Tag Archives: BOP

BOP Director Has a Bad Day on Capitol Hill – Update for April 23, 2018

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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. 

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BOP DIRECTOR SAYS THERE’S NOTHING BETTER COMING ON HALFWAY HOUSE

punchinface180423Talk about violence directed at BOP employees… Director Mark Inch was beaten up pretty well last week when he delivered his largely fact-free report on the BOP to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, with the chief executive at the BOP Coleman complex likely to have been taking it on the chin as soon as Inch could get out of the hearing room door.

We thought we were the only ones who found Director Inch’s obsequious and bureaucratic delivery tedious, but it became clear during his nearly 2-hour session that the Committee members were a little frustrated at Inch’s habit of turning every answer into a pretzel and coming up short on meaningful data about his agency.

Congressman Jamie Raskin (D-Maryland) asked about the cancellation of 16 halfway house contracts, and demanded Inch square that with the shortage of halfway house bed space nationwide. Congressman Jerrold Nadler (D-New York) cited the prior BOP director’s complaint that it is “scarce and expensive” to put people in halfway house, and demanded that Inch to explain the cancellations in light of the scarcity.

halfway161117In response to a question from Rep. Steve Chabot (R-Ohio) on BOP halfway house plans, Inch said the BOP spent $350 million on halfway house at 230 centers nationwide last year. Of the approximately 44,000 inmates released annually, he said, 80% get halfway house or home confinement placement. Inch said that reentry centers are “mostly important for inmates at the high end” of sentences.

In 2017, Inch said, the BOP overspent for halfway house and exceeded contractual limits on some locations while others were underused. He anticipated the halfway house placement will remain unchanged in 2018. “The challenges I look at – the constellation of our residential reentry centers is two things, is to the extent of how far out it can spread and the cost that is associated with it – our goal this year in 2018, is to have very clear usage figures data against the ascribed budget so I can make very logical budget requests in the future.”

Stripped of bureaucratic–speak, that means nothing is going to change in BOP halfway house placement any time soon.

work180423The representatives, who have been hearing loud complaints from their BOP employee-constituents, also pushed Inch hard on augmentation, the BOP practice of using noncustody people like nurses, teachers and front-office workers in CO positions. Inch assured the Subcommittee that all of the 6,000 BOP positions being eliminated this fiscal years were vacant, and not the reason for augmentation. The director told the Subcommittee that “a lot” of the BOP staffers used for augmentation had started their careers as COs, and thus were well qualified to fill in on custody positions.

Despite union protests and Federal Labor Relations Authority rulings in favor of BOP employees, the Director insisted that augmentation was safe for employees. “You say it’s not a dangerous situation?” Rep. Michael Johnson (R-Louisiana) asked Inch incredulously. “I’ve met with a number of these [BOP] people from my home state of Louisiana, and they’re not comfortable with this situation.”

At one point in the hearing, Inch was blindsided by charges the BOP was banning books, an allegation arising from a policy being adopted by the Coleman, Florida, federal prison complex. The Coleman policy, which goes into effect next week, bans purchase of any books except those bought through the commissary for a 30% surcharge over list.

ban180423Congresswoman Karen Bass (D-California), who apparently believed the policy was a BOP ban on books, asked the Director how he could adopt such a policy. Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. He suggested Rep. Bass’s understanding of the policy might be a misperception, leading her to snap back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

In point of fact, the Coleman policy is a book ban of sorts, because every inmate book request is filter through a BOP employee, who could simply refuse to honor a request for a book the BOP felt was inappropriate for whatever reason.

We suspect the Coleman warden, who appears to have violated the sacred bureaucratic rule of “don’t make your boss look bad,” got an unpleasant call from the Director about five minutes after the hearing ended.

House Judiciary Committee, Subcommittee on Oversight, Oversight of the Federal Bureau of Prisons (Apr. 17, 2018)

– Thomas L. Root

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Running Out of Prison Industry Workers? – Update for February 21, 2018

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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.

