# Amicus Curiae Brief — Reno v. Koray

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0740%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 50

## Text

| fn ) 3
| va MAR 2 3 1995
. No. 94-790 —

OEFICE OF THE CLERK
In The Supreme Court of the Unite med
October Term, 1994 *

°
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES, ET AL.,
Petitioners,

¥.

ZIYA K. KORAY,
Respondent.
7
On Writ Of Certiorari To
: The United States Court Of Appeals
For The Third Circuit

’
BRIEF OF AMICUS CURIAE,

THE USC LAW CENTER’S
POST-CONVICTION JUSTICE PROJECT,
IN SUPPORT OF RESPONDENT

*

CHARLES D. WEISSELBERG
Counsel of Record
MICHAEL J. BRENNAN
DENNIS E. CURTIS
CARRIE L. HEMPEL
f University of Southern
California Law Center
University Park
Los Angeles, California 90089-0071
Telephone: (213) 740-2528

Attorneys for Amicus Curiae
The USC Law Center’s
Post-Conviction Justice Project

i

_ TABLE OF CONTENTS

Page
TABLE GP ALTTRIEMe oi ee er eee ili
INTEREST OF AMICUS CURIAE .. 1... .ccccescces l
SEAT TE GN BM GE 6 6 erties ees 3
SUMMARY OF ARGUMENT ... 6. cece eaees 4
Po aR a raed a rea ee rarer ea ae ee 6
I. The Bureau of Prisons’ Construction of Section 3585,

Which Denies Sentence Credit to Presentence Detainees
Who Are Held in Community Corrections Centers Under
the Sarne Conditions As Sentenced Federal Prisoners, Is
Contrary to the Plain Meaning of the Statute, Conflicts
With Other Laws, and Is Unreasonable ........ 6

A. Community corrections centers are "penal or
correctional facilities," and the Bureau of Prisons
regularly places inmates in these centers to serve
their sentences of imprisonment ........ 6

B. The Bureau of Prisons’ interpretation of section
3585 conflicts with the statute’s plain meaning and
other laws, and is unreasonable ........ 11

9 There is no reason to defer to the Bureau of
Prisons’ interpretation of section 3585 .... 17

II. This Court Should Interpret Section 3585 to Require
Sentence Credit for Presentence Detainees Who Are Held
in Community Corrections Centers Under the Same
Conditions As Sentenced Federal Prisoners; Any Other

Construction Would Raise Serious Constitutional
NS oh eo eee eee 20

III. The Bureau of Prisons Would Have No Difficulty
Administering a Rule That Affords Sentence Credit for
Forced Residence In Community Corrections Centers Prior
0 CORE nk 5 oe eee 23

A. All of the information needed by the Bureau of
Prisons to award sentence credit is contained in
presentence investigation reports or in

OE TE 6.03 ob ee eee 23
B. The Bureau of Prisons has an extensive network to

Oversee Contract community corrections

SE 0 +.60%.04 Khaw 25
ss The Bureau of Prisons’ ease in administering the

Ninth Circuit’s rule demonstrates that it has no
difficulty granting credit for forced residence in

community corrections centers ......... 26
CARRGANNE 65542 cee 28
APPENDIX

A. Excerpts from Federal Bureau of Prisons

Program Statement 7310.02 (October 19,

1993): "Community Corrections Center

(CCC) Utilization and Transfer

i OE Oe ite Oe oe la

B. Federal Bureau of Prisons Operations

Memorandum (October 23, 1989):
"Credit for Time In Custody Under 18
U.S. TI” ove tnenncecc.. 8a

iil

TABLE OF AUTHORITIES

Page(s)

Cases:
Asgrow Seed Co. v. Winterboer, 115 S.Ct. 788 (1995) .... 12
Bloom v. Illinois, 391 U.S. 194 (1968) ............. 16
Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) ..... 2, 12, 26
Buckley v. Valeo, 424 U.S. 1 (1976) ............... 21
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc..,
rr 18, 20
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432
GT es ee 21
Commissioner v. paren Products Co., Inc., 482 U.S. 117
Ee ee 14
Demarest v. Manspeaker, 498 U.S. 184 (1991) ........ 18

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
& Construction Trades Council,
re 20, 21

Estate of Cowart v. Nicklos Drilling Co., 112 S.Ct. 2589
ee eee 19, 20

Federal Election Comm’n v. NRA Political Victory Fund, 115
a 17

Good Samaritan Hospital v. Shalala, 113 S.Ct. 2151 (1993) 19

iV

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....... 21
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ......... 17
INS v. National Center for Immigrants’ Rights, 502 U.S.

Ne oy erin ae etn es eos oo 5 oe 8 11
Johnson v. Robison, 415 U.S. 361 (1974)... ......... 20
Johnson v. Smith, 696 F.2d 1334 (11th Cir. 1983) ...... 15
Local 28 of the Sheet Metal Workers’ Int’l Assoc. v. EEOC, 478

Ce eee ee rear err Wrer e 15
Martin v. OSHRC, 499 U.S. 144 (1991) ............. 19
Mead Corp. v. Tilley, 490 U.S. 714 (1989) ........... 11
Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992) .. 2,5, 12, 23,

26

Moreland v. United States, 968 F.2d 655 (8th Cir.) (en

banc), cert. denied, 113 S.Ct. 675 (1992) ..... 12, 15
NLRB v. Catholic Bishop Of Chicago, 440 U.S. 490

Ge vee ee ae are eee 20, 21
Public Citizen v. United States Department of Justice,

Oe es Se ae Oy ara ak Od 21
Ramsey v. Brennan, 878 F.2d 995 (7th Cir. 1989) ...... 12
Russello v. United States, 464 U.S. 16 (1983) ......... 12

United States v. Alvarez-Sanchez, 114 S.Ct. 1599 (1994) .. 12

United States v. Barnett, 376 U.S. 681 (1963) ......... 16

Vv

United States v. Dixon, 113 S.Ct. 2849 (1993) ......... 15
United States v. Strozier, 940 F.2d 985 (6th Cir. 1991) ... 10
United States v. Turkette, 452 U.S. 576 (1981) ........ 14
United States v. Wilson, 112 S.Ct. 1351 (1992) ........ 17

Constitutional Provisions:

U.S. Const., amend. v,
ee a de we Re he a 21

U.S. Const., amend. xiv,
Equal Protection Clause ...........---+-++- 21

Statutes and Rules:

A A a see 16
18 U.S.C. § 3142(c)(1)(B) (1988 & Supp. V 1993) ...... 22
18 U.S.C. § 3142(c)(3) (1988 & Supp. V 1993)........ 15
USC. O30OUIMD .. ee cee 15
I9USC 636MM ©... ws... cee... 15
USE. CM 8... oo ieee ess 23
18 U.S.C. § 3553(a)(2)(C) (1988)... 0.0.00 eee. oo
eee oe Ce 11, 15, 26
18 U.S.C. § 3585(b) (1988) ............ 0006. passim

16 UG. B Peete UE hk ee les tees 4, ka

vi

18 U.S.C. § 3621(b) (1988 & Supp. V 1993) ...... 7, 9, 13
18 U.S.C. § 3624(c) (1988 & Supp. V 1993) ........ 8,9
Be els te COD 6 i eee ee oe y
18 U.S.C.A. § 406G2a) (West 1969) ............46.. 6
18 U.S.C.A. § GGGZO) (West 1969) 2... ewes 6
1S U.S.C.A. § GORZE) (West 1909) 2. wc ceeds 6
p eee ee 2
Act of September 10, 1965, § 1, 79 Stat.674 .......... 6
Administrative Procedures Act, 5 U.S.C. sections 551,

et seq. (1988 & Supp. V 1993) ............. 9
Bail Reform Act of 1984, 18 U.S.C. sections 3141,

et seq. (1988 & Supp. V 1993) .... 4, 11, 12, 17, 19
Comprehensive Crime Control Act of 1984, Pub. L. No.

