Administrative law.

• Author: Codagnone, Amy L.
• Position: Rules to guide prison placement discretion

Bureau of Prisons Statutory Mandate Permits Creation of Categorical Rules to Guide Prison Placement Discretion--Muniz v. Sabol, 517 F.3d 29 (1st Cir. 2008), cert. denied, 129 S. Ct. 115 (2008)

Congress delegates authority to the Bureau of Prisons (BOP) to place inmates. (1) In determining inmate placement, the BOP must consider five individualized factors before selecting a suitable penal facility for each inmate. (2) In 2005, the BOP created regulations (2005 regulations) that categorically denied placement and transfer to community correction centers (CCCs) until the last 10 percent of a sentence. (3) In Muniz v. Sabol, (4) the First Circuit Court of Appeals considered whether the 2005 regulations were contrary to the BOP's congressional mandate by denying the BOP authority to render individualized placement assessments. (5) The First Circuit held the BOP could make rules of general applicability to guide the individualized application of its statutory discretion and concluded that the 2005 regulations were a reasonable exercise of that discretion. (6)

Two prisoners, Richard Muniz and Victor J. Gonzalez, sought writs of habeas corpus in the United States District Court for the District of Massachusetts challenging their prison placement. (7) Muniz and Gonzalez contended that the BOP policy in place before 2002 (pre-2002 policy) would have allowed them to be considered for CCC placement earlier than the 2005 regulations permit. (8) Their placement and ability to seek transfer were determined, however, pursuant to the BOP's 2005 regulations, and they were ineligible for placement in a CCC until the last 10 percent of their sentences, for a period not to exceed six months. (9) Muniz and Gonzalez argued the 2005 regulations did not allow for the individual consideration that the BOP was statutorily required to undertake, which rendered the regulations unenforceable. (10) They requested that the court invalidate the 2005 regulations and allow for a good-faith evaluation of their placement with the possibility of CCC placement under the BOP's pre-2002 policy. (11)

The district court began its analysis with a consideration of the BOP's statutory authority to issue the 2005 regulations. (12) After analyzing the language of 18 U.S.C. [section] 3621(b), the statute authorizing the BOP to place inmates, and its legislative history, the district court interpreted congressional intent to require consideration of each of the enumerated factors when designating places of imprisonment. (13) The court found the 2005 regulations contradicted the statute's plain meaning and granted the habeas petitions. (14) The court reasoned the regulations were invalid because they foreclosed the possibility of placement in one facility to each prisoner without regard to the congressional command requiring consideration of the enumerated factors. (15) Citing the division among district courts within the First Circuit over the validity of the 2005 regulations and the need for effective dispute resolution, the District Court of Massachusetts certified the case for immediate appeal. (16) The First Circuit reversed the district court and held that the BOP could apply categorical rules to assist in the exercise of its discretion while still complying with [section] 3621(b). (17)

Congress vested the BOP with the authority to assign inmates to any available penal or correctional facility that meets the minimum standards of health and habitability after considering five factors. (18) Additionally, the BOP must prepare prisoners for re-integration into society by placing them, if practicable, in CCCs at the end of their prison term. (19) Historically, the BOP permitted CCC placement for the last six months of a prisoner's term, regardless of the length of the sentence, and honored judicial recommendations for CCC placement for lower-level offenders' entire terms. (20) This policy changed in 2002, when the BOP adopted and implemented the Department of Justice Office of Legal Counsel's (OLC) position that the BOP's CCC placement policy was contrary to its statutory mandate, and CCC placement should instead be limited to the lesser of 10 percent of the total sentence or six months. (21) Affected prisoners challenged the 2002 policy change, and it was invalidated; in response, the BOP enacted the 2005 regulations. (22) The 2005 regulations were termed a "categorical exercise of discretion," restricting the amount of time inmates may spend in CCCs to the last 10 percent of their sentences, not to exceed six months, with exceptions only for inmates involved in specific statutorily created programs. (23)

The 2005 regulations prompted challenges from affected prisoners contending that the BOP policy behind the 2005 regulations contradicts its statutory authority. (24) To guide judicial review of an agency's interpretation of its statutory authority, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., (25) set forth a two-part test. (26) The Chevron inquiry begins with a consideration of whether Congress expressed clear intent regarding the "precise question at issue." (27) If the statute is silent or ambiguous with respect to this precise question at issue, the court should defer to the agency's construction if it is permissible--that is, if it is not "arbitrary, capricious, or manifestly contrary to the statute." (28) In 2001, the Supreme Court, in Lopez v. Davis, (29) considered whether the BOP was entitled to agency deference for a regulation created pursuant to 18 U.S.C. [section] 3621(e)(2)(b). (30) Based on the permissive language used in the statute, the Supreme Court concluded that once the two prerequisites for sentence reduction--conviction of a non-violent offense and completion of drug treatment--were met, the BOP had discretionary authority, but not a duty, to grant early release, and to create rules to resolve issues of general applicability. (31)

The first four federal courts of appeals to consider the 2005 regulations' validity concluded the categorical exercise of discretion was unlawful because they do not allow for the individualized consideration required by statute. (32) Applying Chevron, these courts determined the statute had a plain meaning requiring consideration of enumerated factors, which legislative history supported. (33) The courts concluded that giving full effect to the statute's plain meaning was impossible under the 2005 regulations. (34) The courts of appeals distinguished Lopez, because [section] 3621(b), in contrast to [section] 3621(e)(2)(B), contains guidance for the exercise of discretion, rather than a lack of discretion. (35) Although the BOP asserted it had considered the enumerated factors when promulgating the regulations, the courts determined that this was without merit because of the factors' individualized nature. (36) Each majority decision was accompanied by a dissent, maintaining the 2005 regulations were consistent with the statute and deferring to the BOP's construction. (37)

In Muniz v. Sabol, the First Circuit created a circuit split by holding that Congress authorized the BOP to implement a categorical rule denying placement in CCCs to all prisoners during the first 90 percent of their sentences or for terms exceeding six months. (38) Applying Chevron, the court concluded the plain language of [section] 3621(b) and its legislative history were ambiguous with respect to a congressional intent to foreclose all rulemaking to assist the BOP in its individualized determinations. (39) The court compared [section] 3621(e)(2)(B) with [section] 3621(b) and concluded that the two sections contained the same permissive language. (40) While Congress intended consideration of the five factors in placement decisions, the court did not perceive this to be a clear expression of congressional intent to exclude all rulemaking. (41) After concluding that the plain language of the statute was ambiguous as to rulemaking to guide placement decisions, the court considered the legislative history and observed that it was similarly vague. (42)

In the second step of the Chevron-doctrine analysis, the First Circuit determined that it should defer to the BOP's statutory construction. (43) The court concluded that the BOP was reasonable in deciding that some placement facilities were categorically unsuitable for inmates during the first 90 percent of their sentences or for terms exceeding six months. (44) The court next observed that the 2005 regulations did not categorically decide all placements, with which the statute charged the BOP, but rather the regulations resolved a narrower issue: placement within CCCs for specific durations. (45) In addition, the court concluded the BOP specifically took into account some of the five factors in creating the 2005 regulations. (46) Based on its analysis, the First Circuit held the 2005 regulations were a permissible statutory construction and upheld the BOP's categorical exercise of discretion. (47)

By failing to recognize that the 2005 regulations contradict unambiguous congressional intent, the First Circuit erroneously upheld the BOP's policy...