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Publication Date

11-17-2023

Abstract

The Bureau of Prisons has systematically lengthened sentences—at times doubling them—for prisoners subject to federal and state sentences for the same conduct. This phenomenon does not stem from any expressed intent on the part of federal or state judges, defense attorneys, the prosecution, or a plea deal. Instead, it arises through silence at a prisoner’s federal sentencing on a key issue: whether the federal sentence is consecutive to or concurrent with a yet-to-beimposed state sentence.

For those facing both a federal sentence and a yet-to-beimposed state sentence for the same conduct, perhaps no other aspect of sentencing has a greater impact. If a federal sentence is to run concurrently with a state sentence, the time a prisoner spends in custody is credited towards both terms of imprisonment. Conversely, if a sentence is set to run consecutively, the service of one sentence hinges on the completion of the other. Years of additional lost liberty hang in the balance. Yet if a federal judge omits a few words at sentencing about the interaction between the federal and yet-tobe-imposed state sentence, the Bureau of Prisons seizes unlimited and unreviewable discretion to make the sentences consecutive.

The scope of this discretion is breathtaking. The Bureau of Prisons can unilaterally add to a term of imprisonment even where the state judge explicitly provides for concurrency, or when the prosecution acknowledges the sentences should run concurrently. Once the error comes to light, neither the prisoner nor the sentencing federal judge have the means to rectify it. Instead, the length of imprisonment is solely left to the administrative halls of the same agency, the Department of Justice, that conducts the prosecution. While this realization has startled and dismayed several courts that encounter the issue, the procedural mechanism for administrative imprisonment and its consequences remain largely unexplored.

This Note documents the procedural tragedy of this sentence computation mechanism and delves into its tangible repercussions for those ensnared within its Kafka-esque framework. Leveraging developments in sentencing law, this Note contends that the inclusion of five simple words to 18 U.S.C. § 3584(a) is all that stands between what can be decades of arbitrary imprisonment and freedom for many. However, in the absence of such reform, this Note concludes with a plea for awareness of the issue among stakeholders in the criminal justice system to avoid this tragic fate.

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