Costs of Incarceration

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[AG Order No. 1863-94]

Costs of Incarceration

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule provides for the collection and

establishment of a fee to cover the cost of incarceration of inmates

committed to the custody of the Attorney General, and for the further

administration of this procedure by the Director, Bureau of Prisons.

This rule is promulgated to implement newly enacted statutory authority

on recovering the costs of incarceration. The rule also is intended to

help ensure the continued efficient operation of federal correctional

institutions, including the provision of beneficial programming for

inmates.

DATES: Comments must be submitted by May 5, 1994.

FOR FURTHER INFORMATION CONTACT:

Roy Nanovic, Office of General Counsel, Bureau of Prisons, HOLC room

754, 320 First Street, NW., Washington, DC 20534, telephone (202) 514-

6655.

SUPPLEMENTARY INFORMATION: On June 28, 1993, the Department of Justice

published a proposed rule, to be codified at 28 CFR part 505,

establishing procedures for the assessment and collection of a fee to

cover the costs of incarceration for federal inmates. (58 FR 34541) In

response to public comment and for reasons of administrative

management, the Department is publishing those provisions relating to

statutory authority, applicability, and establishment of the fee again

for notice and comment. Further provisions relating to the

determination of the average cost of incarceration have been added to

the proposed rule. As an administrative measure, this rule delegates

authority to the Director, Bureau of Prisons (Bureau), to promulgate

regulations for collecting the costs of incarceration for inmates

committed to the custody of the Attorney General and to collect such

fees. The provisions in the Bureau of Prisons regulations (for example,

procedures for exemption, waiver, or proration of fee assessment,

calculation of assessment, and payment and appeal procedures) will be

based upon the previously published proposed rule. Response to public

comment on the previously published proposed rule relating to statutory

authority, applicability, establishment of fee, the determination of

the average cost, and administrative procedure is summarized below.

Response to public comment relating to other provisions of the

previously published proposed rule will be contained in the commentary

for the separate Bureau of Prisons rule.

Comments on the proposed rule were received from seven individuals

(a federal employee, a law professor, and five federal inmates). An

additional comment was received later from one of the original

commenters purporting to contain the comments of two additional federal

inmates. One commenter was in favor of the proposed rule, responding

that criminal defendants should be required not only to pay the costs

of their incarceration, but also to bear the burden of the social and

economic costs of their crimes.

The Department has carefully reviewed the public comments received

concerning the proposed rule and has determined that a revised rule

should be published for comment.

Attorney General's Certification and Rule Indexing

Two commenters contested the validity of the rule on procedural

grounds. One commenter disagreed with the Attorney General's

certification pursuant to 5 U.S.C. 605(b) that the rule will not have a

significant economic impact on a substantial number of small entities.

This commenter argues that the rule will have a significant financial

impact on various inmates and their families owning joint property or

filing joint tax returns.

The Attorney General's certification pursuant to the Regulatory

Flexibility Act (RFA), 5 U.S.C. 601-12, is appropriate in this case.

Under the RFA, neither an inmate or the inmate's family satisfies the

definition of a ``small entity,'' which is defined by the Act as a

``small business,'' ``small organization,'' or ``small governmental

jurisdiction''. 5 U.S.C. 601(6). Further discussion of the agency

provisions for the amelioration of the potential hardships faced by

certain inmates and their families due to the imposition of a fee for

costs of incarceration will be contained in the commentary for the

final rule to be issued by the Bureau of Prisons.

The second procedural comment received made the proposition that

because the proposed rule was indexed in the Federal Register under

``justice'' rather than ``prisons,'' notice of the proposed rule may

have been improper. However, this choice of indexing was due to the

fact that the Bureau of Prisons is within the Department of Justice and

under the oversight authority of the Attorney General. Likewise, the

rule was originating from the Attorney General and the Department of

Justice. Thus, the rule was properly indexed under ``justice'' rather

than ``prisons'' and no notice provisions of the Administrative

Procedure Act were violated.

