Tag Archives: BOP

Peters May Be The One – Update for March 5, 2024

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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.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

Private FSA Tool To Provide Prisoners Data the BOP Won’t – Update for March 4, 2024

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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.

LOOKING FOR THE MAGIC DATE

Maybe the sweetest acronym a federal prisoner has ever heard – LDI – is at the heart of a new tool intended to provide all of the information (and more) that the Federal Bureau of Prisons promised with the PRD (projected release date) calculation it has now apparently abandoned.

wise240304LDI – shorthand for “Last Date Inside” – is “the date on which a federal prisoner should be released to pre-release custody (halfway house or home confinement),” according to Wise First Step. Based on an inmate’s most recent sentence computation and First Step Act time credit assessments, Wise says it “will develop a detailed report that outlines key dates you need to be aware of for you to advocate for your referral to pre-release custody.”

Complaints about BOP management of FSA credits – awarded for completion of programs that reduce recidivism – are legion. One prisoner said in an email that an Excel spreadsheet tool was released to case managers last week, but

it is problematic because the calculation tool must be updated every 30 days due to 10-15 FTC earned over that time cycle. This does nothing to ease the burden on Case Managers or help inmates plan accordingly. Even more problematic is the fact that the calculator does not take into account any of the days that will be earned while in pre-release custody… [What’s more,] RRM offices are not accepting “projected days” earned while waiting for the RRM submission to come back.

Another inmate said, “We were also told that sometime in January 2024, we would have access to the PRD on Trulincs [inmate computer system]. Of course, none of that has happened. Now the case managers are telling us that the FSA projected release would NOT help you once you received your 1 year off AND we are not going to have access to the PRD. It has been ‘shelved indefinitely’.”

The BOP announced last December that it was releasing a “Conditional Release Calculator” that provided “needed information regarding the potential positive impact of earning Federal Time Credits (FTC) towards advancing an individual’s release date,” but that calculator reflected only time “applied toward advancing the individual’s transfer to supervised release and an earlier release from FBOP custody,” not transfer to halfway house or home confinement. When in halfway house and home confinement, a prisoner remains in BOP custody.

data240304The major issue in FSA credit application right now is halfway house availability. Writing in Forbes last January, Walter Pavlo observed that inmates are being denied the right to spend their credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.” The First Step Act uses mandatory language, requiring the BOP to place the qualifying inmates in halfway house or home confinement, but agency officials are shrugging their shoulders in feigned helplessness because halfway houses are refusing transfers.

Inmates have been hitting a wall when trying to remedy the denials in court. Just last week, a court threw out a complaint because the petitioner had provided no facts showing that he “has been denied all opportunity to earn time credits, that he has credits to apply, or that he has been denied the ability to apply earned credits to supervised release or another form of prerelease custody.” Another district court ruled against a prisoner, holding that he “fails to include any factual allegations supporting his claim that he was otherwise qualified under Section 3624 of the FSA… for prerelease custody or supervised release.” A decision earlier last month held that “Assuming that petitioner is entitled to a total of 740 days of credits between his prerelease custody and release, his accrued credits are not equal to the remainder of his prison term. He is therefore not eligible to apply FSA time credits at this time…”

itsadate240304Using a proprietary system it has tested over the past six months, Wise will provide a series of dates that tell inmates when to begin advocating for halfway house/home confinement, when to pursue administrative remedies, and when the prisoner’s LDI falls. Wise says in its program description, “The individualized details in this report have enabled hundreds of inmates to accelerate the process for transfer out of prison.”

Wise First Step can be contacted at (202) 921-0200 and email (accepting Corrlinks) at sarah@wisefirststep.org.

Wise First Step Program

BOP, Conditional FSA Release Date Calculator (December 5, 2023)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

Cuong Mach Tieu v. United States, Case No. 2:23-cv-2858, 2024 U.S. Dist. LEXIS 34442 (E.D. Cal., February 27, 2024)

Cook v. Peters, Case No. 3:23CV2211, 2024 U.S. Dist. LEXIS 32754 (N.D. Ohio, February 26, 2024)

Urenda v Warden, Case No 2:23-cv-1410, 2024 U.S. Dist. LEXIS 22513 (E.D. Cal., February 7, 202e)

BOP Director On Senate Judiciary Hot Seat Tomorrow – Update for February 27, 2024

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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.

JUDICIARY COMMITTEE WANTS ANSWERS ON BOP INMATE DEATHS

critic160816The impact of a trio of government reports berating the Federal Bureau of Prisons continued to reverberate last week. A scheduled appearance of BOP Director Colette Peters and her new nemesis, Dept of Justice Inspector General Michael Horowitz, before the Senate Judiciary Committee tomorrow promises that the cascade of criticism will continue pouring down on the agency..

