(xxviii) 26 U.S.C. 7403, which allows the filing of an action to enforce a lien, or to subject property to the payment of a tax, whether or not a levy has been made; the court may appoint a receiver to enforce the lien;

(xxix) 26 U.S.C. 7405, which allows a civil suit to be brought to recover erroneous refunds;

(xxx) 26 U.S.C. 7423, which authorizes the Secretary to allow repayment to an officer or employee of the United States of the full amount of sums that may be recovered against him in any court, for any taxes collected by him or any damages recovered against him in connection with anything done by him in the performance of his official duty;

(xxxi) 26 U.S.C. 7424, which permits intervention by the United States in any civil action to assert any lien on property which is the subject of the suit;

(xxxii) 26 U.S.C. 7425, which provides for the discharge of a lien where the United States is not a party to the suit, unless notice of the lien was filed in the place provided for by law, according to the law of the place where the property was situated; where a judicial sale discharges a lien, the United States may claim the proceeds (before their distribution is ordered) with the same priority that the lien had; the United States may also redeem real property sold to satisfy a lien, under certain conditions;

(xxxiii) 26 U.S.C. 7426, which provides for suits against the United States by persons claiming an interest in the property levied. where the levy is claimed to be wrongful, or where the person claims an interest in surplus proceeds; an exception is provided for the person against whom the tax was assessed, out of which the levy arose;

(xxxiv) 26 U.S.C. 7505 (a), which provides that any personal property acquired by the United States in payment of, or as security for, debts arising out of the internal revenue laws may be sold by the Secretary in accordance with prescribed regulations;

(XXXV) 26 U.S.C. 7506, which provides that the Secretary shall have charge of all real estate acquired by the United States pursuant to the internal revenue laws, and may sell or lease the property, or, if the debt has been paid, release it to the debtor;

(xxxvi) 26 U.S.C. 7508, which provides that certain acts relating to the operation of the internal revenue laws shall be postponed because of a war:

(xxxvii) 26 U.S.C. 7602, which authorizes the Secretary to examine books and records, summon the person having the custody of books and records to appear with them, and take testimony under oath for the purpose of determining liability under the internal revenue laws; (xxxviii) 26 U.S.C. 7603, which provides for service of an administrative summons:

(xxxix) 26 U.S.C. 7604, which provides for enforcement of the sum

mons:

(xl) 26 U.S.C. 7605, which covers the time and place of the examination authorized in section 7602, and provides for certain restrictions on the examination:

(xli) 26 U.S.C. 7622, which authorizes employees of the Treasury Department, designated by the Secretary, to administer oaths:

(xlii) 26 U.S.C. 7701, which defines terms used throughout the rest of the title;

(xliii) 26 U.S.C. 7805, which gives the Secretary authority to issue regulations governing enforcement of title 26, unless such authority is expressly granted to another person;

(xliv) 26 U.S.C. 7808, which authorizes the Secretary to designate one or more depositories in each State for the deposit and safe-keeping of money collected under the internal revenue laws;

(xlv) 26 U.S.C. 7809, which provides a procedure for deposit of all collections;

(xlvi) 26 U.S.C. 7810, which establishes a revolving fund for the redemption of real property, as provided in section 7425; and

(xlvii) section 513 of the Act of October 17, 1940, 54 Stat. 1190, which provides for the suspension of the statute of limitations, and the collection of taxes, for persons in military service.

The Committee intends that the specialized terminology relating to tax collection in the cross-referenced provisions of the Internal Revenue Code be read, for purposes of this subchapter, as relating to the collection of a criminal fine. Thus, the term "Secretary of the Treasury" would be read as "Attorney General" and the term "tax" would be read as "fine." To carry out this intention, section 3813 (c) authorizes Attorney General to issue regulations for administration of fine collection which utilize appropriate terminology.

Section 3813 (d) provides that a notice of a lien imposed under subsection (a) is to be considered a notice of a lien for taxes payable to the United States for the purpose of any State or local law providing for the filing of a notice of a tax lien. Because the lien created by a criminal fine is to be treated as if it were a tax lien, the filing provisions of 26 U.S.C. 6323 will apply to fines. If the Attorney General declares that State or local officials have determined that such filing is unacceptable, then 28 U.S.C. 1962, which provides for the registration, recording, docketing, or indexing of Federal court judgments, will apply instead.

Subsection (e) provides that moneys recovered under this section are to be accounted for by the Attorney General to the Administrative Office of the United States Courts and are to be forwarded to the Treasury for credit to the Criminal Victim Compensation Fund. This subsection provides that criminal fines collected under section 3813 will be used to pay victims of crime and that the courts will be notified of the disposition of cases involving sentences of fine.

