Volume 9 | Issue 1

Article 5

1-27-2019

18 U.S.C. § 3553(a)’s Undervalued Sentencing
Command: Providing a Federal Criminal
Defendant with Rehabilitation, Training, and
Treatment in “the Most Effective Manner”
Erica Zunkel
The University of Chicago Law School

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Recommended Citation
Zunkel, Erica (2019) "18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with
Rehabilitation, Training, and Treatment in “the Most Effective Manner”," Notre Dame Journal of International & Comparative Law: Vol.
9 : Iss. 1 , Article 5.
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18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a
Federal Criminal Defendant with Rehabilitation, Training, and Treatment
in “the Most Effective Manner”
Cover Page Footnote

Associate Clinical Professor of Law, The University of Chicago Law School. I am grateful to Isabella
Nascimento and Claire Rogerson for excellent research assistance and to Judith Miller, Alison Siegler, and
Katie Tinto for thoughtful advice and suggestions.

This article is available in Notre Dame Journal of International & Comparative Law: https://scholarship.law.nd.edu/ndjicl/vol9/iss1/
5

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18 U.S.C. § 3553(a)’S UNDERVALUED SENTENCING COMMAND:
PROVIDING A FEDERAL CRIMINAL DEFENDANT WITH
REHABILITATION, TRAINING, AND TREATMENT IN “THE MOST
EFFECTIVE MANNER”
ERICA ZUNKEL*
INTRODUCTION .................................................................................................49
I. BACKGROUND................................................................................................51
A. UNITED STATES V. BOOKER GIVES NEW LIFE TO 18 U.S.C. § 3553(a) .......51
B. THE HISTORY OF § 3553(a)(2)(D) AND DISTRICT COURTS’ CONSIDERATION
OF REHABILITATION AT SENTENCING..............................................................55
II. THE PROBLEM ..............................................................................................57
A. THE BUREAU OF PRISONS’ OVERCROWDING AND STAFFING SHORTAGES
COMPROMISE ITS ABILITY TO PROVIDE THE “MOST EFFECTIVE” MEDICAL AND
MENTAL HEALTH CARE AND OTHER TREATMENT AND REHABILITATION .........57
B. FEDERAL COURTS APPROACH § 3553(a)(2)(D)’S MANDATE
INCONSISTENTLY AND OFTEN FAIL TO RECOGNIZE THE BOP’S LIMITATIONS ON
PROVIDING “THE MOST EFFECTIVE” REHABILITATION AND TREATMENT .......64
III. PROPOSED SOLUTION: VIGOROUS DEFENSE ADVOCACY THAT
ENCOURAGES SERIOUS CONSIDERATION OF § 3553(a)(2)(D) AND
ACKNOWLEDGES THE BOP’S LIMITATIONS ON PROVIDING REHABILITATION
AND TREATMENT IN THE “MOST EFFECTIVE” MANNER ...................................72
CONCLUSION .....................................................................................................76

INTRODUCTION

Although federal law requires sentencing judges to consider the need to
rehabilitate and treat defendants, courts regularly undervalue, ignore, and even
violate this directive. In the Sentencing Reform Act of 1984 (SRA), Congress
directed federal district court judges to consider, when sentencing a defendant,
the need for the sentence “to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most
effective manner.”1 Congress has made specific pronouncements about the
rehabilitative value of imprisonment, concluding that “imprisonment is not an
appropriate means of promoting correction and rehabilitation.”2 The federal
courts have struggled to implement § 3553(a)(2)(D)’s directive to provide a
defendant with rehabilitation in “the most effective manner.” Some courts
appear to believe that the Bureau of Prisons (BOP) can provide “adequate”
training, medical care, and other correctional treatment and do not analyze

*
Associate Clinical Professor of Law, The University of Chicago Law School. I am grateful to
Isabella Nascimento and Claire Rogerson for excellent research assistance and to Judith Miller, Alison
Siegler, and Katie Tinto for thoughtful advice and suggestions.
1
18 U.S.C. § 3553(a)(2)(D) (2012).
2
18 U.S.C. § 3582(a) (2012).

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what sentence will provide treatment in “the most effective manner” as the
statute requires. Other courts barely engage with the issue, thus undervaluing
§ 3553(a)(2)(D)’s statutory command. A minority of the courts engage in a
more robust analysis of § 3553(a)(2)(D) arguments, especially when the
arguments are supported by evidence. Regardless of the approach, many courts
fail to appreciate the BOP’s severe limitations in providing rehabilitation and
treatment in “the most effective manner.” This needs to change. With vigorous
defense advocacy, it can.
How the courts engage with § 3553(a)(2)(D)’s statutory command is
important because the overwhelming majority of convicted and sentenced
federal defendants go to prison. “Probation has played a diminutive role in the
federal system,”3 and “imprisonment has become the dominant sanction.”4 For
fiscal year 2017, only 6.9% of federal criminal defendants across the country
received a straight probationary term, while 88% received a sentence of
“prison only.”5 Federal judges “sentenced 2,300 fewer offenders to probation
in 2014 than in 1980, even though their caseload nearly tripled during that
span.”6 There are likely many reasons for this, including the mandatory
Sentencing Guidelines era, an increase in federal statutes that require a
mandatory minimum prison term in the 1980s and 1990s, and the abolition of
parole.7
Moreover, the federal prison system is in crisis. Congress established the
bipartisan Charles Colson Task Force on Federal Corrections in 2014 in
response to years of “unsustainable prison population and cost increases, high
rates of recidivism, and inaction on possible reforms.”8 The goal was to
conduct an independent assessment of the federal system and recommend
reforms. The Colson Report paints a stark picture of the federal prison system,
noting serious problems such as overcrowding and the lack of nonincarceration sentences.9 In its Executive Summary, the Colson Report notes:
After decades of unbridled growth in its prison population,
the United States faces a defining moment. There is broad,
bipartisan agreement that the costs of incarceration have far
outweighed the benefits, and that our country has largely
failed to meet the goals of a well-functioning justice system:
to enhance public safety, to prevent future victimization, and
3
Nora V. Demleitner, How to Change the Philosophy and Practice of Probation and Supervised
Release: Data Analytics, Cost Control, Focus on Reentry, and a Clear Mission, 28 FED. SENT’G REP.
231, 232 (2016).
4
More Prison, Less Probation for Federal Offenses, PEW CHARITABLE TR. (Jan. 2016),
https://www.pewtrusts.org/-/media/assets/2016/01/pspp_fs_moreprisonlessprobation_v1.pdf
[hereinafter PEW CHARITABLE TR.].
5
U.S. SENTENCING COMMISSION, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 30 (22nd ed. 2017),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-andsourcebooks/2017/2017SB_Full.pdf.
6
PEW CHARITABLE TR., supra note 4, at 1.
7
See id.; see also CHARLES COLSON TASK FORCE ON FEDERAL CORRECTIONS, TRANSFORMING
PRISONS, RESTORING LIVES: FINAL RECOMMENDATIONS, at XI (Jan. 2016) [hereinafter COLSON
REPORT] (highlighting mandatory minimum drug penalties as a “primary driver of BOP overcrowding
and unstainable growth” and a prime candidate for reform).
8
Id. at VII.
9
Id. at X.

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to rehabilitate those who have engaged in criminal acts.
Indeed, a growing body of evidence suggests that our overreliance on incarceration may in fact undermine efforts to
keep the public safe.10
The Colson Report encourages increased use of specialty courts, probation,
and alternatives to prison11—in other words, rehabilitation.
Thus, in spite of Congress’s directive that “imprisonment is not an
appropriate means of promoting correction and rehabilitation,”12 the vast
majority of federal criminal defendants serve their sentences in federal
prison—away from their families and community service providers—and
without meaningful access to needed medical care, rehabilitation, and other
treatment. Given the BOP’s challenges to providing treatment in an effective,
let alone adequate manner, the courts should be taking § 3553(a)(2)(D)’s
statutory command much more seriously in deciding whether imprisonment is
an appropriate sentence. Likewise, defense counsel should make a clear record
at sentencing of the defendant’s treatment needs and the BOP’s challenges in
providing such treatment.
This Article proceeds in three parts. Part I will discuss the federal
sentencing revolution post-United States v. Booker and how it gave new life to
18 U.S.C. § 3553(a). It will also discuss the Sentencing Reform Act and §
3553(a)(2)(D)’s rehabilitation mandate. Part II will discuss how courts are not
consistently adhering to § 3553(a)(2)(D)’s mandate. This is due, at least in
part, to the fact that the BOP is not equipped to play the rehabilitative role that
courts believe it is playing. Evidence shows that the BOP struggles to provide
adequate, let alone “effective,” “educational or vocational training, medical
care, [and] other correctional treatment.”13 Part III will discuss how to address
these problems and encourage the courts to take § 3553(a)(2)(D)’s statutory
command more seriously to ensure that federal sentences are promoting
rehabilitation and treatment in “the most effective manner.”

I. BACKGROUND
A. UNITED STATES V. BOOKER GIVES NEW LIFE TO 18 U.S.C. § 3553(a)
Since 2005, federal sentencing has been governed by 18 U.S.C. § 3553(a).
This statute was part of the SRA, which fundamentally altered the federal
sentencing scheme. Before the SRA went into effect on November 1, 1987,
federal district court judges had “almost unfettered discretion” to select
sentences for federal offenders.14 In an ordinary case, a judge could decline to

10

Id. at IX.
Id. at XI.
12
18 U.S.C. § 3582(a) (2012).
13
18 U.S.C. § 3553(a)(2)(D) (2012).
14
See, e.g., Mistretta v. United States, 488 U.S. 361, 363–64 (1989); Kate Stith & Steve Y. Koh,
The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28
WAKE FOREST L. REV. 223, 223–24 (1993).
11