A February 6 Government Accountability Office report chastised the BOP for implementing fewer than half of prior GAO recommendations on the use of restrictive housing (such as the SHU and Communications Management Units). The report blamed the BOP for failing to “assign[] responsibility for implementing these recommendations to the appropriate officials.”

A February 15 DOJ Office of Inspector General report found that “a combination of recurring policy violations and operational failures” – including deficiencies in inmate assessments and Mental Health Care Level assignments, holding inmates at risk for suicides in single cells, lack of urgency in responding to medical emergencies, and poor after-the-fact recordkeeping – contributed to inmate deaths.

A companion management advisory also issued on February 15 advised the BOP of the OIG’s “concerns” about the “inadequacy” of BOP policies on retaining records of rounds made by SHU COs “to ensure the preservation of those original documents as evidence when allegations of misconduct are raised.”

documentretention240227A Washington Post opinion column by Joe Davidson, who covers federal government issues in the Federal Insider, flayed the BOP as “an agency in crisis.” “The Federal Bureau of Prisons has been a profoundly broken agency for a very long time now,” he quoted David C. Fathi, American Civil Liberties Union National Prison Project director, as saying.

Laura Rovner, director of the University of Denver’s Civil Rights Clinic, who has represented isolated prisoners, is quoted as saying the BOP “is lacking the ability or the will to change, possibly both of those things.”

Last week, Government Executive – a publication aimed at federal managers – reported that the IG found “wildly different document retention standards, ranging from as little as one month to the recommended six months, to as long as 10 years.” The report itself noted that “OIG has conducted numerous investigations of allegations that BOP employees falsified round documentation; thus, such documentation is often important evidence in criminal investigations and prosecutions,” Horowitz wrote. “If documentation related to potential staff misconduct, such as mandatory round logs, are only retained for six months, such evidence may be destroyed before the discovery that a crime occurred.”

bureaucraticgobbledygook24019In her response, Peters called the inspector general’s findings “troubling” and agreed with all of the report’s recommendations, though she stressed that the misconduct cited was one by a “very small percentage of the approximately 35,000 employees . . . who continue to strive for correctional excellence every day.”

Sen Dick Durbin (D-IL), who chairs the Judiciary Committee, has been a supporter of Director Peters but said this month that he was “extremely disappointed” and “disheartened” that BOP officials “have not implemented multiple recommendations to curb restrictive housing. This issue has been studied extensively, and now is the time for action.”

bureaucracybopspeed230501Committee members expressed some frustration with Ms. Peters at the BOP oversight hearing last October for the agency’s habit of being nonresponsive to their written questions, many of which have gone unanswered for over a year. It is unlikely that her effort to palm problems off onto “a very small percentage” of employees or to mouth platitudes about “35,000 employees… who continue to strive for correctional excellence every day” will let her leave the hearing unscathed.

Senate Judiciary Committee, Hearing on Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons (set for February 28, 2024)

GAO, Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices (February 6, 2024)

DOJ OIG, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

DOJ OIC, Notification of Concerns Regarding Federal Bureau of Prisons’ Policies Pertaining to Special Housing Unit Logs Used to Record Mandatory Rounds and the Retention Period for the Original Logs (February 15, 2024)

Washington Post, Watchdog reports cite long-standing crises in federal prisons (February 23, 2024)

Govt Executive, Federal prison employees falsified logs in case where inmate committed suicide, IG says (February 21, 2024)

– Thomas L. Root

BOP’s Ambitious “Framework for the Future’s” Overshadowed Launch – Update for February 22, 2024

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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.

IG REPORT RAINS ON DIRECTOR’S PARADE

rainparade240222The tsunami of the Inspector General’s bad news (which I reported on Monday) threatened to wash away BOP Director Colette Peters’ rollout earlier last week of the agency’s “Framework for the Future,” an ambitious and obese plan “encompassing seven goals and over 180 unique initiatives… set to redefine the Bureau’s operations,” according to the BOP press release, which gushed:

The Executive Team, consisting of Regional Directors, Assistant Directors, and key figures from within the Director’s office, is personally overseeing these initiatives. Their unwavering commitment is geared towards propelling the agency forward, fostering a humane and secure environment, and preparing individuals for successful reentry into communities.

The BOP told employees in a video message last week that Peters had introduced the “Framework for the Future” and “engage[d] and empower[ed] the agency’s dedicated workforce with details about the seven goals.”

somebull240222C’mon, Ms. Peters, please empower your dedicated PR flacks to spare us the bureaucratic happy talk BS, And while we’re at it, seven goals?  One hundred eighty unique initiatives? Let’s keep it simple.