SUBCHAPTER C.-IMPRISONMENT

(Sections 3821-3824)

Subchapter C contains the provisions for implementation of a sentence of imprisonment imposed under chapter 23. The subchapter generally follows existing law, except that custody of Federal prisoners is placed in the Bureau of Prisons directly rather than in the Attorney General, thus giving the Bureau of Prisons direct authority

42-525-75-29

to determine matters, such as the place of confinement of a prisoner, which are presently determined by the Attorney General. Provisions of law relating to the organization and responsibilities of the Bureau of Prisons have been moved to chapter 37 of title 28, United States Code.1

SECTION 3821. IMPRISONMENT OF A CONVICTED PERSON

This section is derived from existing law, except that subsection (d), relating to delivery of prisoners for court appearances, is new.

Section 3821 (a) is derived from 18 U.S.C. 4082 (a) except that the new provision places custody of Federal prisoners directly in the Bureau of Prisons rather than in the Attorney General. This change is not intended to affect the authority of the Bureau of Prisons with regard to such matters as place of confinement of prisoners, transfers of prisoners, and treatment, but is designed only to simplify the administration of the prison system. Direct custody of prisoners will be in the Bureau of Prisons, but the Director of the Bureau of Prisons will remain subject to appointment by the Attorney General 2 and subject to his direction.3

7

6

Section 3821(b) follows existing law in providing that the authority to designate the place of confinement for Federal prisoners rests in the Bureau of Prisons. The designated prison facility need not be in the judicial district in which the prisoner was convicted and need not be maintained by the Federal government. Existing law provides that the Bureau may designate a place of confinement that is available, appropriate, and suitable. Section 3821 (b) continues that discretionary authority in the Bureau, but, as to the availability or suitability of the facility selected, the Bureau is asked to consider such factors as the nature and circumstances of the offense, the history and characteristics of the prisoner, and any statements made by the sentencing court concerning the purposes for imprisonment in a particular case. After considering these factors, the Bureau of Prisons may designate the place of imprisonment in an appropriate type of facility described in new chapter 37 of title 28, United States Code, added to title 28 by the reported bill, or may transfer the offender to another appropriate facility. If, however, it is believed that the offender should be placed in a mental hospital, this can be done only by court order under the appropriate provisions of section 3614 (Hospitalization of a Convicted Person Suffering from Mental Disease or Defect), 3615 (Hospitalization of an Imprisoned Person Suffering from Mental Disease or Defect), or 3616 (Hospitalization of a Person Due for Release but Suffering from Mental Disease or Defect). In the absence of unusual circumstances, Federal courts currently will not review a decision as to the place of confinement. The Com

128 U.S.C. 571 et seq., as added to title 28 by section 725 of the reported bill.

2 Ibid.

3 Ibid.

4 18 U.S.C. 4082 (b).

United States v. McIntyre, 271 F. Supp. 991, 999 (S.D.N.Y. 1967), aff'd, 396 F.2d 859 (2d Cir. 1968), cert. denied, 393 U.S. 1054 (1969).

18 U.S.C. 3821 (b). See 28 U.S.C. 572 and 573, added to title 28 by section 725 of the reported bill.

For example, the court might indicate in the course of sentencing that one or more of the reasons set forth in section 101(b) justifies the sentence: (1) to assure just punishment for the offender's conduct; (2) to deter such conduct; (3) to protect the public from persons who engage in such conduct; and (4) to promote the correction and rehabilitation of the offender.

8 See Darsey v. United States, 318 F. Supp. 1346 (W.D. Mo. 1970).

mittee, by listing factors for the Bureau to consider in determining the appropriateness or suitability of any available facility, does not intend to restrict or limit the Bureau in the exercise of its existing discretion, but simply to set forth the appropriate factors that the Bureau should consider in making the designation.

Section 3821 (d), which is new, provides that the Bureau of Prisons shall deliver, without charge, a prisoner into court or return him to a prison facility on order of a court of the United States or on request of an attorney for the government.

SECTION 3822. TEMPORARY RELEASE OF A PRISONER

Section 3822 is derived from 18 U.S.C. 4082 (c), and permits temporary release of a prisoner by the Bureau of Prisons for specified reasons if such release does not appear to be inconsistent with the public interest and if there is reasonable cause to believe the offender will honor the trust placed in him.