98-473, Tit. I], 98 Stat. 1976 ..........2.... 7
pee. Oe, Come F. BGT)... ec eee 23
Fed. R. Crim. P. 32(0GM3MD) ... 2... ee ce ee eee 24

Other Authorities:

Administrative Office of the United States Courts, Division of
Probation, The Presentence Investigation Report
(Publication 105) (1984) ......20.0202.02...00.. 24

Vii

Administrative Office of the United States Courts, Probation and
Pretrial Services Division, The Presentence Investigation
Report for Defendants Sentenced Under the Sentencing
Reform Act of 1984 (Publication 107)
(rev. Mar. 1992) .......---- eee eee eee: 24

Bureau of Prisons Operations Memorandum
(October 23, 1989)... ....------ eee eee 11, 19

Bureau of Prisons Program Statement 5880.28
(July 29, 1994).......... 2. 34, 15,17, 19, 2, 27

Bureau of Prisons Program Statement 7310.02
Olen. TD, TOME). gw cc kee tees 2, 8, 16

James B. Eaglin, Federal Judicial Center, Sentencing Federal
Offenders for Crimes Committed Before November 1,
| Le ) eee ee 9

Federal Bureau of Prisons, U.S. Department of Justice,
Pacilities 1991 2... wc ce eee es 3, 25

Federal Prison Population; Present and Future Trends: Hearings
Before the Subcomm. on Intellectual Property and Judicial
Administration of the Comm. on the Judiciary, House of
Representatives, 103d Cong., Ist Sess. (1993) . . 9, 10

IV Oxford English Dictionary (2d ed. 1989) ........-.. 12
Prison Inmate Training and Rehabilitation Act of 1993: Hearings
Before the Subcomm. on Intellectual Property and Judicial
Administration of the Comm. on the Judiciary, House of

Representatives, 103d Cong., 2d Sess. (1994) .... 10

S. Rep. No. 613, 89th Cong., Ist Sess. (1965) ......... 7

Webster’s Third New International Dictionary (1986) .... 12

No. 94-790

In The Supreme Court of the United States
October Term, 1994

*
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES, ET AL.,
Petitioners,

Ve

ZIYA K. KORAY,
Respondent.
*
On Writ Of Certiorari To
The United States Court Of Appeals
For The Third Circuit
4
BRIEF OF AMICUS CURIAE,
THE USC LAW CENTER’S
POST-CONVICTION JUSTICE PROJECT,
IN SUPPORT OF RESPONDENT
4

INTEREST OF AMICUS CURIAE

Both the petitioner and the respondent have consented to
the participation of amicus curiae in this case. Their letters of
consent are on file with this Court.

The Post-Conviction Justice Project is a clinical program
at the University of Southern California Law Center. Since 1981,
students and faculty in the Project have provided legal assistance
to federal inmates. The Project affords these services primarily to
inmates incarcerated at the Federal Correctional Institution at
Terminal Island, California, pursuant to a contract with the Federal

Bureau of Prisons. !

The Project is greatly concerned that inmates may
improperly be denied credit for time spent in forced residence at
community corrections centers’ prior to sentencing. Students in
the Project have argued (under faculty supervision) several court
of appeals cases addressing the issue that is now before this Court.
See Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992); Brown v.
Rison, 895 F.2d 533 (9th Cir. 1990). Because of the importance
of this issue to clients represented by the Project, and because of
their familiarity with the internal operations of the Federal Bureau
of Prisons, faculty and students in the Project offer their assistance
to this Court.

'The University of Southern California’s Project is only one of
several law school clinical programs that assist inmates. For many years,
the Jerome N. Frank Legal Services Organization at the Yale Law School
- has represented inmates at the Federal Correctional Institution at
Danbury, Connecticut. Similarly, the Kansas Defender Project at the
University of Kansas School of Law has long assisted inmates
incarcerated at the Federal Penitentiary at Leavenworth, Kansas. The
relationship between these legal aid programs and the Bureau of Prisons
is discussed in 28 C.F.R. § 543.15 (1994).

?Over time, the term for these facilities has changed. Originally
called “halfway houses,” these facilities have more recently been called
"community treatment centers" or “community corrections centers.” See,
e.g., 18 U.S.C. § 4082(c) (1988) (a “facility,” where an inmates may be
confined, includes a "community treatment center"); Bureau of Prisons
Program Statement 5880.28 (July 29, 1994) [reprinted in part at Pet.
App. 46a] (denying sentence credit for time "in residence in a community
corrections center”); Bureau of Prisons Program Statement 7310.02 (Oct.
19, 1993) [reprinted in part in the Appendix to this brief at App. 1a]
(entitled "Community Corrections Center (CCC) Utilization and Transfer
Procedure”). Though the terms are interchangeable, this brief will adopt
"community corrections center” because it is the term currently used by
the Bureau of Prisons.

ss nan

3
STATEMENT OF THE CASE

On April 23, 1991, respondent Ziya K. Koray was arrested
on federal criminal charges brought in the District of Maryland.’
Petition Appendix ("Pet. App.") 2a. On June 25, 1991, after the
entry of his guilty plea but prior to sentencing, the district court
ordered Mr. Koray into the custody of the Pretrial Services
Agency. Jd. The court also ordered that Mr. Koray be held at a
community corrections center operated by the Volunteers of
America in Baltimore. J.A. 9-15. As required by the district
court, Mr. Koray was confined at the center for twenty-four hours
a day; he could not leave for any reason unless accompanied by an
agent. J/d.; Pet. App. 2a, 25-26a. Mr. Koray remained
incarcerated at the center until he reported for the service of his
sentence. Pet. App. 2a. Mr. Koray left the community
corrections center only once during the entire time he was held
there. Pet. App. 19a-20a.

The Bureau of Prisons denied Mr. Koray sentence credit
for the time he was confined at the community corrections center.
Pet. App. 2a. Mr. Koray subsequently brought a habeas corpus
petition to challenge that decision. The district court denied relief,
id., but the court of appeals reversed and remanded. The court of
appeals found that confinement in a community corrections center
is “official detention" within the meaning of 18 U.S.C. § 3585(b)
(1988). Pet. App. 14a-24a. The court found it "difficult to view
Koray’s detention as other than ‘official’ since he was put in the
‘custody’ of pretrial services ..., and was confined to the
[community corrections center] by court order." Pet. App. 14a.
The Bureau of Prisons now challenges this decision.

*At the time, the Bureau of Prisons did not operate a jail or other
institution in that district. See Federal Bureau of Prisons, U.S.
Department of Justice, Facilities 1991 (describing the Bureau's
institutions). Prior to his incarceration at the Volunteers of America
facility, Mr. Koray was therefore confined at a county iail in Rockville,
Maryland and he received credit for that period. J.A. 25, 27, 29, 31.

4

SUMMARY OF ARGUMENT

Section 3585(b) of Title 18 commands the Federal Bureau
of Prisons to grant credit for time spent in "official detention"
prior to sentencing. According to the Bureau, "official detention"
occurs only when a defendant is denied bail under the Bail Reform
Act of 1984, 18 U.S.C. sections 3141, et seq. (1988 & Supp. V
1993). Brief for the United States ("Pet. Br.") 10. This narrow
and formalistic interpretation must fail.

First and foremost, the Bureau’s construction of section
3585 is contrary to the statute’s plain meaning, conflicts with other
statutes and is unreasonable. The ordinary meaning of "detention"
includes forced residence in a community corrections center. In
her brief, petitioner Reno seeks to counter the plain meaning by
arguing that Congress did not conceive of placement in a
community corrections center as “imprisonment.” Pet. Br. 14.
Petitioner claims that "related statutes make clear that a sentence
of imprisonment may be served only in a ‘penal or correctional
facility’" where the prisoner is subject to federal or state control.
Pet. Br. 7. If petitioner Reno is implying that a sentence of
imprisonment may not be served in a community corrections
center, her claim is false. By statute, a community treatment
center is a "penal or correctional facility," and federal prisoners
regularly serve time in these facilities.

In 1965, Congress authorized the Bureau of Prisons to
place inmates in community corrections centers during their
sentences of imprisonment. In 1984, Congress enacted another
law to encourage the Bureau to continue to place sentenced
prisoners in these centers. In her brief, the petitioner has
overlooked these statutes. Petitioner Reno has also not mentioned
the thousands upon thousands of prisoners who are, at this very
moment, committed to the Bureau's care for service of a sentence
of imprisonment, and who have been sent by the Bureau to
community corrections centers to serve their sentences. In May
1993, for example, 8,200 federal inmates were then serving their

a

5

sentences of imprisonment in community corrections centers. In
May 1994, 9,000 federal inmates were in such centers. About half
of these centers are privately-run contract facilities, just like that
operated by the Volunteers of America. Federal prisoners are held
in these community corrections centers under the same conditions
as people like Mr. Koray. These prisoners receive sentence credit
because both the Congress and the Bureau of Prisons consider
confinement in community corrections centers to be part of a term
of imprisonment. Thus, the petitioner’s construction of the statute
— which would grant sentence credit to these prisoners but deny
credit to presentence detainees like Mr. Koray — is contrary to the
plain meaning of "official detention,” is counter to other federal
Statutes, and is unreasonable. Credit must be given whenever
presentence defendants are held in these centers, as held by the
court of appeals in Mills v. Taylor, 967 F.2d. 1397 (9th Cir.
1992).

Second, this Court must construe section 3585 to avoid
serious constitutional problems. Congress did not plainly require
this Court to interpret section 3585 in the manner urged by the
petitioner. A construction of the statute that grants sentence credit
to prisoners in community. corrections centers and to anyone
detained anywhere by any order of a state court, but denies credit
to presentence detainees in community corrections centers, would
violate equal protection.

