Tag Archives: BOP

The Short Rocket – Update for July 25, 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 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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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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

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

Shutdown Grinds on Federal Prisons – Update for January 18, 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.

FEDERAL PRISON CONDITIONS NOT GOOD FOR STAFF OR INMATES AS SHUTDOWN CONTINUES

shutdown190118The partial government shutdown, about to enter its fifth week, has led to the furloughing of up to half of the BOP’s 36,000-person staff, including many who provide therapeutic programs and other services considered not to be “essential.” The agency is asking its remaining employees to keep working unpaid, focusing on maintaining security even if that’s not usually their primary job.

“It’s an absolute disaster,” said the president of the union chapter in Victorville, California, home to one of the nation’s largest concentrations of federal prison guards. “I have staff that are resorting to getting second employment – like Uber driving.”

Union officials reached by The Washington Post reported last week that the number of employees who are not showing up for work has at least doubled since the shutdown began. As a result, those showing up are routinely working double shifts, correctional officers and other prison staff members say. “There has been a rise in people calling in sick and taking leave during the shutdown,” said Richard Heldreth, president of the corrections officer union at Hazelton prison in West Virginia. “The staff who are showing up are dealing with this violence, long hours and extra overtime with the uncertainly of when we will be compensated.”

The BOP said only that the lack of funds from Congress means that only those employees whose duties involve “the safety of human life or the protection of property” are permitted to work.

The shutdown is having other consequences as well, including canceled visiting hours and empty commissary shelves. Also, applications of terminally-ill inmates awaiting “compassionate release” are going unread.

A more urgent problem, said Robert Hood, former warden of the ADMAX Florence, is the possibility of mental-health staff being furloughed. “Most BOP facilities will run without the myriad of programs normally offered” to address the needs of dangerous or mentally ill prisoners, Hood said.

emptyprison190118The U.S. courts are equally affected. Federal courts are funded only through next week. Beyond that, there is a likelihood of serious delays for many cases, but even experts and government officials are uncertain exactly how a prolonged shutdown might play out. The Administrative Office of the U.S. Courts (AOUSC) now says that federal courts can continue paid operations using “court fee balances and other ‘no-year’ funds” until Jan. 25.

If the court system runs out of reserves, according to AOUSC, the Anti-Deficiency Act kicks in. Involved parties can expect delays in discovery, briefing and other communications from the DOJ and other federal agencies.

Civil litigation, generally, will be the first casualty of the shutdown. Criminal cases will be prioritized, as they are matters of public safety, according to the Administrative Office. Every court will be affected, though it remains uncertain to what extent. Judges remain responsible for managing their cases, even during the shutdown, and will generally address stays, delays and important date changes on a case-by-case or district-by-district basis.

The Marshall Project, What the Government Shutdown Looks Like Inside Federal Prisons (Jan. 7)

Washington Post, Tensions rise in federal prisons during shutdown as weary guards go without pay and work double shifts (Jan. 10)

Law360, What Attorneys Need to Know About the Shutdown (Jan. 10)

Administrative Office of U.S. Courts, Judiciary to continue funded operations until Jan. 25 (Jan. 16)

– Thomas L. Root

BOP Guards Union Scams Media – Update for January 17, 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.

THAT REALLY SUMPTUOUS CHRISTMAS STEAK BOP PRISONERS ENJOYED WAS FAKE NEWS…

Last week, we reported how NBC had run a story that inmates were eating shrimp and steak while making fun of the Federal Bureau of Prisons staff who were forced to serve the inmates without pay.

prisonfood190118It turns out that the story was not only fake (which our readers already knew), but it was successfully planted in the gullible national media by the correctional officers’ union.

Reason.com reported last week that in order to express their unhappiness with the federal shutdown, representatives of federal prison employee unions decided to act as though any tiny morsel of mercy granted to inmates is an insult to BOP employees:

While the holiday meals sound nice, the food prisoners receive every other day of the year is generally awful and frequently doesn’t contain enough nutrients to meet inmates’ dietary needs. But in order to make themselves look like the victims in this government shutdown, union officials shopped around a story to multiple media outlets about criminals being treated like kings while prison guards have to freelance as Uber drivers.

