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Attorney General Peter Nickles 
Draft memorandum to Department of Corrections 
February 17, 2009 




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Peter Nickles letter, February 17, 2009 Phil Mendelson letter, February 19, 2009

Office of the Attorney General


DRAFT (Feb. 17, 2009) 


TO:   Devon Brown
Department of Corrections

FROM:   Peter J. Nickles Attorney General


SUBJECT: Implementation of the 10:00 p.m. Cut-off for Release of Detainees at the D.C. Jail

As you are aware, my Office has defended the District in lawsuits arising from the Department of Corrections' ("DOC") implementation of the prohibition found in D.C. Official Code § 24211.02(b)(6) against the release of detainees from the Central Detention Facility ("CDF") between the hours of 10 p.m. and 7 a.m. (hereinafter the "cut-off provision"). I now conclude that implementation of the cut-off provision, when it results (apart from any delays due to reasonable processing procedures) in holding inmates until 7 a.m. on either the day after they are ordered released or the day after their sentence expires, is unconstitutional. Consequently, I direct that DOC no longer implement the cut-off provision for this class of inmates. DOC should continue to release inmates from 10:00 PM and thereafter on the day ordered, or as soon after midnight as is reasonably practicable.


Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause of the Fifth Amendment from arbitrary governmental action. The cut-off provision has routinely caused inmates to be arbitrarily detained past the time that they would normally be released. These detentions not only deny freedom to an inmate, but in many cases subject the inmate to unwarranted strip searches.1 Unnecessarily and arbitrarily subjecting inmates and detainees to extended detention exposes them to physical and emotional distress. The cut-off provision creates an unconstitutional deprivation of liberty and, in some cases, an unconstitutional punishment.

These violations of inmates' constitutional rights have led, and will continue to lead, to liability against the District for significant damage awards and attorneys fees under 42 U.S.C. § 1983. In Bynum v. District of Columbia, CA No. 02-956 (RCL), the District has had to pay out a multimillion dollar sum to settle one class action as a result of the implementation of the cut-off provision. A second class action, Barnes v. District of Columbia, CA No. 06-315 (RCL), based on the same claims of unconstitutional conduct as Bynum,2 is now pending.

I note that DOC has attempted to get legislative relief from the cut-off provision through the introduction of Bill 17-352, the "Release From Confinement Act Of 2007". The proposed bill would have removed the cut-off 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.


The opinion in United States v. Salerno, 481 U.S. 739 (1987),3 provides the starting point for analyzing whether the cut-off provision violates the Due Process Clause of the Fifth Amendment. In reviewing the constitutionality of pretrial detention pursuant to the Federal Bail Reform Act of 1984, the Salerno Court ultimately determined that government's regulatory interest in community safety can, in appropriate circumstances, be so compelling as to outweigh an individual's liberty interest, so long as there was: 1) a clear legislative intent that the person's detention was regulatory and not punishment; and 2) a careful consideration concerning to whom the regulatory detention would apply. Also, all intrusions on a person's liberty need to be narrowly focused to address the government's compelling interest and must use the least intrusive means possible. The cut-off provision fails to meet any of these factors.


The cut-off provision on its face is a measure capable of constitutional application. Indeed, there is a clear set of circumstances under which the 10:00 p.m. cut-off provision would be sustainable, namely, the release of a prisoner based on a court order for his release, after reasonable processing, by 10:00 p.m. on the same day.

However, in practice, at least two scenarios have arisen that have made its application unconstitutional as applied. First is where an inmate is serving a sentence at the CDF, his sentence expires, and the release papers for a particular date are timely processed by midnight but not in time for the 10:00 p.m. cut-off, resulting in incarceration for another day. Second is when a prisoner or inmate is detained pending resolution of his case and he is acquitted, or his case is dismissed while present in Superior or U.S. District Court, and DOC's receipt of the court order, together with its subsequent timely administrative processing, cannot be completed by 10:00 p.m.

