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Unrest in the BOP Over COVID… It’s Staff and Senators, Not Inmates – Update for February 1, 2022

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

COVID KEEPS ON GIVING

sick220201A week ago Monday, the Bureau of Prisons broke a record.  On that day, the BOP reported 9,531 inmate cases, a crest that fell to 7,808 by last Thursday (thanks in no small part to the BOP’s aggressive practice of writing off inmates as “COVID recovered” after 10 days).

The BOP failed to report case numbers last Friday, Jan 28. But yesterday, the number was still at 7,724, a number above last year’s record of 7,690.

Staff numbers (which the BOP cannot manipulate by declaring people to be recovered, u it can with inmate numbers) climbed 26% from the Friday before to 1,956. Staff cases are flirting with the all-time high of 2,107 set on January 13, 2021.

The BOP reported five more inmate deaths last week, one each at FMC Ft Worth, FMC Butner and Butner I, FCI Mendota (California) and Coleman Medium. This raises the total of BOP and private-facility inmate deaths to somewhere over 300. The Ft. Worth death was the 17th inmate COVID fatality at the facility.

The BOP numbers do not include Juanita Haynes. Ms. Haynes, who unsuccessfully sought compassionate release from FPC Alderson women’s facility last summer, filed again for release on December 23 even as COVID gripped her. Too little, too late. Ms. Haynes was placed on a ventilator the day after Christmas. On January 3rd, her sentencing judge finally believed her, and granted compassionate release.

inmateCOVIDrights220124

“Ms. Haynes is currently suffering from a life-threatening case of COVID-19 and is unfortunately showing no signs of improvement,” the judge wrote. “Additionally, ICU staff have advised that if she is to recover from her current state, she will require a long-term tracheostomy. In light of these facts, the court concludes that Ms. Haynes’ current medical status amounts to a serious medical condition constituting extraordinary and compelling reason.”

Juanita Haynes died two days later, never coming out of her medically-induced coma to learn that she was a free woman. The BOP’s environment killed her, but because she expired after her release was ordered, it does not count her in its death total

ABC News reported last Wednesday that two U.S. Senators who had arranged to inspect FCI Danbury with labor union leaders and two state lawmakers “were barred from seeing the main women’s facility but were able to see a men’s unit after a ‘fight’ to gain access.”

Senators Richard Blumenthal and Chris Murphy (both D-Conn) sought to examine Danbury conditions in response to correctional officers’ complaints about a staffing shortage and lack of COVID precautions.

nosebusiness220201“There was clearly a decision made to try to stop both of us from seeing some of the conditions at this prison,” Senator Murphy said afterward. “This facility, even during COVID, should be open for inspection by policymakers. We need to see it during good times, but we also need to see it during bad times. And if the Bureau of Prisons has decided that US lawmakers are not going to be able to see what is really happening inside these prisons during a crisis, that’s a problem.”

The Denver Gazette reported Friday that BOP staff at FCI Englewood charged that the BOP had failed to “properly screen staff or broadly test inmates for COVID-19… ignoring federal guidance despite repeated pleas from the union that represents the facility’s workers.”

The result, the workers alleged, is the “largely unchecked spread of the virus in the sort of setting that has been a hotbed for outbreaks for nearly two years.” As of Thursday, Englewood reported 12 sick inmates and 18 sick staffers.

Inmates at FCI Englewood have to “beg and plead” to get tested, the Gazette said one union official had said, and “he alleged that the understaffed, in-house medical team had told some symptomatic inmates that they just have allergies.”

The Gazette said that in response to its inquiries, the BOP “said it would begin requiring enhanced screening for anyone entering the facility — the kind that employees say they’ve sought for months — starting Friday.”

As of yesterday, FCI Oakdale I reported 494 cases and Yazoo City Medium had 475. Five facilities had 200 or more cases, another 15 had more than 100 cases, and 24 more had 50 or over.

Ft. Worth Star-Telegram, Man’s death marks the 17th prisoner death from COVID at Federal Medical Center Fort Worth (January 27, 2022)

Lewisburg, West Virginia, Daily News, Three Alderson Inmates Have Died Due To COVID-19 (January 26, 2022)

ABC News, Senators say they were denied full access to federal prison (January 26, 2022)

Corrections1, Federal prison in Colo. allowing COVID to spread largely unchecked, employees say (January 31, 2022)

– Thomas L. Root

Is PATTERN Dooming First Step Programming – Update for January 31, 2022

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

DOES PATTERN HAVE IT ALL WRONG?

One of the jewels in the First Step Act tiara has finally started to sparkle…. and it may turn out to have just been a rhinestone all along.

tiara220131First Step had as a goal the reduction of recidivism – the prison revolving door – by assessing each federal prisoner’s likelihood of recidivism, identifying the prisoner’s needs (anger management, substance abuse education, vocational training, and the like), and then offering programming that met those needs and was based on evidence that it would reduce recidivism (called “evidence-based recidivism reduction” or “EBRR” programming). The system is called PATTERN.

To encourage inmates to participate in EBRR programs to address their needs, First Step offered earned time credits (called by the acronym-loving bureaucracy ETCs, or FTCs – federal time credits – or just TCs) to inmates who successfully complete EBRR programs or – after their needs are met – stay busy with productive activities (called PAs, of course). TCs are awarded on a daily basis – every day on which a prisoner takes a class is one day’s credit, and each day equals a third to a half of a TC. Inmates could trade in their TCs for up to a year off their sentence, or for more home confinement or more halfway house.

