BOP and Lawyers Fight Over Deal To Remove Clare Bronfman’s “Sex Offender” Tag

Clare Bronfman is attempting to re-open the habeas corpus petition she had previously filed against the Federal Bureau of Prisons (BOP) and FCI-Danbury.

The Stipulation of Dismissal filed last November in Connecticut Federal Court reads as follows:

On July 5, 2022, Petitioner Clare Bronfman filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. On October 14, 2022, she filed an amended petition. ECF No. 32. The parties agree that, as of November 9, 2022, the petitioner’s Bureau of Prisons classification does not include a “sex offender” public safety factor. In light of the foregoing, the petitioner and respondents agree to dismiss the instant petition without prejudice, pursuant to Fed. R. Civ. P. 41(a)(ii). Each party agrees to bear their own fees and costs.

The real issue in the case was the “Sex Offender” tag, as Public Safety Factor (PSF) applied administratively by the BOP. Sex Offenders are precluded from a whole bunch of programs, including under the CARES Act, allowing prisoners to earn credit towards early release. The SO tag also allows the BOP to mandate Clare take certain programs, including Female Integrated Treatment (FIT). Also, sex offenders cannot go to Federal Prison Camps, the safest and least restrictive of prisoner housing.

Sex Offenders are generally subjected to longer in-prison time, less halfway house placement, and a tougher bid while they are on the inside. SOs do not get prison phone or TRULINC email privileges. Also called CHOMOs (prison slang for child molesters), SOs of every type are lumped into a category universally disdained by prison staff and fellow inmates alike.

In November 2022, the BOP told Clare Bronfman they would administratively drop the sex offender tag. This promise induced her to end the habeas corpus petition. The lawsuit had achieved its goal, and the parties agreed to dismiss.

But the BOP and FCI-Danbury have welched on their promise, according to court papers filed by Bronfman. She seeks to reopen the case and have the Court compel the following relief:

• issuance of a writ of habeas corpus directing the BOP to remove any references to sex offenses from Bronfman’s record;
• to cease any requirement that Bronfman participate in the Female Integrated Treatment (FIT) program;
• to restore Bronfman’s telephone and email privileges;
• to provide Bronfman and her attorneys with a space suitable for legal visits to allow her to both meet with and speak with her attorneys on the telephone;
• and to grant her time credit for early release (absent any ability to show why she should not receive it) pursuant to the CARES/First Step Act.

Clare Bronfman appears to have a point. She pled guilty to two charges: Conspiracy to Conceal and Harbor Aliens for Financial Gain; and
Fraudulent Use of a Means of Identification. Where is the sex offense?

Clare is trying to re-open the case right now, saying the BOP is breaching the letter and spirit of the Stipulation. Clare says the BOP is not removing the sex offender label in violation of the law, and even if they technically did, they aren’t treating her like it.

In her motion to re-open the habeas corpus petition filed on January 20, 2023, Bronfman said:

Though BOP did remove the sex offender label from her file, Ms. Bronfman continues to be treated as though she has been convicted of a sex offense: a case worker recently informed her that, because of her “offense status” as a sex offender, the warden would not grant her any CARES Act / FIRST STEP Act time credits. Further, on information and belief, Ms. Bronfman was told that her “offense status” as a sex offender is prohibiting her re-classification into a camp, where she would have been housed but for the erroneous sex offender PSF, which was the subject of the original filing in this matter. The case worker also told her that the warden would not give her any credits because (on advice of counsel) she has declined to participate in a therapy program called the FIT Program, which would require her to falsely admit to sex offenses she did not commit.

Bronfman says the BOP acting against the Stipulation and retaliating against her for having brought the habeas corpus petition. Two days after the Stipulation of Dismissal was filed, BOP began restricting Ms. Bronfman’s access to counsel. FCI-Danbury refused to provide a heated space for meetings with lawyers. The BOP also revoked her communications privileges. Bronfman could no longer contact friends, family members, and one of her attorneys. Bronfman lost privileges to email, phone, mail, and in-person visits.

The BOP does not deny the merits of Clare Bronfman’s petition. The BOP’s opposition papers raise purely procedural defenses. They say the petition is settled, and Clare needs to restart the administrative remedy process (which takes six months or more) and then bring a new petition.

Substantively, Petitioner’s motion could be construed as a motion to amend her Petition to raise a new litany of complaints regarding the conditions of her confinement, as extensively detailed in her Motion to Reopen. However, the Court should deny the motion because the proposed amendments would be futile; Petitioner failed to exhaust these new grievances through the BOP’s administrative remedy process.

Believe it or not, this is a very important issue for federal prisoners. Every time a prisoner files in court, one of the first defenses the BOP raises is lack of jurisdiction, a procedural defense. The BOP says that because the prisoner did not exhaust their administrative remedies under the Prison Litigation Reform Act of 1996 (PLRA), the petition is untimely. Most prisoner litigation fails for this reason.

On their website, the ACLU has a PLRA FACTSHEET. It lays it out:

The First key to remember about the PLRA is that before you file a lawsuit, you must try to resolve your complaint through the prison’s grievance procedure. This usually requires that you give a written description of your complaint (often called a “grievance”) to a prison official. If the prison provides a second or third step (like letting you appeal to the warden), then you must also take those steps. If you file a lawsuit in federal court before taking your complaints through every step of your prison’s grievance procedure, it will almost certainly be dismissed.

The BOP says that they can make a deal with a prisoner, then welch on the deal. But the prisoner cannot go back to the judge who accepted the Stipulation for any relief. At least not until they go through the entire PLRA-mandated BOP Administrative Remedy Process. At “warp speed,” it takes six months for a prisoner to exhaust at all three levels: the prison, the BOP Regional Office, and the BOP National Office in Washington, D.C.

Clare filed reply papers on February 22, 2023, raising an interesting point:

If BOP’s argument is correct—that every time they retaliate against an incarcerated person that a new round of administrative appeals is required—then virtually no instances of retaliation would ever be appropriately addressed because of the remarkable amount of time required to go through the administrative appeals process.

I tend to believe Clare, given my experience with the BOP. The Counselors and Case Managers hate CHOMOs, and they probably consider Clare a CHOMO / Sexploiter. I don’t think there is extra retaliation because of the habeas petition. I just think that’s the way BOP staff operates. And their government lawyers cover for them.

The BOP lawyers are shamelessly hiding behind the PLRA’s requirement of exhaustion of remedies. The BOP lawyers are asking for the right to continually deprive inmates of their constitutional rights. As soon as one violation makes it to court after a year of administrative appeals, the BOP asks to be allowed to make a deal with the prisoner that they won’t have to live up to for several more years. They say a new appeals process must begin to enforce the deal.

When I was away, a favorite acronym for the BOP was “Backwards On Purpose.” That’s the BOP’s argument in this case in a nutshell.

The case is assigned to District Court Judge Jeffrey A. Meyer, a Barack Obama appointee who clerked for the late Supreme Court Justice Harry Blackmun. Hopefully, the good judge can channel his legal mentor, a champion of fundamental fairness and prisoners’ rights, and see through the BOP’s transparent case.

Clare Bronfman is many things, and many of them emanate from abyssal demons residing in a damaged soul. But she is not a sex offender. And the BOP should not get to treat her as such.

Richard Luthmann

Richard Luthmann is a writer, commentator, satirist, and investigative journalist with degrees from Columbia University and the University of Miami. Once a fixture in New York City and State politics, Luthmann is a recovering attorney who lives in Southwest Florida and a proud member of the National Writers Union. 

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