Earlier this month we wrote about Ashcroft's new directive to the Bureau of Prisons to return certain offenders serving sentences in half-way houses to federal prison facilities. The directive was signed by Deputy Attorney General Larry Thompson. Ashcroft promoted this directive as targeting white collar offenders. We learned from Philadelphia attorney Peter Goldberger that this was not the case. (See above post for his comments.)

Several federal courts around the country have been granting temporary injunctions against the policy. Last week, Judge Huvell of the U.S. District Court for the District of Columbia entered a permanent injunction against the policy, ruling:

principles of equitable estoppel and due process preclude BOP from relying on its new policy to remove petitioner from her current placement. The Court will therefore grant petitioner’s motion, and enter an order enjoining BOP from transferring her from Fairview on the basis of the newly-announced DOJ policy regarding BOP’s lack of authority to substitute halfway house placement for imprisonment.

Here is the Order the Court entered:

For the reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED that petitioner’s motion to Vacate, Set Aside, or Correct Sentence is GRANTED IN PART; and it is FURTHER ORDERED that the Bureau of Prisons is enjoined from transferring Shawna Culter from the Fairview Community Confinement Center pursuant to the new inmate designation policy described in the December 16, 2002 Memorandum from Deputy Attorney General Larry Thompson to BOP Director Kathleen Hawk Sawyer. It is so ordered.

Goldberger was correct in his assertion that females were disproportionately affected by the policy change. Judge Huvelle states in her ruling (Page 10, note 3):

At oral argument BOP reported that 132 CCC inmates nationwide have been affected by the Bureau’s 150-day rule. Interestingly, the burden of the changed policy and this arbitrary cutoff has fallen more heavily on female inmates. Over a third of those now faced with transfer (45 of 132) are women, compared with an overall federal inmate population of only 6.9% female. (Oral Argument Tr., 1/21/03, at 27-28.)

Todd Bussert of Connecticut and Peter Goldberger of Philadelphia wrote the Amicus Brief on behalf of the National Association of Criminal Defense Lawyers in the case. Federal Defender A.J. Kramer wrote the principal brief.

Judges in San Diego, North Carolina and elsewhere have granted temporary restraining orders against the new policy. At last count, only one federal court-- in Detroit-- has refused to do so.

Correction: Todd Bussert and Peter Goldberger wrote the Amicus brief in an Eastern District of New York case, not the District of Columbia case. Other courts granting relief include two New Jersey courts, and courts in Maryland, Pennsylvania, Arkansas, Massachussetts and Idaho. An Eastern District of New York court denied habeas relief in one case.