People with medium and high PATTERN scores can collect TCs, but only those with low and minimum PATTERN scores can spend them. Plus, the mediums and highs get one TC for every three days of programming. Lows and minimums get a half TC per day. In First Step parlance, a month of programming gets an inmate with a medium and high 10 TC days, but the prisoner with a low or minimum PATTERN scores gets 15.

TCs are sort of like airline miles: everyone can collect them, but using them can be tough.

The program only began on January 19, three years and a month after First Step enacted it. And it started with a bang, as the Bureau of Prisons retroactively awarded TCs for programs completed since December 2018. Currently, as Forbes noted a week ago, the BOP appears to be “prioritizing the release of those prisoners on home confinement or at halfway houses. Over the past 2 weeks, populations of those on home confinement and halfway house show thousands of people released from custody while the BOP populations have remained steady.”

The media have been excitedly reporting the releases, crediting the First Step Act, but Forbes poured some water on the fire: “Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing.”

So what could possibly go wrong with such a wonderful program? PATTERNsheet220131We’re 12 days into the programs, and warts are already starting to appear. Let’s start with the PATTERN score.

At a House Subcommittee on Crime, Terrorism and Homeland Security hearing 10 days ago, law professor Melissa Hamilton told legislators that as many as 10.9% of male and 9.8% of female prisoners have been assigned wrong risk categories due to errors in the PATTERN system. “The BOP has no plans to correct these errors,” she said in her written statement, “until a new version of PATTERN… is formally approved by the Attorney General.”

PATTERN errors include

•  PATTERN was designed to score one’s risk factors as of the date of release, not the date of assessment. For example, if a 39-year-old man comes to prison for a 15-year sentence, he has a PATTERN age risk factor of 21. But PATTERN was designed to assess his age at release, which would be age 52. The risk factor for age 52 is only 7. The difference is 14 points. “Because the empirical models were estimated using different versions of these variables,” Professor Hamilton said, “it may have influenced the coefficients obtained and the item weights assigned. In other words, this definitional discrepancy across risk factors called into question the efficacy of the entire scoring system.”

• PATTERN operates with significant rates of error and disproportionately prefers false positives over false negatives. A false positive is the incorrect prediction of higher risk, while a false negative is the incorrect prediction of lower risk. This means that “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk which means placing too many individuals into the higher risk groupings than necessary,” Hamilton told the subcommittee.

• PATTERN does not perform equally based on race and ethnicity. It “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

• Some BOP personnel are counting disciplinary infractions occurring when prisoners are in pretrial and holdover stages. A National Institute of Justice report last December said, “This means that as BOP is implementing PATTERN, they are currently scoring these infraction variables differently than were modeled in the report… which may have an impact on the utility of these two measures.”

Hamilton told the Subcommittee that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. Due to these errors, according to the NIJ Report, overall, 11% of the BOP population was placed in the wrong risk category. This proportion may be on the low end.”

Last week, NPR reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color. Criminal history can be a problem, for example, because law enforcement has a history of overpolicing some communities of color. Other factors such as education level and whether someone paid restitution to their victims can intersect with race and ethnicity, too.” At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime.

The NIJ Report concluded that some of the racial disparities could be reduced, “but not without tradeoffs” such as less accurate risk predictions. The department also said using race as a factor in the algorithm could trigger other legal concerns. Still, it is consulting with experts about making the algorithm fairer and another overhaul of Pattern is already underway.”

screwup191028And it’s not only the errors inherent in PATTERN. Those exist even if the BOP staff follows the PATTERN scoring instructions to the letter. But they don’t: The NIJ Report also indicated a significant problem with reliability. “BOP personnel incorrectly scored and classified more than 20% of the BOP population,” Hamilton testified. “An automated system has been developed to improve reliability. However, it is unclear when/if the misclassifications from manual scoring will be remedied.”

“Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC,” the Forbes writer said, “and those who I have spoken to about their release have no idea how their release date was calculated. As one man told me, ‘I was just happy to be released and don’t care how they calculated it’. However, for the man or woman sitting in prison, it makes a huge difference.”

Added to that is the fact that First Step included a number of offenses which will exempt an inmate from earning TCs. “The significance of this risk assessment tool is that it divides all federal prisoners essentially into two groups: people who can get credit for doing this programming and get out early, and people who can’t,” said Jim Felman, an attorney in Tampa, Florida, who has been following the First Step Act for years. Forbes said, “The law already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. Look for those to be challenged in court.”

The problem is worsened by BOP confusion in interpreting the 60-odd exceptions. Reports are rife of BOP staff errors – such as declaring an inmate ineligible over a prohibited conviction that occurred in the past rather than as the current offense, or advising inmates one that any drug trafficking offenses would exclude inmates only to withdraw the advice later. Many of the mistakes seem to be coming from the Designation and Sentence Computation Center at Grand Prairie.

As Forbes darkly predicted, “Look for those to be challenged in court.”

puzzled171201Finally, the law failed to establish any standards for assessing what needs an inmate might have. A case manager must find a prisoner has a need (such as a need for anger management) before the inmate can earn TCs for completing a program addressing the need. Hamilton pointed out that “PATTERN is not itself a needs system. Instead, the BOP is relying, and purportedly improving, upon its preexisting policies and practices of identifying individual needs. This means that to date there has been no (publicly known) validation of the needs aspect of the broader system.”

