Tag Archives: BOP

Ecclesiastes Was Right Where the BOP is Concerned – Update for August 27, 2019

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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 OLD IS NEW AGAIN AS FORMER BOP DIRECTOR RE-ASSUMES HELM

nothingnew190827The supremely pessimistic and apochryphal author of Ecclesiastes in the Christian bible (Kohelet in the Talmud), King Solomon, complained in Chapter 1, Verse 9, that “The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.”

Welcome to the all-new BOP. 

As everyone knows by now, last Monday Attorney General William Barr unceremoniously fired interim BOP Director Hugh J. Hurwitz, replacing him with former BOP Director Dr. Kathleen Hawk Sawyer as interim director and former interim BOP Director Dr. Thomas R. Kane as interim assistant director.

Even before Epstein’s death, Justice Dept. officials reportedly expressed off-the-record frustration with senior BOP officials, but the management flaws found since high profile defendant Jeffrey Epstein killed himself at MCC New York Aug. 10 have angered DOJ leaders, including the attorney general, according to anonymous law enforcement officials quoted by the Washington Post.

hurwitz190827Robert Hood, a retired former warden at ADX Florence and a critic of BOP leadership, called Hawk Sawyer an “outstanding” choice. “After a lot of recent instability, Kathleen Hawk Sawyer brings stability and direction,” Hood said. “She’s been a warden, she’s been a trainer, and she means business. It’s breathtaking to hear that she’s back. It’s exciting for the staff, many of whom have only heard about her. They know she’s a nuts-and-bolts person and a very direct person to work with.”

Hood predicted that Hawk Sawyer, a psychologist, will move quickly to fix a major problem at the bureau — the number of senior positions that have gone unfilled or had their responsibilities delegated temporarily.

sawyer190827Hawk Sawyer is no newbie. She ran the BOP from 1992 to 2003, capping a career that began back in 1976 as a psychologist at FCI Morgantown. But it’s been 16 years since she last led the agency, and some say a lot has changed in the interim. Jonathan Smith, a prison rights attorney, says the BOP is “much more complicated than when she was last director, partially because the growth in population, partially because you see a much harsher and more punitive system.”

Smith told NPR that today’s BOP uses solitary confinement more frequently than it did in the past. He says the use of private prisons has skyrocketed, as has the privatization of services across the system. And perhaps most importantly, the federal prison population has jumped from 65,000 in 1992 to more than 177,000 in 2019.

NPR reported that during her tenure as BOP Director, Hawk Sawyer was thought of as a champion of rehabilitation, someone who pushed for education opportunities inside federal prisons.

Additionally, Hawk Sawyer has “a long track record advocating for ‘good-time credits’ as a way to motivate inmates to participate in programs for personal development,” according to the Washington Examiner. “She correctly realized that increasing good-time allowances could go a long way toward reducing the federal prison population and help maintain order in prisons too.”

With last year’s passage of the First Step Act, some of the changes to sentencing laws and good-time credits that Hawk Sawyer supported are now law. The reforms included in the First Step Act are based largely on state-level successes, including former tough-on-crime states, that have now instead become smart on crime — and soft on taxpayers.

inch190827Not everyone is excited by Hawk Sawyer’s appointment. A former AUSA turned defense attorney and former BOP official observed that in 2017 then-Attorney General Jefferson Beauregard Sessions III appointed Mark Inch, a retired Army major general, to run the system. After less than a year, General Inch – who tried to make changes within the BOP and to navigate a middle course, abruptly quit. Hawk Sawyer, a permanent replacement, was not named until this week, the authors complained,

 

when Barr appointed someone who previously served in the position for over a decade, and who contributed to the current problems plaguing the Bureau. This is not going to create systemic change. This reactive switch in leadership is pure optics. We need to ask this question: Why was General Inch, someone who tried to change the culture, ultimately replaced with a BOP veteran?

clusterfuck190827Regardless of one’s position on Hawk Sawyer’s appointment, there is general agreement that she faces an agency in disarray. “”Clusterfuck doesn’t begin to describe the current state of the BOP, and it dates far beyond the Trump administration,” David Safavian, deputy director of the American Conservative Union Foundation’s criminal justice reform center, told The Marshall Project this week. “Anyone who thinks BOP is a high performing organization has never been inside a federal prison.”

Part of the problem, according to Reason.com, is “that the BOP is its own secretive fiefdom. It’s incredibly hard for reporters, family members, and civil liberties groups to find out what goes on behind prison walls, much less hold officials accountable.”

