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Trick or Treat: The Sequel – Update for October 31, 2022

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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.

TRICK-OR-TREAT – PART 2 (IN WHICH BOP DIRECTOR IS HOPING FOR ‘CHOCOLATE HEARTS’ INSTEAD OF A THUG HUG)

What we kids used to call “Halloweening” (I know, it’s not really a verb, but a lot of non-verb words are being used as verbs these days) continues today.

hugathug221031BOP Director Colette Peters sat for her first national media interview last week, telling Associated Press reporters Michael Balsamo and Michael Sisak – who have covered BOP crises, scandals and miscues in detail for the past three years – that skeptics who denounce her approach to running a prison system “hug a thug” are simply wrong.

Peters didn’t mind that, but she offers a different term: “chocolate hearts.” Her ideal BOP employee, she said, is as interested in preparing inmates for returning to society after their sentences as they are in keeping order while those inmates are still locked within the prison walls. She said she wants to reorient the agency’s hiring practices to find candidates who want to “change hearts and minds” and end systemic abuse and corruption. She told the AP she would not rule out closing problematic prisons, though there are no current plans to do so.

chocolatehearts221031Chocolate hearts or the ‘Thug Squeeze’, Peters nevertheless is still dealing with problems she inherited when she took the director’s job last August, and those problems are many.

Trick: Ruben Montanez-Mirabal (Montanez), a nurse at FDC Miami, was indicted last week on charges of bribery, smuggling contraband into prison and possession with intent to distribute K2.

According to the indictment, Montanez posted Instagram photos of him in a Lamborghini, a Rolls Royce and a McLaren. When one person wrote back to Montanez about how much he was paying for these cars Montanez responded, “Absolutely nothing. It’s all about having the right contact.” The cars were owned by the inmate at FDC Miami who was cooperating with authorities.

Treat: Peters won praise from Sen. Jon Ossoff (D-GA) for her decision to join him in inspecting USP Atlanta last Wednesday.

“I want to be really clear, I’m not here to tell you the problems are solved,” Ossoff told reporters. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community.”

The BOP emptied USP Atlanta of prisoners a year ago amid reports of rampant staff corruption, decrepit facilities and drug use and contraband possession among inmates. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community,” Ossoff said. However, he warned, “I’m a long way from being prepared to declare that the problem has been solved.”

callback221031Trick: While Peters was getting lauded by Sen Ossoff, she was taking it on the chin in Fort Worth. The Fort Worth Star-Telegram, which has been covering staff abuse and miserable conditions experienced by the female inmates and conditions at FMC Carswell, the BOP women’s medical center in Fort Worth, asked Peters for an interview on September 7. A BOP spokesman declined on her behalf, saying Peters’ “schedule is very full her first few months, but we can re-visit this request in the future.”

To determine when Peters may be available, the Star-Telegram requested her appointment calendar through a Freedom of Information Act request. Last week, the newspaper reported that the BOP told it the FOIA request would take a while because it “must be searched for and collected from a field office.” One month later,” the Star-Telegram said, it “had not received Peters’ calendar.”

On October 11, the Star-Telegram again requested to speak with Peters regarding abuse at FMC Carswell. A BOP spokesperson once again said “the director’s schedule does not permit an interview at this time.”

Treat: The FCI Dublin sex abuse scandal is working its way toward resolution. Last Thursday, a former BOP corrections officer accused of sexually abusing inmates there pleaded guilty.

Enrique Chavez entered a plea to one count of abusive sexual contact with a prisoner. Chavez was a food service foreman there two years ago when he locked the door to the pantry and fondled an inmate.

Chavez was the fifth Dublin employee to be charged with sexual abuse of inmates since June 2021. Others include the prison’s former warden and a chaplain. He is the third to have pleaded guilty.

computerhaywire221031Trick: Auto-calc, the new BOP computer app created to automatically calculate inmates’ earned-time credits” suffered a technical glitch as it was launched earlier this month (only 60 days late).

Instead of recognizing inmates’ ETC credits, NBC News reported Friday, “some said the opposite occurred, which suddenly shifted their release dates to a later time than they had anticipated. In extreme cases, some prisoners already released to halfway homes were erroneously told that the new calculations indicated they were deficient in the necessary credits and they would have to return to prison.”

Director Peters told NBC News on Thursday that prisoners’ time credit calculations are now accurately reflected and it was “unfortunate we had some IT glitches as it rolled out.”

“When you move from a human calculation to an automation, you always hope that the error rate drops, and so that’s our hope as well going forward,” she said.

AP, US Bureau of Prisons chief pledges hiring reforms amid staffing crisis (October 25, 2022)

Forbes, Federal Prison FDC Miami Nurse Indicted On Contraband Charges (October 24, 2022)

WSB-TV, Atlanta’s federal penitentiary being inspected after inmates could come and go through holes (October 26, 2022)

Ft Worth Star-Telegram, Bureau of Prisons continues to evade questions about sexual abuse at Fort Worth prison (October  27, 2022)

Corrections1, Federal prison worker pleads guilty to inmate sex abuse (October 28, 2022)

NBC News, Tech glitch botches federal prisons’ rollout of update to Trump-era First Step Act (October 28, 2022)

– Thomas L. Root

“What We Have Here…” – Update for October 27, 2022

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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.

… IS A FAILURE TO COMMUNICATE


failuretocommunicate221027We Should Have Told You It Would Be On the Test: If email is any indication, not only did Federal prisoners receive First Step Act earned-time credits applied well after the credits were promised, but what was delivered was well short of what was reasonably anticipated.

Writing in Forbes last week, Walter Pavlo reported that although BOP Director Colette Peters told the Senate Judiciary Committee during her September 28 testimony that the agency’s new “auto-calc” program was already up and running, “it was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, ‘I was expecting a year of credits and I got 4 months. I have no idea what happened’.”