Lawandcrime.com reported that the “story appears to be largely based on information straight from the American Federation of Government Employees – the largest national correctional officers union. The story does not contain a firsthand quote from one single prisoner… [but] does provide ample opportunities for the president of the national prison workers union and the union chief at a federal prison in Florida to kvetch and moan about their employees being forced to feed inmates holiday meals.”

Reason.com reported that “many outlets ran with this tale in exactly the form union reps likely preferred. Over at USA Today, Kevin Johnson described these meals as a “display of culinary largesse.” Cleve Wootson, Jr., at The Washington Post called it an example of the “hypocritical” or “ironic” moments of the federal shutdown.

prisonfoodA190118NBC’s reporting included guards and union representatives describing it as “despicable” that inmates received a holiday meal. NBC described the letters and complaints it cited as having been mysteriously “obtained,” despite the fact that a Florida BOP union leader was quoted in all of these stories, suggesting that the union “shopped” the story to reporters like a normal PR pitch.

The union leader provided the media outlets with the contents of two inmate emails talking about the meal, which Reason said had been obtained from BOP staff who had screened the emails. the emails were “obtained” by prison staff who screened the emails.

Prison staff are on record complaining that inmates are still getting paid for their prison work. Reason notes that “inmates typically make pennies per hour. And unlike [COs], these inmates cannot find better working conditions elsewhere.”

Reason.com., Prison Guards Orchestrate Media Campaign to Complain About Inmates Getting Edible Food for Christmas (Jan. 7)

Lawandcrime.com, Viral Story About Prisoners’ Holiday Meals During Shutdown Reeks of Propaganda (Jan. 7)

– Thomas L. Root

BOP Officers Union Fakes Out NBC, Washington Post, With Inmate Luxury Story – Update for January 10, 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.

UNPAID BOP WORKERS CLAIM THAT INMATES HAVE IT SWEET TURNS OUT TO BE “FAKE NEWS”

NBC News reported last Sunday that the partial government shutdown that continues without an end in sight has “created a delicious irony at federal prisons — inmates dining on lavish holiday meals in front of disgruntled staffers forced to work without pay.”

prisonfood190110Several BOP food service employees complained to NBC News that the Christmas and New Year’s Day meals inmates traditionally receive “aggravate[ed] staffers who were already fretting about bills to pay and children to feed.: The report cited steak and shrimp served Jan. 1 at FCI Pekin, Cornish hen and Boston creme pie at MDC Brooklyn, and “heaping plates of chicken wings” served at an unidentified federal prison in Minnesota.

“You’re giving a gift to somebody who committed a crime, but yet you won’t pay the people who are supervising them?” NBC quoted a food service foreman at FMC Rochester complaining. “It’s frustrating and maddening.” In addition to working without pay, many of the prison staffers, including correctional officers, were ordered to cut vacations short or face a loss in wages and possible administrative punishment, including suspensions.

fakenews190110Well, it turns out that the “several BOP food service employees” who complained were part of a well-orchestrated union campaign, one the news outlets swallowed hook, line and sinker. Reason.com reported on Monday that in order “to make themselves look like the victims in this government shutdown, union officials shopped around a story to multiple media outlets about criminals being treated like kings while prison guards have to freelance as Uber drivers.” Reason said

It’s a bit amazing (and disappointing) how many outlets ran with this tale in exactly the form union reps likely preferred. Over at USA Today, Kevin Johnson described these meals as a “display of culinary largesse.” Cleve Wootson, Jr., at The Washington Post called it an example of the “hypocritical” or “ironic” moments of the federal shutdown. NBC called it a “delicious irony” that unpaid staffers had to feed “fancy” food to the inmates. Characterizing this series of parallel-but-unrelated events as a role reversal suggests that we should be treating prisoners poorly. The reporters can take solace in knowing that, generally, we do.

Adding to the staffers’ bitter feelings, NBC News said, “the working inmates were still drawing government paychecks for their prison jobs, which include painting buildings, cooking meals and mowing lawns.”

NBC News, Hard to digest: Inmates eat holiday steak during shutdown while prison workers go unpaid (Jan. 6)

Reason.com, Prison Guards Orchestrate Media Campaign To Complain About Inmates Getting Edible Food for Christmas (Jan. 7)

– Thomas L. Root