Tag Archives: BOP

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

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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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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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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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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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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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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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