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impose prison time and instead suspend the sentence. If a prison term was
imposed, the defendant would spend a third of his term behind bars before
parole officials had discretion to decide whether to release him.15 This
discretion permitted parole officers to determine when “a prisoner had been
rehabilitated and should be released from confinement.”16
In the 1960s and 1970s, prominent judges and academics began to express
concern that judicial discretion at sentencing was causing troubling sentencing
disparities. Judge Marvin Frankel, whom Senator Edward M. Kennedy called
the “father of sentencing reform,” led that charge.17 In his seminal book, Judge
Frankel complained of “law without order.”18 His goal was “to make criminal
sentencing subject to ‘law.’”19 Judge Frankel believed the best way to do this
was to cabin a judge’s sentencing discretion. This, he believed, would promote
sentencing uniformity and would drastically reduce disparities.
Around the same time, others expressed the view that the pre-SRA
sentencing scheme—“premised on faith in rehabilitation”20—was failing to
deliver.21 Lawmakers and others became increasingly skeptical that prison
could “rehabilitate individuals on a routine basis” or that parole officers could
“determine accurately whether or when a particular person ha[d] been
rehabilitated.”22 As Professor Michael Vitiello explains:
In less than two decades, almost everyone involved in the
criminal justice system ha[d] rejected the rehabilitative ideal,
described less than twenty years ago as the predominant
justification of punishment. By the mid-1980s, a major
criminal law treatise concluded that “retribution . . . ‘is
suddenly being seen by thinkers of all political persuasions as
perhaps the strongest ground . . . upon which to base a system
of punishment.”’23
15
KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE
FEDERAL COURTS 19–20 (1998).
16
Id. at 18.
17
Id. at 35.
18
MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).
19
Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117
YALE L.J. 1420, 1427 (2008).
20
Tapia v. United States, 564 U.S. 319, 324 (2011) (citing Mistretta v. United States, 488 U.S. 361,
366 (1989)).
21
Mistretta, 488 U.S. at 366 (noting that the Senate Judiciary Committee’s report on the SRA
criticized the indeterminate sentencing regime because its attempt to “achieve rehabilitation of
offenders had failed.”); COMM. ON THE JUDICIARY UNITED STATES SENATE, REPORT ON SENTENCING
REFORM ACT OF 1984, S. REP. 98-225 (1984) [hereinafter S. REP. 98-225]).
22
Tapia v. United States, 564 U.S. 319, 324–25 (2011) (quoting S. REP. 98-225, supra note 21, at
40) (internal quotation marks omitted); see also Michael Vitiello, Reconsidering Rehabilitation, 65
TUL. L. REV. 1011, 1012 (1991) (“Critics focused on both the philosophical and the factual failures of
rehabilitation. . . . Critics frequently cited studies of rehabilitation programs and urged that
rehabilitation did not work.”).
23
Vitiello, supra note 22, at 1012–13; see also Craig Haney, The Psychological Impact of
Incarceration: Implications for Post-Prison Adjustment, ASPE 1, 3 (Dec. 1, 2002),
https://aspe.hhs.gov/system/files/pdf/75001/Haney.pdf (“The nation moved abruptly in the mid-1970s
from a society that justified putting people in prison on the basis of the belief that incarceration would
somehow facilitate productive re-entry into the freeworld to one that used imprisonment merely to
inflict pain on wrongdoers (‘just deserts’), disable criminal offenders (‘incapacitation’), or to keep them
far away from the rest of society (‘containment’).”).

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Congress heeded the concerns Judge Frankel and others voiced about
judicial discretion and the failures of the parole system in enacting the SRA.
Congress also adopted the view that sentencing with rehabilitation as its
primary goal had failed, even though this assertion was not supported by
evidence.24 The SRA “abandoned indeterminate sentencing and parole” and
drastically changed federal judges’ role in the sentencing process by
“establishing a framework to govern their consideration and imposition of
sentences.”25 The centerpiece of the SRA was the creation of the United States
Sentencing Commission, which in turn was responsible for crafting the Federal
Sentencing Guidelines.
The Guidelines are a complex set of sentencing factors based around the
seriousness of the offense and the defendant’s criminal history. Each federal
crime “is assigned a base offense level, which is the starting point for
determining the seriousness of a particular offense.”26 In addition to the base
offense level, “each offense typically carries with it a number of specific
offense characteristics . . . that can increase or decrease the base offense
level.”27 There are also adjustments and departures, which can similarly
increase or decrease the base offense level. The result of these calculations
results in the total offense level.28 The total offense level is then coupled with a
defendant’s criminal history category—ranging from one to six based on prior
criminal history—to produce a Guidelines range in months.
Before United States v. Booker rendered the Guidelines advisory, judges
were required to sentence defendants within the applicable Guidelines range
absent extraordinary circumstances. If a sentencing judge misapplied the
Guidelines or departed from the range for any reason other than those allowed
for by the Guidelines, appellate judges were on hand to “police” them.29
“Accordingly, from their inception, the Sentencing Commission’s
proclamations were not merely ‘guidelines’ or recommendations, but
enforceable rules that sentencing judges were legally obliged to follow.”30
Consequently, sentencing during the mandatory Guidelines era
amounted to a “sterile” proceeding, wherein “the lawyers’ arguments and
defendant’s allocution [were] largely irrelevant, and the sentence
preordained.”31 The judge and counsel

24
See S. REP. 98-225, supra note 21, at 38 (“In the federal system today, criminal sentencing is
based largely on an outmoded rehabilitation model. . . . Yet almost everyone involved in the criminal
justice system now doubts that rehabilitation can be induced reliably in a prison setting, and is now
quite certain that no one can really detect whether or when a prisoner is rehabilitated.”).
25
Tapia, 564 U.S. at 325.
26
U.S. SENTENCING COMM’N, AN OVERVIEW OF THE FEDERAL SENTENCING GUIDELINES 1,
http://www.ussc.gov/sites/default/files/pdf/about/overview/Overview_Federal_Sentencing_Guidelines.pdf.
27
Id.
28
Id. at 3.
29
See Kate Stith, The Hegemony of the Sentencing Commission, 9 FED. SENT’G REP. 14, 16 (1996)
(noting the responsibility of courts of appeals to “police” sentencing Guidelines departures).
30
The Arc of the Pendulum, supra note 19, at 1429.
31
Lynn Adelman & Jon Deitrich, Fulfilling Booker’s Promise, 11 ROGER WILLIAMS U. L. REV.
521, 522 (2006).

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did not discuss the defendant’s moral culpability, the reason
that he offended, his character and background, the likelihood
that he would re-offend, the effect on the victim, or the need
to protect the public. Rather, the judge and lawyers talked
about offense levels and criminal history scores; about
“intended” versus “actual” loss amounts; about the weight of
drugs that it was reasonably foreseeable the defendant’s
confederates would possess; about whether the scheme was
“sophisticated” or merely involved “more than minimal
planning.”32
Although the Guidelines contained “departure” provisions that authorized
judges to impose a reduced sentence if certain requirements were met, such
departures were rare, cabined, and “reserved for unusual cases.”33 The
Guidelines reflected this explicitly in § 5K2.0: Where a particular aspect of an
offense is incorporated in the underlying offense guideline, departure from the
applicable guideline range is warranted only if the factor is present to a degree
“substantially in excess of . . . that which is ordinarily involved in” the
offense.34
While federal public defenders and other criminal defense attorneys
challenged the Guidelines as unconstitutional from their inception, the courts
repeatedly upheld them until Booker. Booker radically changed federal
sentencing law by deeming the mandatory Guidelines regime unconstitutional
and rendering the Guidelines merely advisory.35
Booker suddenly gave new life to the sentencing statute, § 3553(a), which
had been rendered all but irrelevant during the mandatory Guidelines regime.
Post-Booker, § 3553(a) has become the federal sentencing touchstone.36 The
overriding mandate of § 3553(a) is that federal district judges impose a
sentence “sufficient, but not greater than necessary” to comply with the four
purposes of sentencing set out in § 3553(a)(2): retribution, deterrence,
incapacitation, and rehabilitation.37 This is known as the “parsimony
provision,” which the Supreme Court has observed is the “overarching
provision” of federal sentencing.38 A judge must consider the § 3553(a)(2)
factors “when determining both whether to imprison an offender and what
length of term to give him.”39 The sentencing statute also directs judges to

32

Id.
See, e.g., United States v. Williams, 65 F.3d 301, 305 (2d Cir. 1995) (“[A]lthough the Guidelines
afford the district court flexibility in sentencing, the power to depart is to be used sparingly and is
reserved for unusual cases.”) (citations and quotations omitted); United States v. Omar, 16 F.3d 1168,
1171 (11th Cir. 1994) (“The guidelines provide the sentencing court with power to depart where a strict
guideline sentence would not adequately reflect the particular nature of the defendant’s conduct, but
they caution that courts should use this power sparingly where offense conduct is already reflected in
the applicable guideline and adjustments.”).
34
Grounds for Departure (Policy Statement), 18 U.S.C. app. § 5K2.0 (2003).
35
United States v. Booker, 543 U.S. 220 (2005).
36
See Pepper v. United States, 562 U.S. 476 (2011).
37
18 U.S.C. § 3553(a)(1) (2012).
38
Kimbrough v. United States, 552 U.S. 85, 101 (2007).
39
Tapia v. United States, 564 U.S. 319, 328 (2011) (emphasis in original).
33

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consider factors such as the nature and circumstances of the offense and the
defendant’s history and characteristics.40
By returning such traditional factors to prominence in
sentencing, Booker enables judges and lawyers to engage in a
dialogue that will not frustrate the participants or the public
but rather satisfy their deepest intuitions about what
sentencing should involve. Equally important, after Booker, a
lawyer’s arguments and a defendant’s allocution are no longer
a charade because they may actually have an impact on a
judge’s sentence.41
Post-Booker, defense counsel have a critical role to play at sentencing.
They must explain to judges why § 3553(a) compels a sentence below the
applicable Guidelines range. The judge must address all of counsel’s
nonfrivolous arguments for a non-Guidelines sentence under § 3553(a).42 If the
judge rejects those arguments, he must “go further and explain why he has
rejected those arguments.”43 This puts the burden on the defense counsel to
raise nonfrivolous sentencing arguments on a client’s behalf. Defense counsel
should use § 3553(a)’s entire arsenal to do so.
B. THE HISTORY OF § 3553(a)(2)(D) AND DISTRICT COURTS’ CONSIDERATION OF
REHABILITATION AT SENTENCING
The plain language of the sentencing statute makes clear that Congress
intended district court judges to take a defendant’s rehabilitation needs
seriously at sentencing. Section 3553(a)(2)(D) requires a district judge to
“consider . . . the need for the sentence imposed . . . to provide the defendant
with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.”44
A key Senate report demonstrated that including rehabilitation as a
sentencing consideration in the SRA was met with some resistance and was not

40

See 18 U.S.C. § 3553(a)(1). Section 3553(a) directs courts to consider seven factors:
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the [advisory guideline] range . . .;
(5) any pertinent policy statement . . . issued by the Sentencing Commission . . .;
(6) the need to avoid unwarranted sentence disparities . . .; and
(7) the need to provide restitution to any victims of the offense.
41
Adelman & Deitrich, supra note 31, at 523.
42
See Rita v. United States, 551 U.S. 338, 356–57 (2007).
43
Id. at 339.
44
18 U.S.C. § 3553(a)(2)(D) (2012).