Washington Post, After Epstein’s death, attorney general replaces leader at Bureau of Prisons (Aug 19)

The Huffington Post, Jeffrey Epstein Death Shines Light On Understaffed, Unaccountable Federal Prison System (Aug 15)

National Review, The Epstein Fiasco and the Flaws with Our Criminal-Justice System (Aug 22)

The Marshall Project, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons (Aug 14)

Reason.com, Jeffrey Epstein Is Dead Because His Jailers Neglected Him. He’s Not the Only One. (Aug 15)

Washington Examiner, New Bureau of Prisons leadership should focus on rehabilitation (Aug 21)

Washington Examiner, AG William Barr must do more to fix dismal prison conditions (Aug 22)

The Hill, A better way to run the Federal Bureau of Prisons (Aug 22)

NPR, What’s Changed Since Kathleen Hawk Sawyer Last Headed Prison Bureau? (Aug 22)

– Thomas L. Root

Unwelcome Spotlight Shines on the BOP – Update for August 19, 2019

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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.

MEDIA CRANKS UP HEAT ON BOP IN WAKE OF EPSTEIN SUICIDE

abandonprison170501The Justice Dept. last Tuesday reassigned the warden at MCC New York, where Jeffrey Epstein hanged himself nine days ago, and placed on leave two Bureau of Prison staff who had been monitoring Epstein’s unit at the time. The shakeup came as the MCC fell under intense scrutiny, with critics calling the suicide “emblematic of a neglected, understaffed and dysfunctional federal prison system.”

A day earlier, Attorney General William P. Barr decried “serious irregularities” at the MCC and criticized the BOP’s “failure” to keep Epstein secure.

USA Today said that the suicide “has cast a jarring spotlight on the nation’s largest prison system plagued for years by dangerous staffing shortages, violence and widespread sexual harassment of female officers.”

Noting the BOP’s efforts to fill up to 5,000 vacancies and its lack of a director since Mark Inch resigned a year ago, Eric Young, national president of the federal prison workers union, said, “We’ve got a serious problem.”

The Houston Chronicle reported that Epstein’s suicide is “the latest black eye for the U.S. Bureau of Prisons, the jail’s parent agency that already was under fire for the October death of Boston gangster James “Whitey” Bulger… Taken together, the deaths underscore ‘serious issues surrounding a lack of leadership’ within the BOP, said Cameron Lindsay, a former warden who ran three federal lockups, including the Metropolitan Detention Center in Brooklyn.”

shu160201Other outlets reported that “major irregularities” in the MCC Special Housing Unit contributed to Epstein not being monitored properly. Those stories were followed by reports that the irregularities were primarily due to COs “working extreme overtime shifts to make up for staffing shortages the morning of his apparent suicide,” according to Politico. A BOP source was quoted as saying that the SHU was staffed with one guard working a fifth straight day of overtime and another who was working mandatory overtime.

The New York Times reported that one of the SHU guards that day was not a full-fledged correctional officer, and neither guard had checked on Epstein for several hours before he was discovered.

By the middle of last week, the focus was on BOP staffing levels. The Marshall Project reported that the Epstein suicide “followed steep and persistent staffing shortages that exceeded the rate of decline in the federal prison population… The federal prison system lost 12% of its workforce from the start of the Trump administration through the end of 2018. Administration officials have argued that the staff drop, which resulted partly from a hiring freeze, was mitigated by a reduction in the number of federal prisoners. But… over a two-year period between Sept. 2016 and Sept. 2018, the bureau lost 10% of its employees. In that same period, the total number of federal prisoners dropped by just over 5%.”

CNN reported that the BOP continues to rely on “augmentation,” using non-correctional officers in CO positions to cover staff shortages, noting that Congress has repeatedly asked the BOP to give up augmentation, even while denying it enough budget to hire more COs. The Hill complained that “it is the failure of leadership inside the permanent Justice Department bureaucracy — one that has served multiple presidents, Republican and Democrat — to fully address the resources and cultural deficiencies” that has resulted in the staffing crisis at BOP.

Schadenfreude aside, it is rare that media attention and Congressional hand-wringing results in changes in the BOP that positively affects staff or inmates.

Washington Post, Justice Dept. reassigns warden of jail where Epstein died, puts two staffers on leave (Aug. 13)

USA Today, Jeffrey Epstein suicide casts spotlight on federal prison system riven by staff shortages, violence, sexual harassment (Aug. 12)

Houston Chronicle, Federal New York lockup draws new scrutiny in Epstein death (Aug. 12)

Politico, Jeffrey Epstein’s guards were working extreme OT shifts (Aug. 12)

The Marshall Project, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons (Aug. 14)

The New York Times, In Short-Staffed Jail, Epstein Was Left Alone for Hours; Guard Was Substitute (Aug. 12)

The Hill, Deadly déjà vu: Epstein’s prison death was decades in the making (Aug. 13)

– Thomas L. Root

Not a Great Week for the BOP – Update for August 13, 2019

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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.