Third, contrary to the petitioner’s claims, the Bureau of
Prisons can easily administer a rule granting credit for forced
residence in a community corrections center. In the overwhelming
number of cases, the credit determination will be made from an
examination of the presentence report and district court orders.
These materials are readily available to the Bureau. Further, given
its extensive practice of placing sentenced prisoners in contract
community treatment centers, the Bureau has considerable contacts
at those centers and a vast amount of information about them.

6
ARGUMENT

|B The Bureau of Prisons’ Construction of Section 3585,
Which Denies Sentence Credit to Presentence Detainees
Who Are Held in Community Corrections Centers
Under the Same Conditions As Sentenced Federal
Prisoners, Is Contrary to the Plain Meaning of the
Statute, Conflicts With Other Laws, and Is
Unreasonable.

A. Community corrections centers are "penal or
correctional facilities," and the Bureau of
Prisons regularly places inmates in these centers
to serve their sentences of imprisonment.

For thirty years, the Bureau of Prisons has exercised its
statutory authority to place inmates in community corrections
centers during their sentences of imprisonment. The petitioner is
flatly wrong in suggesting that sentences of imprisonment cannot
be served in these centers.

The Bureau of Prisons was first given statutory authority
to place sentenced prisoners in community corrections centers in
1965. The 1965 law provided that people convicted of federal
crimes were to be committed to the custody of the Attorney
General for service of their sentences. Act of September 10,
1965, § 1, 79 Stat. 674 (previously codified at 18 U.S.C.A.
§ 4082(a) (West 1969)). Further, "[t]he Attorney General may
designate as a place of confinement any available, suitable and
appropriate institution or facility, whether maintained by the
Federal government or otherwise . . .." /d. (previously codified
at 18 U.S.C.A. § 4082(b) (West 1969)). Most significantly,
Congress specified that "the term ‘facility’ shall include a
residential treatment center." /d. (previously codified at 18
U.S.C.A. § 4082(f) (West 1969)).

The purpose and effect of this law was clear to Congress

ety ancl

7

and to the Administration. The statute was enacted at the request
of the Attorney General, Nicholas DeB. Katzenbach. In his letter
to the Senate, Katzenback wrote that "[t]his proposed legislation
would expressly authorize the Attorney General to commit or
transfer prisoners to residential community treatment centers."
S. Rep. No. 613, 89th Cong., Ist Sess. (1965) (letter from
Nicholas DeB. Katzenbach to the Vice-President (Mar. 29, 1965)),
reprinted in 1965 U.S. Code Cong. & Admin. News 3076, 3081.
The "Purpose" section of the Senate Report states that the bill’s
basic provisions, "authorizing the use of residential community
treatment centers . . ., would get prisoners started in law-abiding
careers before they are released from their terms of
imprisonment." /d. at 3076 (emphasis added).

Congress subsequently passed the Comprehensive Crime
Contro! Act of 1984, Pub. L. No. 98-473, Tit. II, 98 Stat. 1976,
which revised the federal criminal code. Under the Act, a person
who is sentenced to a term of imprisonment "shall be committed
to the custody of the Bureau of Prisons until the expiration of the
term imposed." /d., § 212(a)(2), 98 Stat. 2007 (codified at 18
U.S.C. § 3621(a) (1988)). The Bureau "may designate any
available penal or correctional facility" for service of that sentence,
"whether maintained by the Federal Government or otherwise."
Id. (codified, as amended, at 18 U.S.C. § 3621(b) (1988 & Supp.
V 1993)). In the Act, Congress retained the provision that
"facility" includes a "residential community treatment [corrections]
center." /d., § 218(a)(3), 98 Stat. 2027 (codified at 18 U.S.C.
§ 4082(c) (1988)).

These provisions demonstrate that, in passing the
Comprehensive Crime Control Act (which also contained section
3585(b)),* Congress continued to consider placement in a
community corrections center to be an ordinary part of a sentence

“Section 3585 was also passed as part of the Act. /d., § 212(a)(2),
98 Stat. 2001.

8

of imprisonment. But Congress did more than merely reorganize
the prior statute. In the Act, Congress added a completely new
provision: "[t]he Bureau of Prisons shall, to the extent practicable,
assure that a prisoner serving a term of imprisonment spends a
reasonable part . . . under conditions that will afford the prisoner
a reasonable opportunity . . . to prepare for his re-entry into the
community." /d., § 212(a)(2), 98 Stat. 2009 (codified, as
amended, at 18 U.S.C. § 3624(c) (1988 & Supp. V 1993)). The
Act thus demonstrates not only Congress’ awareness that inmates
would serve sentences in community corrections centers, but that
Congress encouraged such placements. There can be no other
reasonable interpretation of sections 3621(b) and 3624(c).

The Bureau of Prisons’ own Program Statements and
practices irrefutably confirm this interpretation. Program
Statement 7310.02 is reprinted in part in the Appendix ("App.")
to this brief. It gives the Bureau’s “operational philosophy” for
placement of inmates in a community corrections center ("CCC"):
"whenever possible, eligible inmates are to be released to the
community through a CCC." Program Statement 7310.02 (Oct.
19, 1993), infra, at App. la. As the Bureau explains,

CCCs_ provide an_ excellent transitional
environment for inmates nearing the end of their
sentences. The level of structure and supervision
assures accountability and program opportunities
in employment counseling and placement,
substance abuse, and daily life skills.

Id. (emphasis added).* The same Program Statement reprints

‘Another portion of the same Program Statement states:
CCCs, commonly referred to as “halfway houses,”
provide suitable residence, structured programs, job
placement, and counseling, while the inmates’ activities
are closely monitored.
(continued...)

———_

9

section 3621(b), which gives the Bureau the ability to designate
"any available penal or correctional facility" for service of a
sentence of imprisonment. /d., infra, at App. 2a. After quoting
the statute, the Program Statement explains that "[a] CCC meets
the definition of a ‘penal or correctional facility.’" Jd.

Pursuant to the authorizing statute and the Bureau’s
Program Statement, tens of thousands of federal inmates serve
portions of their sentences in community corrections centers every
year. On May 12, 1993, the Director of the Federal Bureau of
Prisons, Kathleen M. Hawk, testifed before Congress about federal
prison population trends. She told Congress that there were then
over 76,000 inmates in federal prison facilities and another 8,200
in contract facilities. Federal Prison Population; Present and
Future Trends: Hearings Before the Subcomm. on Intellectual
Property and Judicial Administration of the Comm. on the
Judiciary, House of Representatives, 103d Cong., Ist Ses’. 7
(1993) (testimony of Kathleen M. Hawk). In response to
questioning by members of Congress, Director Hawk described the
Bureau’s extensive use of private contract facilities, such as the
Volunteers of America community corrections center:

MR. COBLE. Now most of these [8,200]
contract inmates, I presume, are housed in

°(...continued)

Id., infra, at App. 3a. As reported by the Federal Judicial Center, "[t]he
Bureau of Prisons maintains a network of contractor-operated halfway
houses — community treatment centers (CTCs) — principally for
offenders who are approaching the ends of their terms of imprisonment.”
James B. Eaglin, Federal Judicial Center, Sentencing Federal Offenders
for Crimes Committed Before November 1, 1987, at 7 (1991 ed.). The
same publication notes that while section 3624(c) applies "specifically to
persons who committed offenses after November 1, 1987, the Bureau
utilizes its existing CTCs and various prerelease programs to achieve [the
same] goal” for all inmates. /d. at 8.

10

facilities operated by municipalities and/or counties.
Would that be a valid conclusion?

Ms. HAWK. Roughly half are community
corrections facilities that are not operated by
municipalities at all. Most of that half are either
private or nonprofit. The other half are run
through intergovernmental agreements with
municipalities, although they then contract out
much of the services to private vendors.

Id. at 48. Director Hawk also testified that the average length of
time that a federal inmate spends in a community corrections
center prior to his or her release is 123 days. Jd. With these
figures, one may estimate that each year tens of thousands of
federal prisoners serve portions of their terms of imprisonment in
community corrections centers, prior to their release. And the
numbers are, if anything, increasing. In May 1994, Director
Hawk told Congress that the total population of Bureau facilities
was then 84,000 inmates, but "[w]e have another 9,000 that are in
contract facilities or halfway houses." Prison Inmate Training and
Rehabilitation Act of 1993: Hearings Before the Subcomm. on
Intellectual Property and Judicial Administration of the Comm. on
the Judiciary, House of Representatives, 103d Cong., 2d Sess. 52
(1994) (testimony of Kathleen M. Hawk).

In sum, the petitioner is simply incorrect in suggesting that
confinement in a community corrections center may never be
imprisonment.® Congress has determined that a community

*The government has argued, in other contexts, that a sentence of
"imprisonment" includes both prison time and “community confinement."
In United States v. Strozier, 940 F.2d 985, 988 (6th Cir. 1991), the court
accepted the government’s argument that a sentence of seven months in
prison and seven months of community confinement, amounted to a total
sentence of more than one year of imprisonment. With a sentence of

(continued...)

