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Attorney General Peter Nickles 
Letters to Council Chairman Vincent Gray
February 17, 2009, February 24

Councilmember Phil Mendelson
Reply to Attorney General Peter Nickles
February 19, 2009




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Peter Nickles letter, February 17, 2009 Phil Mendelson letter, February 19, 2009
Peter Nickles draft memorandum, February 17, 2009 Peter Nickles letter, February 24, 2009

Office of the Attorney General
1350 Pennsylvania Ave., NW, Suite 409, Washington, D.C. 20004, (202) 724-1301, Fax (202) 741-0580

Attorney General

February 17, 2009

The Honorable Vincent C. Gray
Chairman, Council of the District of Columbia 
1350 Pennsylvania Avenue, NW, Suite 504 
Washington, D.C. 20004

RE: Requested Repeal of 10:00 PM Inmate Release Cutoff at the Central Detention Facility

Dear Chairman Gray:

On January 4, 2004 the District of Columbia Jail Improvement Amendment Act of 20031 became effective. This act included a cutoff provision requiring the Department of Corrections "not release inmates from the Central Detention Facility between the hours of 10:00 PM and 7:00 AM.2 This provision was enacted at a time when the District was defending a class action lawsuit alleging, among other claims, that the District violated the constitutional rights of inmates who were not released by midnight on the date on which the person was entitled to be released by court order or the date on which the basis for his or her detention had otherwise expired (over-detention class).3 The operation of the cutoff provision required the Department of Corrections (DOC) to maintain custody over certain inmates they would have otherwise released between the hours of 10:00 PM and 7:00 AM.

In August of 2005, the class action lawsuit was settled for the amount of $12 million, with a substantial portion of the payout going to the over-detention class of inmates. Unfortunately, the combination of the operation of the cutoff provision and the delays in processing release paperwork at the District of Columbia Superior Court again resulted in DOC detaining inmates between 10:00 PM and 7:00 AM who were otherwise entitled to be released. A second class action lawsuit for a new class of over-detained inmates was filed in March of 20064 and remains pending. Despite DOC's extensive efforts to modernize and reform its release procedures, and because of processing delays beyond DOC's control, there have been a number of inmates who have remained detained past midnight on the date on which they were entitled to be released by court order or by expiration of the basis for their detention, solely by the operation of the cutoff provision.

In an effort to address this situation, DOC attempted to get legislative relief from the cutoff provision through the introduction of Bill 17-352, the "Release From Confinement Act Of 2007". The proposed bill would have removed the cutoff provision and provided a plan for DOC to provide transport to inmates released after midnight by issuing taxi vouchers when an inmate had no other transportation available. The proposed bill did not receive committee approval and was never enacted despite repeated efforts by DOC to persuade Councilmembers that the failure to remove the cut-off provision would expose the District to millions of dollars of liability.

Consequently, the continued operation of the cutoff provision is exposing the District to millions of dollars of liability.

I have looked carefully at the cutoff provision and I am prepared to issue an opinion to the Director of the Department of Corrections declaring that the cutoff provision is unconstitutional as applied and advising the Director to cease implementing it. In my view, a preferable means of addressing this situation is for the Council to enact emergency legislation to repeal the cutoff provision. To that end, I am prepared to wait until the completion of the March 4, 2009 legislative session to learn if the Council will take this requested action.

I am available to meet with you to discuss this letter, my draft opinion, and anything else you feel would help to resolve this matter.