“The BOP states that it is working to identify appropriate programs,” Hamilton testified, “At this time, though, a significant divide exists between program availability and individual demand in many BOP facilities. The result is a sort of lottery system whereby the luck of the draw in facility placement means some individuals will have a greater access to achieving earned time credits than others.”

The House Subcommittee will grill outgoing BOP Director Michael Carvajal at an oversight hearing this Thursday. Expect some pointed questions about PATTERN and TCs at that time.

Forbes, Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody (January 22, 2022)

Testimony of Law Professor Melissa Hamilton, before the House Subcommittee on Crime, Terrorism, and Homeland Security (January 21, 2022)

NPR, Flaws plague a tool meant to help low-risk federal prisoners win early release (January 26, 2022)

House Subcommittee on Crime, Terrorism, and Homeland, Scheduled Hearing on Oversight of the Federal Bureau of Prisons (scheduled for February 3, 2022)

– Thomas L. Root

… And Venter Vents – Update for January 25, 2022

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

HOUSE SUBCOMMITTEE WITNESSES SAVAGE BOP’S COVID RESPONSE

venters220125Witnesses blasted BOP healthcare, CARES Act and compassionate release response, and the PATTERN score at a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security hearing on what Rep. Jerry Nadler (D-NY) called “BOP’s troubling response to the COVID-19 pandemic and its inability to protect inmates and staff adequately.”

Nadler, who is chairman of the full House Committee on the Judiciary, said the BOP has a “duty to ensure basic protections for those in our custody” and “to make sufficient use of the authority granted to it under the CARES Act to place certain prisoners at home confinement earlier than previously permitted by statute…”

Epidemiologist Homer Venters, who has inspected some 40 prisons since the pandemic began, testified that “my greatest area of concern is that pre-existing deficiencies in the health services provided to people in BOP custody which contributed to the spread and lethality of COVID-19 remain unaddressed… My investigations have real revealed a disturbing lack of access to care when a new medical problem is encountered.”

Additionally, he argued that “there’s a compelling and unrealized rationale for release of high-risk patients who pose minimal public safety risks. This approach is even more important now to consider during the omicron outbreaks because of the tremendous lack of staffing inside facilities.”

death200330Venters faulted the lack of any independent review and assessment of reported COVID-19 deaths “including those that occurred in private facilities,” a number the BOP has been careful to erase from its count since contracts with those facilities lapsed. He argued that “the lack of independent assessment in how [inmate COVID] deaths are reviewed and more broadly the lack of meaningful oversight by a health organization” is a fundamental problem.

“Every other sector of health care in the United States has independent and professional health organizations reviewing the quality of care,” Venters told the Subcommittee, “but in the BOP and other carceral spaces we leave those crucial assessments to law enforcement to review its own provision of health care… The BOP is left to make its own assessments about the quality and scope of his health care and only sporadic investigations by the Inspector General of the Dept of Justice provide alternative viewpoints. This is wholly insufficient and leaves incarcerated people at a systemic disadvantage because the organizations and structures that measure and promote health for the rest of the nation for the rest of us are excluded from the care people receive in the BOP.”

University of Iowa law professor Allison Guernsey echoed the problems with the BOP’s self-reporting of inmate COVID numbers. “There are serious questions about the veracity of the BOP’s infection and death data. Not only do these questions cast doubt on the handling of the pandemic but they have real-world impact on the adjudication of compassionate release motions.”

She noted that the BOP has delayed reporting some COVID deaths for as much as a year, and that even now, Freedom of Information Act data she obtained from the BOP show five inmate deaths that the BOP has never publicly acknowledged. What’s more, she said, BOP numbers “don’t include anyone who died in a privately managed facility with a federal contract [which she reported totaled 17] and… it excludes people who were granted compassionate release just in time to die free.” Furthermore, she testified, “the Bureau of Prisons has admitted that its cumulative infection rate doesn’t include anyone who caught COVID and was then released from prison.”

With Guernsey’s additional numbers, the BOP’s inmate COVID death total is at least 301 inmates.

funwithnumbers170511Guernsey observed that “the accuracy of the data matters” because “courts rely on it routinely in granting compassionate release, and if a judge misjudges the COVID risk based on inaccurate data, people that we know are medically vulnerable will be left in prison to die.” She asked the Subcommittee to take steps to “require the BOP to report accurate and verifiable data. We should require them to do this for deaths and for infections, and we should require the BOP to comply with the mandates already articulated in the First Step Act by requiring them to report to this Committee and Congress what they are doing with respect to compassionate release procedures.”

[Editor’s aside: If the BOP accountants who diddle daily with the agency’s COVID numbers were in private industry, they’d have done the perp walk by now.]

Subcommittee on Crime, Terrorism, and Homeland Security, Hearings: The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons? (Jan 21)

– Thomas L. Root

COVID Rages… – Update for January 24, 2022

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

BREAKING RECORDS


numberone210326The Federal Bureau of Prisons maintained its streak, ending last week with a record-breaking 9,020 active inmate COVID cases. This is 17% higher than the previous worst week ever for COVID, when the BOP reported 7,690 sick inmates 56 weeks ago, on December 28, 2020 .

Last week’s total was 48% higher than the week before. At the same time, 1,432 BOP staff are down with COVID, a 52% increase over a week ago. Two more inmate deaths have been reported officially, two women, ages 30 and 59, at FPC Alderson.

The worst COVID conditions as of Friday were Yazoo City Medium (664 cases); Carswell (316 cases); and Herlong, Lompoc, Berlin, Yazoo City USP, Loretto, Los Angeles MDC and Marianna, all with more than 200 cases. Another 21 facilities reported between 100 and 200 cases.