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a foregone conclusion. In fact, “arguments were advanced that rehabilitation
should be eliminated completely as a purpose of sentencing.”45 However, this
view was “rejected,”46 and Congress instead granted the principle of
rehabilitation equal status with three other purposes of punishment: retribution,
general deterrence, and specific deterrence.47
Some, who advocated to remove rehabilitation from the calculus, were
driven by a concern that prison sentences did not advance the goal of
rehabilitation. “According to Senate Report 98-225, decades of experience
with indeterminate sentencing, resulting in the release of many inmates after
they completed correctional programs, had left Congress skeptical that
‘rehabilitation can be induced reliably in a prison setting.’”48
In response to this concern, in the SRA, “Congress barred courts from
considering rehabilitation in imposing prison terms, but not in ordering other
kinds of sentences.”49 As the Senate Report explained, rather than rejecting
rehabilitation entirely, “the committee . . . retained rehabilitation and
corrections as an appropriate purpose of a sentence, while recognizing, in light
of current knowledge, that imprisonment is not an appropriate means of
promoting correction and rehabilitation.”50 Congress codified the point that
incarceration does not promote rehabilitation at 18 U.S.C. § 3582, which states
that “imprisonment is not an appropriate means of promoting correction and
rehabilitation.”51
Two key principles regarding rehabilitation are thus enshrined in the SRA.
First, rehabilitation is a legitimate aim of sentencing, and judges are required to
consider a defendant’s need for rehabilitation in imposing sentence and
fashioning sentences that provide rehabilitation “in the most effective
manner.”52 Second, prison does not advance the goal of rehabilitation. As the
Third Circuit has explained, § 3553(a)(2)(D) and § 3582 operate in harmony:
“[C]ourts must consider a defendant’s need for rehabilitation when devising an
appropriate sentence (pursuant to § 3553(a)(2)(D)), but may not carry out that
goal by imprisonment (pursuant to § 3582(a)).”53
The Supreme Court reaffirmed these core principles in Tapia v. United
States, which holds that § 3582(a) statutorily prohibits a federal judge from
imposing or lengthening a prison sentence in order to foster a defendant’s
rehabilitation.54 The Court reached this holding in part because Congress did
not enact “any provision granting courts the power to ensure that offenders
participate in prison rehabilitation programs.”55 Rather, once a defendant is
sentenced to a prison term, the BOP has “plenary control” over such things as
place of imprisonment and treatment programs.56 In contrast, a judge can
45

S. REP. 98-225, supra note 21, at 76.
Id.
47
See 18 U.S.C. § 3553(a)(2) (2012).
48
Tapia v. United States, 564 U.S. 319, 331–32 (2011) (citing S. REP. 98-225, supra note 21, at 38).
49
Id. at 332 (citations omitted).
50
S. REP. 98-225, supra note 21, at 76 (citations omitted).
51
18 U.S.C. § 3582(a) (2012).
52
§ 3553(a)(2)(D).
53
United States v. Manzella, 475 F.3d 152, 158 (3d Cir. 2007) (emphasis in original).
54
Tapia, 564 U.S. at 319.
55
Id. at 330.
56
Id. at 331.
46

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impose conditions of probation or supervised release that require mental health
treatment, drug and alcohol treatment, or other rehabilitative programming.57
Moreover, the SRA instructed the Sentencing Commission to write
Sentencing Guidelines that advance the second core principle. Specifically, the
SRA directed the Commission to “insure that the guidelines reflect the
inappropriateness of imposing a sentence to a term of imprisonment for the
purpose of rehabilitating the defendant or providing the defendant with needed
educational or vocational training, medical care, or other correctional
treatment.”58 As the Tapia Court noted, these three statutory provisions—
§ 3553(a)(2)(D), § 3582(a), and 28 U.S.C. § 994(k)—all work together to send
“each actor at each stage in the sentencing process . . . the same message: Do
not think about prison as a way to rehabilitate an offender.”59

II. THE PROBLEM
A. THE BUREAU OF PRISONS’ OVERCROWDING AND STAFFING SHORTAGES
COMPROMISE ITS ABILITY TO PROVIDE THE “MOST EFFECTIVE” MEDICAL AND
MENTAL HEALTH CARE AND OTHER TREATMENT AND REHABILITATION
The on-the-ground evidence from the federal prison system illustrates that
the SRA’s drafters were prudent to eliminate prison as a locus of rehabilitation
and treatment. It has become clear that the BOP is not equipped to provide
inmates with some of the most basic treatment and rehabilitative services,
including effective medical care and mental health care. Not only are judges
statutorily prohibited from sentencing a defendant to prison to effectuate §
3553(a)(2)(D)’s directive to provide “care . . . in the most effective manner,”60
but the evidence shows that the care within the BOP system falls woefully
below that standard.
As of 2018, there are approximately 181,000 inmates in federal custody.61
Although this is a decrease from past years, the DOJ’s Inspector General
warned in 2014 of a “persistent” BOP crisis, fueled by costs that “will continue
to increase in the years ahead, consuming a large share of the Department’s
budget,” and “significant[] overcrowd[ing],” which raises “a number of

57
See 18 U.S.C. § 3563(b) (2012) (noting that a judge may impose as a discretionary condition of
probation that the defendant “undergo available medical, psychiatric, or psychological treatment,
including treatment for drug or alcohol dependency” as long as the condition is “reasonably related to
the factors set forth in sections 3553(a)(1) and (a)(2) . . . and to the extent that such conditions involve
only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in
section 3553(a)(2)”); 18 U.S.C. § 3583(d) (2012) (permitting a judge to order as a condition of
supervised release “any condition set forth as a discretionary condition of probation in section 3563(b) .
. . and any other condition it considers to be appropriate” as long as it complies with the factors set out
in § 3583(d)(1)–(3), and does not otherwise run afoul of § 3583(d)).
58
28 U.S.C. § 994(k) (2012).
59
Tapia v. United States, 564 U.S. 319, 330 (2011).
60
18 U.S.C. § 3553(a)(2)(D) (2012).
61
See Federal Bureau of Prisons, Statistics, BOP, https://www.bop.gov/about/statistics/population_statistics.jsp
(last visited Nov. 1, 2018).

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important safety and security issues.”62 In particular, the Inspector General
noted the high costs spent on healthcare services; in fiscal year 2013, the BOP
spent over $1 billion on inmate healthcare services.63 He also highlighted
prison overcrowding as “the most significant threat to the safety and security
of Bureau of Prisons staff and inmates.”64 The Colson Report concurred:
Despite the increase in spending and recent population
reductions, the BOP continues to struggle under the weight of
overcrowding and its harmful impacts. Staffing is insufficient
to maintain a safe and secure environment, resulting in
dangerous conditions for corrections officers and the men and
women they oversee.65
In particular, the report noted that overcrowding compromises the BOP’s
ability to provide even “adequate programming, treatment, and case
management.”66
The BOP is required to provide “necessary” medical and mental health
care for the inmates in its custody. Its most recent Program Statement on
Health Services Administration states that the “purpose and scope” is to
“deliver medically necessary health care to inmates effectively in accordance
with proven standards of care without compromising public safety concerns,
inherent to the Bureau’s overall mission.”67 However, nowhere does the BOP
define the standard of care to which it adheres or explain what it considers to
be best practices.
Prior to June 20, 2013, consulting physicians and dentists working within
the BOP system were required to hold a current license “in the state where
services are provided.”68 Now, in order to recruit more doctors, the BOP
requires a “current and valid professional license from any state.”69 The
Program Statement notes the tension in providing medical care in a
correctional setting: “[T]here may be an incompatibility between medical and
correctional guidelines; conflicts related to medical care should be resolved, as
far as practical, in favor of medicine. At the same time the medical staff must

62
Andrew Cohen, Obama’s Prison Crisis, M ARSHALL P ROJECT (Nov. 17, 2014),
https://www.themarshallproject.org/2014/11/17/a-crisis-at-the-bureau-of-prisons-persists-saysdoj-watchdog; see also COLSON REPORT, supra note 7, at 1 (“Federal prison costs have spiked as well,
growing at almost twice the rate of the rest of the US Department of Justice (DOJ) budget and
threatening to undermine other funding priorities.”).
63
Cohen, supra note 62.
64
Id. The Inspector General explained that the DOJ “would have to achieve a net reduction of about
23,400 federal prisoners from the June 2014 prison population” in order to bring the ratio of inmate to
space available to appropriate levels and eliminate overcrowding. Id. The population in 2014 was
approximately 213,461 inmates; in light of the 2018 numbers, it appears that the DOJ has met its goal.
65
COLSON REPORT, supra note 7, at 1.
66
Id.
67
U.S. DEP’T OF JUSTICE, FED. BUREAU OF PRISONS, PROGRAM STATEMENT NO. 6010.05, HEALTH
SERVICES ADMINISTRATION, at 1 (June 26, 2014), [hereinafter STATEMENT NO. 6010.05]
https://www.bop.gov/policy/progstat/6010_005.pdf.
68
Id. at 1.
69
Id.

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be part of the institution’s correctional team.”70 The BOP is also clear that
“[m]edical services . . . will be obtained at the lowest possible cost.”71
The BOP faces numerous challenges in providing adequate, let alone
effective, medical care to inmates.72 A 2016 report from the Office of the
Inspector General highlighted staffing shortages as one of the biggest
problems: “[R]ecruitment of medical professionals is one of the BOP’s greatest
challenges and staffing shortages limit inmate access to medical care,
result[ing] in an increased need to send inmates outside the institution for
medical care, and [contributing] to increases in medical costs.”73 As a result,
“from fiscal year (FY) 2010 to FY 2014, the BOP’s total medical staff was
approximately 17 percent less than what the BOP projected was necessary to
provide what it considers to be ‘ideal’ care.”74 Again it is unclear what the
BOP’s definition of “ideal” care is; that term is not defined. Regardless, the
Inspector General’s report is troubling.
The BOP’s structure for providing medical treatment to inmates poses
challenges for delivering the “most effective” care to all inmates. The BOP
defines five levels of care for inmates.75 Inmates who are sentenced to fewer
than twelve months in custody are completely ineligible for three of the five
levels of care.76 Thus, inmates who are sentenced to fewer than twelve months
in custody are only eligible for treatment for medical conditions that the BOP
considers “of an immediate, acute, or emergent nature, which without care
would cause rapid deterioration of the inmate’s health” or those that are “not
immediately life-threatening but which without care the inmate could not be
maintained without significant risk of: Serious deterioration leading to
premature death . . . [s]ignificant reduction in the possibility of repair later
without present treatment . . . or [s]ignificant pain or discomfort which impairs
the inmate’s participation in activities of daily living.”77
The BOP’s difficulties in meeting its inmates’ medical needs are
exacerbated because the age of the federal prison population is increasing,

70
Id. at 2; accord Samantha Hoke, Mental Illness and Prisoners: Concerns for Communities and
Healthcare Providers, 20 ONLINE J. ISSUES NURSING 1, 7 (Jan. 31, 2015) (“Perhaps the most obvious
hurdle to providing mental health treatment is the mission of corrections: to maintain security within the
institution, providing a safe environment for both staff and inmates. For instance, a core value of the
Federal Bureau of Prisons is correctional excellence. This means all employees, even healthcare
providers are correctional workers first. . . . However, healthcare providers within corrections also have
their own mission of providing the best possible care to their patients. Balancing this dual mission is
often a challenge for healthcare providers.”).
71
STATEMENT NO. 6010.05, supra note 67, at 3.
72
See COLSON REPORT, supra note 7, at 1.
73
U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., REVIEW OF THE FEDERAL BUREAU OF
PRISONS’ MEDICAL STAFFING CHALLENGES, at i (Mar. 2016) [hereinafter BOP MEDICAL STAFFING
CHALLENGES]; see also id. at 15 (“The BOP’s inability to recruit and retain medical professionals has
led to institutions operating at unfavorable staffing levels.”); U.S. DEP’T OF JUSTICE, OFFICE OF THE
INSPECTOR GEN., THE IMPACT OF AN AGING INMATE POPULATION ON THE FEDERAL BUREAU OF
PRISONS, at 17 (revised Feb. 2016) [hereinafter BOP AGING PRISON POPULATION] (explaining the
difficulties of hiring medical staff in urban and rural areas).
74
BOP MEDICAL STAFFING CHALLENGES, supra note 73, at 1.
75
See U.S. DEP’T OF JUSTICE, FED. BUREAU OF PRISONS, PROGRAM STATEMENT NO. 6031.04,
PATIENT CARE, at 5–7 (June 3, 2014), https://www.bop.gov/policy/progstat/6031_004.pdf.
76
Id. at 5.
77
Id. at 5–6.