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THE HARVEST IS GREAT, BUT THE LABORERS ARE FEW AT BOP, DOJ

USA Today reported last week that hundreds of secretaries, teachers, counselors, cooks and medical staffers were tapped last year to fill CO posts across the BOP because of acute officer shortages and overtime limits. The assignments, known as “augmentation,” were made despite warnings that the assignments placed unprepared employees at risk.

harvest180221As recently as last July, a House committee told the agency to “curtail its over-reliance” on augmentation, once reserved only for emergency operations. Instead, the practice has become common at some institutions where even s plumbers, electrical workers, budget analysts and commissary staffers have been patrolling prison yards and filling officer vacancies in maximum-security units. “While BOP reports that there is a higher incidences of serious assaults by inmates on staff at high and medium security institutions than at the lower security facilities, to meet staffing needs the BOP still routinely uses a process called augmentation whereby a non-custody employee is assigned custody responsibilities,” the Senate Appropriations Committee reported last summer.

The BOP told USA Today that all employees are regarded as “correctional workers first.”

Worker shortages abound, and not just at BOP. The Washington Post reported last week that the sudden departure of the Justice Dept’s No. 3 official is adding to the turmoil at an agency already lacking permanent leaders for important divisions.

Help-Wanted180221Associate Attorney General Rachel Brand resigned, reportedly because she did not want to be sucked into the Robert Mueller Russia investigation, to take a position in Walmart’s legal department. Meanwhile, Attorney General Jefferson Beauregard Sessions III is blaming a single Republican senator, Cory Gardner of Colorado, for blocking confirmations of key figures, including the head of DOJ’s criminal divisions, over Session’s memo lifting Obama-era protections for states that have legalized marijuana.

Twelve U.S. Attorney picks still await confirmation, and 36 more have yet to be nominated. That’s a problem for DOJ, because, as an ex-official put it, “if someone is perceived as temporary and doesn’t have the full legitimacy that comes with Senate confirmation, they are less able to successfully advocate the interests and positions of their agency to the rest of the government.”

USA Today, As federal prisons run low on guards, nurses and cooks are filling in (Feb. 13, 2018)

Washington Post, Official’s departure adds to strain of vacancies at Justice (Feb. 13, 2018)

– Thomas L. Root

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Dropped Calls: FCC, Wireless Carriers Seek to Block Prison Cellphones – Update for February 16, 2018

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FCC HOLDS MEETING ON BLOCKING PRISON CELLPHONES

Just this week, two officers at South Mississippi Correctional Institution in Greene County were arrested after they were caught with contraband during the first major shakedown of the year under Operation Zero Tolerance. And in California, Federal officials using a task force of 750 officers rounded up dozens of suspects early Wednesday to disrupt what they described as a massive street and prison gang conspiracy to distribute methamphetamine, cocaine and heroin using social media, coordinated between street gangs and prison gang leaders who used cellphones smuggled into prisons to coordinate their activities.

cellphone180216All of this points to the serious problem prison officials have combatting the infiltration of cellphones into facilities. But BOP officials and members of Congress say they’re hopeful that a meeting last week with wireless industry representatives will lead to a solution that combats security issues posed by cellphones in prison. The Federal Communications Commission hosted the meeting, making good on a promise last year by FCC Chairman Ajit Pai to help facilitate conversation among law enforcement, prisons officials and wireless providers to address the issue that corrections officers say is their chief safety threat behind bars.

Prisons officials say cellphones — smuggled into institutions by the thousands, by visitors, employees, and even delivered by drone — are dangerous because inmates use them to carry out crimes and plot violence both inside and outside prison. The FCC has said it can’t permit jamming in state prisons, but it has permitted a test of signal blocking at FCI Frostburg in January. Wireless industry groups oppose jamming. In a letter filed with the FCC last month, a trade group wrote that court orders should be required to shut down devices in prison.

cellsandwich180216“I am encouraged by how seriously the FCC is taking the issue of contraband cell phones in prisons,” Congressman David Kustoff (R-Tennessee) told The Associated Press. “I look forward to the telecommunications industry working with state corrections officials to put a stop to this concerning public safety threat.” Kustoff has been among those pushing for a fix to the phone problem. He spoke with AP after being briefed by his state prisons director, who was one of several attending the meeting.