Peter J. Nickles
Attorney General for the District of Columbia

PJN/ajp (AL-07-235D)


cc:   Bridget Davis, Director, Office of Policy and Legislative Affairs 
Yvette Alexander, Council of the District of Columbia 
Marion Barry, Council of the District of Columbia 
Muriel Bowser, Council of the District of Columbia 
Kwame Brown, Council of the District of Columbia 
David Catania, Council of the District of Columbia 
Jack Evans, Council of the District of Columbia
Jim Graham, Council of the District of Columbia
Phil Mendelson, Council of the District of Columbia 
Michael Brown, Council of the District of Columbia 
Harry Thomas, Jr., Council of the District of Columbia 
Tommy Wells, Council of the District of Columbia 
Mary Cheh, Council of the District of Columbia

1 D.C. Law 15-62; D.C. Official Code § 24-211.02 (2008 Supp.). 

2 D.C. Official Code § 24-211.02(b)(6).

3 Bynum v. District of Columbia; C.A. No. 02-956(RCL) (U.S.D.C.).

4 Barnes, et al. v. District of Columbia, C.A. No. 06-315 (RCL) (U.S.D.C.).

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Phil Mendelson
Councilmember At-Large
Office: (202) 724-8064
Fax: (202) 724-8099

February 19, 2009

Peter Nickles, Attorney General
Office of the Attorney General
1350 Pennsylvania Avenue, N.W., Suite 409 
Washington, D.C, 20001

Dear Mr. Nickles:

l am responding to your February 17. 2009 letter to Chairman Gray requesting repeal of the 10 p.m. curfew from the D.C. Jail. I am appalled.

First, as Attorney General for the District of Columbia, it is not your prerogative to unilaterally declare an adopted law of' the District to be unconstitutional. Especially when the apparent reason is simply that you don't like it. You do not have the authority to "direct that DOC" [Department of Corrections] disregard D.C. Code 24-211.2(b)(6), as you propose to do.

Second. as Attorney General for the District of Columbia it is your duty to uphold the laws of the District. The law which you dislike was duly adopted by the Council in 2003 and signed by the Mayor. Both our General Counsel and your predecessor determined that the law was legally sufficient. No question of constitutionality was raised. nor considered likely. It is irresponsible for the attorney tasked with defending the District to now risk liability to the city by stating unequivocally that the law was and is unconstitutional.

Third. your letter and attached draft opinion convey a fundamental misunderstanding of the issue. The curfew was adopted as part of a larger law to improve conditions for inmates. Releasing inmates at midnight out the back door of the jail, into a neighborhood where there is no transportation and no other facilities to assist inmates is not in their best interest. Often, they have no place to go. At the time this legislation was adopted, they were being released without identification, and still wearing their jail uniforms.

Hearings of the Judiciary Committee have repeatedly documented these risky release-related practices. And inmate advocacy groups have complained at our hearings of violations of the 10 P.M. curfew. As further evidence of the desirability for this curfew, no prisoner advocate has filed a lawsuit. nor has the Council received testimony to repeal it. Prisoner advocates support the curfew for the reasons outlined above.

Fourth, your analysis of the law is flawed. Although constitutional issues are potentially raised in any instance of overdetention, courts have repeatedly permitted certain societal interests and administrative needs to override liability. Your analysis ignores the safety, public interest, and administrative issues discussed in various cases.

There is no case law that supports your conclusion that the 10 p.m. curfew is unconstitutional. Cases that have resulted in liability have involved instances of willful neglect or detentions exceeding the date of release by several days. Neither of these is at issue here. Indeed, a cursory search of relevant case law reveals that courts have upheld the detention for up to two days following a release order.1 The courts have repeatedly avoided setting any time limit for release, asserting a case by case reasonableness standard, although on the pretrial side of detention the courts have stated that a 48 hour timeframe is reasonable.2

Thus, the constitutional concerns you raise are not so clear-cut as asserted. Further, your statement that "no court has determined that a blanket prohibition against release during a certain period of the day" justifies the continued detention contemplated in the District's curfew law, inaccurately suggests that a court has made a determination on such an issue. It also ignores the public interest that is benefited by the 10 p.m. cutoff.