Writing in Forbes, Walter Pavlo said, “Peters was given a mandate by Congress to improve the BOP but many of those needed improvements have been problems for years. Office of Inspector General and Government Accountability Office have both authored scathing reports on the BOP. Peters, who appeared on 60 Minutes earlier this month, understands that the BOP cannot continue to operate inefficiently, and in some cases inhumanely, as it has for decades.”

Pavlo says many believe that Peters is “the agent of change needed to overhaul the BOP… which has been plagued by employee misconduct… increases in healthcare costs, understaffing, and infrastructure decay. The BOP has also had difficulty implementing the First Step Act… Delays in implementation have been caused by early misinterpretation of the law, computer glitches and a shortage of halfway house capacity.”

“The BOP has challenges and now Peters has outlined a plan to overcome them,” Pavlo says, but he warns that “it will not be easy.”

listenup240222Peters has taken a deliberate approach to the problems, which are legion. During her first year as Director, Peters conducted “listening sessions,” including the novel but quite reasonable requirement for wardens of the BOP’s 122-odd facilities to listen to former prisoners, crime victims, subordinates in prison management and line workers, and advocates for change in the system. Writing in a Federal News Network story, Pavlo and attorney Alan Ellis predicted that “[i]t will take another year to judge the new direction Peters wants to take the agency, but expect her to double down on her message of a more humane federal prison system.”

Last summer, Senate Minority Leader Mitch McConnell (R-KY) and Senator Charles Grassley (R-Iowa) proposed making the director of the Bureau of Prisons a Senate-confirmed position in S.2284, the Federal Prisons Accountability Act of 2023. The same measure has been filed in the House of Representatives as H.R.4138 by Rep. Glenn Thompson (R-PA), a member of the House BOP Reform Caucus.

Pavlo and Ellis observed that “Director Peters has enjoyed a long honeymoon with lawmakers, but they will be looking for results in 2024 — and so will many prisoners and BOP staff members.”

Bureau of Prisons, Reforming the Federal Bureau of Prisons (February 12. 2024)

Forbes, Bureau of Prisons Director Lays Out Goals For Improving Agency (February 13, 2024)

Federal News Network, The Bureau of Prisons and the challenges going into 2024 (February 21, 2024)

S.2284 – Federal Prisons Accountability Act of 2023

– Thomas L. Root

BOP Negligence Causes Inmate Deaths, DOJ Says – Update for February 19, 2024

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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.

DEPT OF JUSTICE BLASTS BOP NEGLIGENCE IN PREVENTING INMATE DEATHS

fail200526Chronic failures by the Federal Bureau of Prisons have contributed to the deaths of hundreds of inmates, the Dept of Justice’s Inspector General concluded last Thursday in a report that CNN called “blistering.”

The Report found that

a combination of recurring policy violations and operational failures contributed to inmate suicides, which accounted for more than half of the 344 inmate deaths reviewed. We identified deficiencies in staff completion of inmate assessments, which prevented some institutions from adequately addressing inmate suicide risks. We also found potentially inappropriate Mental Health Care Level assignments for some inmates who later died by suicide. More than half of the inmates who died by suicide were single-celled, or housed in a cell alone, which increases inmate suicide risk.

DOJ Inspector General Michael Horowitz said, “Today’s report identified numerous operational and managerial deficiencies, which created unsafe conditions prior to and at the time of a number of these deaths.

The media were more savage: “A combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody,” The Washington Post wrote.

CNN said that

For years, the embattled Bureau of Prisons has been the subject of accusations by politicians, prisoner advocacy groups for mistreating or neglecting inmates.

The Justice Department itself has issued scathing rebukes against BOP, outlining serious mistakes that have led to the deaths of high-profile inmates like notorious Boston gangster and convicted murderer James “Whitey” Bulger, who was killed shortly after being transferred to a new prison, and financier Jeffrey Epstein, who died by suicide in his jail cell.

But the circumstances that led to Bulger and Epstein’s deaths are emblematic of wide-ranging and recurring issues within the federal prison system that affect hundreds of inmates across the country, the DOJ’s Office of Inspector General found in its report that outlined a system in crisis failing to protect its charges.

NPR was terser: “The BOP is a mess.”

