     Authority to Advance Funds to Cuban Detainees To Purchase
                         Commissary Items


T h e D irecto r o f the B ureau o f Prisons h a s the authority under 18 U .S.C . § 4042 to direct that m oney
     from general prison operating funds b e advanced to indigent C uban detainees as a credit to their
    co m m issary accounts.

                                                                                         March 30, 1988

                           M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
                                          B u r e a u o f P r is o n s

   You have asked our opinion on the question whether you have authority to di­
rect that certain indigent Cuban detainees in secured housing status in federal
prisons be advanced from general prison operating funds a small sum of money
each month, as a credit to their commissary accounts, to purchase items from the
com m issary.' In your memorandum of March 1, 1988, you point out that, be­
cause of their secured housing status, the detainees in question can be given no
opportunity to earn money by working in a prison assignment. You further state
that they are housed under particularly stressful circumstances, with few of the
opportunities other inmates have for relaxation and recreation. In your view it is
necessary to provide a way for these individuals to purchase items from the prison
commissary such as magazines and cigarettes, in order to avoid possible violence.
   In his memorandum of March 7,1988, your General Counsel states that, in his
opinion, authority to make the advances in question is implicit in the general au­
thority given the Director of the Bureau of Prisons in 18 U.S.C. § 4042(2) to pro­
vide for the “safekeeping, care, and subsistence” of all inmates in federal pris­
ons. He notes that section 4042(2) has been regarded as the source of the
Director’s authority to provide inmates with “basic and necessary items of hy­
giene, such as soap, toothpaste and toothbrushes.” In his opinion that section also
authorizes the provision of less essential items, “where, as here, the items are
considered to be important if not essential to maintain calm in a group that has
proved itself highly disruptive.” For reasons set forth below, we agree that it is
within your authority to direct that these advances be made.
   The general authority of the Attorney General in directing the Bureau of Pris­
ons, which has been delegated to the Director in 28 C.F.R. § 0.96, is set forth in

    1    The specific amount you suggest is $15 per month. As a credit to each inmate’s account at the commissary,
this sum could be used to purchase any items available in the commissary, including postage stamps, snacks, mag­
azines, and cigarettes. The advance would b e considered a loan to be repaid when possible, not a gift.


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 18 U.S.C. § 4042. As relevant here, subsection (I) gives the Bureau charge of
the “management and regulation” of all federal penal institutions; subsection (2)
directs the Bureau to provide “suitable quarters” for inmates, and for their “safe­
keeping, care, and subsistence”; and subsection (3) directs the Bureau to provide
“protection, instruction, and discipline” to inmates. These general formulations
first appeared in the 1930 statute that established the federal prison system un­
der the direction of the Bureau of Prisons, see Pub. L. No. 71-218, 46 Stat. 325
(1930). The precise meaning of the terms employed in section 4042 is not dis­
cussed in the legislative history of the 1930 statute, nor is the more general ques­
tion of the Attorney General’s authority under this section. And, we have been
informed by your General Counsel that neither has ever been given formal ad­
ministrative construction that would be relevant in this situation. It also appears
to be the case, again based on our discussion with your General Counsel’s office,
that the Bureau has never before implemented a policy of making loans to in­
mates to permit them to purchase items at the prison commissary.
   With this background in mind, we turn to the principles that would apply in
testing the legality of the directive proposed in your March 1 memorandum. Over
the years courts have uniformly given a broad construction to the general man­
agerial and administrative powers of the Bureau of Prisons under section 4042.
They have accorded federal prison officials “wide ranging deference in the adop­
tion and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.”
Schlobohm v. United States Attorney General, 479 F. Supp. 401, 402 (M.D. Pa.
 1979). See also Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119,
 126 (1977) (recognizing the “wide-ranging deference to be accorded the deci­
sions of prison administrators”). Even in the face of constitutional challenges un­
der the Fifth and Eighth Amendments, courts have recognized the necessity of
giving federal prison officials wide latitude in providing for the care of inmates
and the management of penal institutions. See Bell v. Wolfish, 441 U.S. 520,
546-47, 560 (1979); Phillips v. Bureau of Prisons, 591 F.2d 966,972 (D.C. Cir.
 1979). In Bell, Justice Rehnquist noted that “maintaining institutional security
and preserving internal order and discipline are essential goals” of a prison ad­
ministrator, and that “[pjrison officials must be free to take appropriate action to
ensure the safety of inmates and corrections personnel.” 441 U.S. at 546-47. See
also Pell v. Procunier, 417 U.S. 817 (1974)(deference given state prison officials
in the face of a First Amendment challenge to prison regulations restricting in­
mates’ ability to publish writings).
   The deference that has been accorded the Bureau of Prisons in construing and
applying the statute which it administers is consistent with the general adminis­
trative law principles reaffirmed by the Supreme Court. See Chevron, U.S A. Inc.
v. Natural Resources Defense Council, Inc. 467 U.S. 837, 842-45 ( 1984)(“if the
statute is silent or ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a permissible construction
of the statute”); see also Clark-Cowlitz Joint Operating Agency v. FERC, 826
F.2d 1074, 1086 (D.C. Cir. 1987)(en banc), cert, denied, 485 U.S. 913 (1988).

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Under Chevron, if Congress has not “directly addressed the precise question at
issue,” then the only question is whether the agency’s interpretation of the statute
is “a reasonable one.” 467 U.S. at 843,845. Applying the legal principles set forth
in the foregoing paragraphs to the proposal at issue here, we see no basis upon
which to take issue with your judgment that it is within your discretionary au­
thority under section 4042 to expend Bureau of Prison funds in this fashion.2 No
statute expressly prohibits providing money advances to inmates; nor does your
current appropriations statute suggest such a limit on your ability to expend funds
to carry out your responsibilities under section 4042. Finally, we know of no gen­
eral bar on expending appropriated funds for the kinds of items that we under­
stand are generally available in prison commissaries. While section 4042 does
not “directly address” the question of money advances to inmates, we believe
that, especially in these circumstances, such advances are consistent with the con­
gressional intention expressed in the broad and general terms “safekeeping” and
“care” in subsection (2), as well as the term “protection” in subsection (3). We
have no basis for questioning your judgment that the expenditure of funds you
propose is in fact likely to help avert prison violence, and that it will thus be in
direct furtherance of your more general responsibilities under the statute. As such,
your construction of the statute seems to us both reasonable and permissible, as
we understand the Chevron C ourt’s use of those terms.
   In sum, under the general administrative law principles of the Chevron case,
and the more specific legal principles developed in caselaw interpreting the au­
thority of federal prison officials, we believe that the proposed directive is within
your authority under 18 U.S.C. § 4042.

                                                                      C h a r l e s J. C o o p e r
                                                                   Assistant Attorney General
                                                                    Office of Legal Counsel




    2   The fact that the funds wiU not actually be paid out to each inmate, but rather credited to their individual com­
m issary accounts at the commissary, does not strike us as having any independent legal significance, if the funds
are authorized to be expanded under section 4042. Nor does descnbing the credits as loans whose repayment is ex­
pected as soon as possible after an inmate’s release.


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