Representatives from the U.S. Department of Justice and BOP attended the meeting, as did Congressman Mark Sanford (R-South Carolina), who has spoken out about the issue of cellphones in prison since his time as South Carolina’s governor from 2002 to 2010.

The FCC has been softening on the jamming issue, thanks to persistent pleas from state and federal officials. The BOP test in January, is said to have been successful. Previously, the problem has been how to jam the illegal cell phone signals inside the prison but not interfere with legitimate cell signals just outside the prison walls, such as those from first responders. Proponents of the latest tests say the technology has advanced and the range is now more predictable. Assistant U.S. Attorney General Beth Williams told AP that the test represented “a big step” and could lead to the broader use of such technologies.

AP, FCC schedules meeting to address prison cellphone issues (Jan. 25, 2018)

Inside Towers, Pai Calls on Carriers to Help Block Illegal Prison Cell Phone Signals (Feb. 6, 2018)

Wireless Week, Corrections, Congress ‘Encouraged’ by Prison Phones Meeting (Feb. 10, 2018)

– Thomas L. Root

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Sky Pilot – Update for February 7, 2018

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BOP REVERSES “ARMED CHAPLAIN” RULE

A BOP prison chaplain’s quest to disarm chaplains won out, as the agency announced last month that chaplains will no longer be required to carry pepper spray. 

priest180208Last November, the agency agreed that Rev. Ronald Apollo, a retired Air Force chaplain now serving as a BOP chaplain did not have to carry pepper spray. Earlier last year, the BOP had mandated that all workers in medium and high security institutions to carry around spray last year, prompted by a federal law passed in 2015 to keep prison staff safe. Rev. Apollo refused, arguing the rule violated his religious beliefs and jeopardized the impartiality he needs to counsel prisoners and win their trust. 

BOP’s personnel classifications exempt chaplains from firearms training and hold that “in the event of an actual disturbance the professional skills of a chaplain will be applied in another way.” Rev. Apollo argued that requiring him to carry spray violated he classification and the Religious Land Use and Institutionalized Persons Act.

“Now we are able to work on a level to do everything we could do before, in the same capacity, exactly how we were doing it before when… spray was never an issue,” Rev. Apollo said. “We still respond to alarms, we still preach, we could counsel and we’re free to go about all areas of the institution like the ministers we were hired to be without any reservations.

The Marshall Project, The Bureau of Prisons Yields to a Chaplain’s Conscience (Jan. 26, 2018)

– Thomas L. Root

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Federal Bureau of Prisons Privatizing Fast – Update for January 31, 2018

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BOP CUTTING 5,000+ EMPLOYEES; PLANS TRANSFER OF SOME LOW-SECURITY INMATES TO PRIVATE PRISONS

memo180131Amid plans announced last summer to chop 12% of its workforce, the Bureau of Prisons has issued a memorandum to all wardens (which the BOP calls “Chief Executive Officers”) last week in which it announced that “to alleviate the overcrowding at Bureau of Prisons’ (BOP) institutions and to maximize the effectiveness of the private contracts,” low-security institutions should submit names eligible inmates to be transferred to private prisons.

The memo, leaked to Government Executive magazine (undoubtedly by a happy BOP employee), set the following designation criteria. The inmates should

• be classified as low security status,
• be male and non-U.S. citizens,
• be assigned a medical and mental health care level 1 or 2, and
• have 90 months or less remaining to serve on their sentence.

Specific to Rivers Correctional Institution, a private prison run by The GEO Group (located in Winton, NC, 100 miles east northeast of Raleigh, NC), the Bureau specifies that inmate should be a

• male inmate classified as Low security with IN custody,
• sentenced out of the District of Columbia Superior or District        Court, and
• assigned a medical and mental health care level 1 or 2.