Many of the Report’s findings have applicability beyond the suicide issue. The IG said that “some institution staff failed to coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress.” Staff deficiencies in responding to medical emergencies “ranged from a lack of urgency in responding, failure to bring or use appropriate emergency equipment, unclear radio communications, and issues with naloxone administration in opioid overdose cases.”

failuretocommunicate221027The Report found deficiencies extended to after-action documentation. “The BOP was unable to produce documents required by its own policies in the event of an inmate death for many of the inmate deaths we reviewed,” the Report said. “The BOP requires in-depth After-Action Reviews only following inmate suicides but not for inmate homicides or deaths resulting from accidents and unknown factors. The BOP’s ability to fully understand the circumstances that led to inmate deaths and to identify steps that may help prevent future deaths is therefore limited.”

The Report examined four categories of BOP non-medical deaths between 2014 and 2021, suicide, homicide, accident, and unknown factors (where the BOP could not determine the cause of death). Of the 344 non-medical deaths during that time period, 54% were suicides, 26% were homicides, 16% were accidents. Under four percent were from unknown factors. Most of the suicides occurred when inmates were locked up in single cells.

The BOP’s non-medical death count climbed 68% between 2014 and 2021 while the prison population fell 27%. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

The Report noted that the BOP has policies in place to prevent inmate suicides. But it found “numerous instances of potentially inappropriate” mental health assessments for inmates who later killed themselves. What’s more, BOP staff “did not sufficiently conduct required inmate rounds or counts in over a third of inmate suicides,” and they sometimes “failed to communicate with each other and coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress,” the Report found.

Many BOP facilities failed to run suicide drills mandated by policy (required three times a year, once for each shift), the Report said. Thirty-five percent of BOP facilities “were unable to provide evidence that they conducted a single mock suicide drill from 2018 through 2020.”
inmatesuicidedeath240219In one suicide case cited by the Report, BOP staff claimed to have searched a cell three times — including the day before the suicide — but found no contraband. After the prisoner died by a self-inflicted overdose, a search of the cell he had been in turned up 1,000 pills, the IG said.

The BOP continues to grapple with a severe staffing shortage, ‘which has a ripple effect across the agency’s institutions,” NBC said. Correctional Officers work multiple shifts and healthcare workers are “augmented” to serve as COs, being pulled from their regular duties. “That translates into less mental health care for inmates,” NPR reported.

“At one facility,” Government Executive reported, “psychiatric staff were reassigned daily for two months straight. In another case, a facility did not have any psychological services personnel on staff… Half of [one] facility’s nursing positions were unfilled. At another facility, employees worked double shifts for three consecutive days. Personnel on staff are often undertrained, the IG found, with the bureau’s after-action reviews identifying insufficient training as an issue in 42% of deaths. They are also improperly disciplined, with employees themselves telling the IG the process was too lengthy and ineffective.

The BOP continues to struggle to keep facilities free of contraband drugs and weapons, which contributed to nearly a third of inmate deaths in the Report.

Sen Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, has scheduled BOP Director Colette Peters and DOJ Inspector General Horowitz to testify on February 28th in a Committee hearing focused on federal inmate deaths.

“It is deeply disturbing that today’s report found that the majority of BOP’s non-medical deaths in custody could have been prevented or mitigated by greater compliance with BOP policy, better staffing, and increased mental health and substance abuse treatment,” Durbin said in a statement. “Accountability across the Bureau is necessary and long overdue.”

The IG recommended several changes to BOP procedure, including developing strategies to ensure that inmate mental health is properly evaluated, that prison staff is taught to use defibrillators and naloxone, and to develop procedures that require inmate death records to be consistently prepared.

bureaucraticgobbledygook24019

A BOP spokesperson told CNN last week that the agency “acknowledges and concurs with the need for improvements” and is “dedicated to implementing these changes to ensure the safety and well-being of those in our custody.”

Sure it is, provided its staff isn’t being asked to make rounds, conduct drills or fill out reports.

CNN, DOJ watchdog report finds chronic failures by Bureau of Prisons contributed to the deaths of hundreds of inmates (February 15, 2024)

Dept of Justice, DOJ OIG Releases Report on Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

NPR, DOJ watchdog finds 187 inmate suicides in federal prisons over 8-year period (February 15, 2024)

Government Executive, Understaffing and mismanagement contributed to hundreds of deaths in federal prisons (February 16, 2024)

NBC, Bureau of Prisons failed to prevent nearly 200 deaths by suicide, DOJ watchdog finds (February 15, 2024)

Washington Post, IG report finds deadly culture of negligence and staffing issues at federal prisons (February 15, 2024)

– Thomas L. Root

Pay Us More And Everything Will Be Fine – Update for February 16, 2024

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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.

MONEY, THAT’S WHAT I WANT…

moneythatswhat231128Brandy Moore White, president of the union council representing 30,000 BOP employees, wrote in The Hill last week that the crumbling BOP infrastructure, “a rise in inmates deploying more sophisticated methods to smuggle illegal items into prisons,” and a lack of staff together “pose a real and significant threat to the health and safety of the 35,000 federal employees who work at the agency as well as the 158,000 inmates currently in custody.”