NOT THE BEST WEEK FOR THE BOP

baddayA181130Earlier this past week, a gang fight at a Florida BOP facility killed an inmate and sent several to the hospital. Then this past weekend, high-profile defendant Jeffrey Epstein, being detained at MCC New York, apparently killed himself shortly after being taken off suicide watch.

It all adds up to a bad week for BOP Acting Director Hugh Hurwitz. And it’s not like to get better soon.

Investigations were immediately launched by the FBI and Dept. of Justice Inspector General. The Washington Post said Saturday afternoon that “the death is sure to draw intense scrutiny of the Bureau of Prisons and the Metropolitan Correctional Center, New York. The high-rise federal detention center in downtown Manhattan has a fearsome reputation; one inmate who spent time there and at Guantanamo Bay said that the U.S. facility in Cuba was “more pleasant” and “more relaxed.”

At minimum, expect the BOP’s suicide program statement, last updated 12 years ago, to get a rewrite over the Epstein incident. More likely, a lot of hard questions are going to be asked by law enforcement and congress alike of BOP Central Office staff and the affected wardens.

But the investigation is likely to go far beyond that. Yesterday, the Houston Chronicle reported that “the apparent suicide of Jeffrey Epstein has brought new scrutiny to a federal jail in New York that, despite chronic understaffing, houses some of the highest-security inmates in the country.” It characterized the suicide as “the latest black eye for the U.S. Bureau of Prisons, the jail’s parent agency that already was under fire for the October death of Boston gangster James “Whitey” Bulger, who was fatally beaten at a federal prison in West Virginia shortly after his arrival.”

Taken together, the deaths underscore “serious issues surrounding a lack of leadership” within the BOP, the Chronicle reported, quoting Cameron Lindsay, a former warden who ran three federal lockups, including the Metropolitan Detention Center in Brooklyn.

badday190813Yesterday, the New York Times reported that “one of the two people guarding Jeffrey Epstein when he apparently hanged himself in a federal jail cell was not a full-fledged correctional officer, and neither guard had checked on Mr. Epstein for several hours before he was discovered, prison and law-enforcement officials said.” The description sounds suspiciously like the BOP was using augmentation, its practice of pressing non-correctional officers into CO roles.

Attorney General William P. Barr criticized BOP’s management of MCC New York yesterday, saying, “We are now learning of serious irregularities at this facility that are deeply concerning and demand a thorough investigation… We will get to the bottom of what happened. There will be accountability.”

Uh-oh. Sounds like some Warden’s bonus is in jeopardy. Or not.

USA Today, One inmate killed and five others hospitalized after clash between white and black federal prisoners (Aug. 5, 2019)

Houston Chronicle, Federal New York lockup draws new scrutiny in Epstein death (Aug. 12, 2019)

Washington Post, Jeffrey Epstein dead after ‘apparent suicide’ in New York (Aug. 10, 2019)

The New York Times, In Short-Staffed Jail, Epstein Was Left Alone for Hours; Guard Was Substitute (Aug. 12, 2019)

– Thomas L. Root

The Short Rocket – Update for July 25, 2019

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THE SHORT ROCKET

Some People Need to be Locked Up…

rocket-312767A lot of people rely on Angel Tree to provide gifts to their kids at Christmas. Angel Tree, in turn, relies on volunteers and donations to be able to fill prisoners’ wishes for their kids.

A Waco, Texas, Angel Tree volunteer who police say stole Christmas presents meant for children with parents in prison, was arrested last week.

According to the arrest affidavit, Charabe Allison would either give donated clothing to her own family members or exchange the items at stores for gift cards. She was caught because clothing was returned to a local store that a store worker had bought with an employee discount. Because such clothing was not returnable, management questioned the employee, who then reported that her donation to Angel Tree had been returned for credit.

Despite my predisposition against indiscriminate incarceration, I think this woman needs to be locked up…

Waco, Texas, Tribune, Angel Tree volunteer arrested, accused on exchanging gifts for store credit (July 16)

College Administrators Urge Full Repeal of Pell Ban…

Vivian Nixon, who as an Education Department employee pushed the 2015 Pell Grant experimental reinstatement for a limited number of incarcerated students last week told a meeting of college executives that Congress should lift the 1994 ban on federal student aid to prisoners.

pell160627Nixon, now director or the College and Community Fellowship, told proponents of college education that the success of the Second Chance Pell pilot program justifies full reinstatement of Pell Grants for incarcerated students. Education Secretary Betsy DeVos, also a speaker, reaffirmed her support for the program, but said, “It’s Congress’s chance to act and do its job to make sure to extend this opportunity in a very sustainable and predictable way to many more people across our country.”

