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October 25, 2022

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

October 25, 2022 at 03:52 PM | Permalink


The primary custodian protocols are pretty straight forward, and are much like the rules for deeds filed in the public land records: "first in time is first in right"!

In criminal law, that means that the first sovereign to arrest and arraign a defendant has primary custody, and the second sovereign to indict or arrest and arraign the defendant has only secondary custody, subject to whatever the primary custodian does, in terms of convictions and sentencing. If Oklahoma arrested and arraigned this death penalty defendant before the U. S. Attorney's Office indicted him (for that series of armed robberies), then Oklahoma has first dibs on him and should be able to get a Federal Court to require the BOP to turn him over for execution.

About 2002, I saw a similar (but non-death penalty case) problem happen inside FCI - Manchester, Kentucky. An inmate had been in BOP custody, as an inmate in Federal prison for more than 2 years. He kept telling the staff that he was not supposed to be there, he was supposed to be serving time from a prior state case in a North Carolina state prison. The staff kept laughing at him and telling him that the BOP doesn't make mistakes like that. He filed administrative remedies on the issue, and eventually the BOP in D.C. admitted that he was correct. On his way out the door to North Carolina, the FCI staff apologized to him. At the time, these kinds of decisions and issues of time calculations were made inside the individual prisons. Since then (maybe about 2010), the BOP has opened a Centralized sentencing and time calculation center in Texas, to try to insure correct and consistent calculations and decisions across the BOP's 120-some odd prisons.

Posted by: Jim Gormley | Oct 25, 2022 5:57:47 PM

In some quick and dirty research on this topic, I came across a good article written in 2019: "Federal-State Sentence Interaction: Concurrent and Consecutive Sentences" (April 25, 2019) by Jamie Markham. Found at http://nccriminallaw.sog.unc.edu/federal-state-sentencing-interaction-concurrent-and-consecutive-sentences/.

The citations include 18 U.S.C. 3584(a), 18 U.S.C. 3621; U.S. v. Evans, 159 F.3d 908 (4th Cir. 1998); Magnum v. Hallembeck, 910 F.3d 770 (4th Cir. 2018); and U.S. v. Lynn, 912 F.3d 212 (4th Cir. 2019).

Of particular note is the U.S. Supreme Court's decision in "Setser v. United States", 566 U.S. 231 (2012), where the Court held that when a Federal Judge is faced with having to sentence a defendant in Federal Court before he has been sentenced in the state Court having primary jurisdiction, the Judge should state on the record whether the Federal sentence is to run concurrently or consecutively to the state sentence that has not yet been imposed!

Posted by: Jim Gormley | Oct 25, 2022 6:25:42 PM

I don't see it. The state officials disagree with the federal officials about where the public interest lies. Theres no APA review, theres no non-discretionary duty for mandamus, and determining where the public interest lies is not ultra vires given that the statute Grant's OP discretion.

Posted by: Jason | Oct 25, 2022 10:35:39 PM

Are you asserting, Jason, that BOP's determination of the "public interest" is not subject to review by a court in this context? Oklahoma's law suit claims otherwise, but I am not an Ad Law expert and so do not know if OK's claims are sound.

Posted by: Doug B. | Oct 26, 2022 10:03:00 AM

I, unfortunately, do believe that "public interest" is such a meaningless umbrella that it provides no judicially-enforceable standard and so must be left to the executive to determine in any particular case.

Posted by: Soronel Haetir | Oct 26, 2022 11:35:06 AM

Doug, I didnt conduct any original research but that is pretty much my impression. Despite the window dressing, the claim boils down to BOP badly misunderstanding the public interest. But the specific exclusion of the APA evidences Congress' intent to foreclose judicial review of BOP determinations in this area.

Posted by: Jason | Oct 26, 2022 12:42:24 PM

I think this situation goes far beyond mere administrative law and BOP decision making. It implicates Constitutional law, Dual Sovereignty and the legal power and authority between the states and the Federal Government to pursue and enforce their respective criminal laws and punishments. The issue should not be determined by the Supremacy Clause, but it might eventually be so. I would want to read the defendant's Federal Court sentencing transcript, to determine what his sentencing Judge said, if anything, about how his Federal sentence was to be served vis-a-vis the state homicide sentences. I predict that if Oklahoma pursues this, they might make (or confirm) some law at the U. S. Supreme Court. Instead of a Writ of Habeas Corpus Ad Prosequendem, Oklahoma needs to move under the All Writs Act for a Writ of Habeas Corpus Ad Executem!

Posted by: Jim Gormley | Oct 26, 2022 1:45:22 PM

I am not sure how public interest plays into this. Of course, the easy answer is to blame both sides. The normal rule is that first custody controls, but there are all types of circumstances in which the sovereign with priority concedes priority to the other sovereign.

I remember back when dinosaurs walked the earth in the 1990s when we had two defendants with a multi-state murder spree. The executive agreement worked out between the various states provided for the second state to get custody of the defendants for the purposes of their trials and for the two states to exchange custody as needed for collateral review proceedings. Whichever state got an execution date first would get the defendant(s) for the purposes of carrying out the execution.

Given how long it takes to carry out a death sentence, there was plenty of time for Oklahoma and the BOP to transfer the inmate to Oklahoma during prior administrations in consideration that only Oklahoma had a death sentence on this defendant. Waiting until now transforms what would have been a routine administrative request into a political issue. One argument that Oklahoma does have on its side would be that the federal action is depriving the Oklahoma death sentence of "full faith and credit."

Posted by: tmm | Oct 26, 2022 2:38:53 PM

If the state wanted to borrow him from the feds for purposes of facing trial on serious state charges, I can't see any reason that would justify the feds in refusing. And if the feds did loan him out for that purpose, and he died of a sudden heart attack in state custody, well, the feds wouldn't get him back and no serious person would question that.

The only thing that makes this case different is that the current bunch running DOJ doesn't like the death penalty, even though both the state and federal death penalties are legal.

If the feds can refuse the state request on grounds simply of different politics, then the old refrain of respect for federalism (see, e.g., a zillion posts about pot) seems not to ring particularly true.

Posted by: Bill Otis | Oct 26, 2022 6:35:10 PM

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