“The number of BOP officers and staff has fallen precipitously over the past seven years, from 43,369 staff at the beginning of 2016 to around 35,000 today — a 20% decline,” she wrote. But that only tells half the story, since the Bureau of Prisons can’t even maintain the lower level of staffing that Congress has authorized… One of the agency’s main workforce challenges is that the salaries paid to federal correctional officers pale in comparison to what employees can earn at other federal law enforcement agencies, at state and local agencies, and even some retail chains.”

Ruben Montanez-Mirabal, Patrick Shackelford, Quandelle Joseph, Perry Joyner, Brian Jenkins, Shauna Boatright. These are just a few of Ms. Moore White’s union rank-and-file BOP employees to have been convicted in the past few years of smuggling contraband into federal prisons. She might want to consider her own union members while she’s busy blaming inmates for the rise of contraband.

moneyhum170419Last week, Sens Bill Cassidy (R-LA), Richard Blumenthal (D-CT), and Bob Casey (D-PA) sponsored the Pay Our Correctional Officers Fairly Act, which will redefine BOP employees working in rural areas as being in higher-wage urban areas, thus boosting pay. Cassidy said the bill will “allow[]for competitive pay that better reflects the cost of living, commute times, alternative careers, and the hard work and dedication of BOP employees.”

A companion bill by the same name was filed in the House last May as H.R. 3199.

The Hill, The federal prison system is in crisis. Here are the top 3 reasons why (February 9, 2024 )

H.R. 3199, Pay Our Correctional Officers Fairly Act

S.___ (no number assigned), Pay Our Correctional Officers Fairly Act

– Thomas L. Root

There Once Was an Inmate Who Lived in a SHU – Update for February 12, 2024

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GAO EXCORIATES BOP FOR INEFFECTIVE AND POORLY MANAGED SPECIAL HOUSING UNITS

The Federal Bureau of Prisons says restrictive housing – that is, Special Housing Units (SHUs) – is not an effective deterrent for bad behavior and can even increase future misconduct. So guess who still keeps 12,000 of its “persons in custody” locked up 23 hours a day in SHUs around the country?

shucell240212A Government Accountability Office report wondered that last week, complaining that “while the BOP was previously called out for the practice of SHU placement of prisoners, little has changed.” The GAO criticized the BOP for its “slow progress toward taking action on longstanding recommendations, partly because the Bureau hasn’t established roles or time frames for doing so.” In fact, how the BOP monitors and evaluates all of its programs is such a problem that the GAO added the agency to the GAO’s High-Risk List annual update issued last April. It’s unlikely to be dropped from the 2024 list, due out in two months.

A SHU is a “housing unit” in name only, a warren of individual cells – some of the barred like old-time jails but more modern ones with solid metal doors with a small port through which food can be passed. The SHU residents – sometimes two to a cell, sometimes only one, are locked down 23 hours a day according to policy and removed from the cells only when handcuffed. A “recreation area” is usually a larger cage, sometimes with a basketball hoop, where often only the sky is visible. Inmates get a shower three times a week. There are no TVs, often no radios, scant reading material, and absolutely nothing to do.

“The management of federal prisons, including the use of restrictive housing, requires immediate attention,” the GAO found. “This issue is so pressing that, in 2023, Addressing these issues will enhance the Bureau’s approach to improving and ultimately reducing its use of restrictive housing.”

The BOP’s problems with its management of SHUs are nothing new. A Dept of Justice study a year ago criticized the BOP’s failure to reduce the number of SHU inmates. In a year, nothing improved.

dungeon180627Writing in Forbes last week, Walter Pavlo said, “The primary purpose of SHU is for disciplinary reasons. Disciplinary segregation is a punitive housing status imposed as a sanction for violating a disciplinary rule… However, SHU has been used for those under investigation for a disciplinary violation, protective custody (fear of being assaulted by fellow prisoners), pending transfer to another institution, or to protect a prisoner at the end of their disciplinary confinement term to prevent them from being assaulted on returning to general population.”

During the pandemic, prisoners testing positive for COVID were often isolated in the SHU, a practice that court-appointed expert Homer Venters, M.D., observed that locking COVID inmates in the SHU “runs counter to CDC guidelines on making COVID-19 responses in detention settings non-punitive” and resulted in prisoners with COVID symptoms to hide those from staff in order to avoid the SHU.”