About 1,000 students have graduated with degrees or postsecondary certificates since the Second Chance program began in 2016. The Trump administration and Sen. Lamar Alexander (R-Tennessee), chairman of the Senate education committee, support a repeal of the 1994 ban in a reauthorization of the Higher Education Act.

Inside Higher Education, Taking Stock of Pell Grants Behind Bars (July 16)

BOP Officials Promoted and Given Bonuses Despite Tight Budgets and Infrastructure Failure…

The Bureau of Prisons paid $1.6 million in bonuses to its top executives and wardens during the past two years despite chronic staffing shortages and sharp critiques of prison management leveled by Congress, according to USA Today.

money160118The payments ranged from $5,400 to $23,800 per official. The largest sums went to the agency’s leadership team, including $20,399 to acting director Hugh Hurwitz, and the wardens of prisons who confronted what union officials described as dangerous shortages of guards.

Joseph Coakley, who managed USP Hazelton, where Whitey Bulger and two other inmates were murdered last year, received $20,399 on top of $34,500 paid out during 2015 and 2016 for his work at Hazelton and at FCI Beckley.

Meanwhile, Herman Quay, whose mishandling of the infrastructure crisis as warden of MDC Brooklyn last winter and bumbling coverup of the  freezing conditions and loss of electricity there during a cold snap made national headlines, has been promoted to warden at FCC Allenwood. At the new assignment, Quay is responsible for some 3,400 prisoners, about twice the residents of MDC Brooklyn.

A DOJ Inspector General’s investigation into the power loss is not yet complete, but Robert Gottheim, the district director for House Judiciary Committee chairman Jerrold Nadler (D-N.Y.), complained, “It’s certainly not acceptable that the person who was responsible for the care of all the inmates at that facility, who from our perspective did not exercise due care, would then be getting a promotion to another facility, let alone a promotion before we have the investigation made public.”

USA Today, Federal prison officials get bonuses as staffing shortages, management problems persist (July 16)

The Intercept, The Warden tried to cover up a crisis at his freezing Brooklyn Jail — then he got promoted (July 17)

House Subcommittee Holds Hearing on Women in Prison

Piper Kerman, author of the novel turned Netflix series “Orange is the New Black,” testified before a House Judiciary subcommittee on her experiences in federal prison last week.

kerman190725Kerman, reform advocate Cynthia Shank and others spoke at a hearing on women in the criminal justice system, to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform and to argue for a shift in policy to directly impact the growing number of women in prison.

“Policies, not crime, drive incarceration,” Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative. Nearly 150,000 women are pregnant when they are admitted into prison.

ABC News, House Judiciary subcommittee meets to discuss growing population of women behind bars (July 16)

– Thomas L. Root

Bringing Forth A Mouse – Update for July 23, 2019

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BOP RELEASES THOUSANDS (FROM SOMEWHERE) LAST FRIDAY

release161117The Dept. of Justice crowed last Friday that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the [First Step] Act.” You’d be forgiven for believing that it had all been DOJ’s idea, and that inmates streamed through the gates of federal prisons, straight from the cell to freedom.

But perhaps First Step merely brought forth a mouse. The problem, according to what I heard from a number of people at different institutions, no one seemed to be leaving.  With over 7,700 people on the LISA email list, I expected over 100 notifications from the BOP that inmates on the subscription list no longer had Corrlinks email accounts, a notice commonly received whenever someone is released and his or her Corrlinks account is closed. Instead, I got only 17.

FAMM president Kevin Ring told the Wall Street Journal that most of the 3,100 inmates released Friday were among the 8,300 BOP inmates already in halfway houses or the 2,200 on home confinement. Thus, the effect of the mass release, while reducing BOP population overall, was not noticeable at institutions. Reason magazine confirmed this, reporting today that “Most were released from halfway houses or home confinement where they were finishing out their sentences..”

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, 900 released inmates were transferred to ICE or state authorities for deportation after being convicted of felonies, a result which predictably enough shocks Mother Jones but has been the law for 102 years, since the Immigration and Nationality Act of 1917.

Most troubling are the numerous reports I have gotten that the BOP has not completed the recalculation of good time for most of the 151,000 inmates still in institutions. One source reported that the BOP is processing each inmate’s new time manually, and that it is able to complete 5,000 a month. The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time.

bopmath190723How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

Dept of Justice, Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

Reason.com,Tucker Carlson’s Unhinged Rant Against Prison Reform Makes Us All Dumber (July 23)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

– Thomas L. Root

I Felt The Earth Move Last Friday… Or Did I? – Update for July 22, 2019

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LAST FRIDAY, SOME PRISONERS FROM SOMEWHERE WERE PERHAPS RELEASED (WHO CAN SAY?) AND DOJ ROLLED OUT PROPOSED RISK ASSESSMENT SYSTEM 

Friday, July 19th was the day – a full 210 sunrises after President Trump signed the First Step Act into law. And, as required on that day, the Bureau of Prisons at long last credited federal inmates with the additional seven days per year promised them in the Act, and the  Dept. of Justice  released the risk assessment it proposes to have the Bureau of Prisons use to determine the likelihood that inmates will commit new offenses upon release.