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even as the overall population is decreasing.78 Predictably, aging inmates are
“more costly to incarcerate [than their younger counterparts], primarily due to
their increased medical needs.”79 They incur more medical costs due to
“chronic health problems,” which require “increased visits to medical clinics
inside the institution and medical trips outside the institution.”80 Because of
staffing shortages and BOP overcrowding, “aging inmates experience delays in
receiving medical care.”81
Unfortunately, the BOP’s compassionate release program does not provide
a sufficient backstop for inmates whose medical needs outstrip the BOP’s
demonstrably limited treatment capabilities. Compassionate release, which
Congress authorized in the SRA, allows federal inmates to petition the BOP for
early release if they present “extraordinary and compelling” reasons.82 If the
request is approved, the BOP then asks a federal judge for a sentencing
reduction. The BOP’s grants of compassionate release are extremely rare. In
response to the inquiry of a bipartisan group of senators regarding the BOP’s
use of compassionate release,83 the BOP revealed that it had granted only 306
compassionate release requests and denied 2,405 since 2014.84 A broad
spectrum of people recently urged the Sentencing Commission, which is
responsible for setting the criteria for what qualifies as “extraordinary and
compelling,” to study the compassionate release program. The Sentencing
Commission declined to do so.85 On December 21, 2018, President Donald
78
See Matt McKillop & Alex Boucher, Aging Prison Populations Drive Up Costs, PEW CHARITABLE
TR. (Feb. 20, 2018), http://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prisonpopulations-drive-up-costs.
79
BOP AGING PRISON POPULATION, supra note 73, at i. The Inspector General defines inmates age
fifty and older as “aging.” Id. at 1. According to the BOP’s Assistant Director for Health Services and
Medical Director, “inmates in their fifties and sixties place the greatest burden on the BOP because their
numbers are increasing and many of them have significant health problems stemming from years of
substance abuse.” Id. at 11.
80
Id. at 14. Overtime costs paid to correctional officers who escort inmates to such appointments
“is a significant budget item.” Id. at 15.
81
Id. at ii. Using the BOP data from one institution, the Inspector General found the average wait
time for inmates to be seen by an outside medical specialist for cardiology, neurosurgery, pulmonology,
and urology was 114 days. Id. at 18. The wait time at this institution increased to 265 days “for those
inmates waiting to see outside specialists for additional or routine appointments.” Id. Interviews with
BOP staff in relation to the Inspector General’s report on the aging inmate population revealed
troubling information about the BOP’s ability to provide care in the “most effective manner”: “A Case
Manager at a nonmedical institution told us that the institution was ‘over a thousand inmates behind’ in
servicing those enrolled in chronic care clinics. An aging inmate told us that the health services staff at
his institution is ‘inundated’ with requests for care and that, while they work hard, they can only do so
much.” Id. at 17.
82
Id. at 43.
83
Letter from Senators to Acting BOP Director Dr. Thomas R. Kane, and The Hon. J. Rod
Rosenstein (Aug. 3, 2017), https://www.schatz.senate.gov/imo/media/doc/2017.08.03 Letter to BOP
and DAG re. Compassionate Release FINAL.pdf.
84
Letter from Stephen E. Boyd, Assistant Att’y Gen., to The Hon. Brian Schatz, Sen. (Jan. 16,
2018), https://famm.org/wp-content/uploads/Response-from-BOP-re.-Compassionate-Release-Letter-116-2018.pdf.
85
Proposed Priorities for Amendment Cycle, 83 Fed. Reg. 30477 (June 28, 2018) (proposing to
study whether the compassionate release guideline, § 1B1.13, “effectively encourages the Director of
the Bureau of Prisons to file a motion for compassionate release when ‘extraordinary and compelling
reasons’ exist”); U.S. SENTENCING COMM’N, FEDERAL REGISTER NOTICE OF FINAL 2018–2019
PRIORITIES, https://www.ussc.gov/policymaking/federal-register-notices/federal-register-notice-final2018-2019-priorities (last visited Oct. 28, 2018) (excluding proposed compassionate release study from
final list of priorities).

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Trump signed the First Step Act of 2018 into law. The First Step Act aims to
increase “the use and transparency of compassionate release” by broadening
eligibility and removing sole discretion for determining who is eligible for
compassionate release from the BOP.86 It remains to be seen how these
changes will be implemented and whether the use of compassionate release
will increase.
The BOP is also unable to provide mental health treatment in “the most
effective manner.” Mental health problems are rampant in the federal prison
population. A 2006 Department of Justice (DOJ) study87 found that
approximately 44.8% of all federal inmates have some mental health
problem.88 According to the study, female inmates had a higher rate of mental
health problems than male inmates: 61% compared to 44%.89 Prisons are
extremely ill-suited to treat mental illness. They are premised on “social
control” and “are not remotely compatible with the kind of supportive
therapeutic milieus that the mentally ill require. They are austere and
intimidating environments that are painful and difficult for even the strongest
and most resilient prisoners to withstand.”90
The BOP Psychology Services Department is structured in a way that
makes providing “the most effective” care impossible. According to the BOP’s
Psychology Services Manual, the responsibilities of the BOP psychologists are
ranked by priority. The psychologists are directed to give first priority to crisis
intervention, suicide prevention, treatment of severely mentally ill inmates,
treatment of BOP employees, and the initial screening of inmates.91 Brief
counseling, individual psychotherapy, and group therapy—the treatment
options that an inmate can request by self-referral—are all prioritized after
these more emergent mental health issues.92 Even in the second tier, whether
an inmate can even get individual and group therapy is contingent upon five
factors: (1) the type of psychological program(s) diagnosed; (2) limits on
professional expertise; (3) the inmate’s motivation to participate in treatment;
(4) departmental staffing levels; and (5) departmental priorities.93 Ultimately,
“[m]ental health providers in Psychology Services make the final
determination regarding who will receive psychological care, and the nature of

86

First Step Act of 2018, s. 756, 115th Cong. (Dec. 21, 2018) (enacted).
This report appears to be the only report that the DOJ has prepared on the number of people in
federal prison that have a mental health problem, in spite of the importance of the issue.
88
U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NCJ 213600, BUREAU OF JUSTICE
STATISTICS SPECIAL REPORT: MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES, at 4 (tbl. 3)
(Sept. 2006). In this study, mental health problems “were defined by two measures: a recent history or
symptoms of a mental health problem. They must have occurred in the 12 months prior to the interview.
A recent history of mental health problems included a clinical diagnosis or treatment by a mental health
professional. Symptoms of a mental disorder were based on criteria specified in the Diagnostic and
Statistical Manual of Mental Disorders, fourth edition (DSM-IV).” Id. at 1.
89
Id. at 4 (tbl. 3).
90
STAN. LAW SCH. THREE STRIKES PROJECT, DARRELL STEINBERG, DAVID MILLS & MICHAEL ROMANO,
WHEN DID PRISONS BECOME ACCEPTABLE MENTAL HEALTHCARE FACILITIES? 7, https://law.stanford.edu/wpcontent/uploads/sites/default/files/publication/863745/doc/slspublic/Report_v12.pdf (last visited Oct. 28, 2018).
91
See U.S. DEP’T OF JUSTICE, FED. BUREAU OF PRISONS, PROGRAM STATEMENT P5310.17, PSYCHOLOGY
SERVICES MANUAL, at 4–5 (Aug. 25, 2016), https://www.bop.gov/policy/progstat/5310_017.pdf.
92
Id. at 5.
93
Id. at 19.
87

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the care they will receive.”94 This means that for inmates with mental health
issues, there is simply no guarantee that they will receive any treatment, which
is directly at odds with § 3553(a)(2)(D)’s mandate.
The Office of the Inspector General recently criticized the BOP’s
provision of mental health treatment. A 2017 report on the BOP’s use of
restrictive housing for inmates with mental illness noted that as of 2015, BOP
data showed that only “3 percent of the . . . inmate population was being
treated regularly for mental illness.”95 The report also highlighted an odd
development. The BOP adopted a new mental health policy in 2014, which
increased the standards of care for treating inmates with mental illness. Yet,
after the policy, “the total number of inmates who receive regular mental
health treatment decreased by approximately 30 percent, including 56 percent
for inmates in [special management units] SMUs, and about 20 percent overall
for inmates in [restricted housing units] RHUs during the scope of our
review.”96 The Inspector General’s report stated:
Based on our review, it appears that mental health staff may
have reduced the number of inmates, including those in
RHUs, who must receive regular mental health treatment
because they did not have the necessary staffing resources to
meet the policy’s increased treatment standards. Indeed, we
found that, as of October 2015, the BOP had filled only 57
percent of its authorized full-time Psychiatrist positions
nationwide and that it had significant staffing issues with
regard to Psychologist positions as well.97
Moreover, the BOP’s mental health staff members do not invariably document
inmates’ mental illnesses. Therefore, the BOP cannot accurately assess the
number of inmates with mental illness and ensure that such inmates receive
appropriate care.98
In addition, the BOP’s ability to provide rehabilitative programming to
inmates in need has been seriously compromised by long waiting lists and
restrictions on program eligibility. These challenges greatly impact whether the
BOP can provide other rehabilitative services in the “most effective manner.”99
The BOP’s 500-Hour Residential Drug Abuse Program (RDAP)—one of the
BOP’s more well-reputed programs—has restrictions on eligibility, including
the inmate’s having at least twenty-four months of his or her sentence

