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The conservative approach to criminal justice:
fighting crime, supporting victims, and protecting taxpayers.

Rob Henneke

General Counsel,
Texas Public Policy Foundation

Tuesday, June 19, 2018

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    Deportable aliens won’t benefit from the FIRST STEP Act

    | June 19, 2018

    The U.S. House of Representatives last month overwhelmingly passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (“FIRST STEP Act”) (H.R. 5682). The FIRST STEP Act is truly that, movement forward to reform the criminal justice system in ways that builds consensus and will show the American people that the promises made by politicians to improve their lives can be achieved. It now awaits action in the Senate. The FIRST STEP Act will lower recidivism rates and make our streets safer.

    However, recent media coverage shows confusion stemming from earlier drafts about what effect the FIRST STEP Act has regarding deportable aliens. In short, the FIRST STEP Act does not address for a basic reason: it’s already the law.

    In terms of whether Bureau of Prisons (BOP) inmates with detainers from Immigrations and Customs Enforcement (ICE) would be transferred to a Residential Reentry Center (RRC) or Home Confinement, these inmates cannot be transferred to RRC or Home Confinement pursuant to the BOP’s own regulations.  This is true regardless of whether ICE files a detainer – the deportable status alone prevents transfer to a RRC or Home Confinement. The FIRST STEP Act does not change this, as current law already contains necessary safeguards.

    Detainers, generally

    BOP defines a detainer as “[a] formal request from a Federal, state, or local jurisdiction for an inmate’s custody upon completion of a term of imprisonment. This definition includes requests for criminal and non-criminal charges (e.g., material witnesses, deportation, probation/parole violator warrants, child support, etc.). See BOP Program Statement 5800.15 §602(a) (emphasis added).  Perfected detainers require a warrant, except for ICE detainers which are perfected by the submission of a form by ICE or the United States Marshal Service. Id. at §604.  Detainers filed by federal agencies, such as ICE are always given priority over non-federal detainers. Id. at 606.

    RRCs (Community Corrections Center)

    RRCs are one of the BOP’s “Community Corrections Centers” and are governed by BOP Program Statement 7310.04, which is the administrative regulation related to 18 U.S.C. §3621(b).  BOP Program Statement 7310.04 expressly states: “This Program Statement does not apply to pretrial, holdover, or detainee inmates.” Id. at Section 6, Page 4 (emphasis added).  BOP Program Statement 7310.04 sets forth restrictions for referrals to Community Corrections Centers including:

    • (b) Inmates who are assigned a “Deportable Alien” Public Safety Factor.
    • (f) Inmates with unresolved pending charges, or detainers, which will likely lead to arrest, conviction or confinement.
    • (j) Inmates whose admission and release status is pretrial, holdover, or detainee.

    All three of these apply to inmates subject to ICE detainers, and nothing in the FIRST STEP Act changes these administrative factors.

    Home Confinement

    Home Confinement is governed by BOP Program Statement 7320.01, CN-2 which is the administrative regulation related to 18 U.S.C. §3624(c).  Inmates are placed in Home Confinement after designation to a RRC/Community Corrections Center.  Since inmates with ICE detainers are ineligible for RRCs they will never progress to a stepdown consideration for Home Confinement.

    The FIRST STEP Act would amend 18 U.S.C. 3624(c) as follows (additions italicized):

    • The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.  The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.

    The proposed language increases the number of inmates that would be eligible for direct placement in to Home Confinement.  However, BOP Program Statement 7320.01, CN-2 would still apply.  Indeed, under current law and regulations, an inmate is eligible for Home Confinement if he or she:

    • Has no public safety factors,
    • Had excellent institutional adjustment,
    • Has a stable residence with a supportive family,
    • Has confirmed employment (if employable), and
    • Has little or no need for the service of a RRC.

    See BOP Program Statement 7320.01, CN-2, Section 11(a), Page 7.  All inmates with a “Deportable Alien” designation are excluded from RRC placement, and automatically have a “Public Safety Factor” rendering them ineligible for Home Confinement. See BOP Form BP-A0337 (Inmate Load and Security Designation).

     

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    ROBERT HENNEKE is the General Counsel and Director of the Center for the American Future at the Texas Public Policy Foundation. 

    Before joining the Foundation, Robert served as the twice-elected Kerr County Attorney where he brought conservative values to county government. Robert began his legal career serving as an Assistant Attorney General in the General Litigation division under the leadership of Texas Attorney General Greg Abbott. Robert has appeared on national news shows, such as Fox News, Fox Business, MSNBC, and others. His commentaries have been published in Fox News, Forbes, The Washington Post, The Washington Examiner, The Hill, and other national publications.

    He is a member of the State Bar of Texas and is admitted to practice before the Supreme Court of the United States, the Fifth Circuit Court of Appeals, the Seventh Circuit Court of Appeals, and the Federal District Courts in the Eastern, Western, Northern and Southern Districts of Texas.

    Robert received his law degree from the University of Texas School of Law where he founded the Texas Law Republicans. He earned his undergraduate degree in English Literature from Georgetown University. Robert graduated from Tivy High School in Kerrville, Texas. He lives in Austin with his wife Lesley and their two sons. Robert is an Eagle Scout.

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