A really big day… or was it?

yellowribbon190722Tie a Yellow Ribbon… Rahm Emmanuel may not have said it first, but he made it famous when he counseled his then-boss, President Obama, to never let a good crisis go to waste. DOJ dragged its feet in setting up a panel to implement the risk assessment model that is at the heart of the First Step Act’s earned time credit program (which lets federal prisoners earn extra time off their sentences for successfully completing programs that reduce recidivism). The Department as well fought hammer and tong to avoid crediting inmates with the extra good time Congress always meant them to have (but did not because DOJ interpreted a poorly-written statute as harshly as possible), an error corrected in First Step. And DOJ has opposed countless motions under the newly-retroactive Fair Sentencing Act for reductions of draconian prison terms.

Nevertheless, when faced with a July 19 deadline even it could not deny, DOJ did not miss the chance last Friday to trumpet its successes under First Step, chief among them that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.”

tsunami190722So where was the flood of prisoner releases at the end of last week? As I heard from  people at a dozen or more institutions, no one seemed to be leaving. This was corroborated by my own observation. With over 7,700 people on the LISA newsletter email list, I expected over 100 notifications from BOP on Friday of people whose Corrlinks email accounts were closed because they had been freed (such a notice is sent whenever someone is released and his or her Corrlinks account is closed). Instead, I got only 17 such messages.

Here’s what happened. As FAMM president Kevin Ring told the Wall Street Journal,  most of the 3,100 inmates released Friday were already among the 8,300 BOP inmates in halfway houses or the 2,200 people on home confinement. Thus, alleged tsunami of prisoner releases – while reducing BOP population overall – was a barely-noticeable ripple at the institutions.

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, USA Today reported, 900 released inmates were transferred to ICE or state authorities.

tortoise190722Inmate Sentence Recomputation More Tortoise Than Hare…  More troubling are the numerous reports I have gotten from inmates and their families that BOP has not yet completed the recalculation of good time for most of the 151,000 inmates still in institutions. One inmates father reported that the BOP’s Grand Prairie, Texas, Designation and Sentence Computation  Center told him that the agency is processing each inmate’s new time manually, and that it is able to complete no more than 5,000 a month.

The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time. How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

recid160321I see a PATTERN Here… One of First Step’s marquee accomplishments is to establish a system that ranks each inmate’s risk of being a recidivist, and then tracks that risk throughout the inmate’s sentence. The inmate (unless he or she falls in one of the 60-plus “ineligible” categories) may take programs identified by the BOP as proven to reduce recidivism, and get up to 15 days credit a month for doing so. The credit may be used to reduce the length of his or her incarceration by up to 12 months, and beyond that, to earn the inmate extra halfway house or home confinement time.

Before the program is implemented, the DOJ must adopt a system to rank prisoners’ recidivism risk. On the last afternoon of the 210-day period First Step gave DOJ for doing so, it unveiled its proposed system, which goes by the unwieldy name “Prisoner Assessment Tool Targeting Estimated Risk and Needs.” Luckily, the name collapses conveniently into the acronym “PATTERN.”

PATTERN will classify a BOP prisoner into one of four Risk Level Categories (“RLCs”) by scoring him or her in much the same way security and custody levels are calculated by the BOP. PATTERN does this by assigning points in 17 different categories. The highest possible score (like golf, no one wants a high score) is 100. The lowest score is -50.

PATTERNB190722

This is roughly how it works: PATTERN has four different predictive models, 1) general recidivism for males; 2) general recidivism for females; 3) violent recidivism for males; and 4) violent recidivism for females. The Report noted that the base recidivism rate for all offenders is roughly 47% for general and 15% for violent recidivism.

The categories in which points are scored include (1) age of first conviction, (2) age at time of assignment, (3) prison infractions, (4) serious prison infractions, (5) number of programs completed, (6) number of tech or vocational courses completed, (7) UNICOR employment, (8) drug treatment, (9) drug education, (10) FRP status, (11) whether current offense is violent, (12) whether current offense is sex-related, (13) criminal history score, (14) history of violent offenses, (15) history of escapes, (16) voluntary surrender, and (17) education.

Generally, any score of -50 to +10 is a minimum recidivism risk, 11 to 33 is a low recidivism risk, 34 to 45 is a medium recidivism risk, and 46 or higher is a high risk. Its designers say “the PATTERN assessment instrument contains static risk factors as well as dynamic items that are associated with either an increase or a reduction in risk… PATTERN is a gender-specific assessment providing predictive models, or scales, developed and validated for males and females separately. These efforts make the tool more gender responsive, as prior findings have indicated the importance of gender-specific modeling.”