94

Id. at 12.
U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., REVIEW OF THE FEDERAL BUREAU OF
PRISONS’ USE OF RESTRICTIVE HOUSING FOR INMATES WITH MENTAL ILLNESS, at ii (July 2017),
https://oig.justice.gov/reports/2017/e1705.pdf - page= [hereinafter RESTRICTIVE HOUSING FOR INMATES].
96
Id. at iii.
97
Id.; see also Christie Thompson & Taylor Elizabeth Eldridge, Treatment Denied: The Mental Health Crisis in
Federal Prisons, MARSHALL PROJECT (Nov. 21, 2018), https://www.themarshallproject.org/2018/11/21/treatmentdenied-the-mental-health-crisis-in-federal-prisons (quoting a former BOP psychologist who said that after the 2014
policy change “staff members scrutinized inmates to see if they could safely lower care levels to decrease their
caseloads.”).
98
RESTRICTIVE HOUSING FOR INMATES, supra note 95, at 34.
99
See 18 U.S.C. § 3553(a)(2)(D) (2012).
95

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remaining in an ordinary case.100 Moreover, not all BOP facilities offer
RDAP.101 Other vocational programs have waiting lists. For example, the
waiting list for the BOP’s literacy program is approximately 16,000.102 The
Colson Report recommended that the BOP “immediately expand educational
and occupational opportunities in response to demonstrated need across its
facilities.”103 While the recently-enacted First Step Act of 2018 authorizes
funding for rehabilitative programming,104 it remains to be seen whether (and
when) Congress will appropriate the funding. “According to multiple Inspector
General and Government Accounting Office reports, the [BOP] has a long
track record of failing to follow Congress’ intent on reform[.]”105
Finally, DOJ priorities influence and shape the BOP’s direction. Under
Attorney General Jeff Sessions, the DOJ cut budgets and staff, and closed at
least nineteen halfway houses,106 even though BOP facilities are 16%
overcrowded.107 The Department also changed its charging priorities.
Previously, under Attorney General Eric Holder, the DOJ launched the Smart
on Crime Initiative, which directed federal prosecutors to, among other things,
avoid overcharging low-level drug arrestees with offenses that carry mandatory

100
Frequently Asked Questions about the Residential Drug Abuse Program (RDAP), FAMM (May
3, 2012), https://famm.org/wp-content/uploads/FAQ-Residential-Drug-Abuse-Program-5.3.pdf. In
practice, this means that people who are sentenced to less than twenty-four months in prison are not
able to participate in RDAP. This was an issue that vexed the district court judge in Tapia. The judge
strongly believed the defendant needed drug treatment and imposed a high-end Guidelines sentence in
part so that the prison term was “long enough to qualify for and complete” the RDAP program. Tapia v.
United States, 564 U.S. 319, 321 (2011). The BOP’s program statement on RDAP and drug treatment is
available at U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., EARLY RELEASE PROCEDURES
UNDER 18 U.S.C. § 3621(E) (Mar. 16, 2009), https://www.bop.gov/policy/progstat/5331_002.pdf.
101
FAMM, supra note 100.
102
U.S. DEP’T OF JUSTICE, FED. PRISON SYSTEM, FY 2019 PERFORMANCE BUDGET, CONG.
SUBMISSION 12 at 27, https://www.justice.gov/jmd/page/file/1034421/download (last visited Oct. 28,
2018) [hereinafter BOP PERFORMANCE BUDGET].
103
COLSON REPORT, supra note 7, at 34.
104
First Step Act of 2018, s. 756, 115th Cong. (Dec. 21, 2018) (enacted).
105
Justin George, Okay, What’s the Second Step? MARSHALL PROJECT (Dec. 19, 2008),
https://www.themarshallproject.org/2018/12/19/okay-what-s-the-secondstep?utm_medium=social&utm_campaign=share-tools&utm_source=twitter&utm_content=post-top.
106
In January 2017, BOP hiring was frozen, and the freeze became permanent a year later. During
that time, the BOP eliminated 6,000 positions nationwide, a 14% staffing decrease. See Taylor Dolven,
Trump’s Cuts to Federal Prison “Decimates” Jobs, VICE NEWS (Feb. 13, 2018),
https://news.vice.com/en_ca/article/wj4jbm/trumps-cuts-to-federal-prison-system-decimates-jobs. Paula
Chavez, who teaches educational courses at Federal Correctional Institution-Big Spring (Texas) has
been “asked to do unfamiliar jobs such as medical and guard duty. She said she’s often pulled out of the
classroom to work alone in a housing unit monitoring 300 inmates.” Id. This is known as
“‘augmentation’—shuffling education, kitchen, and medical staff around to cover essential guard
positions.” Id.; see also BOP PERFORMANCE BUDGET, supra note 102 (“The BOP’s operational maxim
also allows non-custody staff to assume the duties of Correctional Officers during inmate disturbances,
or because of long or short-term custody staff shortages.”); Kevin Johnson, Exclusive: As Federal
Prisons Run Low on Guards, Nurses and Cooks are Filling In, USA TODAY (Feb. 13, 2018),
https://www.usatoday.com/story/news/politics/2018/02/13/ill-equipped-and-inexperienced-hundredscivilian-staffers-assigned-guard-duties-federal-prison-secur/316616002/; Thompson & Elizabeth
Eldridge, supra note 97 (noting that “[s]taffing shortages elsewhere in the federal prison system have
forced the bureau to require some counselors to serve as corrections officers, a situation that worsened
under the Trump administration after a lengthy hiring freeze designed to cut spending”).
107
BOP PERFORMANCE BUDGET, supra note 102, at 7.

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minimum sentences.108 On May 10, 2017, Sessions rescinded Holder’s
directive regarding drug mandatory minimums and ordered federal prosecutors
to “charge and pursue the most serious, readily provable offense . . . By
definition, the most serious offenses are those that carry the most substantial
guidelines sentence, including mandatory minimum sentences.”109 Under this
new charging policy, the average sentence for federal drug offenders grew by
6%, after falling by 15% between 2009 and 2016.110 Drug offenses remain the
most common inmate offense, at 46%.111 These recent changes only add to the
BOP’s challenges in providing rehabilitation and treatment to federal inmates.
B. FEDERAL COURTS APPROACH § 3553(a)(2)(D)’S MANDATE INCONSISTENTLY
AND OFTEN FAIL TO RECOGNIZE THE BOP’S LIMITATIONS ON PROVIDING “THE
MOST EFFECTIVE” REHABILITATION AND TREATMENT
It is clear that the BOP faces serious challenges in attempting to deliver
adequate, let alone effective, physical and mental health care and other
correctional treatment. Even for other programs that are well-established, like
RDAP, there are barriers, such as limits on eligibility. These challenges
directly relate to § 3553(a)(2)(D)’s mandate that district courts consider, as one
of the sentencing factors, what sentence will “provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.”112
Some district courts and courts of appeals take § 3553(a)(2)(D)’s
rehabilitation mandate seriously. But many courts undervalue § 3553(a)(2)(D)
and discount the BOP’s limitations in providing rehabilitation and treatment in
the sentencing analysis rather than faithfully abiding by the statutory mandate.
Even more troubling, some courts ignore the statutory command altogether,
thus violating the law. Other courts use their discretion to balance the
§ 3553(a) factors, such that even defendants who present strong evidence of
the need for a non-prison sentence to effectuate rehabilitation will receive
prison time for other reasons.113
1. Courts of Appeals’ Approach 1: Taking § 3553(a)(2)(D) Seriously

108
Memorandum from Eric Holder, Att’y Gen., to United States Attorneys and Assistant Attorney General for
the Criminal Division (Aug. 12, 2013), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memodepartment-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certain-drugcases.pdf.
109
Memorandum from Jeff Sessions, Att’y Gen., to All Federal Prosecutors (May 10, 2017)
[hereinafter Sessions Memo], https://www.justice.gov/opa/press-release/file/965896/download.
110
See U.S. SENTENCING COMM’N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl. 13
(2009–2017) (demonstrating that average sentences were 77.9 months in 2009, sixty-six months in
2016, and seventy months in 2017).
111
BOP PERFORMANCE BUDGET, supra note 102, at 6.
112
18 U.S.C. § 3553(a)(2)(D) (2012).
113
In some federal districts, sentencing filings are not public. Thus, for the cases discussed below, it
is not always possible to know how and to what extent defense counsel raised the § 3553(a)(2)(D) issue
beyond what is in the appellate record.

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A minority of courts of appeals value § 3553(a)(2)(D)’s mandate and show
a willingness to uphold non-incarceration sentences that permit defendants to
receive rehabilitation and treatment in the community.
The Third Circuit has strongly endorsed a district court’s obligation to
consider rehabilitation pursuant to § 3553(a)(2)(D). For example, in United
States v. Manzella, the Third Circuit confirmed that § 3553(a)(2)(D)’s statutory
demand is not permissive; rather that “courts must consider a defendant’s need
for rehabilitation when devising an appropriate sentence . . . but may not carry
out that goal by imprisonment.”114
The Third Circuit has also endorsed a robust review of the district courts’
§ 3553(a)(2)(D) analysis on appeal. In United States v. Olhovsky, the defendant
was sentenced to six years in prison for possessing child pornography, in part
because the district court found that “at a minimum, both incarceration and
custodial treatment are required.”115 Defense counsel argued for probation
based on, among other things, the defendant’s successful out-of-custody
mental health treatment and the problems with BOP’s psychiatric treatment. In
support of these arguments, defense counsel submitted two reports from the
defendant’s treating therapists, who attested to the success of the defendant’s
out-of-custody treatment. The district court rejected defense counsel’s
sentencing request and opined, contrary to the reports, that “it appears that
prior [treatment] efforts have largely failed.”116 The Third Circuit noted that:
It is not at all clear what (if any) basis the court had for
making the italicized statement. We have discussed the only
evidence of treatment that appears on this record, and nothing
suggests that “prior efforts have largely failed.” In fact, the
entire record is to the contrary. The only mental health
professionals who actually interviewed, tested or treated
Olhovsky concluded that he was quite responsive to
treatment. Indeed, not even the government’s expert
concluded that Olhovsky’s treatment has “failed.”117
Ultimately, the court remanded the case for resentencing because it was “not at
all apparent that the court actually considered the lengthy, very specific and
highly positive reports of any of the three defense experts. Rather, the court
focused on incapacitation, deterrence and punishment to the exclusion of other
sentencing factors.”118 Moreover, the court criticized the district court’s
approach to § 3553(a)(2)(D) because there was “no indication that the district
court considered the [defense psychiatrist’s] opinion that” the defendant would
“regress terribly” if incarcerated.119 The court explained that pursuant to §
3553(a)(2)(D),“the record must reflect the reason for believing that treatment

114

United States v. Manzella, 475 F.3d 152, 158 (3d Cir. 2007) (emphasis in original).
United States v. Olhovsky, 562 F.3d 530, 542 (3d Cir. 2009).
116
Id. (emphasis in original).
117
Id.
118
Id. at 547.
119
Id. at 549.
115