Fifth. while your letter correctly points out that the District has been sued on the issue of overdetention under Bynum3 you fail to mention that the settlement agreement from that case required the construction of an inmate processing center (IPC) to prevent the very issues you identify as unconstitutional.4 The District settled that class action lawsuit over the overdetention and strip searching of inmates for $12 million. The 2000 settlement agreement required S3 million of these funds to go toward construction of the IPC. The IPC is intended to provide adequate processing facilities for intakes, releases, and associated records processing. Despite my repeated inquiries on the progress of this project, the IPC continues to encounter delays that push the completion slate further into the next decade. The failure to construct the IPC as required by the Bynum settlement — not the 10 p.m. curfew — potentially exposes the District to millions of dollars of liability.

Finally, your focus should be on the realistic goal of meeting the curfew, rather than repealing it. Under DOC Director Devon Brown, there are now very few cases of inmates ready for release between 10:00 p.m. and 7:00 p.m. That number could be eliminated if the Executive insisted that the courts and U.S. Marshals stop returning the inmates to the jail too late for release processing. Other jurisdictions do this. As stated above, the IPC is another component of meeting the timeframes prescribed in the law.

As the city's chief attorney it is your duty to work with both the legislative and executive branches of government, not to bypass the legislature by fiat — acting unilaterally to change the law because you could not get your way collaboratively last year on this matter.

The curfew is an issue, for you, of inconvenience. It is not a constitutional issue. It has a sound basis and there is an alternative the Executive should pursue with the courts. Regardless. it is not for you to decide and direct what laws will be followed.

Phil Mendelson, Chairman Committee on Public Safety and the Judiciary

cc: All Councilmembers

1 A quick search of relevant case law revealed a number of cases that support this proposition. See Lund v. Hennepin County, 427 F. 3d 1123 (8th Cir. 2005) (12 hours overdetention), Brass v. County of Los Angeles, 328 F.3d 1192 (9th Cir. 2003) (39 hours overdetention), and Dye v. Hennepin, 2005 U.S. Dist. LEXIS 812 (Dist. Minn. 2005) (slightly less than 48 hours).

2 County of Riverside v. McLaughlin. 500 U. S. 44 (1991).

3 Bynum v. District of Columbia, Civil Action No. 02-950 (RCL). This case spanned the time when the 10 p.m. curlew was adopted. but the litigation dirt not challenge the curfew. Mr. Nickles' letter also refers to subsequent litigation directly linked to the Bynum case: Barnes v. District of Columbia, 2007 U.S. Dist, LEXIS 20856 (U.S.D.C.). The opinion in the latter case stales that the overdetention at issue in Bynum involved "periods ranging from an extra day to many days or even months on end." Id. at 1. Further, for the Bynum class members "frequently one day of overdetention turned into two, or a week, or even more." Id. at 3. The 10 p.m. curfew was not the issue.

4 Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006).

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Office of the Attorney General


February 24, 2009

Honorable Phil Mendelson 
Chairperson. Committee on Public Safety and the Judiciary
1350 Pennsylvania Avenue. NW, Suite 402
Washington, DC 20004

RE:   Response to Your Letter Concerning 10:00 PM Inmate Release Cut-off at the Central Detention Facility

Dear Chairperson Mendelson:

I have read thoroughly and reviewed your letter to me of February 19, 2009. 1 would like to respond to each of the issues you have raised.

I wholeheartedly agree that the executive and the legislative branches should always strive to reach consensus wherever possible. It was precisely in that vein that, on behalf of the Mayor, I attempted to enlist the Council's assistance in addressing what I have concluded to be the unconstitutional application of the I0PM to 7AM inmate release cut-off provision pursuant to D.C. Official Code § 24-211.02( b)(6)(10.00 PM cut-off). My present course of action was chosen only after it became abundantly clear, despite numerous actions taken by the Department of Corrections (DOC) during the last five years to reform the system for releasing inmates, that due to causes outside DOC's control there is a continual and irreducible number of inmates who are held longer than otherwise necessary because of the 10:00 PM cut-off. As you know. I have held repeated meetings with you, representatives from the U.S. Marshals Service, the Department of Corrections (DOC), and the Courts of the District. At one time or another ail of these parties have attempted to convince you that the 10:00 PM cut-off should be repealed. My office has repeatedly asked to engage in a discussion concerning our legal analysis in support of such action, but you have declined to do so.