The timing couldn’t be worse for the BOP’s pending motion in the class-action suit over its handling of COVID at Lompoc. Last Tuesday, the federal judge hearing the BOP’s motion to dissolve a July 14, 2020, preliminary injunction – that ordered the release of vulnerable inmates to home confinement – ruled that two facility reports by Dr. Homer Venters, a court-appointed infectious disease expert were admissible in the case.

The reports based on inspections in September 2020 and April 2021, were strenuosly objected to by the BOP. The judge held that the reports “have sufficient guarantees of trustworthiness, are more probative regarding the conditions at Lompoc than other evidence.”

The court asked Dr. Venters for an update on conditions at Lompoc, just as a local newspaper reported that 294 Lompoc inmates had COVID.

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“Having found Dr. Venters’ reports are admissible, the court finds a more recent report from [him] regarding the current conditions at Lompoc is needed prior to ruling on respondents’ motion for summary judgment and motion to dissolve [the preliminary injunction],” the Court said.

Despite complaints to the Attorney General by Sens Richard Blumenthal and Chris Murphy, and Rep Jahana Hayes (all D-CT) over what they described as “highly disturbing” reports that FCI Danbury was not following COVID-19 isolation guidelines, conditions “appear to have improved little” at the facility, according to allegations by BOP staff and a lawyer involved in an inmate COVID lawsuit there. The News-Times reported that about 80 inmates — some allegedly at higher risk — had been relocated in Danbury’s auditorium, and staff is “still not being provided appropriate personal protective equipment, according to Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law and a Quinnipiac law professor.”

The News-Times said the BOP responded that the agency follows CDC guidance, “the same as community doctors and hospitals, with regard to quarantine and medical isolation procedures, along with providing appropriate treatment.”

Vaccinesticker211005The CDC reported last Friday that Pfizer and Moderna vaccine effectiveness against hospitalization from Covid-19 omicron was 81% from two weeks until about 6 months after dose two, 59% after six months after dose two and 90% at least two weeks after a booster dose. The report issued the same day an federal court in Houston halted President Biden’s federal employee vaccine mandate.

This means that the 30% of BOP employees who have so far ignored the mandate when it was in place are unlikely to get a vaccine now that it’s gone away.

Not that vaccinations matter in the real world that much. As of last Friday, the BOP reports it has fully inoculated 1,511 Carswell inmates (despite Carswell only having a population of 1,296). Yet 312 inmates have COVID.

Santa Maria Times, 294 Lompoc federal prison inmates, staff test positive for COVID-19 (January 21, 2022)

Order, Torres v. Milusnic, Case No. CV 20-4450 (C.D. Cal. January 18, 2022)

Wall Street Journal, Third Dose of Pfizer, Moderna Covid-19 Vaccines Offers Strong Protection Against Omicron (January 21, 2022)

Feds for Medical Freedom v. Biden, Case No. 3:21-cv-356, 2022 U.S. Dist. LEXIS 11145 (S.D. Tex, January 21, 2022)

BOP COVID webpage (January 23, 2022)

News-Times, Reports from FCI Danbury show little change since legislators call for change (January 16, 2022)

– Thomas L. Root

Will Congress Have To Approve New BOP Chief? – Update for January 21, 2022

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

NEW DIRECTOR BLUES

As the search for a new BOP director commences, Rep. Fred Keller (R-PA), head of the new House Bureau of Prisons Reform Caucus, introduced a bill to strengthen congressional oversight over what Associated Press called “the crisis-plagued bureau” by adding checks and balances to how its director is chosen.

boss220122Currently, the attorney general appoints a director without Congressional say. H.R. 6403, if passed, would shift the responsibility of picking a director to the White House, authorizing the president to nominate someone to the post, with that person then facing approval of the Senate. It would also limit the director to one 10-year term.

If the bill passes after a new director is appointed, that person could still end up being subject to Senate confirmation. The bill would let a sitting stay in office for only three months after it becomes law without Senate confirmation.

H.R. 6403, Federal Prison Accountability Act

Associated Press, Bill would require Senate confirmation for US prison chief (January 14, 2022)

– Thomas L. Root

BOP COVID Cases Smash Record – Update for January 19, 2022

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MEANWHILE, BACK IN THE COVID WARD…

Last week was the worst for BOP COVID since the pandemic started, so bad in fact that the agency didn’t even bother to issue numbers on Friday. When the numbers were finally posted yesterday, they were impressive (and not in a good way).

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Case numbers grew 110% in a week, up from 4,377 on January 11 to a whopping 9,194 yesterday. This number eclipsed the previous record of 7,690 on December 28, 2020.  Yesterday’s number was 239% of the 21-day rolling average. 

Staff numbers hit 1,150, a 24% increase from the week before. One more inmate died, and COVID gripped all 128 institutions.

Forbes reported that “On December 10, 2021, there were 265 active COVID-19 infections among federal prisoners across the country… now, just a month later, that figure is at 3,761 cases and climbing. If the past is any indication of how the BOP is reporting these numbers, it is grossly underestimated.”

A BOP employee union representative at FCI Englewood told a Denver TV station complained that inmates don’t always follow COVID rules. “When you have people in our community in there for not following the rules, many of them don’t wear it, and that creates a burden in itself. You may catch inmates not wearing their masks all the time.”