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in prison would ‘provide . . . correctional treatment in the most effective
manner’ despite [the defense psychiatrist’s] opinion to the contrary.”120
The Ninth Circuit follows a similar pattern. In United States v. Autery, the
court made clear that district courts have ample discretion to consider and
weigh rehabilitation and § 3553(a)(2)(D)’s mandate to impose a sentence that
will provide “the most effective” treatment.121 The defendant in Autery was
sentenced to five years’ probation in part because the district court concluded
that incarceration would “undermine” the defendant’s rehabilitation.122 The
Ninth Circuit concluded that “rehabilitation was one of the factors most
carefully considered by the district court . . . and its conclusion that [the
defendant’s] prospects for rehabilitation are greater out of prison than in is not
unreasonable.”123 The court specifically rejected the dissent’s argument that
the district court “failed to articulate exactly why effective outpatient treatment
cannot be provided in a federal prison.”124 In other words, under Ninth Circuit
precedent, the district court need not make a finding that the BOP cannot
provide adequate or effective treatment, but instead need only make a finding
that the defendant can receive “the most effective” treatment out of custody.
In this way, the Ninth Circuit is quite deferential to a district court’s
finding that the defendant will receive “the most effective” treatment out of
custody, as United States v. Edwards illustrates.125 The defendant in Edwards
was sixty-three years old and living with diabetes and other related medical
conditions.126 Although the district court found that the BOP was capable of
providing medical care, it concluded that a sentence of probation would
provide the needed care in the most effective manner in accordance with §
3553(a)(2)(D).127 The Ninth Circuit upheld the district court’s sentence as
substantively reasonable.128
Similarly, in United States v. Maier—a Second Circuit case—the district
court granted a downward departure and sentenced the defendant to probation,
in part because the court determined that if the defendant were incarcerated,
she would not receive drug treatment “in an effective manner.”129 The district
judge had emphasized his statutory authority to depart from the Guidelines as
well as § 3553(a)(2)(D)’s statutory command to consider the provision of

Id.; see also United States v. Brown, 429 F. App’x 82 (3d Cir. 2011). In Brown, the Third
Circuit remanded the case for resentencing where the district court did not “sufficiently explain” why it
believed the BOP could provide specialized cardiology treatment that the defendant’s doctor “testified
he needed but that the prison appears not to be able to deliver.” Id. at 86. Accordingly, it was “unclear”
how the custodial sentence would satisfy § 3553(a)(2)(D). Id.
121
United States v. Autery, 555 F.3d 864, 876–77 (9th Cir. 2009).
122
Id. at 877. The defendant’s Guidelines range was forty-one to fifty-one months. Id. at 867. The
government recommended a fifty-one month sentence and defense counsel “urged the court to impose a
sentence at the bottom of the Guidelines range.” Id.
123
Id.
124
Id.
125
United States v. Edwards, 595 F.3d 1004, 1011 (9th Cir. 2010).
126
Id.
127
Id.
128
Id. at 1018. The Ninth Circuit made clear it was giving “due deference” to the district court’s
application of § 3553(a) and noted that the district court sufficiently addressed the history and
characteristics of the defendant, specific and general deterrence, protection of the public, and the need
to avoid unwarranted sentencing disparities. Id. at 1015–18.
129
United States v. Maier, 975 F.2d 944, 946 (2d Cir. 1992).
120

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treatment in the most effective manner.130 In an important holding, the Maier
court concluded that such a rehabilitation-based departure was permissible. It
noted that because “rehabilitation may not be a basis for incarceration but must
be considered as a basis for a sentence, Congress must have anticipated that
sentencing judges would use their authority, in appropriate cases, to place a
defendant on probation in order to enable him to obtain ‘needed . . . medical
care, or other correctional treatment in the most effective manner.’”131
The Seventh Circuit has affirmed that § 3553(a)(2)(D) can be an important
sentencing consideration, but it expects such arguments to be documented with
ample evidence that the BOP is unable to effectively treat the defendant. For
example, in United States v. Tapes, the defendant argued for a belowGuidelines sentence because of serious medical issues, including blindness in
one eye, losing vision in his other eye, glaucoma, and the need for multiple
surgeries while in pre-trial custody.132 The district court did not grant the
defendant’s request for a lower sentence, in light of the seriousness of the
offense and the defendant’s extensive criminal history. The district court
specifically acknowledged that it had taken into account the defendant’s age,
physical ailments, and physical condition.133
The Seventh Circuit rejected the defendant’s claim that the sentence was
procedurally unreasonable because the district court had not properly
considered his medical problems. In particular, the court faulted the defendant
for not offering “a cogent argument as to why that characteristic should be
deemed a mitigating rather than aggravating factor.”134 As to the argument that
the sentence was substantively unreasonable, the court faulted the defendant
for failing to “show[] some [special] link between his eyesight and either the
length of his sentence or some special hardship, such as an inability to receive
medical care while in prison.”135 In fact, defense counsel’s representation that
the defendant had received multiple surgeries while in custody worked against
the argument that the defendant could not receive effective medical care in
prison.136 The result might have been different had defense counsel presented
evidence about why the defendant’s condition could not be effectively treated
in prison.
Some circuits have shown a willingness to seriously engage with
§ 3553(a)(2)(D) arguments, but they have done so inconsistently. The Eighth
and First Circuits are examples. In United States v. Whitehorse, an Eighth

130

Id. at 945.
Id. at 947; see also United States v. Williams, 65 F.3d 301, 305 (2d Cir. 1995) (relying on Maier
and affirming a downward departure so that the defendant would be eligible for acceptance into a
“special and selective” treatment program); United States v. Core, 125 F.3d 74, 78 (2d Cir. 1997)
(superseded by Quesada Mosquera v. United States, 243 F.3d 685 (2d Cir. 2001)) (“The successful
rehabilitation of a criminal . . . is a valuable achievement of the criminal process. The Act recognizes
this by requiring sentencing courts to consider ‘the need for the sentence imposed . . . to provide the
defendant with needed education and vocational training.’”). At the time the Maier case was decided,
there was a circuit split about whether a downward departure to account for rehabilitation needs was
permissible under the mandatory Guidelines regime. See Maier, 975 F.2d at 946.
132
United States v. Tapes, 570 F. App’x 614, 615 (7th Cir. 2014).
133
Id.
134
Id. at 616 (citing United States v. Donelli, 747 F.3d 936, 940 (7th Cir. 2014)).
135
Id.
136
Id.
131

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Circuit case, the district court granted the defendant’s request for a downward
departure and the government appealed.137 The district court was clear that it
did “not want the Bureau of Prisons to control” the defendant’s alcohol
treatment because prior treatment efforts in prison had failed.138 The district
court opined that the defendant would be better served by alcohol treatment in
the community, “where she can be exposed to some daily risk, some daily
temptation, some daily danger, and overcome that.”139 The Eighth Circuit
found that this was not an abuse of discretion and was, in fact, “especially
appropriate” in light of § 3553(a)(2)(D)’s statutory command.140 Similarly, in
United States v. Wadena, the Eighth Circuit made clear that the district court
has ample discretion to decide how a defendant will receive treatment in the
most “efficient and effective” manner.141 The court also concluded that the
district court need not make a finding that the defendant cannot receive
treatment in the BOP in order to impose a non-prison sentence.142 In United
States v. Molignaro, the First Circuit affirmed the importance of §
3553(a)(2)(D) and § 3583(a), holding that Tapia’s prohibition against
imposing or lengthening sentences to promote rehabilitation extended to
resentencing following revocation of supervised release.143
2. Courts of Appeals’ Approach 2: Discounting § 3553(a)(2)(D)’s Mandate
and Overvaluing the BOP’s Capacity to Provide Treatment and
Rehabilitation
In contrast to the cases discussed above, the Eighth Circuit and other
courts of appeals often discounted § 3553(a)(2)(D)’s mandate and do not
acknowledge that the BOP is not equipped to provide adequate, let alone
effective, rehabilitation and treatment.
The Eighth Circuit, while taking § 3553(a)(2)(D) arguments seriously in
some cases, has also treated the argument dismissively, with little discussion in
others. United States v. Callahan is one example. There, the defendant argued
that his sentence was unreasonable because the district court failed to consider
“the need to provide [him] with medical care” pursuant to § 3553(a)(2)(D).144
The Eighth Circuit concluded that the district court “adequately considered the
need to provide [the defendant] with medical care” because the district court
reviewed medical reports, heard testimony about the defendant’s illnesses, and
considered the presentence investigation report.145 Nowhere in its oneparagraph discussion of the issue does the court mention § 3553(a)(2)(D)’s
mandate that the district court’s sentence provide medical care in “the most
effective” manner. Likewise, in United States v. McFarlin, the Eighth Circuit
misstated § 3553(a)(2)(D)’s command, while affirming the district court’s
137

United States v. Whitehorse, 909 F.2d 316, 317 (8th Cir. 1990).
Id. at 319.
139
Id.
140
Id. at 319–20.
141
United States v. Wadena, 470 F.3d 735, 739 (8th Cir. 2006).
142
Id.
143
United States v. Molignaro, 649 F.3d 1, 2–3 (1st Cir. 2011).
144
United States v. Callahan, 800 F.3d 422, 426 (8th Cir. 2015).
145
Id.
138

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sentence of probation.146 The defendant had a documented history of serious
medical conditions, including severe coronary artery disease, severe peripheral
vascular disease, and asthma that required numerous prescription
medications.147 The Eighth Circuit concluded the district court’s sentence was
appropriate because “a court may consider the need for medical care when
determining a sentence.”148 But § 3553(a)(2)(D) is not permissive; it requires
the district court to consider a defendant’s treatment needs.149
The First Circuit has made clear that § 3553(a)(2)(D) is but one
“consideration among many, and does not require the court to grant certain
requests.”150 In United States v. Washington, the court reviewed the district
court’s sentencing decision for reasonableness.151 The court concluded that the
district court properly considered the sentencing factors and the defendant’s
“need for educational and vocational training and substance abuse treatment . .
. by encouraging him ‘to take advantage of every program in prison’ and
recommending that he be enrolled in the comprehensive drug treatment
program.”152 The defense counsel raised the § 3553(a)(2)(D) issue in a cursory,
one-paragraph argument in his sentencing filing that began by assuming,
without evidence, that “the Federal facilities will provide . . . education and
training.”153 Defense counsel then posited that a “large amount of incarceration
will hinder not help his future education and vocational training.”154 Putting
defense counsel’s deficient argument aside, the district court’s underlying
analysis—encouraging the defendant to take advantage of programming in
prison—does not satisfy the statutory command that the district court
determine what sentence will provide “the most effective” treatment, keeping
in mind Congress’s directive that imprisonment is not an appropriate way to
promote rehabilitation.155
Similarly, in United States v. Dixon, a pre-Tapia case, the First Circuit
upheld the district court’s sentence as reasonable, where the district court had
“cleared [the defendant] to participate in the correctional facility’s 500-hour
drug treatment program, suggested that the Bureau of Prisons consider . . .
psychological evaluations . . . and noted that the correctional facility would be
well-equipped to deal with [the defendant’s] mental health needs.”156 It is not
clear on what evidence the district court based its conclusion.157

