Johnson v. Smith

• Decision Date: 03 February 1983
• Docket Number: No. 81-7660,81-7660
• Citation: 696 F.2d 1334
• Parties: Joseph Harold JOHNSON, Plaintiff-Appellee, v. William French SMITH, U.S. Attorney General, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1334

696 F.2d 1334

Joseph Harold JOHNSON, Plaintiff-Appellee, v. William French SMITH, U.S. Attorney General, et al Defendants-Appellants.

No. 81-7660.

United States Court of Appeals Eleventh Circuit.

Feb. 3, 1983.

Jere W. Morehead, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellants.

Stephen J. Anderson, Sutherland, Asbill & Brennan, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

This is an appeal from the issuance of a writ of mandamus pursuant to 28 U.S.C. Sec. 1361. The district court directed respondents-appellants, the Attorney General of the United States, the Director of the United States Bureau of Prisons, and the Warden of the United States Penitentiary in Atlanta, Georgia, to credit against petitioner-appellee's sentence time spent in a federal community treatment center [the "center"] subsequent to a conviction but before sentencing for a violation of the White Slavery Act and subsequent to arrest but prior to conviction for a violation of counterfeiting statutes.

Prior to arrest on the second charge, appellee, Joseph Harold Johnson was free on bond pending appeal of his first conviction. After his arrest, the trial court required, as a condition of the bond, that Johnson spend his nights in the center, subject to conditions admittedly identical to those to which the post-sentence detainees were subjected. The Bureau of Prisons denied petitioner's application for credit for the time spent at the center. Petitioner has exhausted all administrative remedies.

Computation of a sentence of imprisonment of a federal prisoner is governed by 18 U.S.C. Sec. 3568, which reads in pertinent part as follows:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. * * * (emphasis supplied).

The Bureau of Prisons denied petitioner's request for credit based on its determination that the six months he spent at the center did not constitute time spent "in custody" for purposes of Sec. 3568. The Bureau relied on Bureau of Prison Policy Statement No. 5880.24 which provides:

Time spent in residence in a residential community center (or a community base program located in a metropolitan correctional center or jail) under the provisions of 18 U.S.C. Sec. 3146 as a condition of bail or bond, including the "Pretrial Services" Program (18 U.S.C. Sec. 3152 thru 3154), is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 U.S.C. 3568. Also, a "highly restrictive" condition of bail or bond, such as requiring the defendant to report daily to the U.S. Marshall, is not considered as time in custody. However, time spent in a jail-type facility (not including a community based program located in a metropolitan correctional center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint.

In the proceedings below as well as at oral argument before this court, appellants conceded that those who are at the center after sentencing are "in custody" and the time spent there is credited against their sentence.

Concluding that the government neither offered a "rational reason for the distinction" between pre-sentence and post-sentence detainees, nor in any way refuted that Johnson, as a pre-sentence detainee, was similarly situated to post-sentence detainees, the district court held that failure to give petitioner credit for his time spent in the center violated the equal protection component of the fifth amendment due process clause. See, e.g., Vance v. Bradley, 440 U.S. 93, 94 n. 1, 99 S.Ct. 939, 941 n. 1, 59 L.Ed.2d 171 (1979) (the Fifth Amendment due process clause forbids the federal government from denying equal protection of the laws).

A preliminary step in equal protection analysis is to determine whether persons who are similarly situated are subject to disparate treatment. "Only when a governmental unit adopts a rule that has a special impact on less than all the persons subject to its jurisdiction does the question whether this principle [equal protection of the laws] is violated arise." New York City Transit Authority v. Beazer, 440 U.S. 568, 587-88, 99 S.Ct. 1355, 1367, 59 L.Ed.2d 587 (1979). The law is clear that: "The Constitution does not require that things different in fact be treated in law as though they were the same. But it does require, in its concern for equality, that those who are similarly situated be similarly treated. The measure of the reasonableness of a classification is the degree of its success in treating similarly those similarly situated." Gunther, Constitutional Law at 678 (10th ed. 1980), quoting Tusman and tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341 (1949). See also Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973); Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349 (1972); Reed v. Reed, 404 U.S. 71, 75-76, 77, 92 S.Ct. 251, 253, 254, 30 L.Ed.2d 225 (1971); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885).

In order to take this preliminary step, the court must identify which groups of persons are similarly situated. "[W]here are we to look for the test of similarity in situations which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law." Gunther, supra, at 678-79. See also Reed v. Reed, 404 U.S. at 77, 92 S.Ct. at 254.

The purpose of 18 U.S.C. Sec. 3568, clear from the face of the statute, is to ensure that those incarcerated for federal offenses receive credit against their sentences for time spent "in custody in connection with the offense or acts for which sentence was imposed." See Daniel v. United States, No. 79-204, slip op. at 24 (D.Conn. Jan. 7, 1981), affirmed, 661 F.2d 908 (2d Cir.1981). Therefore, persons are similarly situated for purposes of Sec. 3568 if they are equally "in custody" of the federal government. Those who are subjected to the same conditions of confinement are similarly situated "with respect to [the] objective" of Sec. 3568. Reed v. Reed, 404 U.S. at 77, 92 S.Ct. at 254. ¹

If the group to which the petitioner belongs is not situated similarly to the group receiving the benefit to which he claims entitlement, no equal protection problem is presented. If the two groups are similarly situated, then a rational reason for the disparate treatment must exist in order to avoid a denial of equal protection of the laws. Vance v. Bradley, 440 U.S. at 97, 99 S.Ct. at 942; Eisenstadt v. Baird, 405 U.S. at 447, 92 S.Ct. at 1035. Thus, the denial of credit to Johnson "is valid if it is 'rationally related to furthering a legitimate state interest.' " Vance v. Bradley, 440 U.S. at 97, 99 S.Ct. at 943, quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). See also Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

This means that a distinction constitutionally can be drawn between Johnson and post-conviction detainees at the center if (1) conditions for Johnson, as a pre-sentence detainee, were less restrictive than for post-sentence inmates, making the two classes dissimilarly situated, or, (2) if he were similarly situated to post-sentence detainees, there is some rational reason for denial of credit to pre-sentence detainees but allowance of credit to post-sentence inmates.

On appeal, the appellants for the first time assert that Johnson and the post-sentence detainees were not similarly situated for purposes of equal protection analysis. Appellants contend that, unlike other residents at the center, Johnson was subject to the appeal bond, had not yet been committed to the custody of the Attorney General, and therefore could not be prosecuted for escape from the center. Thus, appellants argue that the absence of a legitimate threat of prosecution for escape means appellee in fact was under a less restrictive confinement than were those receiving credit for time at the center. Appellants also argue that Johnson and post-sentence detainees are dissimilar in that Johnson's place of confinement was selected by the district court, not the Attorney General. Further, they contend that it is significant that Johnson voluntarily chose to forego service of his sentence by accepting the appeal bond and failed to appeal the conditions later imposed on the bond.

In the proceedings below it was "uncontroverted by respondents [appellants], that during his stay at the community treatment center, Johnson was treated in precisely the same fashion as, and was under restrictions identical to, those imposed on inmates who were serving their sentences there." Johnson v. Civiletti, No. C80-3087A, slip op. at 2 (N.D.Ga. June 8, 1971).

[R]espondents support[ed] the challenged policy solely on the ground that petitioner's confinement at the community treatment center was not sufficiently restrictive to constitute "custody" within the meaning of 18 U.S.C. Sec. 3568. However, respondents fail to show any reason for considering confinement at the community treatment center "custody" within the meaning of section 3568 for...