11

corrections center is a "penal or correctional facility." Every year,
the Bureau holds thousands upon thousands of prisoners in
community corrections centers, just like the center where Mr.
Koray was confined. All of these prisoners earn credit towards
their sentences of imprisonment, pursuant to Congress’ command.

B. The Bureau of Prisons’ interpretation of section
3585 conflicts with the statute’s plain meaning
and other laws, and is unreasonable.

"Official detention" is not defined in the statute. Nor is
the term expressly linked to "orders of detention" under the Bail
Reform Act of 1984; section 3585 does not cite to the detention
provisions of that Act. The heading of section 3585(b) is "Credit
for prior Custody." (Emphasis added). The predecessor statute to
3585(b), former 18 U.S.C. § 3568, gave sentence credit for days
spent "in custody in connection with the offense." This Court has
rightfully noted that the title of a section can aid in determining the
meaning of its text. See INS v. National Center for Immigrants’
Rights, 502 U.S. 183, 189 (1991); Mead Corp. v. Tilley, 490 U.S.
714, 723 (1989). Given that the language of the prior statute is
repeated in the heading of the new statute, given the lack of a
specific reference in section 3585(b) to the Bail Reform Act, and
given Congress’ understanding that time in a community
corrections center forms part of a sentence of imprisonment,
Congress could not have intended that "official detention” means
only time in custody of prison officials pursuant to a federal order
of detention. Indeed, when section 3585(b) was enacted, the
Bureau of Prisons did not take "official detention" to mean only
detention under the Bail Reform Act. In 1989, the General
Counsel of the Bureau issued an "Operations Memorandum” that
simply defined “official detention" as "custody." See Bureau of

°(...continued)
imprisonment of more than one year, the district court was required to
impose a term of supervised release. /d.

12

Prisons Operations Memorandum from General Counsel Clair A.
Cripe (October 23, 1989), reprinted infra, at App. 9a ("Under
section 3585(b), an inmate will receive jail credit on the federal
sentence, for time spent in pre-sentence custody in connection with
the federal offense.").” The Operations Memorandum did not link
"official detention" with detention under the Bail Reform Act.

When a term is not defined in a statute, it is given its
ordinary or natural meaning. Asgrow Seed Co. v. Winterboer, 115
S.Ct. 788, 793 (1995); United States v. Alvarez-Sanchez, 114
S.Ct. 1599, 1603 (1994); Russello v. United States, 464 U.S. 16,
21 (1983). "Detention" is defined as "a holding in custody," or "a
period of temporary custody prior to disposition by a court."
Webster’s Third New International Dictionary 616 (1986). It may
also be termed a “[k]eeping in custody or confinement; arrest." IV
Oxford English Dictionary 545 (2d ed. 1989). The ordinary
meaning of "detention" must include forced residence in a
community corrections center.* Confinement in a community
corrections center must also be deemed "official" when it is
required by a federal court. Pursuant to section 3621(a), the
district courts commit defendants to the custody of the Bureau of

’The Operations Memorandum was filed by the United States as part
of the record in Mills v. Taylor, C.A. No. 91-55362 (9th Cir. 1992).

*See Moreland v. United States, 968 F.2d 655, 664 (8th Cir.) (en
banc) (Heaney, J., dissenting) (finding that that the ordinary meaning of
“official detention” includes custody at a community corrections center),
cert. denied, 113 S.Ct. 675 (1992); Mills v. Taylor, 967 F.2d 1397, 1401
(9th Cir. 1992) (quoting Brown v. Rison, 895 F.2d 533 (9th Cir. 1990)
and finding that confinement in a community corrections center falls
within the plain meaning and obvious intent of “official detention"):
Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989) (noting that "{t]o
a normal English speaker, even to a legal English speaker, being forced
to live in a halfway house is to be held ‘in custody’”).

13

Prisons for service of their sentences of imprisonment. Surely the
Bureau considers these commitment orders "official." Orders that
send defendants to community corrections centers are not made
“unofficial” because of the destination of the defendants. Thus,
the Bureau’s definition of "official detention" conflicts with the
plain meaning of the term.

Moreover, even if the term "official detention" is not given
its ordinary meaning, but is interpreted solely by reference to other
Statutes, as the petitioner urges, it includes forced residence in a
community corrections center. The petitioner argues that the term
ought to be construed by reference to sections 3585(a) and
3621(b), and hence "credit for time ‘spent in official detention’
under Section 3585(b) is available only to a defendant who [is]
detained in a ‘penal or correctional facility,’ 18 U.S.C. 3621(b),
and [is] subject to the control of state or federal penal authorities."
Pet. Br. 13; see also Pet. App. 45a-46a. But, as we have seen,
Congress has specifically included a community corrections center
within the definition of a "penal or correctional facility." And the
petitioner’s requirement that the facility be subject to the control
of "state or federal penal authorities" appears nowhere in the
statutes. Section 3621(b) says that the facility may be "maintained
by the federal Government or otherwise." 18 U.S.C. § 3621(b)
(1988 & Supp. V 1993) (emphasis added). As the above
discussion has demonstrated, both Congress and the Bureau of
Prisons agree that sentences of imprisonment may be served in
private contract facilities, which are not maintained by federal or
state penal authorities. Hence, a study of the surrounding statutes
shows that "official detention" includes time in custody in a
contract community corrections center.

The Bureau’s current interpretation of section 3585 also
contradicts any direct linkage to detention orders issued by the
federal courts pursuant to the Bail Reform Act. For example, as
the petitioner concedes, the Bureau grants credit when a defendant
is in the custody of state officials prior to being brought to federal
court. See Pet. Br. 11. Such a defendant has not been detained

14

pursuant to a federal detention order. The Bureau also grants
credit for the period following a federal defendant’s arrest and
prior to the entry of an order governing detention or release. See,
e.g., Bureau of Prisons Program Statement 5880.28 (Sentence
Computation Manual) (Feb. 21, 1992 & July 29, 1994); at 1-17 to
1-19, 1-24A (giving examples of sentence computation; all the
examples begin federal detention credit at the time of arrest, and
not at the date of entry of a court order of detention). The Bureau
considers such a defendant to be in "official detention" even
though he or she has not yet been to court and no detention order
has yet issued.

The term "official detention" is not defined in section
3585(b) and the ordinary meaning of the term unambiguously
includes forced residence at a community corrections center.
Nevertheless, if this Court considers the term to be ambiguous, the
petitioner’s construction ought to be rejected because it is
unreasonable. A court construing an ambiguous statute may
consider the "[j]udicial perception that a particular result would be
unreasonable." Commissioner v. Asphalt Products Co., Inc. , 482
U.S. 117, 121 (1987) (per curiam); see also United States v.
Turkette, 452 U.S. 576, 580 (1981) (absurd results are to be
avoided). Under the Bureau’s construction of section 3585(b).
people held in state custody, under an unknown set of conditions,
receive credit. And, as already explained, federal inmates receive
sentence credit when they are sent by the Bureau to these very
same centers. Perhaps most remarkably, the Bureau has even
reserved to itself the power to place pretrial detainees in
community corrections centers, and to grant them sentence credit.
In Program Statement 5880.28, Pet. App. 46a, the Bureau
considers a person to be in "official detention" when a court has
entered an order of detention and the Bureau places that person in
a center. There is no valid reason for this disparate treatment.

The only justification given by the Bureau for denial of

credit is that people put in community corrections centers by the
Bureau may be removed at the discretion of the Attorney General

15

and they may be prosecuted for escape if they leave the centers.
See Program Statement 5880.28, Pet. App. 46a. This is not a
sufficient reason to justify the denial of credit. As Judge Heaney
wrote for the five dissenters in United States v. Moreland, "1 do
not see how a delineation of the paths by which people become
residents or a recitation of official goals and reasons leading to
their residential status can adequately serve as a rational basis for
differing treatment." United States v. Moreland, 968 F.2d 655,
666 (8th Cir.) (en banc) (Heaney, J., dissenting), cert. denied, 113
S.Ct. 675 (1992).’

