concurring.
My position in this ease is similar to my position in the companion case, United States v. Camarata, 828 F.2d 974 (3d Cir.1987):
Judge Sloviter persuasively demonstrates that the probation statute does not deprive a district court of the power to revoke probation prior to its formal onset, even though incarceration may have already begun. Judge Garth persuasively demonstrates why we need to be concerned about a conflict between executive and judicial power with respect to an incarcerated prisoner.
And as in Camarata, I find no conflict between the executive and judicial branches, hence I concur in the result reached by Judge Sloviter — upholding the revocation of probation without addressing the question that divides my colleagues. Because the facts here differ from Camarata, however, so does my ratio decidendi. It will be useful, therefore, to summarize the salient facts.
On August 6, 1986, after he was convicted of stealing checks, Davis received a “split sentence,” 18 U.S.C. § 3651. The district court suspended a four-year sentence of incarceration and ordered Davis confined for 90 days, with three years subsequent probation subject to a special condition of restitution of $513.50 (the amount of the stolen checks). The district court recommended and the Bureau of Prisons (as surrogate for the Attorney General) agreed that Davis be confined at the South-side Community Treatment Center (CTC) in Pittsburgh so that he could participate in a work release program.
I.
The first basis of my belief that there is no meaningful conflict between the executive and judicial branches in this case stems from the nature of Davis’ confinement at CTC. I do not gainsay that, given the form of the district court’s judgment and commitment, Davis was technically under the custody of the Bureau of Prisons while in the CTC. But it may have been only an accident that the district court structured the sentence so that the Attorney General had custody. That is because under 18 U.S.C. § 3651 CTC confinement may equally be a condition of probation. Many CTC inmates arrive there via a judgment and order of probation and hence remain under the direct authority of the district court. The same is true under the new sentencing statute scheduled to take effect on November 1, 1987, 18 U.S.C. § 3563(b)(12); see also U.S. Sentencing Commission Guidelines, § 5B1.3(d) (conditions of probation include intermittent confinement); § 5B1.4 (residence in CTC or halfway house may be imposed as condition of probation); § 5F5.1 (same). Congress has recognized that community confinement is very different from incarceration; as often as not the court itself directly supervises the community confinement,1 hence the putative conflict is muted, if not eliminated.
Judge Garth has identified loss of good time as a source of potential conflict between the executive and the judiciary. See Camarata, at 983 (Garth, J., dissenting). But a prisoner sentenced for ninety days cannot receive good time. 18 U.S.C. § 4161. Another potential conflict could result because of parole but, as Judge Sloviter has pointed out, Davis was not eligible for parole. Additionally, disciplinary options in a CTC are quite diminished. Thus the Bureau’s institutional discipline role is seriously attenuated. Halfway house residents are rarely there — they are out working during the day — and institutional morale and discipline problems are radically different from those in a prison. Indeed the violations involved here are much more an affront to the authority and dignity of the court (and were so viewed by it) than to the Bureau of Prisons.
Moreover, the action taken by the court is totally congruent with the kind of action that could be taken by the Bureau — return *972to custody. Of course the term was longer, but all in all I do not perceive the type of conflict between executive and judiciary in the CTC context that gives cause for the type of concern expressed by Judge Garth.
II.
My second basis for finding no conflict in this ease stems from the timing of the district court's action. Davis reported to the CTC on August 11, 1986. The violations of CTC rules described in Judge Sloviter’s opinion occurred in October and November. The petition for violation of probation was filed on November 6, 1987. Davis was released from the CTC on November 7, 1986. The probation revocation hearing was held on November 13, 1986, and the district court revoked probation on that very day. Thus, when the district court acted the Bureau of Prison’s custody over Davis had ended, and any conflict of the type with which Judge Garth is concerned was illusory. See also Camarata, at 981 (Becker, J., concurring).2
I do not suggest that district courts can always obviate the possibility of Judge Garth’s putative conflict by waiting until a defendant has been discharged from Bureau of Prisons custody before acting. There are several reasons for insulating Bureau of Prisons decisionmaking from actions by judges that might impose additional sanctions for inmate conduct that could also be the subject of Bureau action. In Camarata I have identified institutional morale considerations. At 981 (Becker, J., concurring). Also relevant is the ability of the Bureau to predict when the inmate will be eligible for release and thereby assist him in meaningful pre-release planning, and to apply its range of administrative discretion to the inmate’s total institutional exposure. But none of these considerations, if they are ever sufficient to override the force of Judge Sloviter’s opinion in Camarata, apply here in view of the promptness with which the court acted and the relative non-involvement of the Bureau in CTC affairs which are, after all, managed by contractors, not by Bureau of Prisons personnel.
III.
The short of it is that the kind of conflict between executive and judicial authority which Judge Garth is concerned with simply does not exist here, just as I concluded that it did not in Camarata. That is not to say that there are not situations in which such a conflict will exist, and when it does this court must face that difficult question.3 But in my mind that question need not be answered here. In the absence of a conflict, I agree with Judge Sloviter that the district court acted properly in revoking Davis’ probation. I therefore concur in the judgment.
. Indeed, the record in this case reveals that a probation officer and the district court itself both thought that Davis was under the jurisdiction of the Court, not the Bureau of Prisons. (A63, 64.)
. Judge Garth makes much of the fact that Davis was in custody when the petition was filed. But since he was released from custody before it was acted on (and probably even before it was served), I fail to see the significance of Judge Garth’s point.
. I am not sure that the answer is an "all or nothing” answer, as my two colleagues' opinions suggest, e.g., the result may be different as between the murder of a prison guard and a minor infraction of prison rules.