Levine v. Apker, Docket No. 05-2590-pr (2d Cir. July 10, 2006) (Calabresi, Raggi, Murtha (by desig’n)): This is a great victory for the defense. The Court, by Judge Calabresi and with Judge Raggi dissenting, holds that the BOP exceeded its statutory authority when it promulgated a February 2005 rule categorically limiting the amount of time that a defendant can serve at a halfway house (or “community confinement center”) to a maximum of the greater of either 6 months or 10% of the defendant’s total sentence. Under 18 U.S.C. §§ 3621(b) & 3624(c), the Circuit holds, the BOP must consider the statutorily listed factors (e.g., the resources of the facility, the nature of the offense, and the history and characteristics of the offender) before determining whether a particular form of confinement is appropriate and for what period of time. The Court joins the Third and Eighth Circuits in invaliding the BOP regulation.
This atypical outcome must be attributed to fine lawyering on behalf of Levine (including an amicus brief filed jointly by FAMM, NACDL, and NYCDL). Given the Circuit’s general kow-tow posture toward the BOP, see, e.g., Sash v. Zenk, 439 F.3d 61 (2d Cir. 2006), and the Supreme Court’s decision in Lopez v. Davis, 531 U.S. 230 (2001) (upholding BOP rule categorically elminating inmates with certain convictions from discretionary early release eligibility for completing a drug treatment program), the result in this case is somewhat unexpected. But it is good news, and one hopes that the BOP will indeed exercise its discretion to place offenders in halfway houses with “no favoritism given to prisoners of high social or economic status.” 18 U.S.C. § 3621(b).