Presentence defendants who are confined in these centers
pursuant to a court order may be removed from the centers at the
court’s discretion. The court "may at any time amend the order
to impose additional or different conditions of release." 18 U.S.C.
§ 3142(c)(3) (1988 & Supp. V 1993). Further, a person who
violates a condition of a release order "is subject to a revocation
of release, an order of detention, and a prosecution for contempt
of court." 18 U.S.C. § 3148(a) (1988); see also 18 U.S.C.
§ 3148(c) (1988) ("The judicial officer may commence a
prosecution for contempt, under section 401 of this title, if the
person has violated a ccndition of release"). Such a prosecution
would be for criminal and not civil contempt, because it would be
punishment for the past violation, as opposed to an attempt to
force future compliance with a court order. See United States v.
Dixon, 113 S.Ct. 2849, 2855-2856 (1993) (Double Jeopardy
Clause attaches when defendants are convicted of criminal
contempt for violation of pretrial release orders under District of
Columbia statutes); Local 28 of the Sheet Metal Workers’ Int'l
Assoc. v. EEOC, 478 U.S. 421, 443 (1986) (criminal contempt
sanctions are punitive and are imposed to vindicate the court's
authority). Criminal contempt "is a crime in every fundamental

*See also Johnson v. Smith, 696 F.2d 1334, 1337-1340 (11th Cir.
1983) (finding that the denial of credit violated equal protection under
former 18 U.S.C. § 3568, the predecessor statute, where the government
offered no reason to support the difference in treatment).

16

respect." Bloom v. Illinois, 391 U.S. 194, 201 (1968).
Moreover, in addition to the public approbation visited on all those
who violate our criminal laws, the federal contempt statute
authorizes the imposition of a “lasting” imprisonment. See 18
U.S.C. § 401 (1988) (federal court may punish contempt "by fine
or imprisonment"); United States v. Barnett, 376 U.S. 681, 694
(1963) (reviewing criminal contempt authority, and noting that the
cases permit the imposition of even "*an oppressive fine, or lasting
imprisonment’"; citation omitted). ”

Nor may the Bureau’s reading of section 3585(b) be
justified by the conditions under which presentence defendants are
confined in community corrections centers. The petitioner has
expressly abandoned any sort of functional analysis of detention.
See Pet. Br. 23. Moreover, the petitioner would lose under any
such functional analysis. The conditions under which presentence
defendants are held in community corrections centers are at least
as restrictive as those applied to sentenced inmates in the same
facilities. For example, Mr. Koray was held in the community
corrections center for twenty-four hours each day. By comparison,
the stay of sentenced prisoners ordinarily consists of several stages.
When sentenced prisoners are initially designated to community
corrections centers, they are generally restricted to the centers
except for employment or structured activities. See Program
Statement 7310.02, infra, at App. 3a. That period normally lasts
two weeks. After that, inmates are granted greater access to the
community through weekend and evening passes. Id., infra, at
App. 3a-4a. Finally, inmates may be permitted to live at home
"while continuing in official detention status." /d., infra, at App.
4a. Mr. Koray’s confinement was at least as restrictive as the first
stage of inmates’ imprisonment at community corrections centers,
and it was much more restrictive than the second and third stages

11t is also worth noting that a person who is in the "official
detention” of state authorities is subject neither to the Attorney General’s
discretion nor to a federal prosecution for escape. Yet that person may
receive credit against a federal sentence.

of those imprisonments.

The petitioner’s interpretation of section 3585(b) thus
conflicts with the plain meaning of the statute, with other statutes,
and is unreasonable. It should not be sustained by this Court.

Ha There is no reason to defer to the Bureau of
Prisons’ interpretation of section 3585.

The petitioner argues that this Court should defer to the
Bureau of Prisons’ construction of section 3585, as the Bureau is
the agency charged with admininstering the statute. Pet. Br. 21-
28. The Bureau of Prisons does have the duty to administer
section 3585 and to compute sentence credit for time spent in
"official detention." United States v. Wilson, 112 S.Ct. 1351,
1354-55 (1992). Nevertheless, the petitioner’s argument should be
rejected. No deference is owed on pure questions of statutory
construction. Further, this Court ought not defer to the Bureau’s
inexpert, unpublished and unreasonable construction of section
3585.

There is no deference to an agency on pure questions of
statutory construction. Such questions are for the courts to decide.
INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). Whether
Congress intended the term "official detention" to be an express
reference to the Bail Reform Act is a pure question of statutory
construction. In assessing whether section 3585(b) contains an
express reference to another statute, the Bureau is not acting to fill
in a gap left by Congress. The Bureau has not promulgated any
sort of legislative rule to decide what ought to constitute "official
detention.” In Program Statement 5880.28, Pet. App. 45a-46a, the
Bureau has merely asserted its belief that "official detention" refers
to detention under the Bail Reform Act. In this respect, this case
is just like Cardoza-Fonseca. There this Court held that the
question whether two statutory standards were identical was a pure
question of statutory construction, and no deference was owed to
the agency’s interpretation. /d. at 448. See also Federal Election

18

Comm'n v. NRA Political Victory Fund, 115 §.Ct. 537, 543 (1994)
("we do not think that the [statutes], authorizing the FEC to litigate
in federal courts, are the sort of provisions which can be said to be
within the province of the agency to interpret."). Because the
Bureau is in no better position than this Court to resolve a pure
question of statutory construction, no deference is owed. The
statute ought to be given its ordinary meaning, which includes
forced residence in a community corrections center.

If this Court determines, however, that the issue is not a
pure question of statutory construction, there is still no reason to
defer to the agency. There is no deference to an administrative
construction if the intent of Congress is clear. Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-843 (1984). Given that Congress has defined a community
corrections center to be a "penal or correctional facility,” and
given the ordinary meaning of the term "official detention," there
is no ambiguity here. Congress clearly intended "official
detention" to include forced residence in a community corrections
center. There is no deference where, as here, an agency’s
construction is contrary to the plain language of a statute,
Demarest v. Manspeaker, 498 U.S. 184, 190 (1991), or where it
"goes beyond the meaning that the statute can bear." MCI
Telecommunications Corp. v. American Telephone and Telegraph
Co., 114 §.Ct. 2223, 2231 (1994).

Nor is this the sort of instance where policy favors
deference to the executive. In Chevron, this Court detailed some
of the reasons why deference may be appropriate. The regulatory
scheme may be “technical and complex," the agency may have
considered the manner "in a detailed and reasoned fashion,” and
the agency’s decision may involve "reconciling conflicting
policies." Jd. at 865 (footnotes omitted). None of these reasons
are advanced by deference here.

First, the regulatory scheme is neither technical nor
complex. What constitutes "official detention” is primarily a legal

19

and not a technical question. And in applying the legal definition
to individual cases, the Bureau will review the court orders that
confine people in community corrections centers. Surely the
federal courts need not defer to an agency’s application of a statute
to a court order. The Bureau cannot possibly claim that it is better
able than a court to assess the meaning of a court order.

Second, the Bureau has not considered section 3585(b) in
a “detailed and reasoned fashion." The Bureau’s Policy Statement
is not published. It was not promulgated pursuant to the
Administrative Procedures Act, 5 U.S.C. sections 551, et seq.
(1988 & Supp. V 1993). Courts give unpublished and informal
interpretations only some weight. See Martin v. OSHRC, 499 U.S.
144, 157 (1991). Moreover, the Bureau has changed its
construction of the statute. When section 3585(b) was first
promulgated, the Bureau simply equated "official detention" with
"custody." See Operations Memorandum, infra, at App. 9a. Only
recently has the Bureau, in Program Statement 5880.28, decided
that "official detention" was meant by Congress to be an express
reference to orders of detention under the Bail Reform Act. The
Bureau’s new construction of the statute was promulgated after the
Bureau denied Mr. Koray sentence credit. While the Bureau is not
estopped from changing its construction of the statute, a changed
construction is entitled to much less deference than a consistently-
held view. Good Samaritan Hospital v. Shalala, 113 S.Ct. 2151,
2161 (1993) (citations omitted); Estate of Cowart v. Nicklos
Drilling Co., 112 S.Ct. 2589, 2596 (1992). And the amount of
deference due to an agency construction that has been promulgated
during litigation presents a difficult and perhaps unresolved
question for this Court. See Estate of Cowart, 112 S.Ct. at 2594-
2595.

Third, the Bureau has not arrived at its construction after
reconciling "conflicting policies.” According to the petitioner,
"the Bureau has now abandoned a ‘functional approach’ to the
custody issue." Pet. Br. 23. Had the Bureau taken a discerning
"functional approach,” it might be said that the Program Statement

20

reconciled various policies about sentence credit. Instead, the
Program Statement merely attempts to link "official detention" to
the Bail Reform Act. All the Bureau has done is place its own
spin on the language of the statute.

Finally, as already demonstrated, the Bureau's
interpretation of section 3585(b) is unreasonable. No deference is
owed to an unreasonable agency construction of a statute. See
Chevron U.S.A. Inc., 467 U.S. at 844-845; see also Estate of

Cowart, 112 S.Ct. at 2594 (deference may be owed to ‘a
reasonable statutory interpretation").

The petitioner’s interpretation of section 3585(b) presents
a pure question of statutory construction, appropriate for this Court
to determine. Neither precedent nor policy require deference to
the Bureau’s construction of the statute.

Il. This Court Should Interpret Section 3585 to Require
Sentence Credit for Presentence Detainees Who Are
Held in Community Corrections Centers Under the
Same Conditions As Sentenced Federal Prisoners; Any
Other Construction Would Raise Serious Constitutional
Questions.