Unclear Legislative Intent

There is almost no legislative history on the purpose of the cut-off provision. The first version appeared in the committee print and it contained a "6:00 PM to 7:00 AM" curfew. That was changed during the first reading of the Bill at the full Council by an amendment in the nature of a substitute from Councilmember Patterson. This occurred on July 8, 2003. There was no discussion of the purpose of the bill. While internal discussion indicates that it was inserted to address safety concerns for the residents surrounding the CDF, that purpose is not apparent from the record and must be inferred. Indeed, the provision can just as easily be read as a cost-saving measure to reduce staff expenses needed to process releases throughout the night. The lack of a clear legislative intent spelling out that the provision is for the compelling purpose of public safety is plainly absent.

Overbroad Application

Even if a court were able to infer a compelling governmental interest in protecting the public safety from released inmates and arrestees, the 10:00 p.m. cut-off has a blanket application which includes any number of non-serious or dangerous offenders for whom extended detention would be difficult to justify as a proper exercise of the District's regulatory powers. Moreover, unlike persons subject to the Bail Reform Act in Salerno, there is no procedure in place to determine that they pose a particular danger to the community. Indeed, the procedures that apply to them, expiration of a sentence or the issuance of a release order by a court, implicitly carry a determination that the person is free to return to the community, subject in some cases to more limited intrusions on their liberty such as pretrial release conditions or post-sentence supervision obligations.

Less Intrusive Alternatives

The cut-off provision also is not narrowly tailored to achieve protection of the public safety from inmates released after 10:00 p.m. DOC has determined that the cost of providing immediate transportation away from the D.C. Jail during the 10:00 p.m. to 7:00 a.m. period is minimal, and it has proposed such a plan in lieu of the cut-off provision. Undoubtedly there are additional means to narrow the application of the cut-off provision to those prisoners that possess some objective characteristic that permits the District to consider them so dangerous that their release time needs to be extended past evening hours. In view of the possibility of less intrusive measures, the current blanket application of the cut-off provision is unsustainable.


When the cut-off provision results in over-detention of inmates, it is also an unconstitutional violation of the Eighth Amendment, which provides that "Excessive bail shall not be required., nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. Amend. VIII. It is well-established that " [c]onfinement in a prison ... is a form of punishment subject to scrutiny under Eighth Amendment standards." Hutto v. Finney, 437 U. S. 678, 685 (1978). There are several cases from other jurisdictions holding that prison officials violate the Eighth Amendment if they incarcerate a defendant beyond his term. See, e.g. Sample v. Diecks, 885 F.2d 1099, 1109-10 (3d Cir.1989); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (era bane), cert. denied, 478 U.S. 1020 (1986); Plumb v. Prinslow, 847 F.Supp. 1509, 1521 (D.
Or. 1994). As the Third Circuit stated in Sample, "confinement in prison pursuant to a conviction but beyond the term of a sentence seems to us to be quintessentially punitive." 855 F.2d at 1108.4

42 U.S.C. § 1983

In reviewing the constitutionality of the cut-off provision, it is important to recognize that violations of constitutional rights create liability for damages pursuant to 42 U.S.C. § 1983. However, it is equally important to state that not all delays in release result in a constitutional violation. Normal administrative delays that might cause a particular inmate to be released later than the very first moment he is eligible for release are not by themselves constitutional violations. The District properly can and has defended claims based upon a showing that a particular delay in release resulted from a reasonable administrative delay or mistake. Such a defense requires a showing that the District: 1) had no pattern or practice to routinely over-detain inmates; and 2) did not conduct its release of inmates in a manner that was deliberately indifferent to their rights to be released in a timely manner.5

However, the cut-off provision arbitrarily imposes a deadline after which the routine processing of inmates and detainees must cease. The cut-off provision is an official policy of the District. It establishes a pattern or practice to routinely over-detain inmates otherwise cleared for release. The cut-off provision generates liability for the District because such arbitrary over-detentions are constitutional violations. This policy undermines the District's ability to defend other non cut-off related over-detention claims by arguing that no pattern or practice to routinely overdetain inmates exists. Clearly, so long as the cut-off provision remains, it can be used as evidence of a wider pattern or practice to over-detain inmates. Moreover, the cut-off provision provides evidence that the District is deliberately indifferent to inmates' rights to be released in a timely manner.