146

United States v. McFarlin, 535 F.3d 808, 810 (8th Cir. 2008).
Id.
148
Id. at 811 (emphasis added).
149
18 U.S.C. § 3553(a)(2)(D) (2012).
150
United States v. Butler-Acevedo, 656 F.3d 97, 101 (1st Cir. 2011) (“[T]he fact that the district
court chose not to sentence Butler according to his counsel’s recommendation does not establish that it
failed to consider the relevant factors.”).
151
United States v. Washington, 187 F. App’x 3 (1st Cir. 2006).
152
Id. at 5.
153
Def.’s Mot. for Downward Departure, at 7 (in United States v. Washington, No. 05-12-P-H (D.
Me. 2006)).
154
Id.
155
18 U.S.C. § 3553(a)(2)(D) (2012); 18 U.S.C. § 3582(a) (2012).
156
United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).
157
Id.
147

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3. Courts of Appeals’ Approach 3: Cursory Engagement with § 3553(a)(2)(D)
and Deference to District Courts
Some circuits engage with § 3553(a)(2)(D) only cursorily, and with
deference to district courts. One example is in the Second Circuit’s decision in
United States v. Chase. There, the court rejected the defendant’s claims that his
fifty-year sentence for sexual exploitation of a child through the production of
child pornography was substantively unreasonable because it failed to account
for his need for mental health and sex offender treatment, which he argued
would be provided most effectively “outside of prison.”158 The court defended
the district court, explaining that the judge had “explicitly recognized” the
need for appropriate treatment, but had ultimately concluded that other §
3553(a) considerations—such as the seriousness of the offense, the need for
significant incapacitation, and deterrence—necessitated a long sentence.159 The
Chase case illustrates one of the hurdles to making a successful
§ 3553(a)(2)(D) argument: Ultimately, it is just one factor for the district court
to consider and it is unlikely to carry the day in a particularly serious case in
which the Guidelines call for a lengthy sentence. Moreover, as long as the
district court does not entirely ignore § 3553(a)(2)(D), the appellate court is
unlikely to reverse.
A similar pattern emerges in the Fourth Circuit.160 In United States v.
Dailey, the defendant challenged the reasonableness of his within-Guidelines
sentence on the basis of his need for medical care.161 The court found no error
where the district court “properly weighed each of the factors” and as a result
“sentenced [the defendant] at the bottom of the Guidelines range and
recommended that [he] be assigned to a facility which would be able to treat
his medical condition.”162 In another case, the Fourth Circuit overturned the
district court’s time-served sentence because the district court “focuse[d] so
heavily” on § 3553(a)(2)(D) to the exclusion of other sentencing factors.163
The district court had stated on the record that a time-served sentence would
serve “the treatment goals . . . under 18 U.S. Code 3553(a)(2)(D) [so that they]
would not be defeated.”164
4. Courts of Appeals’ Approach 4: Violating or Misapprehending
§ 3553(a)(2)(D)’s Statutory Command
Several courts of appeals outright violate § 3553(a)(2)(D)’s statutory
command by conflating the language of the statute—the need for the sentence
to provide rehabilitation “in the most effective manner”—with the need to

United States v. Chase, 695 F. App’x 601, 604 (2d Cir. 2017).
Id. at 604–05.
160
It is notable that the Fourth Circuit ascribes a presumption of reasonableness to a withinGuidelines sentence on appeal. See, e.g., United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006).
This presumption makes it much more difficult for defendants to challenge a within-Guidelines
sentence on reasonableness grounds, even if the issue is well-preserved below.
161
United States v. Dailey, 189 F. App’x 212 (4th Cir. 2006).
162
Id. at 217.
163
United States v. Zuk, 874 F.3d 398, 410 (4th Cir. 2017).
164
Id.
158
159

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provide rehabilitation in an “adequate” manner, thus significantly diminishing
the statute’s force. For example, in United States v. Carpenter, the Sixth
Circuit rejected the defendant’s argument that the district court had erred by
not granting a downward variance under § 3553(a)(2)(D), noting that “while
[the defendant] does have health problems, he has offered no evidence that the
BOP is unable to provide adequate medical care.”165 Similarly, in United
States v. Carthen, the court, in stating what § 3553(a)(2)(D) required, simply
omitted the word “effective” with an ellipses: “Section 3553(a)(2)(D) provides
that a district court must consider ‘the need for the sentence imposed—to
provide the defendant with needed . . . medical care.’”166 The omission of the
word “effective,” of course, drastically changes and devalues the statutory
command.
The Second Circuit has also violated § 3553(a)(2)(D)’s statutory command
at times. In United States v. Jones, the defendant argued that his sentence for a
supervised release violation was substantively unreasonable because the
district court did not adequately consider the need for treatment and
rehabilitation.167 The court, in a cursory analysis, explained that the district
court’s refusal to impose “another sentence of drug treatment” was not
unreasonable because the district court stated on the record that it had
previously sentenced the defendant to a halfway house for a previous violation,
but that within a day, the defendant had left and violated the conditions of his
supervised release.168 Although the opinion was short, the Second Circuit went
out of its way to assert that “[w]hile a district court has discretion to consider a
defendant’s medical or treatment needs in determining a sentence, it is not
required to do so.”169 This finding is a clear violation of the statute, which
requires the district court to consider the defendant’s rehabilitation needs.
The Tenth and Eleventh Circuits have downplayed and/or misapprehended
§ 3553(a)(2)(D)’s statutory command. In United States v. Pielsticker, the Tenth
Circuit affirmed the district court’s sentence, which considered the need “to
provide the defendant . . . with medical care.”170 Nowhere does the court
mention that the sentence must provide such treatment in “the most effective”
manner. Similarly, in United States v. Vente, the Eleventh Circuit affirmed the
district court’s sentence, explaining that the district court specifically noted the
defendant’s “educational and vocational aspirations,” which showed
“consideration of the need of the sentence imposed to provide [the defendant]
with needed education or vocational training.”171 That, of course,
misapprehends what the statute requires.
United States v. Carpenter, 359 F. App’x 553, 558 (6th Cir. 2009) (emphasis added).
United States v. Carthen, 458 F. App’x 428, 433 (6th Cir. 2012).
167
United States v. Jones, 369 F. App’x 171 (2d Cir. 2010).
168
Id. at 173.
169
Id.
170
United States v. Pielsticker, 678 F. App’x 737, 750 (10th Cir. 2017) (citing 18 U.S.C.
3353(a)(2)(D) (2012)); see also United States v. Adams, 751 F.3d 1175, 1182–83 (10th Cir. 2014)
(“[T]he district court expressly noted most of the factors under 18 U.S.C. § 3553(a) . . . [including] the
need to provide Defendant with educational or vocational training and medical care to promote a lawful
lifestyle.”); United States v. Haley, 241 F. App’x 579, 586 (10th Cir. 2007) (“[A]lthough one of the §
3553(a) factors requires the court to consider the need for the sentence imposed to provide the
defendant with needed correctional treatment . . . it is but one factor.”).
171
United States v. Vente, 179 F. App’x 681, 683–84 (11th Cir. 2006).
165
166

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III. PROPOSED SOLUTION: VIGOROUS DEFENSE ADVOCACY THAT
ENCOURAGES SERIOUS CONSIDERATION OF § 3553(a)(2)(D) AND
ACKNOWLEDGES THE BOP’S LIMITATIONS ON PROVIDING
REHABILITATION AND TREATMENT IN THE “MOST EFFECTIVE”
MANNER

It is clear from a review of the cases that it will be ineffective in most
courts for defense counsel to simply invoke § 3553(a)(2)(D)’s language
without tying it to a particular rehabilitation or treatment concern and to
evidence that the BOP cannot effectively provide care. For example, in Tapes,
the Seventh Circuit offered a pointed critique of defense counsel’s argument in
the district court: “Tapes would have a stronger argument if he had shown
some link between his eyesight and either the appropriate length of his
sentence or some special hardship, such as an inability to receive adequate
medical care while in prison.”172 In Carpenter, the Sixth Circuit rejected the
defendant’s § 3553(a)(2)(D) argument because although defense counsel noted
the defendant’s health problems, he “offered no evidence” that the BOP was
unable to provide “adequate medical care.”173
One solution to courts’ failures to abide by § 3553(a)(2)(D) and
acknowledge the BOP’s serious limitations to providing adequate
rehabilitation and treatment is vigorous defense advocacy. Defense counsel
should raise the arguments clearly at sentencing—orally and in writing—and
support them with evidence. By the same token, federal prosecutors should
acknowledge what studies and even the DOJ’s Inspector General have found:
the BOP faces numerous hurdles to providing “the most effective” care for
defendants due to overcrowding, staffing shortages, high medical costs, and
budget cuts.
As a starting point, defense counsel should make clear to district court
judges that the statute requires that the sentence provide rehabilitation and
treatment in “the most effective manner.” Too many courts have watered down
§ 3553(a)(2)(D)’s statutory command by reframing it as the need to provide
“adequate” care and describing the directive as discretionary. To the contrary,
§ 3553(a)(2)(D)’s language leaves no room for these erroneous
interpretations—the statute directs that courts “shall” consider the need for the
sentence to provide rehabilitation and treatment in “the most effective
manner.”174 That the BOP often cannot meet this high bar does not change §
3553(a)(2)(D)’s plain language or diminish its force.
The argument that a sentence of incarceration violates § 3553(a)(2)(D)’s
mandate will be most compelling if defense counsel presents specific evidence
that an out-of-custody alternative will provide “the most effective” care and
that the BOP cannot do so. In making this argument, defense counsel can rely
United States v. Tapes, 570 F. App’x 614, 616 (7th Cir. 2014).
United States v. Carpenter, 359 F. App’x 553, 558 (6th Cir. 2009).
174
18 U.S.C. § 3553(a) (2012); id. § 3553(a)(2)(D).
172
173