This means that as an inmate goes without getting disciplinary reports for infractions of prison rules, completes programs, keeps up with payment of fines and restitution, takes drug classes and gets older, his or her RLC category should fall. Even high and medium RLCs can earn credit for taking programs at the rate of 10 days per month, but once the RLC falls to low, that rate increases to 15 days per month.

PATTERNA190722So what BOP programs will build earned time credit? No one has said yet, but the PATTERN report offers clues. The PATTERN categories suggest that UNICOR employment, drug classes, GED and vocational programs ought to count, given PATTERN’s emphasis on importance of completion of those courses in the point system.

PATTERN is not yet a done deal. What happens next is a 90-day public comment period on PATTERN rules. Final rules will issue by Thanksgiving, with BOP staff being trained in applying PATTERN. Do not expect any PATTERN assessment to be done for real until Martin Luther King Day.

Dept. of Justice, Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

Dept. of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019)

– Thomas L. Root

The “Closer to Home” Illusion – Update for May 20, 2019

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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 DOES NOT HAVE TO WALK 500 MILES

aardvark190520There is not a single inmate in the federal prison system who would not be willing to walk, roll or crawl 500 miles to be home right now. Any no one on the outside is so hard-hearted that he or she cannot concede that housing inmates close enough to family to permit visits does not help with rehabilitation.

For those reasons (if basic humanity were not enough), the First Step Act’s provision directing the Bureau of Prisons to “place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence,” got a lot of coverage when the bill passed last December.

But just as the media buzz that 4,000-plus inmates were going to be dumped on America’s streets the day after the Act passed was wrong, the giddy hopes that inmates were about to be placed near to their families have been tempered by the realities of what the Act says and what the BOP is willing to do.

There is a usually a separation between promise and reality, sometimes a crack and sometimes a chasm. It is probably worthwhile, therefore, to explain just how little Sec. 601 of the First Step Act really promises families and inmates.

Sec. 601 modified 18 U.S.C. § 3621(b) to read that the BOP should try to place prisoners within 500 miles of home. That placement, however, is not required. In fact, it is subject to some pretty big exceptions, being subject to

(1)   bed availability,
(2)   the prisoner’s security designation,
(3)   the prisoner’s programmatic needs,
(4)   the prisoner’s mental and medical health needs,
(5) any request made by the prisoner related to faith-based needs,
(6)  recommendations of the sentencing court, and
(7)  “other security concerns of the” BOP.

Number 7 is a doozy. The placement need not violate a rule, or a BOP program statement, or even a local rule adopted by the sending or receiving prison. It just has to be a “concern.” Whatever that is, it is clearly something to be defined by the BOP.

jello190520Prior to the First Step Act, the BOP required that an inmate be at one institution for at least 18 months, and that he or she have 18 months without a disciplinary report (the BOP called it “clear conduct”) before he or she could be considered for a transfer. Often, transfers were denied because the inmate was deemed to need programming available at his or her current location, or occasionally, because the inmate had skills (a welder, for example, or a GED instructor) the current institution believed it needed to retain. When the transfer came (if it did), the inmate seldom ended up at the institution he or she desired.

In the wake of First Step, however, the BOP is still requiring that an inmate be at one institution for at least 18 months, and that he or she have 18 months without a disciplinary report (the BOP called it “clear conduct”) before he or she could be considered for a transfer. The BOP can still deny transfers for programming needs, perceived mental health needs (which, given the state of mental health treatment in the system, is a hoot), and for lack of bed space (which inmates from years past know to be an excuse that means whatever the BOP wants it to mean). Anything not covered by the foregoing can easily fall within the as-amorphous-as-Jello “security concerns” exception.

But they can’t do that, can they? Of course not. The injured inmate can always that the BOP to court…

Not so fast. Sec. 601 of the First Step Act added a free pass to the BOP: “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” So you don’t like what the BOP did? You can’t sue, can’t even bring a habeas corpus action, can’t even get on Judge Judy. The directive of § 601, detailed in its mandate and limitations, is completely undone by the last line of § 601, which tells the BOP, “if you don’t follow the law, no one is allowed to call you on it.”

wendys190520Imagine a football game like that, where one team gets a yellow flag repeatedly, with each penalty being marched off for zero yards. Or, my preferred fantasy, a diet on which if you succumb to Wendy’s Peppercorn Mushroom Melt Triple with a side of Baconator Fries and large Coke, the 2,190 calories you consume would not keep you from dropping a pound a day. Sweet deal for the BOP.