Rivers CI will accept inmates who meet the who are awaiting enrollment in the residential drug abuse program (RDAP).

privateB180131Mother Jones, a leftist magazine, reported today that this expanded use of private prisons comes as the agency plans to cut the number of correctional officers and other employees at its own institutions. The magazine said, “In a conference call days before the memo leaked, the bureau told facility administrators to expect a 12 to 14 percent reduction in staffing levels—though lawmakers and others have argued that prisons are already dangerously understaffed.”

The Administration’s FY 2019 budget calls for cutting 6,000 BOP positions, including more than 1,800 correctional officers. Eric Young, president of the American Federation of Government Employees council representing BOP employees, said, “It has sent a panic throughout my ranks.” Employees are worried that if natural attrition and vacancy elimination alone do not reach the BOP’s staff reduction goals, mandatory layoffs could follow. Not hiring to fill vacancies will worsen existing staffing shortfalls, Young said.

privateprisons180131While last week’s BOP memo targets immigrants serving time, private prison executives have previously suggested that other inmates may soon be transferred as well. “You’ll see the bureau evaluate U.S. citizens as they have previously evaluated criminal aliens,” J. Dave Donahue, president of GEO Group’s US corrections operations, told investors on a call last August.

Mother Jones, Leaked Memo Reveals Trump’s Gift to Private Prison Companies (Jan. 30, 2018)

The GEO Group’s (GEO) CEO George Zoley on Q2 2017 Results – Earnings Call Transcript (Aug. 7, 2017)

Government Executive, Leaked Memo: Trump admin to boost use of private prisons while slashing Federal staff (Jan. 25, 2018)

– Thomas L. Root

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Finding the Needles in the BOP’s Halfway-House Haystack – Update for December 18, 2017

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INCH DOESN’T GIVE AN INCH IN CONGRESSIONAL TESTIMONY ON RRC CHANGES

The House Committee on Oversight and Government invited BOP Director Mark Inch, Dept. of Justice Inspector General Michael E. Horowitz, and several correctional advocates to a hearing last week, where BOP use of residential reentry centers – halfway houses and home confinement – was front and center.

haystack171218Despite a lot of pushback from the legislators on the Committee, Director Inch did not describe the wholesale withdrawal of halfway house and home confinement time that many inmates have reported, and kept suggesting that all of the halfway house reporting in the media has really just centered on the BOP’s cut of 16 halfway houses, which represented only about 1% of RRC beds. The Director said those 16 were underutilized and were duplicated by nearby facilities. He mentioned almost as an afterthought that, oh yeah, the BOP has also been busy implementing the DOJ IG’s recommendation that it do a “better job of managing our contracts with those RRCs.”

The Director did his best to talk around repeated questions about recent BOP cuts to halfway house and home confinement time, and met every question from legislators with a repetition that the cuts to the 16 halfway house contracts did not “signal any lessening of our belief in the importance of the program. And I am committed to running the program very efficiently and to the capacity necessary for the population.”

The International Community Corrections Association, a trade association of RRCs, described the BOP’s activities in blunter terms:

[A] census of federal prisons has shown that BOP is sending fewer offenders to RRCs for these kinds of step-down services that reduce recidivism; instead these offenders are remaining longer in federal prison or being released directly into the community without support.  Furthermore, BOP is no longer accepting US Probation Office residents in BOP-contracted RRCs, which will also negatively impact recidivism. Recent budget cuts were cited by the BOP as the primary reason for these changes.

At the Oversight hearing last awednesday, written testimony and nearly three hours of questioning shed light on what is happening with the BOP’s management of its RRC relationships.

Not the kind of "halfway house" we're talking about.
Not the kind of “halfway house” we’re talking about.

First, it turns out that the Inspector General has criticized the BOP for sending “the great majority of eligible inmates into RRCs regardless of whether they needed transitional services, unless the inmate was deemed not suitable for such placement because the inmate posed a significant threat to the community. As a result, high-risk inmates with a high need for transitional services were less likely to be placed in an RRC or home confinement, and were correspondingly more likely to be released back into society directly from BOP institutions without transitional programming. Moreover, low-risk, low-need inmates were being placed in RRCs even though BOP guidance, as well as the research cited in the guidance, indicates that low-risk inmates do not benefit from and may in fact be harmed by RRC placement because of, among other things, their exposure to high-risk offenders in those facilities.”