The petitioner’s construction of section 3585 would violate
equal protection. This Court should construe section 3585 to avoid
raising serious constitutional questions. Interpreting the statute to
grant credit for forced residence in a community corrections center
would avoid any constitutional difficulties.

Whenever possible, this Court should construe a statute to
avoid conflicts with the Constitution. Edward J. DeBartolo Corp.
v. Florida Gulf Coast Building & Construction Trades Council,
485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop Of Chicago,
440 U.S. 490, 500 (1979); Johnson v. Robison, 415 U.S. 361,
366-367 (1974). Congress is sworn to uphold the Constitution.
This Court "will therefore not lightly assume that Congress

21

"

intended to infringe constitutionally protected liberties .. ..
Edward J. DeBartolo Corp., supra. A statute will be construed to
avoid serious constitutional problems unless that construction "is
plainly contrary to the intent of Congress." /d.; see also Public
Citizen v. United States Department of Justice, 491 U.S. 440, 466
(1989) ("we are loath to conclude that Congress intended to press
ahead into dangerous constitutional thickets in the absence of firm
evidence that it courted those perils"); Catholic Bishop Of
Chicago, 440 U.S. at 500-01 (intent of Congress must be clearly
expressed).

The Due Process Clause of the Fifth Amendment
essentially incorporates the provisions of the Equal Protection
Clause of the Fourteenth Amendment. Hampton v. Mow Sun
Wong, 426 U.S. 88, 100 (1976); Buckley v. Valeo, 424 U.S. 1, 93
(1976). The government violates a person’s right to equal
protection when similarly situated parties are treated dissimilarly,
absent sufficient justification. See generally City of Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 439-442 (1985). At
a minimum, the petitiqner must show that the disparate treatment
of presentence detainees in community corrections centers is
rationally related to a legitimate governmental interest. /d. at 441-
442. This standard is not toothless. The government "may not
rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational." /d.
at 446.

Presentence detainees in community corrections centers are
similarly situated to at least two other groups: (a) sentenced
federal prisoners who reside in the same centers under the same
conditions; and (b) presentence defendants who are in the custody
of state authorities, under whatever conditions are imposed by the
State.

With respect to the first group, as already demonstrated,
presentence detainees in community corrections centers are
generally subject to restrictions that are at least as severe as those

22

imposed on federal prisoners who are held there. In addition, both
are placed in the centers for reasons of public safety. Defendants
may be ordered to reside in community corrections centers if such
conditions would "reasonably assure . . . the safety of any other
person and the community." 18 U.S.C. § 3142(c)(1)(B) (1988 &
Supp. V 1993). Similarly, courts that sentence defendants are
required to consider the need “to protect the public from further
crimes." 18 U.S.C. § 3553(a)(2)(C) (1988). And, as discussed
in part IB, above, presentence detainees and sentenced prisoners
are both subject to new criminal sanctions if they violate the terms
of an order placing them in a center or escape.

With respect to the second group, the Bureau of Prisons
grants sentence credit for defendants who are in "official
detention" of state officials, if the detention is in connection with
the federal offense and the defendants do not receive credit against
a state sentence. See Pet. Br. 11. Like presentence detainees in
community corrections centers, defendants held in state facilities
may be subjected to a variety of restrictions, some less severe and
some more severe.

There is no rational reason for the difference in treatment.
The same points that demonstrate that the petitioner’s construction
is unreasonable apply here. The Bureau’s award of sentence credit
to sentenced prisoners in community corrections centers shows that
its interpretation of section 3585 is arbitrary and irrational. The
fact that those sentenced prisoners can be prosecuted by the federal
government for escape is not a rational reason for the disparate
treatment. Presentence detainees who leave community corrections
centers may be subjected to "lasting" imprisonment for criminal
contempt. Further, presentence defendants who are detained by
the state may not be prosecuted by the federal government for
escape or contempt. Yet they receive sentence credit. At its
heart, the only real reason the Bureau has advanced for the
disparate treatment is that a court rather than the Bureau has placed
the presentence detainees in community corrections centers. That
cannot be a sufficient justification for the difference in sentence

4
;
3
3
7
4
.
3

23

credit.

This Court need not strike down section 3585 as
unconstitutional. The plain language of the statute does not compel
the petitioner’s construction. This Court should construe the
statute so that it does not violate the Constitution. Sentence credit
must be provided for defendants who are ordered to reside in
community corrections centers prior to trial.

Ill. The Bureau of Prisons Would Have No Difficulty
Administering a Rule That Affords Sentence Credit for
Forced Residence In Community Corrections Centers
Prior to Sentencing.

Amicus curiae submits that this Court should determine that
forced residence in a community corrections center is "official
detention," as held by the court of appeals in Mills v. Taylor, 967
F.2d. 1397 (9th Cir. 1992). If this Court so holds, the Bureau
will have no difficulty administering the rule. First, the sentence
credit will usually be based on the presentence investigation report
prepared by the probation officer and forwarded to the Bureau of
Prisons. Second, the Bureau is already familiar with conditions in
community corrections centers. Third, The Bureau has already
proven that it can administer this rule.

A. All of the information needed by the Bureau of
Prisons to award sentence credit is contained in
presentence investigation reports or in court
files.

Under 18 U.S.C. § 3552(a) (1988), probation officers are
directed to perform presentence investigations of all defendants and
to report the results to the court. Federal Rule of Criminal
Procedure 32 directs that a presentence investigation report be
prepared in each case, unless the court makes a finding that a
report is not necessary. Fed. R. Crim. P. 32(c)(1). The rule also
contemplates that a copy of the presentence investigation report

24

will be forwarded to the Bureau of Prisons. Fed. R. Crim. P.
32(c)(3)(D). The presentence investigation report thus not only
aids the court in determining the appropriate sentence, but it also
assists the Bureau of Prisons in classifying and programming
inmates, and in preparing them for release. See Administrative
Office of the United States Courts, Division of Probation, The
Presentence Investigation Report (Publication 105) 1 (1984).

A presentence investigation report is comprehensive. The
probation officer is responsible for searching out all relevant facts
about the defendant and presenting them in an organized, objective
report. Jd. at 3. Every report contains a face sheet, which
provides an overview of significant information. /d. at 7. The face
sheet generally includes information about the defendant’s custodial
status. Jd. Moreover, under the most recent presentence manual
published by the Administrative Office of the United States Courts,
the probation officer is required to describe the defendant’s
adjustment in pretrial custody or while under pretrial supervision.
See Administrative Office of the United States Courts, Probation
and Pretrial Services Division, The Presentence Investigation
Report for Defendants Sentenced Under the Sentencing Reform Act
of 1984 (Publication 107) II-8, II-34 (rev. Mar. 1992). Hence, for
a defendant such as Mr. Koray, who was placed in the custody of
the Pretria! Services Agency, the presentence investigation report
should contain details of his supervision and confinement,
including his forced residence at the community corrections center.
In fact, it is easier for the Bureau to learn about conditions of
residence at a community corrections center than about conditions
of detention in a state facility. Because a defendant held in a
center will ordinarily be under the supervision of the Pretrial
Services Agency, a federal agency, full information should be in
the presentence report. When a person is held in state custody, the
Bureau must research the conditions of confi:sement on its own.

If, for some reason, the Bureau finds a presentence
investigation report lacking, the necessary information should be
easy to gather. Information about conditions of confinement would

3
|
}
;

ts Sa

25

ordinarily appear in the district court’s order placing a person in
a community corrections center. Contrary to the petitioner’s claim
that the Bureau would be forced to base credit decisions on
unverifiable information, Pet. Br. 15, the court file should provide
the answers to the Bureau’s questions. The petitioner has
conceded that a defendant’s "bail form" ordinarily accompanies an
inmate after he or she is sentenced. Pet. Br. 28. The "bail form"
in this case would have answered all of the Bureau’s questions. It
provided that Mr. Koray was to be confined for twenty-four hours
a day at the community corrections center.

B. The Bureau of Prisons has an extensive network
to oversee contract community corrections
centers.

As discussed earlier, every year tens of thousands of
federal inmates serve a portion of their sentences in community
correction centers, and this number is increasing. These facilities
are so regularly utilized that the Bureau of Prisons has established
a Community Corrections Branch to implement its community
custody program. See Federal Bureau of Prisons, U-:S.
Department of Justice, Facilities 1991, at 82. In 1991, the year
that Mr. Koray was sentenced, the Bureau of Prisons maintained
thirty-three Community Corrections Offices nationwide, including
one in Baltimore. Jd. at 82-83. Each Community Corrections
Office is staffed with a manager who is "responsible for
development, administration, and routine oversight of residential
and nonresidential services provided through contractual
agreements." /d. at 82.

