Opinion
No. 03 CR 316 (LAK).
September 6, 2005
Dear Judge Kaplan:
I write on behalf of defendant Russell Harding to respectfully request that the Court amend the Judgment in this matter to clarify the Court's intent in recommending that the Bureau of Prisons ("BOP") evaluate Mr. Harding "to determine whether his participation in the sex offender management program would be beneficial, and if so, that he participate in that program." (Judgment, p. 2).
At Mr. Harding's sentencing hearing on July 21, 2005, the Court specifically referred the issue of whether Mr. Harding should be designated to the BOP sex offender management program to the appropriate medical personnel within the BOP after an evaluation of Mr. Harding. It has recently come to my attention that Mr. Harding was not separately evaluated by appropriately trained physicians within the BOP prior to his designation to the FMC Devens' sex offender management program. A legal representative of the Mid-Atlantic Region of the BOP informed me that Mr. Harding was not separately evaluated by BOP physicians prior to his designation partly because the Court did not recommend that such an evaluation be conducted. Instead, the BOP performed its routine designation analysis based upon Mr. Harding's counts of conviction and Presentence Report. As the Court recalls, Mr. Harding was never evaluated by forensic mental health experts at the BOP who were properly trained in the area of sex offenses and no determination was ever made as to whether Mr. Harding was in special need of sex offender treatment. Accordingly, the Court recommended on Mr. Harding's Judgment "[t]hat the defendant be evaluated by the BOP, to determine whether his participation in the sex offender management program would be beneficial and, if so, that he participate in that program." (Judgment, p. 2).
I respectfully request that the Court further clarify this recommendation to include the request that the BOP conduct a separate evaluation by competent sex offender mental health personnel to determine whether Mr. Harding should participate in a BOP sex offender management program. Of course, such an evaluation would include a review of Mr. Harding's existing file, but an appropriately trained BOP physician should also independently evaluate Mr. Harding to determine whether he suffers from pedophilia or related disorders prior to his designation in a sex offender program. Of course, the Court would only be able to recommend such an evaluation, however this recommendation would be especially helpful in assuring that Mr. Harding's designation is based upon appropriate psychiatric findings. Because Mr. Harding was never evaluated by BOP physicians on sex offender issues, there is no existing diagnosis or treatment history upon which the BOP could credibly rely upon in making its designation determination.
Upon review of the Court's comments and instructions at Mr. Harding's sentencing hearing, it appears that the Court intended to recommend that the BOP conduct an independent sex offender mental health evaluation of Mr. Harding prior to making its designation decision. On behalf of Mr. Harding, I respectfully request that the Court amend the Judgment in this case to clarify its intent in this regard prior to Mr. Harding's enrollment in the BOP sex offender management program.
SO ORDERED.