Apparently, a computer glitch at the Washington State Department of Corrections caused a number of prisoners to be released early–i.e., before the properly calculated term of their sentences had expired. As soon as the story broke, state officials have “assured” the public that police will quickly round up these not-yet-ready-for-society folks and put them back in prison. I put “assured” in quotes because I imagine that announcement is not at all assuring to recently released folks who now must be wondering if and when the state will be coming back for them.
Officers showed up at David Jennings’ Renton home Sunday near the end of the Seahawks game.
Even though the soft-spoken 33-year-old had been free since July, they had a warrant to bring him back to prison.
Turns out Jennings — who says he served a decade in prison in connection with a drive-by shooting — is one of the state’s mistakes.
He’s among up to 3,200 prisoners released early since 2002 due to a software error.
Now, law-enforcement officials are rounding up offenders who still have time to serve.
Even though he’s reconnected with his family and two children and has been working hard and saving money while living with his parents, he was told he’d have to surrender Monday night to go back to prison until March.
But wait a minute… Is that legal!? Well, it depends. The law of carceral take-backs is a bit muddled, but there appear to be two different questions.
First, what to do about the time spent at liberty? Does that time count toward completion of the sentence? Or (assuming that the person needs to return to prison) does the clock start up again from the time of release, so that the total time incarcerated reaches the correct total?
In under both state and federal law, the answer seems clear. For Washington, the individual’s time at liberty counts toward completion of the sentence, as long as he’s “been good”:
An erroneously released prisoner will be granted day-for-day credit against his sentence for time spent at liberty, provided that he did not contribute to his erroneous release and while at liberty, he did not abscond any remaining legal obligations and had no criminal convictions.
In re Roach, 150 Wn.2d 29, 30, 74 P.3d 134 (2003).
Similarly, under the Ninth Circuit rule, a released prisoner “must be given full credit toward his federal sentence for the time that he was at liberty.” Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984).
But that brings us to the second question: What if the individual’s time is not up? What if the person has been released for three months but still has six months to go on his sentence? Can the police re-arrest him to serve the final three months? (And is “arrest” even the right word there? Arrest for what?)
This is where things get a bit messy. Individuals have offered two primary arguments against re-incarceration after a mistaken release: that the government is equitably estopped from re-incarcerating the person, or that the re-incarceration would violate the Due Process Clause of the Constitution.
Equitable estoppel is basically a legal Latin way of saying “Your current position may be correct on the merits, but you’ve previously taken a different position so in the interest of fairness we’re going to hold you to that previous position.” This doctrine generally requires that “(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon or must act so that the party asserting the estoppel has a right to believe it is so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) that party must rely on the former’s conduct to his injury.” Green, 732 F.2d at 1399. In other words, it’s a basic sort of reliance argument.
This doctrine, however, usually applies in private disputes. Using estoppel against the government is trickier:
In general, equitable estoppel is not available as a defense against the government, especially when the government is acting in its sovereign . . . capacity. Nevertheless, [the Ninth Circuit Court of Appeals] has held that “where justice and fair play require it,” estoppel will be applied against the government, even when the government acts in its sovereign capacity if the effects of estoppel do not unduly damage the public interest.
Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (citations omitted).
Johnson is particularly instructive because the Ninth Circuit held that the federal government was estopped from re-incarcerating a released individual based on the unfairness of the government’s actions. In Johnson, the government had represented a specific parole date to Johnson during “at least eight separate administrative reviews.” Id. Accordingly, Johnson’s “expectation of release on parole on September 18, 1980, was raised almost as soon as he began to serve his sentence, and was encouraged and heightened by the successive administrative reviews.” Id. at 872. Johnson had no reason to think that his parole date was anything other than the date represented to him by the government on numerous occasions.
On the issue of Johnson’s personal reliance, his return to his family and community weighed heavily in his favor and against re-incarceration:
Finally, there is obvious detrimental reliance in this case. Johnson has been reunited with his family and has left the safe haven of steady employment as a fruit packer in order to start and operate his own fruit packing business. By the time of his rearrest, he had hired five employees, was solely responsible for the business banking accounts, and had been extended credit by local businesses.
Id. at 873.
On the whole, the Court of Appeals recognized that “in some cases ‘fundamental principles of liberty and justice,’ would be violated if a person were required to serve the remainder of a prison sentence after he had been released prematurely from custody through no fault of his own, and had made a good adjustment to society. Id.