While the goal of pursuing collaborative legislative action is important, I have taken an oath not only to faithfully execute the laws of the United States and of the District of Columbia, but also to defend the Constitution of the United States. Therefore, I have a duty to insure that all of the laws of the
District are applied in a manner that respects the constitutional rights of its citizens. I also have a duty to the Mayor and his subordinates to provide legal advice that from time to time may include a determination that a particular law or its application is unlawful and should therefore he considered of no legal force or effect. See, e.g., Opinion of the Corporation Counsel, May 20, 2003 (holding that subparagraph 208(a)(1)(D-i)(ii) of the Inspector General Act should he considered null, void, an of no effect). Opinion of the Corporation Counsel, December 15. 1978 (holding that the Board of Elections Conflict of Interest Rulemaking is unconstitutional, void, and thus having no legal force or effect).

The 10:00 PM cut-off when enacted was facially constitutional: hence. neither the Council's General Counsel nor my Office had reason to declare it unconstitutional at that point. The District has never conceded. nor do I now concede, that the 10:00 PM cut-off is unconstitutional facially. My Office has diligently defended this provision and has at every point argued that legitimate public safety and administrative issues are a defense from liability for inadvertent over-detentions. I will continue to vigorously present all available defenses where an over-detention is attributable to reasonable administrative delays.

I am gratified that you have recognized in your letter the substantial efforts of DOC'' Director Devon Brown in reducing the number of inmates that remain subject to the application of the I0:00 PM cutoff. DOC reports that the frequency of over-detentions has been reduced in the last year by approximately 40%, Since early 2007, DOC has reduced the number of over-detentions from as high as 45 per month to as low as eight per month in 2008. DOC has spent approximately five years working to improve its release procedures including:

  • Completely overhauling, modernizing, and automating its Records Office.

  • Adding an additional twenty-six employees to enhance the Records Office's productivity, efficiency and effectiveness.

  • Implementing software to automate the sentence computation in FY 2007 and recently enhancing this software to further improve its accuracy and speed.

  • Automating the Prisoner Transfer Request (PTR) to eliminate inmates being transferred between courtrooms without proper paperwork.

  • Implementing Courthouse releases from several Superior Court Calendars, thereby reducing the time required to send the inmate and the paperwork back to the D.C. Jail for processing.

  • Designating two FTE's to implement a full-time records retention/archiving system to enhance the accountability (filing and retrieval) of institutional records in the D.C. Jail and at the off-site records repository in Suitland, Maryland.

  • Developing and implementing performance measures to monitor staff performance, proficiency. productivity and training needs.

  • Transferring booking functions (scanning of documents, issuance of DCDC#, data entry and development of institutional records) from the Records Office to Receiving and Discharge (R&D) to reduce the internal operations and duties performed in the Records Office.

  • Training in specific areas of expertise (sentence computation. jail credit, release processing, document reviews. etc).

  • Initiating Post Orders, policies and procedures and required protocols.

  • Touring, by senior staff members via Technical Assistance from the National Institute of Corrections (NIC) (October-November 2006), of four mega jail facilities to obtain applicable knowledge regarding design, construction. processes and operations for institutional booking systems.

  • Developing the design and construction of a state-of-the-art booking center for processing all commitments and releases from the D.C. Jail.

  • Conducting an executive level review of all over-detentions and their causes.

However, despite all of their efforts to reform the system and to comply with the 10:00 PM cut-off provision during the last five years, it has now become clear that, due to matters outside the control of DOC, there is a continual and irreducible number of inmates, up to six or seven per month, who are held longer than otherwise necessary due to the 10:00 PM cut-off. (The maximum number of inmates over-detained on any recent day has been four inmates.) While this number may seem small, the unconstitutional deprivation of liberty suffered by the affected individuals is obviously of considerable moment for them and their families. Consequently. the number of inmates who are over-detained because of the 10:00 PM cut-off is a significant contributor to the previous and pending litigation based on over-detentions at the D.C. Jail.

