Wednesday, April 6th, 2005

The Concurrency Mess

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among …) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court’s order dismissing the petitioner’s § 2241 petition — which challenged the Bureau of Prison’s refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) — the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the “Chairs and Ranking Members of the House and Senate Judiciary Committees,” with the hope that Congress can at long last inject some sense into this critical but overlooked area of law.

Abdul-Malik was arrested by the state of New York in 1992 and held in custody pending trial. While in state custody, he was indicted federally on unrelated charges. While the state case was still pending, Malik was writted into federal court (“borrowed” by the feds pursuant to a writ of habeas corpus ad prosequendum) to face the federal charges. Eventually, he was convicted and sentenced in federal court to 30 years’ imprisonment. At sentencing, the federal court did not indicate whether the sentence would run concurrently with or consecutive to any future state sentence.

Abdul-Malik was then returned to state custody. He was eventually convicted and sentenced to 17 years’ imprisonment. The state court indicated that this sentence was to run concurrently with the federal sentence. And because the state had “primary jurisdiction” over Malik (since it arrested him first), he began serving his sentence in state custody.

Because the state court’s desire for concurrency has no effect on the BOP’s calculations, and because the federal judge did not indicate concurrency, however, the end result was that the sentences would run consecutively to each other. Thus, Abdul-Malik asked the BOP to designate the state prison where he was serving his state sentence as the place for service of his federal sentence as well. The BOP possesses such authority under 18 USC § 3621(b). See McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998).

Unfortunately for Malik, the BOP turned him down in an exercise of discretion. The result of this decision was stark: After Abdul-Malik served his 17-year state sentence, he would be taken to a federal prison to begin service of his 30-year federal sentence. Although the state judge wished for the state sentence to run concurrently with the federal sentence, this desire would not be realized.

Abdul-Malik then filed a § 2241 petition challenging the BOP’s determination. The district court dismissed the petition, and the Second Circuit affirmed, finding that the law was clear in vesting the BOP with discretion over § 3621(b) designations.

In so doing, however, Judge Jacobs reviewed the law in this area and noted numerous problems surrounding it — including serious federalism concerns (because the feds refuse to abide by the state court’s desire for concurrency) and separation of powers concerns (because the executive (in the form of the BOP) both prosecutes and decides the length of the sentence). Thus, Judge Jacobs asks the Clerk to send Congress a copy of the opinion, as the law in this area “raises fundamental questions that may warrant congressional attention.”

Those interested in additional legal details should read the opinion. Suffice it to say that the mess Abdul-Malik found himself in is not unique. Indeed, there are numerous permutations on this problem, depending on at least the following considerations: (1) Who has primary jurisdiction over the defendant? (2) Which court sentences first? and (3) What did the courts say when they imposed the sentences? The only commonality among the diverse array of situtations is a lack of rationality.

Had Abdul-Malik been arrested by the feds first but all the other facts remained the same, for instance, he would be in his desired situation: He would first serve his 30-year federal sentence in a federal prison, and at the completion of this sentence, he would be taken to state custody and likely released shortly thereafter.

Similarly, if all facts remained the same except for the ordering of the sentencings — i.e., had Abdul-Malik been sentenced first in state court, and then in federal court (and assuming that the second sentencing court (here, the federal court) again indicates that the federal sentence should run concurrently with the earlier state sentence) he would also be in the desired situation. Abdul-Malik would serve the 17-year state sentence first, but the BOP would start credit him with all of this time to give effect to the federal court’s desire for concurrency.

Finally, even on the facts as given, a simple procedure could have yielded the state judge’s desire for concurrency: Surrender primary jurisdiction over Abdul-Malik to the feds. After sentencing Malik, the state judge could have ordered him released on his own recognizance (or on a one-dollar bail), at which time the federal detainer (arising from the previously imposed federal sentence) would be triggered. Abdul-Malik would then be taken to federal custody to begin service of his federal sentence in a federal prison. And because the state judge ordered the state sentence to run concurrently, the state authorities would credit him with this time. (Caveat: It may be necessary in such a situation to somehow have the defendant’s state bail / ROR “revoked”, so that he can get state prison credit immediately).

There is, of course, no rational distinction between these hypotheticals and Abdul-Malik’s actual situation. Abdul-Malik will nonetheless end up doing an extra 17 years in prison as a result of the irrelevant fact that he was first arrested by the state, or the equally fortuitous fact that he was sentenced first by the federal court. Let’s hope that Congress heeds the Circuit’s call to clear up this irrational and unfair mess.

Update: It has been brought to my attention (courtesy of Jennifer Brown) that the mess in Abdul-Malik could have been avoided if the federal district judge at the original federal sentencing simply stated, at the time that sentence is imposed, that it is his (or her) intent that the federal sentence commence immediately (i.e., as of the date of the federal sentencing). Apparently, where the judge includes this magic language at sentencing and in the judgment, the BOP will begin running the defendant’s federal sentence, even if he is held in state custody (as in Abdul-Malik’s case). Moreover, there is a possibility that the same result can be achieved even now: The federal judge can state on the record and include in an amended judgment that, when s/he imposed sentence imposed years ago, s/he intended for Abdul-Malike’s federal sentence to begin running as of that date.

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