Kenneth Lono v. Charles E. Fenton, Warden, Marion Federal Penitentiary

BAUER, Circuit Judge,

dissenting.

I dissent. On its face the statute simply authorizes federal officials to contract with the States “for the custody, care, subsistence, education, treatment, and training” of any state prisoners transferred to federal custody. The only conditions that Congress actually imposed on the Attorney General’s authority to enter such contracts are that the Director of the Bureau of Prisons certi *649 fy that “proper and adequate treatment facilities and personnel” are available, and that the federal government be reimbursed for the care and custody given state prisoners. Those conditions were met in the instant case.

There is simply nothing in the language of the statute itself that “restricts or limits the use of Federal prison facilities to those convicted State offenders who are in need of treatment.” H.R.Rep.No.1663, 82d Cong., 2d Sess. 2 (1952), U.S.Code Cong. & Admin.News (1952), p. 1421. The majority opinion strains to find such language in the requirement that the Director of the Bureau of Prisons certify that “proper and adequate treatment facilities and personnel” be available. That certification requirement, however, speaks only to the necessity for determining whether appropriate facilities and personnel would be available for handling any prisoners received and cannot reasonably be construed as placing a substantive limitation or restriction on the purposes for which prisoners may be transferred. Those purposes are set out in the statute itself and include simple “care, custody and subsistence,” as well as specialized medical treatment and rehabilitative training. I think the language of the statute itself is clear on its face and should control any seemingly inconsistent legislative history-

Moreover, the apparent discrepancy between the clear language of the statute and its legislative history results from the fact that the committee reports on which Lono relies were more concerned with explaining the need for enacting the legislation than the substance of its uncontroversial mechanics. It seems likely that Congress intended the Bureau to have whatever authority it needed to deal with the particular historical problem that prompted the bill’s introduction without unduly restricting the Bureau’s administrative discretion in determining the types of prisoners it would contract to receive and the purposes for which it might assume federal custody over state prisoners. In any event, the Bureau’s administrative construction of the act as not limiting the Bureau to accepting only those prisoners in need of specialized treatment is “entitled to great weight and should be followed unless there are compelling indications that it is wrong.” Old Ben Coal Corp. v. Interior Board of Mine Operations Appeals, 523 F.2d 25, 36 (7th Cir. 1975). The Bureau, after all, itself drafted this statute, prompted its introduction in the Senate, and pressed it through Congress without amendment or, indeed, much debate. Moreover, upsetting the Bureau’s settled and previously unchallenged administrative construction of the statute now — over 25 years after its enactment — jeopardizes longstanding contractual relationships with many States.

Those state prisoners with compelling reasons, not including “treatment,” who seek transfer to federal custody may very well pay dearly for the restrictive construction adopted by the majority. I would affirm.

PELL and SPRECHER, Circuit Judges, join in the dissenting opinion of Judge BAUER.