In my view there are no legitimate safety or public interest issues that can justify the blanket effect that the 10:00 PM cut-off works on those inmates who would otherwise be released but for its operation. Your reference to representations by prisoner advocates in favor of the 10:00 PM cut-off does not square with the plaintiffs' demand for damages in the previous and pending over-detention class actions. None of these plaintiffs have offered to give the District a "credit" for the time spent incarcerated as a result of the 10:00 I'M cut-off. Nor have they suggested that it was in their best interest to wait until daylight for release.

Additionally. I cannot share your view that the existing case law is so unsettled that the 10:00 PM cut-off s constitutionality can be conscientiously defended. The case law you cite is distinguishable for reasons we have shared with you. The bottom line is that the case law you mention is not predictive of how a Court will rule on the 10:00 PM cut-off. By contrast, this Office's litigation experience, and my experience with our local and federal courts, has made it abundantly clear to me that those courts will strike down the application of the I0:00 PM cut-off if presented with the issue.

I also do not agree with your characterization of the development of the Inmate Processing Center (IPC). The Department of Corrections (DOC) has been working diligently with a nationally recognized A&E firm to design a new inmate Processing Center (IPC) at the D.C. Jail in response to issues raised in the Bynum case. Extra time was given to the architects to explore the feasibility of adding sorely needed program space to the jail. In addition. [he Chief Medical Officer and health care providers expressed their desire to conduct medical assessments on the first floor (if tile IPC rather than on the third floor of the D.C. Jail. The scheduled date for release of construction bid requests remains unchanged at September 2009. At this. juncture, the IPC remains on schedule.

Additionally, I want to assure you and the community that, if the I0:00 PM cut-off is lifted. DOC will take appropriate steps to protect the community. The maximum number of inmates released from the jail on any given day has been four inmates. Inmates released after the curfew will receive Metro passes for use up until Metro closure time at midnight. Thereafter, the agency will provide vouchers for taxicab services until Metro reopens in the morning. The agency is currently arranging for those services through an existing contract and also exploring the use of a van through another agency until the taxicab system is in place. The cost of the transportation will be drawn from inmate commissary revenue. placing no burden on taxpayer funds. DOC will alert MPD of the curfew lift to provide additional police presence in the community if deemed warranted. All inmates will be released in their street clothes or DOC-issued civilian clothes so as not to be conspicuous or offensive to the community. The inmates will have a resource manual to direct them to available services within the District in order to avoid the need for them to linger in the neighborhood. Moreover, DOC will make special arrangements for inmates to be taken to a center that provides housing. drug treatment, and other accommodations. Inmates are also afforded the opportunity to telephone their families or friends to arrange for transportation if they so choose. In this mariner we can assure the community that, unless an individual lives in the community immediately adjacent to the jail, an inmate will be taken to: I) an address within the District of their choice: 2) a homeless shelter; or 3) a suitable form of public transportation determined by each inmate's specific discharge plan. A notice discussing the actions that DOC will be taking has been prepared and posted electronically on community listservs.

The Mayor and the Director will do everything in their power to put in place procedures to accelerate inmates' release. In the meantime, the remaining inmates affected by the cut-off provision are entitled to relief from its adverse effect. I again ask your assistance in providing that relief in the manner previously proposed by the Department of Corrections in Bill 17-532. the "Release From Confinement Act of 200T". 

Thank you.

Peter J. Nickles
Attorney General for the District of Columbia


cc: Bridget Davis, Director, EOM Office of Policy & Legislative Affairs
The Honorable Vincent Gray 
Chairman The Honorable Yvette Alexander 
The Honorable Marion Barry 
The Honorable Muriel Bowser 
The Honorable Kwame Brown 
The Honorable Michael Brown 
The Honorable David Catania 
The Honorable Mary Cheh 
The Honorable Jack Evans 
The Honorable Jim Graham 
The Honorable Harry Thomas, Jr. 
The Honorable Tommy Wells

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