Fault200728Some suggest it’s not necessarily the inmates’ fault. Writing at Medscape.com, an infectious disease expert complained about the low vaccination rate among BOP personnel: “Prison guards across the country have also been more reluctant than many others to receive the COVID vaccine, although they were prioritized to be vaccinated… The risk of acquiring COVID is sixfold higher in prison than in communities… While there were supply shortages early in the pandemic, there is no reason now that prisoners should not be cared for by fully vaccinated and masked staff and with provided better masks and ventilation. Imprisonment shouldn’t be a death sentence.”

Currently, only 69.5% of BOP employees have been vaccinated, compared to 74.6% of inmates (despite the fact that BOP employees are under a federal mandate to get vaxxed). So who are the scofflaws here?

Forbes complained that BOP facilities have been slow-walking CARES Act releases, saying, “Wherever there is a BOP facility, there is a person who is not being transferred to home confinement who is eligible per the BOP’s own policy. This is likely to continue without some intervention by the Executive or Legislative branch of government. The BOP is an organization that needs new leadership, is poorly managing the pandemic in its institutions, is behind in implementation of the First Step Act, has a terrible relationship with the union, experiencing staffing shortages, is short on qualified medical staff, has poor morale, has many staff calling in sick and multiple cases of staff corruption.”

Forbes, As COVID Cases Spike, Federal Bureau Of Prisons Is Not Releasing Eligible Inmates (January 11, 2022)

KCNC-TV, Denver, Federal Correctional Institution Englewood Employees Concerned About COVID Risk (January 13, 2022)

Medscape.com, Some Prisoners Face Risk for COVID From the Community (January 16, 2022)

– Thomas L. Root

Did the BOP’s New ETC Rules Get Hijacked By Biden? – Update for January 18, 2022

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

THE UNSEEN HAND WRITES NEW BOP EARNED TIME RULES?

The Federal Bureau of Prisons last week announced final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

In November 2020, the BOP finally got around to proposing rules for granting FTCs under the incentives program authorized two years before in the First Step Act. The agency proposed a rule that would require 240 classroom hours of successful programming in order for an inmate to receive a mere 15 days credit on his or her sentence. At the time, I said, “In the BOP, a 500-hour program takes 12-18 months to complete. That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.”

[Editor’s note: Yes, I said “most chary.” My wife the grammarian, has since pointed out that the superlative of “chary” is “chariest.” I’d fire her, but she’s been right too many times before.]

icecreamsundae210118In my experience practicing administrative law back in the day, when an agency rolled out proposed rules in a Notice of Proposed Rulemaking for public comment, the final product looked a lot like what had been proposed, perhaps with a tweak here and there. Once in a blue moon, an agency might back off after an especially loud and sustained hue and cry from the industry and public, but rulemaking was a lot like ordering an ice cream sundae – you could specify which sprinkle, nuts, sauce, and cherry you wanted on it, but the 95% of it that was ice cream was fixed and was not going to change.

The history of agency rulemaking since the passage of the Administrative Procedure Act of 1946 makes what happened to the FTC rules so puzzling. It’s like the BOP specified an ice cream sundae, but delivered a cup of mashed potatoes and gravy instead.

The new rules, already being applied to hundreds if not thousands of inmates, represent a total repudiation of the BOP’s proposed rules announced a year ago.

I reported on the changes in the rules – the “what” – last Friday. What I didn’t talk about was the “why.” Even now, I am unsure of what caused the sea change at the BOP, but there are some hints. Traditionally, the BOP director has scrambled to imprint any favorable program with his or her initials. Yet, last week, BOP Director Michael Carvajal was strangely silent, while Attorney General Merrick Garland took a victory lap in a press release. The fact that the Attorney General issued a statement supporting the new rules, but Carvajal did not, suggests that the Biden DOJ grabbed hold of the FTC process after the BOP sought to impose Draconian limitations on the program.

sycophant220118Several members of Congress – such as Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, Sheldon Whitehouse (D-RI), John Cornyn, (R-TX) and Cory Booker (D-NJ), on the Senate side, and Hakeem Jeffries (D-NY), on the House side – criticized the proposed rules in public comments. That may have played a factor as well. The BOP’s report adopting the final rule mentioned their comments, such as this excerpt from Sens. Whitehouse’s and Cornyn’s filing:

The proposed rule’s definition of a “day” of program participation does not adequately reward engagement with [EBBR programs] and PAs consistent with the First Step Act. . . Because BOP programs do not run for eight hours per day, the proposed rule would require individuals to attend an EBRR or PA for several calendar days before they earned a full “day” of time credit. . . It was not our intent as drafters of the legislation that BOP define a “day” in this way. Nor did Congress ever consider it. . . The proposed rule’s narrow definition of a “day” does not adequately incentivize program participation and reduce recidivism as intended by the First Step Act.

The fact that the legislators’ comments were singled out approvingly – maybe even fawningly – in the report would permit a reasonable person to infer that the BOP was sending the two Judiciary Committees a message that their concerns were being addressed.

The Hill noted that the new rules were announced “just one week after the DOJ revealed that BOP Director Michael Carvajal would be resigning from his post. He had faced criticism during his time as chief of the bureau.” Fox News said “the Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet.” Associated Press observed that the final rules came “about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs.”

