Opinion
Civil Action No. 03-10220-DPW
March 25, 2003
MEMORANDUM AND ORDER
The defendant in this case was sentenced on September 5, 2002, to a term of one-year imprisonment. The Bureau of Prisons exercised the discretion afforded it by Congress under 18 U.S.C. § 3621(b) — permitting the BOP to "designate any available penal or correctional institution that meets minimum standards . . ." — by designating a Coolidge House, a Community Corrections Center (CCC), as the place of imprisonment.
On December 16, 2002, the Deputy Attorney General, without affording prior notice or the opportunity for comment, issued a new rule that the BOP could no longer exercise discretion to designate Zone C or Zone D offenders to a CCC as a place of imprisonment. The new rule was also applied retroactively by the Deputy Attorney General's further order that all Zone C and D offenders designated to a CCC who had more than 150 days remaining on the imprisonment component of their sentence by transferred to an "actual prison facility." The defendant consequently received a redesignation to the federal prison camp at Fort Devens, Massachusetts, pursuant to the new rule.
The defendant sought relief from his redesignation by means of a motion to vacate, set aside or correct his sentence. 28 U.S.C. § 2255. I have granted him relief by permitting him to withdraw his plea and be resentenced and enjoining the BOP from redesignating or transferring him from Coolidge House on the basis of the newly adopted rule, at least until the requirements of rulemaking under the Administrative Procedure Act have been complied with.
I fashioned the relief in this case to address what I found to be the two most immediate and problematic dimensions to the new rulemaking by the Deputy Attorney General.
I
The new rule reflected a sea change in settled understandings concerning the exercise of discretion by the Bureau of Prisons. Experienced sentencing judges who have confronted this change have held constitutional ex post facto problems are presented. See, e.g., Iacobonni v. United States, 2003 WL 1442420 (D.Mass. Mar. 20. 2003); Ashkenazi v. United States, 2003 WL 403091 (D.D.C. Feb. 24, 2003); Culter v. United States, 2003 WL 184022 (D.D.C. Jan. 24, 2004). Whether or not retrospective application of this administrative volte-face can be characterized as presenting a classic ex post facto violation, however, I find it fundamentally transformed the landscape a defendant would survey before making a knowing and voluntary choice to enter a plea of guilty. As a consequence, I have concluded that it would be a complete miscarriage of justice to hold an affected defendant to a guilty plea entered before the change was announced on the basis of misinformation of constitutional magnitude. For this reason, I permitted the defendant to withdraw his plea and to replead with a specific awareness that the Deputy Attorney General has taken the position that the long established exercise of discretion by BOP in this regard may be constrained or eliminated. By the same token, of course, the defendant may now no longer be said to have a retrospectivity challenge to his sentence.
II
I further find the new rule to have been one for which the rulemaking procedures set out in the Administrative Procedure Act, 5 U.S.C. § 551, et seq., are appropriate. Unlike the Department of Justice representatives in other jurisdictions which have offered arguably pretextual suggestions that a prisoner's redesignation was the result of the exercise of discretion, see Ashkenazi v. United States at *6, the United States Attorney's Office in this District provided a candid response to my inquiry whether the Deputy Attorney General undertook to craft a directive of general applicability regarding the exercise of discretion under § 3612. As reflected in the letter of March 20, 2003 attached hereto, it is apparent that application of a general legislative rule, rather than a specific adjudicative ruling, is involved in the attempted redesignation of the defendant. This is no mere effort at interpretive guidance but rather a rulemaking exercise designed to reshape the scope of a statutory provision through an administrative statement of lawmaking. Such an undertaking requires notice and comment under 5 U.S.C. § 553, a provision of the Administrative Procedure Act not included within the limitations of 18 U.S.C. § 3625 on applicability of the APA to BOP determinations under section 3621.
Although Judge Ponsor makes a very powerful case in Iacobonni v. United States, supra, a decision I have found very persuasive and which I cannot improve upon, that the Deputy Attorney General's rule is substantively erroneous, I do not reach that ultimate issue. For present purposes, I hold more narrowly that the notice and comment provisions must be followed by the Deputy Attorney General before such a rule may be adopted. Perhaps the process of listening to other points of view would modify the Deputy Attorney General's initiative; perhaps not. But until the government follows the rules about rulemaking, the Deputy Attorney General's new rule may not be applied to the defendant.