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heavily on Congress’s pronouncement that “imprisonment is not an appropriate
means of promoting correction and rehabilitation.”175 This is about as clear a
statement as Congress could make that prison does not rehabilitate people.
Counsel can also rely on Tapia’s clear prohibition that “a court may not
impose or lengthen a prison sentence to . . . promote rehabilitation.”176 Tapia’s
holding was based, in part, on the fact that judges have no mechanism for
requiring defendants to participate in BOP programs, nor for guaranteeing that
such programs will be available to defendants in BOP custody.177 To the
contrary, judges can require participation in rehabilitative programs as a
condition of probation or supervised release, which supports the argument for a
non-incarceration sentence.
Because there was a circuit split before Tapia about whether a district
court could impose or lengthen a prison sentence to promote rehabilitation and
because “[a]s a practical matter . . . district courts . . . relied on section §
3553(a)(2)(D) to impose a lengthier sentence in order for a defendant to meet
the eligibility requirements for an institutional program that he or she would
otherwise be ineligible for under a shorter sentence,”178 defense counsel should
be wary of pre-Tapia case law. For example, the Fifth Circuit’s pre-Tapia case
law now violates the case’s holding that the district court may not impose or
lengthen a prison term to promote rehabilitation. In United States v. Domingue,
the defendant challenged the reasonableness of his sentence and pointed to the
district court’s imposition of a prison term in part so that the defendant would
receive drug treatment in the BOP.179 The court explained: “[W]e have
affirmed many sentences, including above-guidelines sentences, based, in part,
on a defendant’s need for treatment.”180 This is no longer good law.
Defense counsel should also present evidence and data to support the
argument that a non-incarceration sentence will provide rehabilitation and
treatment in “the most effective manner.” First, defense counsel should
elaborate on the treatment the defendant would receive in the community and
why that treatment would be superior to what the defendant would receive in
BOP custody. To do that, counsel should diligently investigate rehabilitation
and treatment options in the community and retain experts to explain why such
treatment would be “the most effective” for the defendant.181 Counsel should
also rely on the evidence and data182 to explain to the courts why the BOP
often cannot provide adequate, let alone effective, rehabilitation and treatment.
Counsel can ascertain the most up-to-date information by calling BOP
facilities to inquire about, for example, their treatment programs and
psychologist staffing ratios or request this information through the Freedom of

175

18 U.S.C. § 3582(a) (2012).
Tapia v. United States, 564 U.S. 319, 335 (2011).
177
Id. at 331.
178
United States v. Censke, 449 F. App’x 456, 470 (6th Cir. 2011).
179
United States v. Domingue, 413 F. App’x 680, 682 (5th Cir. 2010).
180
Id.
181
Attorneys appointed to a criminal case under the Criminal Justice Act can request “[i]nvestigative,
expert, or other services necessary to adequate representation” that are paid by the courts. See U.S. COURTS,
GUIDELINES FOR THE ADMINISTRATION OF THE CRIMINAL JUSTICE ACT, ch. 3, §§ 310.10.10, 310.20.10.
182
See discussion supra Part II.A.
176

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Information Act.183 Counsel can also review publicly-available BOP program
statements related to medical and mental health care and other treatment.184
Finally, defense counsel should address how compliance with §
3553(a)(2)(D)’s directive promotes other § 3553(a) sentencing goals. For
example, the government might argue that even if § 3553(a)(2)(D) weighs in
favor of a non-incarceration sentence, such a sentence will not provide “just
punishment.”185 The Supreme Court, however, has made clear that a nonincarceration sentence is, indeed, punishment because probationers are
“subject to several standard conditions that substantially restrict their
liberty.”186 In addition, a sentence of probation means that the defendant “will
not be able to change or make decisions about significant circumstances in his
life, such as where to live or work, which are prized liberty interests,” without
the permission of his probation officer or the court.187 At the same time, a nonincarceration sentence allows a defendant to rehabilitate in the community. As
the Federal Probation Department has aptly explained, a non-incarceration
sentence “holds people accountable for breaking the law” while “cost[ing] less
than incarceration and giv[ing] people charged with or convicted of federal
crimes the opportunity to live with their families, hold jobs, and be productive
members of society.”188 To ensure that a non-incarceration sentence has teeth,
Congress has directed that if a defendant violates the conditions of his
probation or supervised release, he can be sentenced to “any . . . sentence that
initially could have been imposed” in the case of probation and an additional
prison term in the case of supervised release.189 On top of all of that, a federal
felony conviction carries significant collateral consequences regardless of
whether an incarceration sentence is imposed.190
The government might also argue that a non-incarceration sentence will
not “afford adequate deterrence to criminal conduct” or “protect the public
from further crimes of the defendant.”191 However, studies show rehabilitation
and treatment reduce recidivism.192 Moreover, prison can exacerbate a

183

See Freedom of Information Act, BOP, https://www.bop.gov/foia/ - tabs-0 (last visited Dec. 16,

2018).
184
See FED. BUREAU OF PRISONS, DIRECTORY OF NATIONAL PROGRAMS (2017),
https://www.bop.gov/inmates/custody_and_care/docs/20170914_BOP_National_Program_Catalog.pdf;
PROGRAM STATEMENT NO. P6031.04, supra note 75; PROGRAM STATEMENT NO. P5310.17, supra note 91.
185
18 U.S.C. § 3553(a)(2)(A) (2012).
186
Gall v. United States, 552 U.S. 38, 48 (2007).
187
Id. at 44 (citing United States District Judge Robert Pratt’s statement of reasons in Gall for
imposing probation, rather than several years in prison).
188
See United States Probation and Pretrial Services System-Supervision, U.S. CTS.,
http://www.uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-pretrial-servicessupervision (last visited Dec. 16, 2018).
189
See 18 U.S.C. § 3565(a)(2) (2018); 18 U.S.C. § 3583(e)(3) (2012).
190
Margaret Colgate Love, Federal Sentencing & Collateral Consequences, COLLATERAL
CONSEQUENCES
RESOURCE
CTR.
(April
15,
2016),
http://ccresourcecenter.org/wpcontent/uploads/2016/05/CCRC-Federal-Sentencing-Collateral-Consequences-4-2016.pdf; see also
Nora V. Demleitner,“Collateral Damage”: No Re-Entry for Drug Offenders, 47 VILL. L. REV.1027
(2002); Welcome to the NICCC, NAT’L INVENTORY COLLATERAL CONSEQUENCES CONVICTION,
https://niccc.csgjusticecenter.org/ (last visited Dec. 16, 2018).
191
18 U.S.C. § 3553(a)(2)(B)–(C) (2012).
192
See NATIONAL INSTITUTE ON DRUG ABUSE, PRINCIPLES OF DRUG ADDICTION TREATMENT
(1999), http://www.drugabuse.gov/sites/default/files/podat_1.pdf; see also Joan Petersilia, Parole and
Prisoner Reentry in the United States, 26 CRIME & JUST. 479, 518 (1999) (stating that “‘a growing body

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18 U.S.C. § 3553(a)’S UNDERVALUED SENTENCING COMMAND

75

defendant’s recidivism risk by interfering with mental and physical health,
ongoing treatment, job prospects, and family bonds.193 In United States v.
Autery, the Ninth Circuit affirmed a sentence of probation where the district
court found that “incarceration would undermine [the defendant’s]
rehabilitation.”194 Likewise, in United States v. Maier, the Second Circuit
affirmed a sentence of probation, where the district court concluded that the
defendant, if incarcerated, “would be unable to continue [drug] treatment in an
effective manner.”195
The next solution to the undervaluing of § 3553(a)(2)(D) is for courts to
faithfully abide by the statutory directive and impose non-incarceration
sentences when the defendant will receive rehabilitation and treatment in “the
most effective manner” in the community, provided that such a sentence
complies with the other § 3553(a) considerations. To ensure compliance with
the statutory directive, courts should be wary of “boilerplate assurances” from
the BOP that “its facilities adequately provide for a defendant’s medical
care.”196 Even non-boilerplate assurances of “adequate” care do not satisfy the
statutory mandate. The focus must always be on what sentence will provide
rehabilitation and treatment in “the most effective manner.”
In August 2018, United States District Court Judge Myron Thompson
began requiring defense counsel to file a statement, in advance of sentencing,
that discusses (1) whether defense counsel wants the court to recommend BOP
programming, what kind, and why; and (2) whether defense counsel wants the
court to recommend mental health treatment and if so, what kind and the
defendant’s diagnosis.197 Judge Thompson then incorporates those
recommendations into the judgment and commitment form. While Judge
Thompson’s efforts are laudable, they do not substantively address BOP’s
serious challenges to providing adequate, let alone “the most effective,”
rehabilitation and treatment, nor do they square with Congress’s clear directive
that imprisonment is not an appropriate means of promoting “correction and
rehabilitation.”198 Even with a judge’s order, the BOP is not required to
provide non-essential programming and treatment.199 Nonetheless, if more
district courts begin recommending specific programming and treatment and
documenting their requests, it may stave off future cuts to such programs.200
of research’ shows that voluntary or mandatory drug treatment can reduce recidivism, especially when
treatment is matched to offender needs”) (emphasis added).
193
See Christopher Wildeman & Bruce Western, Incarceration in Fragile Families, 20 FUTURE
CHILDREN 157 (2010), http://futureofchildren.org/futureofchildren/publications/docs/20_02_08.pdf
(discussing the destabilizing effects of prison on a man’s mental and physical health, job prospects,
earning potential, and family bonds).
194
United States v. Autery, 555 F.3d 864, 877 (9th Cir. 2009).
195
United States v. Maier, 975 F.2d 944, 946 (2d Cir. 1992).
196
United States v. Poetz, 582 F.3d 835, 838 (7th Cir. 2009). In Poetz, the Seventh Circuit
remarked that “nothing prevents a judge from accepting the BOP’s nonboilerplate assurances of
adequate care.” Id. (emphasis added); see also United States v. Gee, 226 F.3d 885 (7th Cir. 2000). As
discussed in Part II.B, supra, this observation misstates the thrust of § 3553(a)(2)(D)’s command to
provide treatment in the “most effective” manner, not just adequately. 18 U.S.C. § 3553(a)(2)(D).
197
See e.g., Suppl. Sentencing Order Regarding BOP Programs and Treatments, at 3–4, Aug. 29,
2018 (in United States v. Coleman, No. 2:18-CR-93-MHT(WO) (M.D. Ala.)).
198
18 U.S.C. § 3582(a) (2012).
199
See Tapia v. United States, 564 U.S. 319, 331 (2011).
200
If the district judge has rejected a defendant’s request for a non-incarceration sentence in spite of
evidence that the BOP cannot provide “needed educational or vocational training, medical care, or other

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NOTRE DAME J. INT’L & COMP. L.

vol. 9:1

CONCLUSION
In spite of the SRA’s clear statutory command, courts routinely
undervalue, ignore, or even violate § 3553(a)(2)(D), when imposing a
sentence. This must change. Courts should account for the BOP’s significant
challenges to providing treatment and rehabilitation to inmates in “the most
effective manner” when sentencing defendants and defense counsel should
make these realities clear to the courts with evidence.

correctional treatment in the most effective manner,” defense counsel should request that the district
judge document the defendant’s rehabilitation and treatment needs in an order.

Electronic copy available at: https://ssrn.com/abstract=3608186