Outing v. Bell

632 F.2d 1144, 59 A.L.R. Fed. 738

Opinions

WIDENER, Circuit Judge:

Appellant, Don Curtis Outing, was convicted in August 1976 of armed robbery in the Western District of North Carolina and sentenced to twelve years’ confinement under the Youth Corrections Act, 18 U.S.C. § 5005 et seq. (YCA or Act). Following that conviction, Outing was confined in the Federal Correctional Institution at Peters-burg, Virginia. There, he was not segregated from adult offenders. In May 1977, he was convicted of assault with the intent to inflict bodily harm following an assault upon a fellow inmate at Petersburg. He was then sentenced to five years of confinement as an adult, to run consecutively to his YCA sentence. Outing is presently incarcerated in the Federal Correctional Institution at Ashland, Kentucky in the regular adult population.

Outing alleges that he was improperly confined at Petersburg with adult offenders in violation of 18 U.S.C. § 5011, which provides:

Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.

The Youth Corrections Act was passed by Congress in 1950 to promote the rehabilitation of youthful offenders so that they could become productive members of society. Through the YCA, Congress sought to prevent such youths from being adversely influenced by hardened criminals within the prison system. 1950 U.S.Code Cong. Service, pp. 3983-93.

We note initially that mandatory segregation of a YCA inmate is not required by the wording of the statute.¹ The YCA simply provides for segregation “insofar as practical.” Nothing in this record suggests a reason that we should go beyond the literal language of the Act to find a violation of the statute by Outing’s confinement at Petersburg prior to the conviction on the assault charge. That segregated confinement was practical is simply not shown by the plaintiff.²

We are told at oral argument that because facilities are now available (apparently they were not at the time of the first conviction), YCA inmates are presently in fact being segregated from adult offenders. Outing claims he must be so segregated during his present confinement, at least until the conclusion of his initial term of confinement imposed on account of the bank robbery, and by implication for the duration of his confinement because he claims if he had been segregated initially he would not have committed the assault.

Because there was no mandatory requirement to segregate Outing, his last contention is without merit, and under prison regulations Outing cannot presently be so segregated. He is no longer simply a YCA inmate, for he has both youth and adult sentences to serve. Policy statement 7300.-136 of the National Bureau of Prisons defines a YCA inmate as one sentenced under the YCA “who is not also sentenced to a concurrent or consecutive adult term, whether state or federal.” Since Outing has an adult sentence imposed for the assault which runs consecutively to his youth sentence, he does not fall within the definition of a YCA inmate under policy statement 7300.136 and therefore cannot be segregated.

He argues that the definition of a YCA inmate under statement 7300.136 is not authorized by the statute and that he retains his YCA status although he has been convicted of another crime and sentenced as an adult.

We think the construction of the statute which Outing asks us to adopt is contrary to the purposes of the Act. As noted, the Act was passed to promote the rehabilitation of youthful offenders. We do not think the mandatory confinement of an adult offender such as Outing with other youthful offenders is consistent with the intent of Congress. Just because Outing had a previous YCA sentence does not make him any the less an adult offender.³ Outing’s confinement with YCA inmates, themselves free of adult convictions, would be inconsistent, we think, with the intent of the statute to keep such inmates who are free of adult convictions segregated “insofar as practical.”

We are of opinion that policy statement 7300.136, in the language of the district court, “enhances the objectives of the Act and is clearly conforming to the language of the statute.”

Accordingly, the order of the district court granting summary judgment for the defendants is

AFFIRMED.

1

. See also Dorszynski v. United States, 418 U.S. 424, 435, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974), where the Court stated that “[a]n integral part of the treatment program was the segregation of the committed persons, insofar as practicable, so as to place them with those similarly committed, to avoid the influence of association with the more hardened inmates serving traditional criminal sentences.” (Italics added.)

2

. Abernathy v. United States, 418 F.2d 288 (5th Cir. 1969), is generally in accord with our holding, and United States ex rel. Dancy v. Arnold, 572 F.2d 107 (3d Cir. 1978), does not agree.

3

. Roddy v. United States, 509 F.2d 1145 (10th Cir. 1975); Nast v. United States, 415 F.2d 338 (9th Cir. 1969).