If the BOP could be sued, the results would not be much different. Courts traditionally give substantial deference to the judgments of prison administrators. Even restrictive prison regulations are permissible if they are “‘reasonably related’ to legitimate penological interests. The BOP would say that its transfer restrictions – like 18 months of clear conduct – serve a legitimate penological goal. The courts, deferring to the BOP’s interpretation of the revised statute and its flexibility granted therein, would undoubtedly accept that.

chevron190520Finally, even without prison-administration deference, courts generally defer to administrative agencies “when it appears that Congress delegated authority to the agency generally to make rules… and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” This is called “Chevron deference,” and – while opponents hope to see the Supreme Court undo it at some point soon – it would easily apply to 18 U.S.C. § 3621(b) as to how the BOP measures bed availability, security concerns, programming needs and mental and physical health needs.

So if the BOP ignores the Act’s 500-mile placement requirement, there is no remedy. Even if there were, BOP rules on transfer and the exceptions to closer-to-home would probably be unassailable.

Sec. 601, First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 5208, 5238 (Dec. 21, 2018)

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)

Turner v. Safley, 482 U.S. 78 (1987)

– Thomas L. Root

If You Want to Go Home, Die Faster – Update for May 16, 2019

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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.

CAN’T TEACH AN OLD DOG NEW TRICKS

die190513The Bureau of Prisons has been notorious for refusing to make sentence reduction recommendations to courts because dying inmates seemed to be in pretty good health, and surely able to finish their sentences, no matter what doctors might say. The First Step Act tried to remedy the BOP’s convenient myopia by letting inmates file for sentence reductions with district courts if the BOP refused to do so for them.

You’ll be glad to know that the government remains just as oblivious to medical reality and insensitive to impending death as ever. When Steve Brittner’s BOP doc told him that his Stage IV brain tumor was bad enough to withdraw further treatment and sign him up for hospice care, Steve filed for an 18 USC § 3582(c) sentence reduction so he could die at home.

The government opposed the reduction, arguing Steve did not have a terminal illness within the meaning of the guidelines because his medical records “do not indicate that the tumor has metastasized.” Plus, the government contended, Steve could not show “extraordinary and compelling” circumstances because his medical records did not indicate an inability to care for himself.

Last week, Steve’s district court swept aside the government’s opposition and said Steve could die at home. First, the court said, the Guidelines on sentence reduction do not require that Steve show that his tumor has metastasized for his condition to be terminal. Instead, the guidelines provide a number of examples of medical conditions that would meet the standard for a “terminal illness.”’ A metastatic solid-tumor cancer” is just example.

compassionaterelease190517

Second, to show extraordinary and compelling circumstances, an inmate does not have to show both a terminal illness and inability to care for oneself. “The Government reads a conjunctive requirement into the guideline comment where none occurs,” the district court observed. The Guidelines provide that “extraordinary and compelling” reasons exist “under any of the circumstances set forth below,” of which a terminal condition is one and inability to care for oneself is another.”

“Of importance,” the court wrote, “the treatment options available to Brittner have been exhausted. According to the last treatment note available to the Court, dated November 15, 2018… the plan… was to hold, or discontinue further therapy, and it was recommended to Brittner that he consider comfort measures, specifically hospice, which his treating oncologist “considered very reasonable due to worsening performance status… It is clear from the nature of his disease and his worsening condition as documented above, that Brittner’s prognosis is grim, his disease is terminal, and the length of his life can be measured most likely in weeks, as opposed to months.”

United States v. Brittner, 2019 U.S. Dist. LEXIS 73653 (D.Mont. May 01, 2019)

Reason.com, A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn’t Dying Fast Enough to Qualify (May 3)

– Thomas L. Root

BOP Will Calculate First Step Extra Good Time on July 19th – Update for May 6, 2019

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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.

JULTEENTH

imageMost everyone knows that “Juneteenth” is an unofficial but increasingly-popular holiday commemorating June 19, 1865, the date on which slavery was abolished in Texas, the last stronghold of the dying Confederacy. When the Texan slaves were declared free on that date, slavery was no longer legal anywhere in North America. 

This year, July 19, will become “Julteenth,” the date on which BOP computers will automatically update sentence records to credit the additional seven days per year good-time that was awarded in the First Step Act last December, crediting federal prisoners retroactively to the start of their sentences. Some prisoners will receive, in one fell swoop, a six months credit on their incarceration.