It seemed strange that several media outlets connected the Director’s departure with the release of the rules. It is fair to note that there is no logical reason for his announcing the retirement on January 6th, especially when the actual date was left open (he said he would stay on until a new director is appointed). The timing, as The Hill implied, may be linked to the dramatic turn in the BOP’s approach to FTCs.

bidensuperman210201

Likewise, Fox News may have settled on another reason. President Biden has taken a lot of heat recently for doing nothing on criminal justice reform. Probably because he has done nothing. Hijacking the rules and rewriting them the way Congressional Democrats would love and Congressional Republicans would accept may have been seen by the White House as a cheap fix: liberal FTC rules did not require Congressional approval and conservatives could hardly complain, because all Biden was doing was carrying forward a program President Trump proudly owned, the First Step Act.

Don’t get me wrong. I’m not complaining that the BOP did the right thing. I’m puzzled, that’s all.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, FSA Time Credits (January 13, 2022)

The Hill, Thousands of federal inmates being released this week under law signed by Trump (January 13, 2022)

Fox News, Federal inmates to be released under ‘time credits’ program (January 13, 2022)

– Thomas L. Root

Merry (Belated) Christmas! – Update for January 14, 2022

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

BOP WOWS WITH FINAL EARNED TIME CREDIT RULES

christmas220114My grandfather always would say, “Christmas comes but once a year, and when it comes, it brings good cheer…”

Grandpa was never a federal inmate.

In what can only be classified as a stunning turnaround, the Federal Bureau of Prisons yesterday announced its final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

The First Step Act enacted the FTC program. The notion was that a scoring system – should classify inmates as to the risk that they would be recidivists – we now know it as the PATTERN score – and their programming needs to reduce that risk should be assessed. The BOP would then tell the inmate which programs he or she should complete to address those needs (for example, a course in anger management, apprenticeship training, or substance abuse treatment). Ideally, inmates who complete such EBRR programs will be less likely to commit new crimes after release.

To encourage inmate participation, the prisoners collect ten days of FTC credit for every month in which they participate in such “evidence-based recidivism reduction” – or “EBRR” – programs. If they are considered “low” or “minimum” recidivism risks, they may get an extra five FTC days a month.

The FTC credits may be used to shorten an inmate’s sentence by up to 12 months. If an inmate earns more than 12 months of FTC credits, the extras can be used to earn more halfway house or home confinement.

devil200113But as with everything, the devil’s in the details. First Step provides that “a prisoner shall earn ten days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” But precisely what is a “day?”

In its proposed rule, the BOP proposed that a “day” was eight hours long, meaning that an inmate would have to log eight hours of EBRR instruction to earn one day of programming credit. That means that 30 days of successful EBRR participation would require 240 hours. The proposal was Draconian.

The BOP’s position was even worse than that. It proposed that inmates could only start to earn FTC credits after January 15, 2020, or – horror of horrors – January 15, 2022 (yes, that’s tomorrow, for you calendar-challenged people). The number of programs considered to be EBRR-worthy was limited, and the long list of convictions that excluded inmates from participation unfairly limited the number of people who could participate.

The BOP’s deadline for full implementation of the FTC is upon us. Yesterday, I complained that the whole furball was ripe for endless litigation and that the BOP had not adopted the final rules, oppressive as they might be.

hamburger160826I am impressed at the extent of my influence. Within an hour of posting my blog, the Dept of Justice announced that the final rules had been adopted. And what a set of rules they are! I should write a blog demanding that each inmate get TWO cheeseburgers at lunch on Hamburger Day (which is Wednesday, for those of you who haven’t been locked up).

• The terrible 8-hour day standard has been jettisoned. Now, any day an inmate spends enrolled in an EBRR or productive activity is an FTC day. This means that if an inmate works at an orderly job for a couple of hours, works out for a few hours, watches some TV, goes to the chow hall, and spends an hour in an EBRR anger management class, he or she will be credited with one day of FTC credit.

• Inmates will receive credit for any EBRR program completed after December 21, 2018, the day the FSA was signed by President Trump. This is a windfall. The BOP had not even applied the PATTERN score to inmates and assessed needs until January 2020. After that date, FTC credit is only assigned if an inmate completes an EBRR course to which he or she has been assigned. But for any courses completed before the 2020 needs assessment, the BOP will assume a need. So an inmate who had been a banker with an MBA from Harvard took the “Money Smart” program in 2019 for something to do? She gets FTC credit.

• The BOP has taken to heart complaints that the EBRR programs and (especially) the productive activities were too limited. It has promised that “new funding allotments will enhance the Bureau’s course offerings, largely by permitting it to increase capacity through hiring additional staff, and will also serve to bolster the Bureau’s resources, thereby improving its ability to carry out the FSA Time Credits program.” Participation in RDAP, working at UNICOR, and taking correspondence college courses will earn FTC credit for inmates. However, the BOP has not suggested that it will remove the cap on how many FTC credits can be earned. Right now, 15 weeks in UNICOR earns an inmate 500 hours of FTC credit. So does 15 years.

For that matter, because the prior caps – all of which were expressed in terms of “hours,” a metric without any value now that the 8-hours-is-a-day standard has been abandoned – will probably have to be redone.

• The BOP will award FTC credits for successful months of participation, not only for successful completion of the EBRR courses.

• FTC credits will be available to inmates in halfway houses and home confinement (although the BOP acknowledges some difficulty in delivering such programs in halfway house or home confinement environments).

education180205Right now, only about 41% of BOP inmates (65,000) are eligible to earn FTC credits. There is little the BOP can do about that because the limitations were written into the First Step Act by Congress. However, the BOP does have some latitude in defining prior convictions as “violent,” and it has promised to “ensure that its facilities receive updated information as to which federal and state offenses qualify or are the subject of litigation and that inmate records are updated to ensure maximum participation in credit-earning EBRRs.”

