot Act, the FBI can now use NSLs to obtain information about anyone at all.

The ACLU’s lawsuit argues that the NSL statute violates the First and Fourth Amendments because it does not impose adequate safeguards on the FBI’s authority to force disclosure of sensitive and constitutionally protected information.

The ACLU was forced to file the lawsuit under seal to avoid penalties for violating the NSL statute’s broad gag provisions. Thus, while the challenge to the NSL provision was filed on April 6, it took nearly three weeks for the ACLU to reach an agreement with the Government that allowed the disclosure of anything at all about the case. Even now, only a redacted version of the complaint is available; and many details about this case are still under seal; and the Administration will probably continue to fight any more disclosures about this case, especially since President Bush is making a major campaign issue out of extending the provisions of the Patriot Act in perpetuity to assist in the fight against terrorism.

Ann Beeson, the Associate Legal Director of the ACLU commented: “It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court. President Bush can talk about extending the life of the Patriot Act, but the ACLU is still gagged from discussing details of our challenge to it.”

More information about this lawsuit (including a copy of the redacted complaint, can be found on the ACLU’s Web site by clicking here.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

47

592

19,519

District Courts

31

446

 10,852


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