The Ninth Circuit's opinion in Berry v. Baca, 379 F.3d 764 (9th Cir. 2004) is instructive on this point. In Berry, plaintiff prisoners alleged a policy of deliberate indifference to their constitutional rights that resulted in unlawful periods of detention in jail after a court had authorized release. The Court reversed a grant of summary judgment and remanded the matter for trial. The Ninth Circuit concluded that if the delays at issue "were not reasonably justified, the § 1983 claim against the County has merit because the County was continuing to adhere to a policy that it knew resulted in unlawful detentions...." Berry at 773 (emphasis supplied). Reasonable justifications may include transportation issues, identity verification, and processing issues. See Lewis v. O'Grady, 853 F.2d 1366 (7h Cir. 1988). However, even these justifications can become unreasonable if the delays drag on too long. In Lewis, the Court determined that a jury was to decide if an 11-hour period is too long of a delay after a court ordered release. Moreover, no court has determined that a blanket prohibition against release during a certain period of the day is a justifiable reason for delaying any inmate's release.

The adoption and implementation of specific policies that knowingly cause over-detentions, resulting in an unjustified deprivation of liberty, violates the Constitution (and, thus, evidences Monell § 1983 deliberate indifference) in the absence of reasonable fact-specific justifications for the over-detentions, such as limited processing issues, computer failures, and transportation delays. A "wholesale" holding of prisoners who otherwise would be released but for a seemingly arbitrary "cut-off' provision, such as D.C. Official Code § 24-211.02(b)(6), is unconstitutional and subjects the District to liability. This is especially is true where, as here, the "hold" is codified as official government policy, knowingly causing over-detentions and, thus, resulting in unjustified deprivation of liberty in violation of the Fifth Amendment and unjustified punishment in violation of the Eighth Amendment.

Should you have questions regarding this memorandum, please contact me or Arthur J. Parker, Chief, Rulemaking Section, Legal Counsel Division, at 724-5565.


1 The cut-off provision leads to constitutional violations based upon unlawful strip searches that must be performed before placing these overdetained inmates back into general population - strip searches that occur without reasonable suspicion that the person carries contraband. 

2 Both Bynum and Barnes are class actions described as including persons ". . . not [ ] released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired." Neither case discusses the cut-off provision specifically. Individual judicial orders or sentences ending on the particular date support a timely release by 12 midnight on the ordered or sentence expiration date.

3 The Court ruled that a person's liberty interest was not absolute and that a "regulatory" detention was permissible to address the government's compelling interest in protecting the safety of its citizens from the potential future danger of certain arrestees charged with a limited number of dangerous crimes.

4 The Sample Court acknowledged that "[t]he administration of a system of punishment entails an unavoidable risk of error. Elimination of the risk of error in many instances would be either literally impossible or unfeasible because prohibitively costly. Thus, unforeseen accidents or inadvertent mistakes may occur during imprisonment, resulting in harm to inmates. Such accidents or mistakes are a necessary cost of any prison system; they are not "repugnant to the conscience of mankind."' 885 F.2d at 1108, citing Estelle v. Gamble, 429 U.S. 97, 105 (1976).

5 The appropriate standard for determining whether the District may be held liable under § 1983 is when the municipality's "policy or custom ... inflicts the injury." See Daskalea v. District of Columbia, 227 F. 3d 433, 441 (2000) (quoting Monell v. New York Dep't of Social Services, 436 U.S. at 694 (1978)). Governmental entities can be found liable under § 1983 where the action alleged to be unconstitutional "implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers," Arnold v. Moore, 980 F. Supp. 28, 36 (D.D.C. 1997) (citing Monell, 436 U.S. at 690), "or the injury to the plaintiff is caused by the persistent and widespread discriminatory practices of state officials." Id; see Monell, 436 U.S. at 691. There are a number of ways in which a "policy" can be set by a municipality to cause it to be liable under § 1983, including the explicit adoption of a policy by the government which violates the Constitution. Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Monell, 436 U.S. at 694-95).


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