The BOP has promised to immediately apply FTCs to people closest to release. I’ve heard that before. But last night, I called an inmate in a halfway house whose release date was in May to tell him about the new rules. Not more than an hour later, he called me back to tell me he had just been called into the office to sign immediate-release papers. He goes home today.

pony2230114

There will be many nuances to discuss in the coming weeks, but for now, the DOJ’s prediction that releases “are expected to begin this week… and that ‘thousands’ of inmates are being affected,” as the Associated Press put it, is not far off.

A late Christmas gift, but I expected new socks. Instead, we got that pony we’d always wanted.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, First Step Act Approved Programs Guide (July 2021)

– Thomas L. Root

Forget I said What I said… – Update for January 13, 2022

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

GLAD TO EAT MY WORDS

Victory220113Not more than an hour after I posted the blog below, the Dept of Justice issued a press release announcing that the Bureau of Prison had adopted a final rule for application of its earned-time credit program.

I practiced administrative agency law in Washington, D.C., for a long time, but I never have seen such an agency execute such an astounding about-face on a proposed rule between the Notice of Proposed Rulemaking and final order before.

It’s Christmas Day for inmates. I will take a dive into the new rule for a blog tomorrow.  For now, suffice it to say… wow.

Ignore the following:

BOP EARNED TIME CREDIT MEMO PORTENDS LITIGATION

delay190925The Federal Bureau of Prisons has been stalling full implementation of First Step Act earned time credits for three years now, but the clock runs out in a few days. By then, the BOP is supposed to have the earned-time credit program (which the BOP is calling “Federal Time Credits”) fully implemented.

Under the FTC program, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FTCs for every 30 days of program participation. Minimum and low-risk inmates will get 15 days. But the list of programs and productive activities is limited, the list of eligible prisoners is even more limited, and the BOP has thus far fought inmates’ efforts to win any credit.

That has resulted in decisions such as an Oregon holding from November that the BOP’s belief that “may delay awarding time credits to inmates that complete qualifying programming until January 15, 2022, is contrary to the statute.”

Forbes magazine last week published portions of an “internal memorandum posted at some prison camps.” The memo said that beginning in January 2022, the Bureau will begin applying FTC under this update. However, while inmates with high and medium PATTERN risk levels may earn FTC, only those with low and minimum levels may actually use them.

The BOP plans to apply the first 365 days of FTC time to early release, with “[a]ny FTC earned beyond that may be applied toward community placement.” The BOP plans to update sentence computations in the next few months, with the Bureau’s Designation and Sentence Computation Center to “prioritize based on those inmates we project to be immediate releases, beginning with inmates in community placement.”

confusion200424Forbes predicts that “far from clarifying things… implementation of [FTC]… will be almost impossible over the near term. This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement, and supervised release. It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system. Thousands will file lawsuits whether they are in prison, halfway houses, home confinement, or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit… This is going to be more complicated than anyone ever imagined.”

The great unsettled question is exactly what constitutes program participation. Inmates were jubilant when First Step passed, because everyone wrongly assumed that if one had an hour-long evening class four days a week for four weeks, he or she would have earned 16 days of programming credit on successful completion. But then the BOP proposed rule – which has not yet been adopted – holding that a day of program participation was equal to eight hours of programming. Under that metric, an hour a day four days a week for four weeks would be worth 16 hours, or two days of programming, not 16 days.

What was as bad, the credits for “productive activities” are capped. Working in UNICOR – the Federal prison industries – has a well-earned reputation for reducing recidivism. But credit for UNICOR work is limited to 500 hours. In other words, if one works in UNICOR for four months at 35 hours a week, he or she has amassed 500 FTC hours, which translates to 62 days, which translates to two months. Two months of FTC credit is worth 30 days off the sentence.

If the inmate works in UNICOR for 10 years (which would be about 17,500 hours), he or she would still get 30 days off his or her sentence. Is the favorable effect of 10 years of productive factory work on recidivism no different than four months? The BOP rule would seem to suggest so.

oddcouple210219As of today, the rulemaking proceeding has not been completed, yet another failure of the BOP to get anything done on time. What’s more, Senator Richard Durbin (D-Illinois), chairman of the Judiciary Committee, and Committee Ranking Member Senator Charles Grassley (R-Iowa) jointly blasted the proposed rule last May, asking the Attorney General to “reevaluate and amend the rule consistent with the statute’s goals of incentivizing and increasing program participation to reduce recidivism. Establishing robust programming and a fair system to earn time credits is critical to meeting the FSA’s goal of reducing recidivism.”

Durbin and Grassley are the fathers of the First Step Act, suggesting that perhaps they know what they meant when they wrote it.

Whether anyone listened has yet to be answered. It’s a cinch that if the BOP’s 8-hour-day rule gets adopted, there will be litigation.

Forbes, Implementation of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court (January 5, 2022)

Cazares v. Hendrix, Case No 3:20-cv-02019, 2021 U.S. Dist. LEXIS 240776 (D. Ore., November 9, 2021)

Press release, Durbin, Grassley Press DOJ to Strengthen First Step Act Rule on Earned Time Credits to Incentivize Rehabilitation (May 5, 2021)

– Thomas L. Root

January 2022 Really Is January 2021 Redux – Update for January 11, 2022

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

COVID ROILS THE BOP

control200511BOP inmate COVID cases shot up last week at a rate not before seen since the pandemic started. On the last reporting day in 2021 (Thursday, Dec 30), 1,194 inmate COVID cases were reported. Yesterday, the number shot up to 3,761, a number not seen since January 21 of last year.