The petitioner portrays community corrections centers,
such as the Volunteers of America, as purely private entities.
According to the petitioner, their records are not available to the
Bureau as a matter of right and their information is less verifiable
than information from law enforcement agencies. Pet. Br. at 15.
With respect, this characterization is not accurate. Facilities such
as the Volunteers of America are on contract with the Bureau of

ne

26

Prisons. The Bureau oversees the services that they provide. Not
only must the Bureau of Prisons have at hand full information
about each of these contract facilities, but due to the nature of their
relationship, the Bureau must surely be in a position to gain any
needed information from them.

¢. The Bureau of Prisons’ ease in administering
the Ninth Circuit’s rule demonstrates that it has
no difficulty granting credit for forced residence
in community corrections centers.

The Ninth Circuit held in Brown v. Rison, 895 F.2d. 533
(9th Cir. 1990), that forced residence in a community corrections
center is time "in custody" within the meaning of former 18
U.S.C. § 3568. In Mills v. Taylor, 967 F.2d. 1397 (9th Cir.
1992), the court of appeals reached the same conclusion under
§ 3585(b), the successor statute to § 3568. Following these
decisions, the Bureau drafted a bright-line rule:

credit for time spent in a community treatment
center as a condition of bond (including appeal
bond) is considered the same as time spent in
"official detention" for those sentenced in the
Ninth Circuit, if they were required to spend
nights in the community corrections center.

Program Statement 5880.28, Pet. App. 47a. Amicus curiae
submits that this is an appropriate rule for implementation
nationwide.

This rule comports with the plain meaning of section
3585(b), because it would award sentence credit for time spent in
custody of a community corrections center. It would not raise
constitutional concerns because it would afford sentence credit
under the same circumstances that credit is given to sentenced
federal inmates who are placed in community corrections centers.

SIAL Y MONOD Lay Wh Reali LES Ci st

27

Sentenced inmates are given credit for a day in custody even if
they are permitted to leave the centers to go to work. See Bureau
of Prisons Program Statement 5880.28 (Sentence Computation
Manual) (July 29, 1994), at 1-12 ("The Bureau of Prisons
calculates any part of a day in custody serving sentence as a full
day served on the sentence . . . and any part of a day in official
detention as a full day for prior custody time purposes"; emphases
in original).

There has been no indication of any difficulty in
administering this rule. The Bureau’s success in implementing this
rule demonstrates that the rule could easily be administered if
given nationwide application.

28
CONCLUSION

For the reasons set forth in this brief, amicus curiae
respectfully asks this Court to remand this case for the award of
sentence credit for the period during which Mr. Koray was
confined at the community corrections center.

On the Brief:

Dawn Vargas
j-aw Student Intern

Respectfully submitted,

CHARLES D. WEISSELBERG
Counsel of Record
MICHAEL J. BRENNAN
DENNIS E. CURTIS
CARRIE L. HEMPEL
University of Southern
California Law Center
University Park
Los Angeles, California 90089-0071
Telephone: (213) 740-2528

Attorneys for Amicus Curiae
The USC Law Center’s
Post-Conviction Justice Project

ee LES aa te 08 eee.

APPENDIX

Excerpts from Federal Bureau of Prisons Program
Statement 7310.02 (October 19, 1993): "Community
Corrections Center (CCC) Utilization and Transfer
Procedure"

Federal Bureau of Prisons Operations Memorandum
(October 23, 1989): "Credit for Time In Custody Under
18 U.S.C. 3585(b)"

U.S. Department of Justice
Federal Bureau of Prisons

Program onc»

NUMBER: 7310.02

State aa Ge nt DATE: October 19, 1993

SUBJECT: Community
Corrections Center (CCC)
Utilization and Transfer
Procedure

1. PURPOSE AND SCOPE. To provide guidelines to staff
regarding the effective use of Community Corrections Centers
(CCCs). This Program Statement defines placement criteria,
requires that staff members start the placement process in a timely
manner, and defines the circumstances when inmates may refuse
community corrections (CC) programs. It also establishes an
operational philosophy for CCC referrals that, whenever possible,
eligible inmates are to be released to the community through a
CCC, unless there is some impediment as outlined herein.

CCCs provide an excellent transitional environment for inmates
nearing the end of their sentences. The level of structure and
supervision assures accountability and program opportunities in
employment counseling and placement, substance abuse, and daily
life skills.

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One reason for referring an inmate to a CCC is to increase public
protection by aiding the transition of the offender into the
community. Participating in community-based transitional services
reduces the likelihood of an inmate with limited resources
recidivating than might be the case if the inmate makes an abrupt
transition from the institution to the community. While clearly
dangerous inmates should be separated from the community until
completion of their sentences, other eligible inmates should
generally be referred to CCCs to maximize the chances that they
will successfully reintegrate into society.

*x* * *k

4. STATUTORY AUTHORITY. 18 U.S.C., Section 3624(c),
provides:

"The Bureau of Prisons shall, to the extent practicable,
assure that a prisoner serving a term of imprisonment
spends a reasonable part, not to exceed six months, of the
last ten per centum of the term to be served under
conditions that will afford the prisoner a reasonable
opportunity to adjust to and prepare for his reentry into the
community. The authority provided by this subsection
may be used to place a prisoner in home confinement.
The U.S. Probation System shall, to the extent practicable,
offer assistance to a prisoner during such pre-release
custody."

18 U.S.C. Section 3621(b) provides:

"The Bureau of Prisons shall designate the place of the
prisoner’s imprisonment. The Bureau may designate any
available penal or correctional facility . . . the Bureau
determines to be appropriate and suitable." A CCC meets
the definition of a "penal or correctional facility."

Therefore, the Bureau is not restricted by Section 3624(c) in

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designating a CCC for an inmate and may place an inmate in a
CCC for more than the "last ten per centum of the term,” or more
than six months, if appropriate.

Section 3624(c), however, does restrict the Bureau in placing
inmates on home confinement to the last six months or 10 percent
of the sentence, whichever is less.

5. COMMUNITY-BASED PROGRAMS

a. Community Corrections Centers (CCC). CCCs, commonly
referred to as “halfway houses,” provide suitable residence,
structured programs, job placement, and counseling, while the
inmates’ activities are closely monitored. All CCCs offer drug
testing and counseling for alcohol and drug-related problems.
During their stay, employed inmates are required to pay a
subsistence charge to help defray the cost of their confinement; this
charge is 25 percent of their gross salary, not to exceed the
average daily cost of their CCC placement. Failure to make
subsistence payments may result in disciplinary action.

These contract facilities, located throughout the United States,
provide three program components: Community Corrections,
Prerelease, and Home Confinement:

(1) The Community Corrections Component is designed
as the most restrictive option. Except for employment and other
structured program activities, an inmate in this component is
restricted to the CCC. An inmate will ordinarily be placed in the
Community Corrections Component upon arrival at the CCC.
This orientation period normally lasts for two weeks or until the
inmate has demonstrated to CCC staff the responsibility necessary
to function in the community. Based on their professional
judgment, CCC staff will determine when an inmate is prepared to
advance to the prerelease component.

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(2) The Prerelease Component is designed to assist
inmates making the transition from an institution setting to the
community. These inmates have more access to the community
and family members through weekend and evening passes.

(3) The Home Confinement Component is restricted to
inmates who ordinarily are serving the last 10 percent of their
sentences not exceeding six months. This is a selective status that
is authorized discriminately according to an inmate’s adjustment
and needs. Inmates are permitted to reside at home and be
gainfully employed while continuing in official detention status.
Sub-section b.(4) below provides more detail about this program.

-_* *& *

6. RELEASE PLAN. Staff shall begin release planning at an
inmate’s first team meeting, normally the initial classification, and
shall continue throughout the inmate’s confinement. The following
guidelines apply:

a. Planning early in an inmate’s period of confinement is
necessary to ensure prerelease needs are identified and appropriate
prerelease programs are recommended.

b. Preliminary decisions regarding eligibility for CC programs
is to be made well in advance of the last year of confinement.

c. A final and specific prerelease plan, including a decision as
to CCC referral, is normally established at a team meeting no later
than 11 to 13 months before an inmate’s projected release date.

7. CCC CRITERIA AND REFERRAL GUIDELINES. Staff

shall make recommendations for CCC placements based on
assessments of inmate needs for services, public safety, and the
necessity of the BOP to manage its inmate population responsibly.
CCCs are a program element and are not to be used as a reward
for good institutional behavior, although an inmate’s institutional

Sa

adjustment may be a factor in making a referral determination.

A number of factors must be weighed to determine the length of
CCC placement for inmates, including their individual needs and
existing community resources. Institution staff make a
recommendation for a specific placement date to the CCM office,
and Community Corrections staff determine placement dates and
closely monitor average lengths of stay to efficiently manage the
bedspace usage. Budgetary constraints also are a key consideration
and may affect average lengths of stay. CC staff shall make every
effort to establish an acceptable date as close to the institution's
recommended date as possible. In any event, the acceptance date
shall not precede the recommended date.

