Criminal Practice – No Credit for Premature Prison Release

U.S. v. Grant (Lawyers Weekly No. 001-152-17, 11 pp.) (Motz, J.) No. 16-4258, July 6, 2017; USDC at Alexandria, Va. (Ellis, J.) 4th Cir.

Holding: A defendant who was prematurely released from federal prison is not entitled to credit on his sentence for the time he erroneously spent at liberty; assuming federal common law offers such relief, the district court did not improperly deny defendant this credit, the 4th Circuit says.

Probation Violation

Defendant was on probation after being convicted of PCP possession. While on probation, he was arrested for possession with intent to distribute marijuana and a Schedule I/II drug. A federal magistrate judge found him in violation of his supervised probation and remanded him to custody to serve 15 days, but he was released 11 days too early. He was arrested and ordered to serve the additional 11 days. The district court denied his request for credit for his time on release.

In the only instance in which we have considered a claim of credit for time erroneously spent at liberty, Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999), a state prisoner asserted a substantive due process right in his habeas petition under 28 U.S.C. § 2254. We rejected the claim and concluded the Constitution did not bar re-incarceration following a prisoner’s premature, negligent release from prison.

In White v. Pearlman, 42 F.2d 788 (10th Cir. 1930), an appellate court first recognized a federal common law right to credit for time erroneously spent at liberty. Since then, several of our sister circuits have also recognized, at least to some degree and in some circumstances, a federal common law right to credit for time erroneously spent at liberty. These cases apply two principles. First, a prisoner may not receive credit if he had a role in creating his premature release. Second, a prisoner has a right to credit if the government maliciously caused his premature release.

Federal Common Law

We are not at all sure a federal common law right for time erroneously spent at liberty currently exits. But given our holding in this case, we need not determine the continuing availability of such a credit. Rather, we assume without deciding that in some circumstances, federal common law offers prisoners the possibility of credit for time erroneously spent at liberty.

Here, defendant played no role in causing the premature release and the government did not act with malice when it negligently released him. Defendant seeks 10 days of credit for a 15-day sentence; he has paid only one-third of his debt to society. Given that he was allowed to serve this 10-day period on weekends or other days to accommodate his employment schedule, re-incarceration would at most only minimally hinder his reintegration into society. The government’s promptness in working to correct its mistake upon learning of its error underscores the lack of any malice on its part. We cannot say the government abused its discretion in denying defendant credit.

Judgment affirmed.