MEMORANDUM AND ORDER
HAROLD H. GREENE, District Judge.
On March 13, 1973, defendant pleaded guilty in this Court to a charge of bank larceny (18 U.S.C. § 2113(b)), with respect to an offense he had committed in October 1967. On June 1, 1973, Judge William B. Jones sentenced him to imprisonment for a period of one to three years, the sentence to run consecutively to a sentence defendant was then serving in the Patuxent Institution in the State of Maryland.
Ultimately, on August 27, 1976, defendant was paroled by the Maryland authorities to a halfway house in Baltimore. He has since been released from that halfway house;
On June 1, 1979, the U.S. Marshal's Office —apparently as a result of an inquiry from Judge Jones—arrested defendant on the outstanding detainer
It is well settled that when a prisoner is released prior to service or expiration of his sentence through no fault or connivance of his own, and the authorities make no attempt over a prolonged period of time to reacquire custody over him, he may be given credit for the time involved,
Although different courts have thus chosen different theoretical bases for their conclusions, these conclusions do not differ in practice. A convicted person will not be excused from serving his sentence merely because someone in a ministerial capacity makes a mistake with respect to its execution. Several additional factors must be present before relief will be granted—the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the situation brought about by defendant's release and his reincarnation must be "unequivocally inconsistent with `fundamental principles of liberty and justice.'" See Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
The government does not, essentially,
The argument that defendant's present predicament is his own fault may be summarily dismissed. Several times during his stay at Patuxent he contacted the U.S. Marshal's Office in an effort to have the status of his detainer clarified, but each time he met either with indifference or with affirmative declarations that the Marshal was not interested in serving or would not serve the detainer. When defendant was finally released on parole, neither the Maryland authorities nor the U.S. Marshal's Office made any effort to interfere with that release in spite of the outstanding detainer. It is wholly unreasonable to ascribe fault to this defendant because he did not, after that release, continue to badger the authorities to execute the detainer against him. Responsibility for defendant's release from prison and his subsequent at-large status rests entirely with the governmental authorities.
It is also clear that the actions of the federal authorities may appropriately be characterized as affirmatively wrong.
The Marshal's determination in that regard in legal contemplation was affirmatively wrong. Notwithstanding his apparently good intentions (see note 9, supra), not only were his actions completely beyond his legal authority,
Finally, the Court would not be justified in disregarding the actual consequences of the actions of the governmental authorities and those that would follow from an order requiring defendant to serve his federal sentence now. Defendant was released as a result of a carefully-considered decision of the competent Maryland agency that he, and the community, no longer require his incarceration. Such decisions are not always right, but a substantial period of time has now elapsed, defendant has demonstrated exceptional adjustment and progress,
The government, conceding all this, or at least not contesting it, contends, however, that irrespective of defendant's lack of responsibility for the current situation, and in spite of the fact that during the past three years he has been guilty of no wrongdoing but has done his best to become a useful citizen, the law demands precisely such obedience. But the law is neither as blind nor as unreasonable as the government's argument would suggest. The U.S. Court of Appeals for the Fifth Circuit has stated (Piper v. Estelle, supra) that a sentence, though once entered, need not be served when such service would be inconsistent with fundamental principles of liberty and justice. In the judgment of this Court, a requirement that defendant serve his sentence here and now would be precisely in that category; indeed it would shock the conscience of the Court.
For the reasons stated, it is this 17th day of October, 1979,
ORDERED That defendant be and he is hereby released from confinement forthwith.