10/21/08
The Second Chance Act, signed into law by President Bush on April 9, 2008 increased the maximum amount of time a federal prisoner can be considered for placement in a halfway house from 6 months to 12 months. The Act required the BOP to issue new regulations implementing this new rule within 90 days of April 9. On October 21, 2008, the BOP issued an “interim rule with request for comments” that changes 28 C.F.R. §§ 570.20, 570.21, 570.22. A copy of the rule is available online at http://edocket.access.gpo.gov/2008/E8-24928.htm.
When agencies make rules (also known as regulations), federal law requires a step called “notice and comment.” First, the proposed rule or rule change is published in the Federal Register. Then, the public is given a reasonable amount of time to comment on it. Following the comment period, the federal agency is supposed to consider the public comment, make any changes to the proposed rule it considers warranted based on the comments or explain why it will not make the recommended changes. The agency then publishes the final rule and an explanation of the rule, in light of the comments it received, in the Federal Register. The final rule becomes part of a body of regulations called the Code of Federal Regulations.
BOP interim rule effective immediately
Federal law provides for exceptions to this notice and comment process. In this case, the BOP announced it is not going through the usual notice and comment procedure. It explained that the Second Chance Act timeframes (requiring regulations within 90 days of the law’s enactment) prevent it from publishing a proposed regulation and seeking comment. Instead, they published this “interim rule with request for comments,” and the interim rule goes into effect immediately. The BOP announced that it will “consider and discuss comments received during the comment period in our final rule document.”
The new rule provides few clues on how the BOP will implement the new halfway house provisions in the Second Chance Act. The Second Chance Act changed the amount of time a prisoner is entitled to be considered for pre-release placement in community confinement and eliminated the so-called “ten percent rule.” The new rule simply restates the Second Chance Act’s requirement that the BOP give individualized consideration to each prisoner when deciding how much halfway house time to award. This “individualized consideration” will include considering the five factors set forth in 18 U.S.C. § 3621(b), as well as ensuring that the time granted to each prisoner is long enough “to provide the greatest likelihood of successful reintegration into the community.”
An April 14, 2008, a guidance memo issued by the BOP stated that, except in unusual cases, six months would be long enough to ensure that a prisoner could successfully reenter the community. Download the April 14 guidance memo (pdf file).
How to comment
The interim rule goes into effect immediately but is open to public comment until December 22, 2008. Comments can be sent by email to boprules@bop.gov. When submitting your comments by email, you must include the BOP Docket number in the subject line. That docket number is 1151-I. You can also comment by mail to Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534.