We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BAIT AND SWITCH?

For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.

First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.

It was intended to be a win all around.

The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.

The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.

The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.

We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”

ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”

So, as Dean Wormer might have said, it’s like a double secret PATTERN score.

Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”

The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”

ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.

ProPublica, Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out (May 26)

Sentencing Law and Policy, “Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out” (May 27)

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

– Thomas L. Root