Section 3822(a) lists the purposes for which a prisoner may be released for a period not to exceed thirty days, including visits to a dying relative, to attend the funeral of a relative, to obtain medical treatment not otherwise available, and to preserve or reestablish family or community ties. The coverage of the list and the discretionary power of the Bureau of Prisons to furlough inmates is slightly narrower than that set forth in 18 U.S.C. 4082 (c), with the addition of a specific caution concerning the public interest and with stylistic and language changes consistent with the rest of the new Criminal Code. Subsection (a) adds to the specifically listed reasons for temporary release the preservation or reestablishment of family or community ties. Like the other purposes for temporary release, this one would be discretionary with the Bureau of Prisons. It is intended that it be used to minimize the disruption of the prisoner's life caused by his incarceration to the extent that the Bureau of Prisons believes this can and should be done under the facts of a particular case, and within the limited thirty day period.

It should be noted that, although subsection (a) (1) and (a) (2) use the narrowly defined term "immediate family," the Committee does not intend to preclude visits to dying persons, or attendance at funerals of persons, who are members of the prisoner's household through living arrangements not formalized by marriage, if the Bureau of Prisons in its discretion believes that allowing such a visit is appropriate under the circumstances. Authority for a limited release is also to be found in the catch-all clause at the end of the subsection permitting release for any other significant purpose consistent with the public interest.9

Section 3822 (b) carries forward the provisions of 18 U.S.C. 4082 (c) (2) permitting temporary release of an offender, while continuing in official detention at the prison facility, for work at paid employment or participation in a training program in the community on a voluntary basis. Section 3822 (b) adds a new provision permitting temporary release to participate in an educational program to make it clear that release may be for such things as pursuing a course of study in college as well as for vocational training.

• Section 3822 (a) (6). This catch-all clause was modified from "compelling reasons" to "substantial reasons" in 18 U.S.C. 4082 (c) in 1973 by P.L. 93-209, 87 Stat. 907.

As with subsection (a), temporary release under subsection (b) is within the discretion of the Bureau of Prisons, and there is no absolute right to work release or other outside privileges.1

10

SECTION 3823. TRANSFER OF A PRISONER TO STATE AUTHORITY

Section 3823 delineates the circumstances under which the Director of the Bureau of Prisons must transfer a Federal prisoner to a State facility prior to his release from the Federal facility. The section is derived from 18 U.S.C. 4085 (a), except that language relating to appropriations is omitted as unnecessary.

Like 18 U.S.C. 4085, section 3823 provides that the Director of the Bureau of Prisons must order that a prisoner be transferred to an official detention facility within a State prior to the prisoner's release from the Federal prison facility if certain requirements are satisfied. First, the prisoner must have been charged in an indictment or an information with a felony or have been convicted of a felony in that State. Second, the transfer must have been requested by the governor or other executive authority of the State. Next, the State must send to the Director, usually along with the request, a certified copy of the indictment, information, or judgment of conviction. Finally, the Director must find that the tranfer would be in the public interest.

The last requirement of public interest places the entire transfer procedure directly within the discretion of the Director of the Bureau of Prisons. This granting of discretion to the Director follows closely section 3821(b) which permits the Bureau to designate the place of the prisoner's confinement, whether or not such place is maintained by the Federal government. Under both statutes, the exercise of discretion by the Bureau will not be disturbed except in exceptional circumstances.11 It should be noted that at no time is it necessary for the prisoner to consent to the transfer to State authorities. Moreover, genserally, a prisoner can have no valid objection to a transfer.12

In addition, the Committee wants to make it clear that the Federal government will not lose jurisdiction of any prisoner whose Federal sentence has not expired simply because it permits a State to take the prisoner into custody under this section.13 In most circumstances, however the Federal government may have to await the completion of State proceedings before regaining custody of the prisoner.

This section provides, and common sense dictates, that if more than one request from a State is presented with respect to a certain prisoner, the Director must determine which request, if any, should be given priority. This procedure, too, is within the discretion of the Director.

The Committee has deleted section 4085 (b) of present title 18, which provides that the section does not limit any other lawful authority to transfer prisoners, based upon a belief by the Committee that the provision is surplusage. The Interstate Agreement on Detainers is retained in chapter 32 of this title and general principles of statutory interpretation require that both statutes be read in conjunction with each other.

10 See Green v. United States, 481 F.2d 1140 (D.C. Cir. 1973).

11 See Little v. Swenson, 282 F. Supp. 333 (W.D. Mo. 1968).

12 Cf. Konigsberg v. Ciccone, 285 F. Supp. 585 (W.D. Mo. 1968), aff'd, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963 (1970).

13 See Potter v. Ciccone, 316 F. Supp. 703 (W.D. Mo. 1970).