“Some prisoners can be in SHU for months with little communication with the outside world and hardly a recreation outside of the cell in which they are confined,” Pavlo wrote. “While prisoners may be in SHU for these administrative reasons, it certainly feels like punishment.”

shit240212The GAO recounted that SHU inmates had complained that they felt hungry “because meal portions were insufficient or were smaller than the meals provided in general population.” Others reported that recreation time was much less frequent than policy dictated. “One individual,” the GAO reported, “said that facility staff kept a toilet ‘full of excrement’ in one of the SHU cells to use as a punishment and then directed an orderly to clean it before a visit from the regional director.”

Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, said the GAO report “shows a troubling trajectory for the number of federal prisoners in restrictive housing” and expressed concern that the “BOP has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices.” One of those studies was commissioned at BOP’s own request in 2014, meaning that some of the unmet recommendations are a decade old. Other recommendations are from a 2016 DOJ report that, among other things, recommended that the BOP ensure people with serious mental illness conditions were not put in restrictive housing.

BOP Director Colette Peters responded to GAO’s report by asserting that the BOP knows restrictive housing is not an effective deterrent and can increase future recidivism. Pavlo reported that Peters said the BOP plans to reduce the use of disciplinary segregation – part of a new rule proposed in the Feb 1 Federal Register – and will conduct unspecified “other studies… to address the issues brought forward by GAO.”

GAO, Federal Prisons Haven’t Addressed Longstanding Concerns About Overuse of Solitary Confinement (February 6, 2024)

GAO, High-Risk Series: Efforts Made to Achieve Progress Need to Be Maintained and Expanded to Fully Address All Areas (April 20, 2023)

Dept of Justice, Department of Justice Efforts to Ensure that Restrictive Housing in Federal Detention Facilities is Used Rarely, Applied Fairly, and Subject to Reasonable Constraints (February 2023)

Homer Venters, M.D., COVID-19 Inspection of BOP Lompoc by Dr. Homer Venters, Dkt. NO. 101-1 (filed in Case No 2:20-cv-04450, CD Cal (September 25, 2020)

GAO, Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices (February 6, 2024)

Forbes, GAO Releases Report On Federal Prisons’ Use Of Restrictive Housing (February 6, 2024)

Senate Committee on the Judiciary, Durbin Statement on GAO Report on BOP’s Continued Failure to Eliminate Overuse of Solitary Confinement (February 6, 2024)

– Thomas L. Root

BOP Crackdown On Inmates In Rules Changes Dressed in Sheep’s Clothing – Update for February 6, 2024

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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 SEEKS TO TOUGHEN PROHIBITED ACTS LIST

randompunishment240206There is little about prison life more arbitrary and random than inmate discipline. The offenses – like the infamous “engaging in anti-Soviet agitation” crime in communist Russia – are so general and squishy that virtually any conduct can be shaped and kneaded to fit within some offense confines.

The evidentiary standard that the prison must meet in order to find that an inmate is guilty of an offense is so low that if an inmate is charged, she is as good as convicted. The Supreme Court has declared it to be the “some evidence” standard:

This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985),

Still, when the Federal Bureau of Prisons releases a proposed rule changing its list of prohibited acts, it’s a big deal. The BOP did so last Thursday, seeking public comment on a broad updating of its list of Prohibited Acts that sweepingly expands the conduct that is encompassed by some greatest severity category acts but dramatically cutting the use of disciplinary segregation.

Solitary confinement has gotten a well-deserved black eye in the last few years, and the BOP got that memo. Under the prohibited acts proposal, open for public comment until April 1, 2024, maximum first-offense disciplinary segregation would fall from a maximum of 365 days for a first 100-series violation to 60 days and 180 days to 30 days as a maximum punishment for a 200-series shot. No DS time could be assessed for a 300-series shot.

This is good.  It makes the BOP look progressive and forward-thinking, exactly how an outfit that has jettisoned the expression “inmate” in favor of “Adults in Custody” ought to look. Correct. Compassionate. Fair.

However, most of the BOP’s disciplinary decisions don’t include a term in solitary as a sanction. Instead, the BOP has a whole menu of lesser punishments – including forfeiting good time, FSA credits, loss of commissary or phone or visiting privileges. The new proposal doubles down on lesser, more common penalties while looking virtuous for cutting seldom-used disciplinary segregation.

punishmentwheel240206The fun doesn’t stop there. The proposal rolls out “additional examples of privileges that may be removed as a potential sanction: video visits, electronic device(s), and the use of electronic mail and messaging of any kind, including, but not limited to, through the TRULINCS system.”