When First Step passed last December 21st, Congress intended that the seven days be credited immediately. Indeed, opponents and supporters of the bill predicted an immediate flood of federal prisoners released in time for Christmas. Proponents envisioned the happiest of Christmases for many reunited families. Opponents darkly predicted vicious criminals running amok on America’s Yuletide streets. But in the back-and-forth on debating and amending the measure to please some die-hard opponents of any criminal justice reform legislation that suggested common sense, the seven days’ good time got tucked in a section of the bill addressing the new risk assessment system. A subsection of that provision gave the Attorney General 210 days (which worked out to July 19, 2019) to roll out the risk assessment proposal. Broadly written and poorly conceived, the measure hooked the seven days’ additional good time to that section as well.

unintendedconsequences190506The additional good-conduct time was granted because it was what Congress always had intended. Unfortunately, the prior good-conduct time provision in 18 USC 3624(b)(1) but had written so poorly that the Bureau of Prisons was able to interpret it in the most miserly way possible. In irony that would be appreciated had it not dashed prisoners’ hopes so badly, the good time “fix” was screwed up to, enabling the Dept. of Justice to interpret it to delay the seven days’ good time until the risk assessment – which has nothing to do with the seven days’ additional good time – was completed.

Since First Step passed, DOJ has blown through a 30-day deadline for starting the risk assessment adoption process, leading some to speculate on whether it would ignore the July 19 deadline for the seven days’ additional good-time credit as well. Fortunately, BOP last week dispelled that speculation with a welcome announcement that the additional credit would be automatically applied on that date.

Whether the Attorney General will deliver a risk assessment program on July 19th, one that will meaningfully determine risk of recidivism in an efficient and fair way, is another thing altogether. Previously, we reported on the appointment of conservative think-tank Hudson Institute to host the Independent Review Committee, the group that is to recommend a risk assessment program for adoption. In a joint statement released a week ago last Tuesday, House Judiciary Committee Chairman Jerrold Nadler (D-New York) and Subcommittee on Crime, Terrorism and Homeland Security Chairwoman Karen Bass (D-California), sharply questioned the appointment, declaring that “our concerns about this decision remain” even after staff was briefed by the agency.

Under the Act, the IRC’s function is to create independent oversight of the law’s implementation and to ensure that reforms are carried out in a bipartisan and evidence-based manner. First Step directs the DOJ’s National Institute of Justice to “select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools.”

strangelove190506“The Hudson Institute appears to have little or no expertise in the study and development of risk and needs assessment tools,” Nadler and Bass complained. “Committee staff questioned DOJ representatives charged with overseeing First Step Act implementation as to why the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked whether the Hudson Institute has ever studied or developed a risk and needs assessment tool, and were told that DOJ representatives did not know. Staff asked on what date the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked what process was used to select the Hudson Institute, and again were told that DOJ representatives did not know.”

The suggestion is that political sources out the DOJ (read “the White House”) dictated Hudson Institute’s appointment. “The Hudson Institute and its leadership have opposed sentencing reform and… the First Step Act’s reforms,” the joint press release said. “We are concerned that the selection of a biased organization lacking requisite expertise may reflect a lack of intent to diligently and effectively implement the bipartisan criminal justice reforms passed last Congress.”

Marc Mauer, executive director of the Sentencing Project, agreed. “The Hudson Institute has no interest or expertise in criminal justice policy, and to the extent they do have any opinion about policy, they’re very hostile to the kinds of provisions that are in the First Step Act,” Mauer told Salon magazine. “It’s a strange choice when there are so many other reputable think tanks and organizations that do have experience in these issues.”

Nadler and Bass demanded that The Hudson Institute’s appointment be rescinded, but DOJ sources report that such a move is very unlikely. Of more significance is the question of whether a workable risk assessment system is in place in the next two and a half months, so the BOP can roll out programs inmates can use to earn good-time credits.

In the midst of the flying political fur over Hudson Institute’s involvement, no one is speculating about that.

House Judiciary Committee, Nadler & Bass Statement on DOJ’s Selection of the Hudson Institute to Host First Step Act Independent Review Committee (Apr. 23)

Salon, Is the Trump Justice Department trying to sabotage the First Step Act? (Apr. 28)

– Thomas L. Root

You Leave When I Say You Can Leave – Update for March 12, 2019

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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.

WHO SAID YOU COULD GO HOME?

Winning immediate release doesn’t necessarily get you anywhere. That was Darren Golson’s experience a week or so ago.

noleave190312His judge granted Darren’s retroactive Fair Sentencing Act motion and ordered his release on Feb. 25. But when he showed the halfway house the judge’s order, it called some unnamed Bureau of Prisons employee, who ordered them to refuse to let Darren leave.

Darren whipped up a quick emergency motion, essentially asking his judge to figuratively plant his size 12 in the halfway house’s butt. The irate judge got on the phone, asking the halfway house who there would accept service of the “show cause” order the court was fixing to issue.

The answer was that no one wanted to see such an order. The halfway house hustled Darren out the door at 3:57 pm on the 27th, only two days late.

Motion, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 27, 2019)
Order, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 28, 2019)

– Thomas L. Root