United States District Court, S.D. New York
September 6, 2005.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Dear Judge Kaplan:
I write on behalf of defendant Russell Harding to respectfully
request that the Court amend the Judgment in this matter to
clarify the Court's intent in recommending that the Bureau of
Prisons ("BOP") evaluate Mr. Harding "to determine whether his
participation in the sex offender management program would be
beneficial, and if so, that he participate in that program."
(Judgment, p. 2).
At Mr. Harding's sentencing hearing on July 21, 2005, the Court
specifically referred the issue of whether Mr. Harding should be
designated to the BOP sex offender management program to the
appropriate medical personnel within the BOP after an evaluation
of Mr. Harding. It has recently come to my attention that Mr.
Harding was not separately evaluated by appropriately trained
physicians within the BOP prior to his designation to the FMC
Devens' sex offender management program. A legal representative
of the Mid-Atlantic Region of the BOP informed me that Mr.
Harding was not separately evaluated by BOP physicians prior to
his designation partly because the Court did not recommend that
such an evaluation be conducted. Instead, the BOP performed its
routine designation analysis based upon Mr. Harding's counts of
conviction and Presentence Report. As the Court recalls, Mr.
Harding was never evaluated by forensic mental health experts at
the BOP who were properly trained in the area of sex offenses and
no determination was ever made as to whether Mr. Harding was in
special need of sex offender treatment. Accordingly, the Court
recommended on Mr. Harding's Judgment "[t]hat the defendant be
evaluated by the BOP, to determine whether his participation in
the sex offender management program would be beneficial and, if
so, that he participate in that program." (Judgment, p. 2). I respectfully request that the Court further clarify this
recommendation to include the request that the BOP conduct a
separate evaluation by competent sex offender mental health
personnel to determine whether Mr. Harding should participate in
a BOP sex offender management program. Of course, such an
evaluation would include a review of Mr. Harding's existing file,
but an appropriately trained BOP physician should also
independently evaluate Mr. Harding to determine whether he
suffers from pedophilia or related disorders prior to his
designation in a sex offender program. Of course, the Court would
only be able to recommend such an evaluation, however this
recommendation would be especially helpful in assuring that Mr.
Harding's designation is based upon appropriate psychiatric
findings. Because Mr. Harding was never evaluated by BOP
physicians on sex offender issues, there is no existing diagnosis
or treatment history upon which the BOP could credibly rely upon
in making its designation determination.
Upon review of the Court's comments and instructions at Mr.
Harding's sentencing hearing, it appears that the Court intended
to recommend that the BOP conduct an independent sex offender
mental health evaluation of Mr. Harding prior to making its
designation decision. On behalf of Mr. Harding, I respectfully
request that the Court amend the Judgment in this case to clarify
its intent in this regard prior to Mr. Harding's enrollment in
the BOP sex offender management program.
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