The proposal expands a number of definitions of what constitutes particular prohibited acts, including

• Code 102 regarding escape will now include any unauthorized departure from the buildings, lands, property or perimeter (inside or outside) of any facility; unauthorized departure from community confinement, work detail, program or activity (whether escorted or unescorted); and unauthorized departure from any authorized location regardless of electronic monitoring devices.

• Code 108, possession of a hazardous tool – the code applied to people caught with cellphones – will now include as hazardous tools “items necessary in the use of these devices. Making these changes would allow for discipline “if telltale evidence of such items as a cellphone, electronic device, or escape paraphernalia were not found,” the BOP says, “but items which could only be used with prohibited items are found to have been used.”

• A new Code 194 is proposed, regarding unauthorized use of social media and fund transfer services. This Code would be applied “for accessing, using, or maintaining social media accounts” such as “Facebook, Twitter, Instagram, Snapchat, TikTok, etc… or directing others to establish or maintain social media accounts on the inmate’s behalf” for the purpose of committing criminal acts or any Greatest category prohibited act. This code would also prohibit inmate use of fund transfer services such as CashApp.

After the public comment period, a final version of the rule will be rolled out.

All of this matters because in text and in practice, the expansive prohibited acts definitions permit BOP employees – largely untrained in the disciplinary system – to write up inmates for conduct that seems far beyond any reasonable interpretation of the regs.  In one case I worked on, an inmate became aware of a large stash of cellphones and other contraband.  She had been trying to get the warden to sign off on a pending recommendation that she be sent to home confinement. When she explained to a BOP secretary that she wanted to talk to her unit manager about it, and hoped she could trade her information for the unit manager pushing the warden to sign off on her home confinement, the secretary accused her of trying to bribe a BOP employee.

The inmate was charged with Prohibited Act 216, which is described in the rules as “Giving or offering an official or staff member a bribe, or anything of value.” 28 CFR § 541.3, Table 1.  Prohibited Act 216 is defined as a “high severity” offense.  She got a hearing, after which the BOP hearing officer ruled that the evidence “shows you are willing to give information as long as you receive something in return. This demonstrates your willingness to bribe staff.”

The unit manager herself testified that she did not feel as though the inmate was trying to bribe her, but in the BOP, the allegation alone is usually treated as presumptive evidence of guilt. The secretary said it sounded like a bribe, so it was a bribe.

But is it bribery? The BOP thinks so.
But is it bribery? The BOP thinks so.

Every defendant who cooperates with the government in hopes of getting a lesser sentence does the same thing this prisoner did, trade useful information for potential benefit. No matter. Providing information that contributed to institutional security was considered to be a bribe. The prisoner lost 21 days of good conduct time, four months of commissary, spent two months locked up in a cell awaiting disposition (this did not include any disciplinary segregation time), and was transferred to a higher-security facility. What’s worse is that the disciplinary record will be paraded in front of her judge as an argument against a sentence reduction, which will adversely affect her recidivism score.

The inmate’s habeas corpus appeal is still pending, but even if she wins and gets her 21 days back, most of the damage has been done.

The BOP already routinely punishes inmates with the Greatest category discipline for just living in a cell or cubicle where a cell phone is found, whether the inmate even knew of its presence.  Expanding the sweep of already expansive Prohibited Acts will only give BOP staff greater opportunity for mischief.  

BOP, Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes (February 1, 2024), 89 FR 6455

– Thomas L. Root

‘Tis Some Visitor,’ I Muttered, ‘Tapping At My Prison Door’ – Update for January 31, 2024

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ONLY THIS AND NOTHING MORE

Dublinraven240130US District Court Judge Yvonne Gonzalez Rogers (Northern District of California) told the associate warden at FCI Dublin last Friday that she’s coming to perform a short-notice inspection of the women’s prison to see how things operate.

Rogers plans to email the facility after 9:30 pm sometime in the next month to announce she will be showing up at the front gate at 5:30 the next morning. “I don’t want you to prep for it,” she told the AW. “I just want to show up.”

“’Tis some visitor entreating entrance at my prison door—
Some early visitor entreating entrance at my prison door;—
This it is and nothing more.”

(apologies to Edgar Allen Poe).

The judge will bring two of her staff and lawyers for the government and the class of sexual assault victims suing the BOP, but – according to KTVU-TV, Oakland – “but she also might shoo them away so that she can talk to anyone in the building that she wants.”

