News Release ~ 02/07/2003

Mobile lawsuit seeks injunction against Ashcroft order overriding judges'' recommendations

Washington, DC (February 7, 2003) --

Mobile lawyers challenge Ashcroft''s halfway house order   

By JOE DANBORN

Staff Reporter

A group of Mobile defense lawyers has sued the Federal Bureau of Prisons on behalf of clients whom federal authorities are sending to prison rather than the halfway houses recommended by judges in their cases.
The lawsuit -- and others like it around the country -- seeks an injunction against a recent decision by U.S. Attorney General John Ashcroft to quit following recommendations from judges and other court officers for halfway house sentences.
Six weeks ago, an Ashcroft deputy sent a memo to the head of the U.S. Bureau of Prisons, telling her to stop using halfway houses altogether. The memo followed an opinion from the Justice Department''s Office of Legal Counsel that berated the BOP for its long-standing practice of carrying out federal judges'' requests regarding where convicts should serve their time.

"Community confinement does not constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment," the opinion declares.

A Justice Department spokesman said Thursday that officials there were unaware of the BOP''s practice until recently, even though the practice itself dates back at least 37 years.

To qualify for sentencing to a halfway house, a convict must be a first-time, non-violent offender, a description that fits most white-collar criminals.

"There can''t be two standards of law, one for one group of criminals and one for white-collar criminals," said Mark Corallo, the spokesman.

Dom Soto, one of the lawyers in the Mobile case, said he did not object to that logic.

"If it''s letting all those creeps from Enron get out of prison time because they have judge friends, well I agree, let''s stop it," Soto said. "But it doesn''t take into account people in situations like our clients are in."

All three convicts in the Mobile lawsuit were sentenced to terms of five months or less, with the judge in each case recommending that the time be served at the Community Corrections Center on the Mobile Bay Causeway. Now, however, the BOP has ordered them to report to penitentiaries.

As with most halfway house cases, the three Mobile convicts each convinced a judge and other court officers that society and the inmates would be better served by allowing them to continue to work.

April Mizell Estes, of Citronelle, pleaded guilty to bank fraud. She has a 4-year-old daughter, an infant son and a third child due in May. Chief U.S. District Judge Charles Butler Jr. sentenced her to five months at the halfway house and ordered her to repay $75,275, which she has been paying back ahead of schedule, according to the lawsuit.

Antonio Madden and his wife pleaded guilty to conspiring to pos sess Ecstasy with the intent to distribute. They faced up to 12 months of confinement. Hearing that Madden''s wife was disabled and needed surgery and that Madden would have to support her, Senior U.S. District Judge Richard Vollmer Jr. sentenced her to home confinement and Madden to the halfway house.

Scotty Summers likewise pleaded guilty to conspiring to deal Ecstasy and got a five-month term from Vollmer, with the added recommendation that he be admitted to drug and mental health treatment programs at the halfway house. Instead, the BOP wants him to enter a Mississippi prison that offers no such programs, the lawsuit states.

All three are due to report to prison before the end of the month. Public defender Chris Knight, Estes'' lawyer, said he would ask Butler to postpone that deadline until after the judge has heard arguments on the convicts'' request for a restraining order.

A BOP spokeswoman said the new policy means 125 inmates face transfer from halfway houses to prison. She offered no guess as to how many inmates get halfway house sentences each year, but said officials had determined the additional inmates would place no strain on the federal prison system. For now, inmates may only enter a halfway house to serve out the final 10 percent of their sentences.

Late last month, a federal judge in Washington, D.C., blocked the BOP from sending a convict to prison, while a judge in Detroit ruled against a convict there. Cases are pending in Arkansas, Maryland, Massachusetts, New York, North Carolina, Tennessee, according to the National Association of Criminal Defense Lawyers.

Already, defense lawyers and judicial officers are looking for ways around the new policy. After the Justice Department decided that the change would affect only those half way house inmates with 150 days or more left to serve, Butler took one month off Estes'' sentence, but the BOP still ordered her to report to prison in Tallahassee, Fla. Moreover, U.S. marshals in Mobile asked the BOP for an exception in Estes'' case due to a clerical error on their part, but the BOP turned them
down, Knight said.

On Wednesday, the same day the Mobile lawsuit was filed, Butler sentenced another of Knight''s clients to five years of probation, but made it a condition of that probation that he serve five months of it in a halfway house. Whether that and similar maneuvers stand unchallenged remains to be seen, Knight said.

"It does somewhat complicate things because we''ve always relied on the court''s authority to at least recommend halfway house confinement in less serious cases."

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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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