The following CCC referral guidelines apply:

a. An inmate may be referred up to 180 days, with placement
beyond 180 days highly unusual, and only possible with
extraordinary justification. In such circumstances, the Warden
shall contact the Regional Director for approval and the Chief U.S.
Probation Officer in the inmate’s sentencing district to determine
whether the sentencing judge objects to such placement.

b. The ultimate goal is to maximize each eligible inmate’s
chances for successful release and a law-abiding life.

c. When an inmate has a history of escape or failure in one or
more CCC programs, careful review and consideration should be
given regarding the suitability of participation and the length of
placement.

d. Inmates with handicaps, minor medical conditions, or
disabilities may also be considered for community placement.
Inmates are required to assume financial responsibility for their
health care while assigned to community programs. When an
inmate is unable or unwilling to bear the cost of necessary medical
care, the inmate is to be denied placement.

6a

* * kK

10. CCC REFERRAL PROCEDURES. Normally 11 to 13
months before each inmate’s probable release date, the unit team
shall decide whether to refer an inmate to a Community
Corrections program.

a. Referral to CCM. Staff shall use the Referral Form (BPS-210
(73) Attachment B) when referring an inmate for transfer to a
CCC. Information included in the Additional Information (12) and
Specific Prerelease Needs (13) sections must be as specific as
possible and not just reference the progress report. Attachment B
contains instructions for completing the Referral Form and related
materials. Signed copies of the "Conditions of Residential
Community Programs" (Attachment C) must be included with all
CCC referrals. The Warden is the final decision-making authority
for all CCC referrals recommended by the unit team.

If the Warden approves the CCC referral, the unit team shall
forward two copies of the Institutional Referral Form and
appropriate attachments to the CCM. Two copies of the referral
are prepared so that one may be forwarded to the CCC while the
CCM retains the other for reference. The referral packet must be
forwarded to the CCM at least 60 days prior to the requested
placement date. However, earlier referrals are encouraged to
facilitate the release process.

If the placement is for 45 days or less, and the release method by
parole, a copy of correspondence directed to the U.S. Parole
Commission outlining the release plan and requesting parole
certificates, as well as copies of U.S. Probation’s letter
recommending release plan approval, must be included in the
referral package.

* * *

Ta

e. Transfer Date. When CCMs are notified of an inmate's
acceptance by a CCC, a transfer date to the CCC is to be
established, and the CCM will enter the SENTRY destination
assignment transaction. The effective date will be the approved
future transfer date.

Kathleen M. Hawk
Director

[ Attachments omitted]

8a

OPERATIONS DATE: OCTOBER 23, 1989

MEMORANDUM
SUBJECT: CREDIT FOR TIME IN
CUSTODY UNDER
18 USC 3585(B)
CANCELLATION DATE: OCTOBER 31, 1990

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I. PURPOSE: TO ADVISE STAFF OF THE
PROCEDURES FOR THE CREDITING OF JAIL TIME UNDER
TITLE 18, U.S. CODE, SECTION 3585(B).

II. DIRECTIVE REFERENCED:

PROGRAM STATEMENT 5880.24, SEPTEMBER 5, 1979,
"SENTENCE COMPUTATION, JAIL TIME CREDIT UNDER
18 USC 3568".

If. BACKGROUND: PRIOR TO NOVEMBER 1, 1987,
JAIL TIME CREDIT, FOR TIME IN CUSTODY BEFORE
SENTENCING, WAS CONTROLLED BY TITLE 18 USC,
SECTION 3568. AS STATED UNDER THAT SECTION .. .
"THE ATTORNEY GENERAL SHALL GIVE ANY SUCH
PERSON CREDIT TOWARD SERVICE OF HIS SENTENCE
FOR ANY DAYS SPENT IN CUSTODY IN CONNECTION
WITH THE OFFENSE OR ACTS FOR WHICH SENTENCE
WAS IMPOSED". PROGRAM STATEMENT 5880.24,
"SENTENCE COMPUTATION, JAIL TIME CREDIT UNDER
18 USC 3568", ESTABLISHED THE PROCEDURES FOR
MAKING JAIL TIME CREDIT DETERMINATIONS.
HOWEVER, WITH THE IMPLEMENTATION OF THE
COMPREHENSIVE CRIME CONTROL ACT (CCCA) ON
NOVEMBER 1, 1987, SECTION 3568 WAS REPEALED FOR
OFFENSES COMMITTED ON OR AFTER THAT DATE. FOR
OFFENSES COMMITTED PRIOR TO NOVEMBER 1, 1987,
THE PROVISIONS OF SECTION 3568 AND PROGRAM
STATEMENT 5880.24 REMAIN IN EFFECT.

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IV. ACTION: THE FOLLOWING PROVISIONS OF TITLE
18. USC SECTION 3585(B), CONTROL THE CREDITING OF
JAIL TIME CREDIT, FOR OFFENSES COMMITTED ON OR
AFTER NOVEMBER |, 1987.

SECTION 3585(B) CREDIT FOR PRIOR CUSTODY —

"A DEFENDANT SHALL BE GIVEN CREDIT TOWARD THE
SERVICE OF A TERM OF IMPRISONMENT FOR ANY TIME
HE HAS SPENT IN OFFICIAL DETENTION PRIOR TO THE
DATE THE SENTENCE COMMENCES —

(1) AS A RESULT OF THE OFFENSE FOR WHICH THE
SENTENCE WAS IMPOSED; OR

(2) AS A RESULT OF ANY OTHER CHARGE FOR
WHICH THE DEFENDANT WAS ARRESTED AFTER
THE COMMISSION OF THE OFFENSE FOR WHICH
THE SENTENCE WAS IMPOSED, THAT HAS NOT
BEEN CREDITED AGAINST ANOTHER SENTENCE."

UNDER SECTION 3585(B), AN INMATE WILL RECEIVE
JAIL TIME CREDIT ON THE FEDERAL SENTENCE, FOR
TIME SPENT IN PRE-SENTENCE CUSTODY IN
CONNECTION WITH THE FEDERAL OFFENSE, AND FOR
ANY TIME SPENT IN PRE-SENTENCE CUSTODY AFTER
THE DATE OF THE FEDERAL OFFENSE, IF CREDIT IS NOT
AWARDED TOWARD SERVICE OF ANOTHER SENTENCE.
FOR EXAMPLE, IF AN INMATE IS ARRESTED ON STATE
CHARGES, AFTER THE DATE OF THE FEDERAL OFFENSE,
AND IT IS DETERMINED THAT THE STATE DID NOT
CREDIT THE PRE-SENTENCE CUSTODY TOWARD A
STATE SENTENCE, THE TIME SPENT IN STATE PRE-TRIAL
CUSTODY, AFTER THE DATE OF THE FEDERAL
OFFENSE, WILL BE CREDITED TOWARD THE FEDERAL
SENTENCE.

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IN THE FOLLOWING SITUATIONS, IT MAY ALSO BE
DETERMINED THAT THE STATE HAS NOT AWARDED
CREDIT TOWARD THE STATE SENTENCE IF:

(1) THE STATE CHARGES ARE DISMISSED.

(2) THE STATE SENTENCE IS VACATED WITH
FURTHER PROSECUTION DEFERRED, THEREBY
EFFECTIVELY VACATING THE STATE’S AWARD
OF JAIL CREDIT,

(3) STATE PROBATION IS GRANTED, OR

(4) THE STATE ORDERS THEIR SENTENCE TO RUN
CONCURRENTLY WITH THE FEDERAL SENTENCE,
AND THE STATE SENTENCE WILL BE ABSORBED
PRIOR TO GRANT OF GOOD TIME, RESULTING IN
NO BENEFIT FROM THE STATE JAIL TIME.

ORDINARILY, IF A SENTENCE RESULTS FROM STATE
CHARGES, THERE WILL BE A PRESUMPTION THAT THE
INMATE DID RECEIVE CREDIT FOR THE PRE-SENTENCE
TIME. HOWEVER, IF IT CAN BE DEMONSTRATED THAT
THE STATE DID NOT CREDIT THE TIME, THE PRE-
SENTENCE CREDIT WILL BE AWARDED FOR TIME IN
STATE CUSTODY, AFTER THE DATE OF THE FEDERAL
OFFENSE.

THESE PROCEDURES, UNDER SECTION 3585(B), ONLY
APPLY TO OFFENSES COMMITTED ON OR AFTER
NOVEMBER 1, 1987. QUESTIONS CONCERNING THESE
PROCEDURES MAY BE REFERRED TO ED HAYNES, CHIEF
INMATE SYSTEMS BRANCH (FTS 724-3050).

CLAIR A. CRIPE
GENERAL COUNSEL

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0740%3A09. Public record. Not legal advice.