Rep Jackie Speier (D-Cal), since retired, visited the prison twice in early 2022. During her visit, Speier said, acting warden (and Deputy Regional Director) T. Ray Hinkle), tried to block her from speaking with several inmates who reported abuse and instead sent her to speak with hand-picked prisoners. Speier said Hinkle – later dismissively called sexual abuse committed by employees “an embarrassment.”

welcometohell230518Speier said she told him: “This isn’t an embarrassment. This is a toxic work environment. It is a reprehensible set of circumstances.” Afterward, in an email to Dublin staff obtained by the AP, Hinkle alleged Speier “mistreated” prison workers and treated one employee “as though she had committed a crime.” Hinkle later was accused of retaliating against BOP employees who complained about prisoner abuse at Dublin, and he admitted to having beaten prisoners back in the 1990s. After these allegations and admissions, he was promoted.

Judge Rogers does not intend to be buffaloed like Rep Speier says she was. During her inspection of the facility, she told Dublin management, “there won’t be anything you can do other than follow me around.”

The Judge is hearing a lawsuit by the California Coalition of Women Prisons, asking the court to stop many of the harms reported at FCI Dublin, such as sexual abuse by the guards and retaliation for speaking up, and possibly appoint a “special master” over the facility to make sure reforms are being met, according to KTVU-TV.

Government attorneys representing the BOP maintain that while there used to be sex scandals at the prison, they are now part of a long-gone era because of new leadership.

KTVU-TV, Scandal-plagued FCI Dublin to receive semi-surprise visit from judge (January 26, 2024)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 24, 2022)

Associated Press, AP Investigation: Prison boss beat inmates, climbed ranks (December 9, 2022)

KTVU-TV, ‘Cultural rot:’ U.S. Congressional team tours Dublin prison after sex scandal widens (Machr 14, 2022)

– Thomas L. Root

’60 Minutes’ Looks Behind BOP’s Potemkin Village Facade – Update for January 29, 2024

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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.

’60 MINUTES’ PUTS BOP DIRECTOR ON THE HOT SEAT

The American public got a primer on the Federal Bureau of Prisons last night on “60 Minutes,” and what the public saw was sobering.

BOP Director Colette Peters walked 60 Minutes reporter Cecilia Vega around FCI Aliceville. She told CBS that she wanted “people to see the good stuff” going on in the BOP. Inmates were shown in UNICOR, at a “Life Connections” graduation, and in classes. CBS did not fall for the Potemkin village.

dogandpony240129First, in a surprisingly candid interview between Vega and five or so inmates, the women freely admitted that CBS was seeing a dog-and-pony show. Director Peters admitted that things had been cleaned up but explained, “I’ve been doing this work for a long time– so I can see when things have been swept under the rug, if you will. I’m not naïve. And when anybody comes to your house you clean it up.”

Vega pressed Peters on the issue of short staffing and augmentation, asking how many more employees are needed.

Colette Peters: So we hope to have that real number for– you and the public– very soon.

Cecilia Vega: That seems like a critical number. How was that not on your desk when you s– took this job on day one, and– and still not there a year later?

More surprising than Peters’s non-answer was her assertion that the BOP would hire the employees needed to solve short staffing by October.

Shane Fausey, the recently retired national president of the Council of Prison Locals 33 and a former BOP lock and security specialist, was much more certain. He told Vega, “We’re short about 8,000 positions nationwide. ” He complained:

The[ BOP’s] buzz phrase is, “Everybody’s a correctional officer first.” That sounds good on paper. But if you take the teacher out of the classroom, and nobody’s teaching the offender the skills to go back out to society, we’re just back to warehousing people.

forcedsex161202Vega also focused on sexual abuse of women inmates at FCI Dublin and in other facilities, most of which Peters inherited from years of prior BOP directors who found it convenient to ignore allegations that, after all, came from untrustworthy and unworthy inmates. Peters claimed that the BOP is cleaning up the “Rape Club” culture at Dublin.

Colette Peters:  We’ve done a tremendous job in the last year rebuilding that culture and creating– an institution that is more safe, where individuals feel comfortable coming forward and reporting claims

Cecilia Vega: You just used the phrase, “tremendous job” in Dublin. Eight inmates have filed a class action lawsuit, and they’ve got testimony from more than 40 current and former Dublin inmates who say that the abuse is ongoing.

Colette Peters: That means the– the process is working, that they have the ability to come forward. They have the right to bring that class action lawsuit together.

bartsimpson240129Vega noted that more than 45 women have filed suits against the BOP, some of which claim that abuse continues, and that female inmates claim continuing retaliation by staff against those who voice allegations. Peters was skeptical:

Cecilia Vega: It’s one thing for you to say that retaliation is not tolerated, but it sounds like it’s actually still happening.

Colette Peters: Again, I would say those are allegations. I would like to be more grounded in fact around proven retaliation.

CBS 60 Minutes, Inside the Bureau of Prisons, a federal agency plagued by understaffing, abuse, disrepair (January 28, 2024)

– Thomas L. Root