But it’s not easy for an individual to succeed on this sort of claim. Just two years later, in Green v. Christiansen, the Ninth Circuit rejected a different individual’s challenge to re-incarceration. 732 F.2d 1397 (9th Cir. 1984). Unlike Johnson and his “eight successive administrative reviews,” id. at 1399, the government’s one-time mistaken decision to release Green did not result in a “built up” expectation of release, id. “Nor did the government so mislead Green that it would be improper to charge him with constructive knowledge that he still had time to serve.” Id. In other words, the court concluded that Green should have known he was being released too early.
One (perhaps critical) distinction between Green and Johnson is the court’s evaluation of the government’s mistake. In Green the court declined to release the individual based on the government’s mere mistake:
We do not think that the inadvertence of a marshal in failing to place a detainer on Green meets the requisite standard of misconduct; the omission amounts to mere negligence at worst. It therefore does not constitute a waiver.
Green, 732 F.2d at 1399.
In Johnson, however, the court concluded that the government conduct was more than mere negligence. 682 F.2d at 873. Rather, the government’s conduct was sufficiently culpable to apply estoppel because the government constructively knew that Johnson was not eligible for release but repeatedly represented to him that he was. Id. at 872.
Now, if you remember back to my initial discussion of estoppel, “level of negligence” is not one of the elements. But the nature of the government’s mistake does seem to be doing a lot of work here, both in the application of the specific elements and the application of the doctrine against the government at all.
So can the government be estopped from re-incarcerating a prisoner after release? Maybe, if the government’s own wrongdoing caused a mistaken representation to the individual that he was entitled to release, if the individual had no reason to doubt the government’s representations, and if the individual relied on those representations in resuming his normal life.
Which brings us to the second argument individuals sometimes assert against re-incarceration: that it violates the Due Process Clause of the Constitution. How is this argument different from the non-constitutional equitable argument for estoppel? Eh, not much.
The Johnson Court set out a framework for Due Process claims in a footnote:
First, was the individual released “as a result of a carefully considered decision” of the relevant government agency that the individual “and the community no longer require his incarceration”? Johnson, 682 F.2d at 873 n.3 (quoting United States v. Merritt, 478 F. Supp. 804, 807 (D.D.C. 1979)).
Second, has the individual “demonstrated exceptional adjustment and progress” such that the original release decision “apprears to have been fully vindicated by the defendant’s subsequent conduct”? Id. (quoting Merritt, 478 F. Supp. at 807).
And third, would re-incarceration at this time “needlessly jeopardize [the individual’s] long-term adjustment to society, disrupt both his family and his family life, and destroy his economic based, all for no purpose other than to secure blind obedience” to the original sentence? Id. (quoting Merritt, 478 F. Supp. at 807).
Referencing the exact same facts that supported its estoppel holding, the Johnson Court concluded that under the Due Process Clause, “to return Johnson to prison now would be “inconsistent with fundamental principles of liberty and justice.” 682 F.2d at 873.
So those are the two arguments. You can see how the facts here in Washington might fit into the various analyses. Just how “negligent” was the government’s computer snafu? Would a court draw a distinction between the time when the glitch was operating unnoticed, and the time after the government had notice of the glitch but did not correct it? I could see that notice as a line between regular old negligence and a higher level of gross negligence or recklessness, which could support a Due Process claim or add a thumb on the scale in the estoppel analysis. And what sort of information did individual prisoners get about their release dates? And how often?
A side note here on the difference between the Due Process argument and the estoppel argument: The difference might be important in determine which court gets to hear these claims. If the continued detention in a state prison violates the Due Process Clause of the Constitution, then the individual would have a claim for habeas relief in federal district court. But I’m not sure what the basis for the equitable estoppel claim is or whether that would support a federal claim for habeas relief. It’s possible those claims would have to be filed in state court. But again, I plead ignorance on that one.
Which brings us back to Mr. Jennings, the man from Renton who was taken back into custody on December 28. Based on the Seattle Times story, he, like Johnson, relied on his release to get a job and resume his normal life. Does he have a right to immediate release, despite having three months left to serve on his sentence? That might depend (somewhat strangely) not at all on his resumed normal life or his interest in his own liberty, but on what sorts of representations were made to him while he was incarcerated, and whether the government’s computer glitch is just a mistake or gross negligence. Perhaps a federal court will decide those questions someday soon.