In order to avoid any further confusion on this issue, however, the

Department has decided to issue its regulations on costs of

incarceration as two separate rules. The first rule, proposed for

codification at 28 CFR 0.96c, provides the authority for establishing

and collecting a fee for the costs of one year of incarceration. This

rule also specifies the calculation used to determine the average cost

of incarceration. In addition, the rule designates the Director of the

Bureau of Prisons as being responsible for the review of the fee, for

its calculation in accordance with the formula set forth in

Sec. 0.96c(b), and for the publication of each year's fee (or revised

fee) as a notice in the Federal Register. This rule also delegates to

the Director the authority to promulgate regulations concerning the

collection of the fee, to be codified as a second rule at 28 CFR part

505. As previously proposed, the Director would have been required both

to public the current fee as a notice in the Federal Register and to

amend the fee in the regulation. This requirement has been modified in

the interest of reducing unnecessary regulatory publication.

Average Cost of Incarceration Figure

With regard to comments concerning the substantive provisions of

the proposed rule, three commenters disagreed with the figure stated in

proposed Sec. 505.2(b) representing the average cost of incarceration.

Two commenters asserted that the average cost figure is not a fair

calculation basis for those inmates placed in or transferred to

minimum-security--and thus lower cost--institutions within the first

year. One commenter stated that the figure was irrational, believing

that the assessment would reduce inmates to the poverty level. Finally,

one commenter contended that the Bureau of Prisons should not determine

the average cost of incarceration figure.

Despite these contentions, the Attorney General believes that this

figure is a reasonable interpretation of the implementing statute. The

plain language of section 111 of Public Law 102-395 orders the Attorney

General to ``establish and collect a fee to cover the costs of

confinement,'' with such fee being ``equivalent to the average cost of

one year of incarcertation.'' Public Law 102-395, section 111(a) (1),

(2), 106 Stat. 1828, 1842 (1992). Although at first glance it may seem

fair to assess each fee based upon each individual inmate's cost of

incarceration, this figure would not represent the ``average cost'' to

the United States to confine every prisoner. Nor would basing the fee

upon each inmate's initially designated institution be a fair

assessment. While an inmate initially could be designated to a lower

cost facility, within the first year he or she might be redesignated to

a higher security/administrative, and higher cost, institution. Thus,

the figure merely represents the average cost to the Bureau of Prisons

to confine any prisoner and, accordingly, is a reasonable choice for

the Attorney General to make in order to comply with the statute.

However, to clarify the process and address these concerns, the

Department is including in the proposed rule the formula used to

calculate the average cost of one year of incarceration (see

Sec. 0.96c(b)). This calculation is intended to provide a figure

reflective of the actual costs expended to maintain inmates at Bureau

facilities. The fee is calculated by dividing the expenses incurred at

the Central, Regional, and institution level in such areas as salaries,

supplies, travel, and equipment for the care and custody of inmates

(e.g., security, programming, maintenance and general administration),

excluding activation costs, by the number of inmate days, and by then

multiplying the quotient by 365. The number of inmate days is

calculated by adding, cumulatively, the number of inmates in custody at

a given time each day for the one year period. Activation costs are

those expenses incurred by the Bureau in the construction of new

facilities and in their operation before staff assume control of the

facility for the arrival of inmates.

Costs of Incarceration Fee vs. Costs of Imprisonment Fine

Two commenters pointed out the correlation between this fee

assessment and the costs of imprisonment fine imposed by the sentencing

judge pursuant to United States Sentencing Guideline (USSG) section

5E1.2(i). U.S.S.G. 5E1.2(i). One commenter believed that the fee

assessment in the proposed rule was the responsibility of the

sentencing judge, the other commenter questioned whether proposed rule

Sec. 505.2(c) vitiates the application of U.S.S.G. Sec. 5E1.2(i). A

third commenter noted that the Third Circuit has held that the absence

of an authorizing statute in the Sentencing Reform Act of 1984 renders

Sec. 5E1.2(i) invalid. See United States v. Spiropoulos, 976 F.2d 155

(3d Cir. 1992); But see United States v. Hagmann, 950 F.2d 175, 186-87

(5th Cir. 1991) (Sec. 5E1.2 upheld against 5th Amendment Due Process

challenge), cert. denied, 113 S. Ct. 108 (1992); United States v.