Second, the BOP has been badly overpaying the halfway houses for home confinement services. It pays halfway houses an average of $70.79 for inmates placed there, but up until recently, it had blindly been paying half that – $35.39 a day – for inmates the halfway houses sent to home confinement. The Government Accounting Office has reported that the $35.39 daily payment had nothing to do with the actual cost of home confinement, which is more in the range of $8.00 a day. As a result, the BOP has now demanded halfway house contractors file separate bids for home confinement services, which should drive down costs to about what home confinement actually costs.

Third, Director Inch admitted that the BOP had been “overfilling” halfway houses well beyond the number of beds committed, and said that the new “normal” for the BOP will 4 months of halfway house only for those who really need it. This way, Inch said, three inmates could use a halfway house bed every year, each one for four months. This suggests that low-security and campers, who usually need a lot less reentry services, may remain where they are right up to the out date.

truth171218Fourth, the BOP changed its Statement of Work, the description of the resources a halfway house is expected to deliver (and which will be paid for by BOP), to eliminate delivery of cognitive behavioral programming (a requirement under the Obama administration) and associated staff training. The ICCA – whose members admittedly have a financial stake in receipt of the maximum amount of the $100 million plus the BOP spends annually on RRCs – said, “This is a significant change that means individuals coming out of federal prison will no longer receive the evidence-based programming that is proven to change criminal thinking and significantly lower recidivism.”

At the same time, the new SOW eliminates the RRC social services coordinator, who, according to the ICCA, has served as a liaison to community resources, has ensured continuity of care, has supported reentry transitional needs, and has coordinated social services including employment assistance and life skills programming. “They took away the person that was going to welcome them home, basically,” said former ICCA president Anne Connell-Freund. “It’s not exactly known how many halfway houses and how many beds have been affected.”

Rep. Elijah Cummings (D-Maryland) was concerned about the BOP’s “serious cuts” to the Baltimore halfway house that he said have put the facility on shaky financial ground. Director Inch may be a newbie at the BOP, but his experience as a general in the Army has honed his political instincts well. His affable non-answer to Rep. Cummings was to offer to stop by the Congrassman’s office for a one-on-one about Baltimore. But for now, he bloviated, “Is it our intent to cut back on the program: absolutely not.”

fired171218Rep. Matthew Cartwright (D-Pennsylvania) bluntly took the Director to task for current BOP plans to drop staff levels at prisons to 88% of “mission critical” levels. The Director suggested that the BOP will be adjusting its “mission critical” levels downward, which is a neat bureaucratic response to a serious problem. We don’t meet the standards? Then, by golly, let’s change the standards.

Rep. Cartwright pointed out that the BOP had gotten 99% of the appropriations it asked for wages and salaries, wondering why such cuts were needed in light of continued funding. The Director – who pled indulgence for being new on the job throughout the hearing – said he did not know why, despite the appropriation, the staffing cuts were so deep.

House Oversight Committee, Oversight of the Bureau of Prisons and Inmate Reentry (Dec. 13, 2017)

International Community Corrections Association, Bureau of Prisons Residential Reentry Centers: Reduction in bed use and programming will increase recidivism

Mother Jones, Team Trump is slashing programs that help prisoners adapt to life on the outside (Dec. 15, 2017)

– Thomas L. Root

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That’s Crazy! DOJ Inspector General Slams BOP Treatment of Mentally Ill Inmates – Update for July 20, 2017

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WAR IS PEACE

orwell170721Remember George Orwell’s dystopian novel, Nineteen Eighty Four? The protagonist, Winston Smith worked for the Ministry of Truth, one task of which was to destroy words. The government championed the slogan, War is Peace, Freedom is Slavery, Ignorance is Strength.

