Attorney General Nickles Heightens Conflict With Council Member Over Late-Night Release of Ex-Prisoners

The District's attorney general has ordered corrections officials to disregard a city law that bans the release of prisoners from the D.C. jail between 10 p.m. and 7 a.m., saying it is unconstitutional for authorities to jail someone overnight who is legally entitled to go free.

The council passed the law in 2003 to prevent prisoners -- many of whom have nowhere to stay and no means of transportation -- from wandering in the neighborhood near the jail, on the east side of Capitol Hill, after being freed late at night. Because the administrative process for releasing a prisoner is often slow, some detainees do not complete it by 10 p.m. and, under the law, must be held until 7 a.m.

"Freedom from bodily restraint has always been at the core of the liberty protected by the due process clause of the Fifth Amendment," Attorney General Peter J. Nickles wrote in a memo explaining his order. "The Eighth Amendment also prohibits a defendant from being punished beyond the term of his incarceration."

Nickles issued the order Wednesday despite strong criticism last month from the chairman of the D.C. Council's Committee on Public Safety and the Judiciary, who told Nickles in a letter that he could not "unilaterally" declare District law unconstitutional.

"It is irresponsible for the attorney tasked with defending the District to now risk liability to the city by stating unequivocally that the law was and is unconstitutional," Council member Phil Mendelson (D-At Large) said in a Feb. 19 letter.

Yesterday, Mendelson -- who had previously called Nickles's analysis "flawed" -- said the council will consider a legislative remedy.

"He has set up this impossible situation where we pass a law and he rules that he doesn't have to comply with it," Mendelson said. "That throws into question whether we can pass any law if he doesn't like it."

Nickles also ordered that prisoners must be freed in street clothes, not jail uniforms. They must be given resource booklets about housing and homeless shelters. And, the city must provide Metro tokens to prisoners who are released in time to use the transit system or pay cab fares for those who are let go after midnight. D.C. police, he said, will "step up patrols in the neighborhood between 10 p.m. and 7 a.m."

Nickles said he issued the order to Corrections Director Devon Brown only after council members declined to change the law. "I sent a request to the council to enact legislation to modify the [10 p.m.] provision by their March 3, 2009, legislative session," he said. "The council took no action."