Turner, 998 F.2d 534 (7th Cir 1993) (expressly disagreeing with

Spiropoulos); United States v. Doyan, 909 F.2d 412 (10th Cir. 1990)

(Sec. 5E1.2 upheld against Equal Protection challenge).

While the two provisions are analogous in their end result, they

are not analogous in origin or intent. The amount assessed under

U.S.S.G. Sec. 5E1.2(i) is a fine, pursuant to the Sentencing Reform Act

of 1984, and is meant to be punitive in nature as part of an inmate's

overall sentence. In contrast, the cost assessed under the proposed

rule is a fee, pursuant to the plain language of a federal statute, and

is meant to recoup the administrative costs of confinement and improve

institutional programs. Furthermore, inmates will be assessed only one

amount for their costs of confinement. They will either be assessed a

fine under Sec. 5E1.2, or a fee under the proposed rule if the

sentencing judge did not assess or waive the fine under Sec. 5E1.2.

Two commenters disagreed with the fact that under the proposed rule

Sec. 505.1, revocation of parole or supervised release is treated as a

separate period of incarceration for which a fee may be imposed.

However, this interpretation is reasonable because in each instance,

the offender's conduct results in a distinct incarceration period and

an additional expense to the Attorney General for the cost of the

confinement.

Constitutionality of the Fee and Consequences of Non-Payment

One commenter challenged the constitutionality of the proposed

rule, citing an Eight Circuit case, Hankins v. Finnel, 964 F.2d 853

(8th Cir.), cert. denied, 113 S. Ct. 635 (1992). However, that case,

involving a Missouri statute concerning the recoupment of costs-of-

confinement, was decided narrowly upon Eleventh Amendment sovereign

immunity and federal law preemption grounds; it did not involve the

constitutionality of Missouri's entire cost-of-confinement program, or

such programs in general.

The rule is a matter of internal department management. It will not

have a significant economic impact on a substantial number of small

entities. This rule was not reviewed by the Office of Management and

Budget pursuant to Executive Order 12866.

List of Subjects in 28 CFR Part 0

Authority delegations (Government agencies), Government employees,

Organization and functions (Government agencies), Whistleblowing.

Accordingly, by virtue of the authority vested in the Attorney

General by law, including 5 U.S.C. 301 and 28 U.S.C. 509-510, part 0 of

title 28 of the Code of Federal Regulations is proposed to be amended

as follows:

PART 0--[AMENDED]

1. The authority citation for 28 CFR part 0 continues to read as

follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

2. In subpart Q, a new Sec. 0.96c is added to read as follows:

Sec. 0.96c Costs of incarceration.

(a) The Attorney General is authorized to establish and collect a

fee to cover the cost of one year of incarceration. These provisions

apply to any person who is convicted in a United States District Court

and committed to the custody of the Attorney General, and who begins

service of sentence on or after May 5, 1994. For the purposes of this

subpart, revocation of parole or supervised release shall be treated as

a separate period of incarceration for which a fee may be imposed.

(b) The fee to cover the costs of incarceration shall be calculated

by dividing the number representing the obligation encountered in

Bureau of Prisons facilities (excluding activation costs) by the number

of inmate-days incurred for the year, and by then multiplying the

quotient by 365. The resulting figure represents the average cost to

the Bureau for confining an inmate for one year.

(c) The Director of the Bureau of Prisons is delegated the

authority to collect the fee to cover the cost of incarceration from

inmates committed to the custody of the Attorney General and to

promulgate all regulations concerning the collection of the fee.

(d) The Director shall review and determine the amount of the fee

not less than annually in accordance with the formula set forth in

paragraph (b) of this section. The Director shall publish each year's

fee as a Notice in the Federal Register.

Dated: March 24, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-8045 Filed 4-4-94; 8:45 am]

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