Now try this one on for size, from a Dept. of Justice Inspector General’s report on the Federal Bureau of Prisons (BOP) use of restrictive housing for mentally-ill inmates:

Although the BOP states that it does not practice solitary confinement, or even recognize the term, we found inmates, including those with mental illness, who were housed in single-cell confinement for long periods of time, isolated from other inmates and with limited human contact. For example, at the ADX, we observed an RHU that held two inmates, each in their own cell, isolated from other inmates. The inmates did not engage in recreation with each other or with other inmates and were confined to their cells for over 22 hours a day. Also, in five SHUs, we observed single-celled inmates, many with serious mental illness. One inmate, who we were told was denied ADX placement for mental health reasons, had been single-celled for about 4 years.

So there’s no solitary confinement, because we say so. Unsurprisingly, because the BOP denies solitary confinement exists, it does not properly track and limit the length of time prisoners spend in restrictive housing. At the same time, the DOJ report found, the BOP’s inadequate documentation of inmates’ mental illness results in inappropriate mental health treatment or no treatment at all.

The report highlighted issues with a number of BOP facilities for their mistreatment of mentally ill inmates, but singled out the U.S. Penitentiary in Lewisburg, Pennsylvania, for particular opprobrium. Lewisburg is the subject of a class action lawsuit brought several months ago over treatment of mentally ill prisoners.

BOPtherapy170721The report said the BOP’s poor documentation of mental health diagnoses leaves many cases of mental illness underreported. According to an OIG study done in 2011 and 2012, 14% of state and federal prisoners reported experiencing serious psychological distress; 37% have been told by a mental health professional they had a mental disorder. A 2006 Bureau of Justice Statistics report found about 45% percent of federal inmates showed symptoms or a recent history of mental illness. Despite that, the Inspector General reports, only 3% of BOP inmates were being treated regularly for mental illness. One BOP facility’s deputy chief psychologist estimated half of the inmates there had Antisocial Personality Disorder. The official BOP numbers say only 3.3% of the inmate population was documented for this order.

Obviously, if the BOP doesn’t know who has a problem, it cannot very well treat it.

BOP does not limit how long an inmate can be held in restrictive housing, defined as SHUs (Special Housing Units, located at 119 BOP facilities), the one SMU still operating at USP Lewisburg, and of course, the ADX in Florence. In May 2014, the BOP adopted a new mental health policy to improve the treatment of inmates with mental illness, including those being held in RHUs. The BOP promptly experienced a 30% reduction in the number of inmates receiving regular mental health treatment. The policy, intended to increase the number of inmates diagnosed as needing mental health treatment, failed due to lack of staffing and resources, according to the report.

BOP says it has taken steps to improve conditions for mentally ill inmates, such as diverting inmates with serious mental illness from traditional RHUs to residential mental health treatment programs. However, the report found many issues remain with the BOP system, including dire staffing shortages and lack of metrics to determine program effectiveness.

solitary170721The lead plaintiff in McCreary v. Federal Bureau of Prisons is a Lewisburg inmate who has been diagnosed with bipolar disorder, schizophrenia, depression, mood disorder, psycho-social, and environmental problems, ADHD, and antisocial personality disorder. He attempted suicide on multiple occasions and is now being held in a single cell at Lewisburg. The lawsuit alleged he has not left his cell since May 16 and has to shout through his cell door for his weekly, two-minute mental health “therapy” sessions.

Lucky for him there’s no solitary confinement in the BOP.

International Business Times, Federal Prisoners Lack Proper Mental Illness Treatment Amid Lack of Prison Staff, Investigators Say (July 13, 2017)

Lawstreet.com, DOJ Report Criticizes Prisons’ Treatment of Mentally Ill Inmates (July 18, 2017)

Dept. of Justice Office of Inspector General, Review of the Federal Bureau of Prisons’ Use of Restrictive Housing for Inmates with Mental Illness (July 12, 2017)

– Thomas L. Root

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A Couple of Sentencing Tidbits from Washington – Update for April 21, 2017

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SENTENCE REFORM – WAITING FOR THE DONALD

We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root

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COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root

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