Yesterday’s number was 200% of the 21-day rolling average, the highest number recorded since the pandemic began.

Staff cases aren’t faring much better, up 141% in a week to 992 cases. COVID is now present in 127 facilities. Last week, the BOP reported two more inmate deaths, one at Beaumont and another at Lewisburg. The Lewisburg death occurred 11 months ago but only now has been recharacterized as COVID-related (a belated admission that either impresses you at the BOP’s candor or frightens you at the Bureau’s failure to properly identify the death at the time). However, the Beaumont death just occurred and – as with more than 55% of all deaths since March 1, 2021 – was the passing of someone whom the BOP had previously declared to be “recovered” from an earlier bout of COVID.

BOP vaccinations have slowed. Last week, 74,2% of inmates and 69.4% of staff had been vaccinated. Over the past month, those numbers rose 3.2% for inmates and 2.1% for staff, a slower rate than in November, when the monthly vax increase was 3.8% for inmates and 9.8% for staff.

A New York emergency room physician said last week that the current COVID omicron surge is different, both in who’s coming to the ER and how they’re being affected by the variant. “Like before, some [COVID patients] were really short of breath and needing oxygen. But for most, COVID seemed to topple a delicate balance of an underlying illness. It’s making people really sick in a different way.”

deadcovid210914Meanwhile, Bloomberg reported Saturday that a new COVID variant being called “deltacron” has been identified in Cyprus. According to Leondios Kostrikis, a University of Cyprus professor and director of the Laboratory of Biotechnology and Molecular Virology, said, “There are currently omicron and delta co-infections and we found this strain to be a combination of the two,” Kostrikis said in an interview with Sigma TV on Friday. “We will see in the future if this strain is more pathological or contagious or if it will prevail” over delta and omicron, he said.

As of yesterday, however, an Imperial College (UK) scientist cast doubt on the Cypriot report, saying “the so-called ‘Deltacron’ variant that was discovered on the island of Cyprus ‘looks to be quite clearly contamination’,” according to French news and current affairs public radio station RFI.

The BOP filed a motion last week to dissolve the preliminary injunction issued against FCC Lompoc in the class-action lawsuit over its management of the COVID pandemic. That injunction issued July 14, 2020, identifying inmates vulnerable to COVID and beginning the process of release to CARES Act home confinement. Citing the Prison Litigation Reform Act and a December 10th 9th Circuit decision in another case, Ahlman v. Barnes, the government is arguing that the PLRA automatically dissolves injunctions issued against prisons after 90 days.

The District Court has ordered briefing on the issue.

Questions about the BOP’s management of the virus at FCI Danbury may be heating up again. Danbury was the focus of the first successful class-action suit, Martinez v. Brooks, over BOP COVID management 18 months ago.

Senators Richard Blumenthal and Chris Murphy (both D-CT) and Rep Jahana Hayes (D-CT) last week sent a letter to the Attorney General, BOP Director and acting FCI Danbury warden over “highly disturbing” reports on COVID at the facility. The letter alleges that over half of the women at FCI Danbury camp tested positive on Dec 27, but weren’t isolated or initially told whether they had the virus. “These actions, if true, are shockingly reckless and contrary to BOP and CDC guidelines,” the letter said, and “endanger not only the women at the Camp, but also staff and the surrounding communities.”

As of January 10th, 61 of the 86 women at the Camp had COVID.

Inmate families were protesting last week outside of FPC Alderson, alleging high COVID transmission and inmate mistreatment at the West Virginia women’s facility. Organizers said they hope to spark a movement for prison reform nationwide for access to healthcare and basic needs.

Allegations included that the prison suffered from a lack of food, feminine products, commissary items, and hot water. Paul Petruzzi, an attorney representing ten Alderson inmates suggested the facility was not using CARES Act home confinement authority, a complaint inmates have been making for the last year.

crazynumbers200519Finally, a media report about a COVID outbreak at FCI Ray Brook in upstate New York included a note of interest to people who have ever doubted the accuracy of BOP COVID numbers. The Adirondack Daily Enterprise reported last week that last year, Ray Brook “had a COVID-19 outbreak which peaked at 130 inmates and 25 staff testing positive at one time. These numbers were only discovered weeks after the fact, when the corrections officer union for FCI Ray Brook – AFGE CPL33, Local 3882 – raised concerns that the BOP was not publicly reporting all of its COVID-19 data at the facility.”

Beaumont Enterprise, Third COVID-recovered senior inmate dies at Beaumont federal prison (January 5, 2022)

WNBC-TV, Omicron Variant Symptoms: Latest COVID ‘Making People Really Sick in a Different Way’ (January 4, 2022)

Bloomberg, Cyprus identifies ‘deltacron’, a variant that combines delta and omicron (January 8, 2022)

Santa Maria Times, Motion to dissolve federal prison COVID-19 injunction continued (January 4, 2022)

Adirondack Daily Enterprise, 40 inmates at FCI Ray Brook test positive for COVID-19 (January 8, 2022)

Martinez-Brooks v. Easter, 459 F. Supp.3d 411 (D. Conn. 2020)

WVNS-TV, Relatives of Alderson Federal Prison inmates allege mistreatment at peaceful protest (January 5, 2022)

News Times, Investigation into Danbury prison COVID conditions called for by delegation: ‘Shockingly reckless’ (January 4, 2022)

– Thomas L. Root