Pavlo said that “what happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year.”

Pavlo wrote, “One of the main factors that seems to be causing issues is that federal prisoners were told to complete a needs assessment survey when they first entered prison. The survey was part of the FSA in that it was meant to provide an assessment of the types of programs, needs, that the prisoner would address while in prison. The assessment was to be done on-line through an internal computer terminal that prisoners use for email communications with their families… What prisoners were not told was that the survey’s completion was a requirement to initiating the FSA credits. All of the prisoners I spoke to stated that they were never told of the survey’s importance nor could I find information about this in the FSA nor in any directive given to prisoners.”

Pavlo’s report is consistent with email complaints I have gotten from prisoners that no one ever suggested that the needs surveys served any necessary purpose.

Pavlo quoted Emery Nelson of the BOP is quoted as saying, “Completion of the self-assessment survey is only one factor which determines when an inmate begins earning FSA time credits.”

We’re Not Listening to You: The DOJ Office of Inspector General told BOP Director Colette Peters two weeks ago about an aspect of its recent investigation into sexual abuse of inmates by BOP employees that it found troubling.

dontbelieve221027“These concerns arose when the OIG recently inquired of the BOP’s Office of Internal Affairs (OIA)… about a disciplinary action taken by the BOP following an OIG investigation of alleged sexual abuse by a BOP employee. In response to our inquiry, we were told by OIA that, in cases that have not been accepted for criminal prosecution, the BOP will not rely on inmate testimony to make administrative misconduct findings and take disciplinary action against BOP employees, unless there is evidence aside from inmate testimony that independently establishes the misconduct…”

OIG told Director Peters that BOP’s refusal to rely on inmate testimony to make misconduct findings in administrative matters “is inconsistent with the fact that such testimony is fully admissible in criminal and civil cases, and creates significant risks for the BOP in its handling of administrative misconduct matters. Inmate testimony alone has been found sufficient, and with corroborating evidence is often found sufficient, to support criminal convictions of BOP employees, where the evidentiary standard is proof beyond a reasonable doubt. In short, inmates are not disqualified from providing testimony with evidentiary value in federal courts, and there is no valid reason for the BOP to decline to rely on such testimony… where the evidentiary standard is the preponderance of the evidence. In addition, the OIG found that in the context of sexual misconduct cases, BOP policy and federal regulations, specifically those DOJ regulations implementing the Prison Rape Elimination Act (PREA), require the credibility of an alleged victim to be assessed on an individual basis and not be determined by the person’s status as an inmate.”

After the OIG provided the Bureau of Prisons with a draft of its report, BOP quickly denied that it had ever said it didn’t believe inmates as a matter of policy.  The Inspector General was unimpressed:

However, contrary to this assertion, the statements made by the OIA to the OIG as reflected in this memorandum were made by OIA on multiple occasions. Moreover, as described later in this memorandum, we found that in cases where the OIG substantiated BOP employee misconduct relying on inmate testimony the OIA has, on more than one occasion, sent less serious findings to the BOP’s Employment Law Branch (ELB) and the BOP institution where the subject employee works.

So now who doesn’t believe whom?

Forbes, Bureau Of Prisons’ Failure To Communicate First Step Act (October 15, 2022)

DOJ Office of Inspector General, Notification of Concerns Regarding the Federal Bureau of Prisons’ (BOP) Treatment of Inmate Statements in Investigations of Alleged Misconduct by BOP Employees (October 12, 2022)

– Thomas L. Root

BOP Delivers New Earned-Time Credit Restrictions – Update for September 14, 2022

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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 GOOD, THE BAD, AND THE UGLY

thegood220914One provision of The First Step Act, signed into law in December 2018, allowed eligible inmates to earn credits toward an earlier release from prison, more halfway house or home confinement. The credits, called “earned time credits” or ETCs, were to be granted to prisoners participating in certain needs-based educational programs and productive activities. For every 30 days of successful participation, the prisoners could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). ETCs could also be used to entitle the inmates to more halfway house or home confinement on a 1-1 basis: 30 days of ETC credit would earn 30 days more of home confinement, for instance.

The challenge for the Bureau of Prisons has been to keep accurate track of the credits earned by inmates. It is a multi-step analysis: First, is the inmate eligible to participate in the earned-time credit program? Second, has the inmate’s needs been properly assessed? Third, has the inmate enrolled in programming that addresses that need? Fourth, how many credits has the inmate earned in any given month?

When the BOP adopted the ETC system in January 2022, the system it enacted was 180 degrees opposed to the Draconian proposal the agency had floated previously. The adoption seems to have caught the BOP flat-footed, because it simply threw up its hands (figuratively speaking) and declared that any inmate eligible for the credits as of January 15th was assumed to have participated in eligible programs for every day since December 21, 2018 (or when the inmate arrived in the system, whichever was later).

Sweet deal. As a result, thousands of inmates were released in the days following the January adoption date.

But every Christmastime ends, and so did the BOP’s ETC giveaway. Since January 15, the agency has struggled with how to quickly calculate inmate ETCs on a rolling basis. In April, the BOP revealed in a court case that it was developing a computer program – an “auto-calculation” system – to update each inmate’s ETC credits continuously. The BOP estimated Auto-Calc would be implemented by about August 1.

The BOP finally delivered its Earned Time Credit “Auto Calculation” system last Thursday. “On time and under budget” is not a mantra at the Bureau. Delivery took about 50% longer than the BOP predicted it would. And, as Walter Pavlo said in Forbes last Friday, it “landed with a thud.”

Why the thud? The Auto-Calc system was accompanied by a memo that announced several interpretative rules the BOP is imposing by fiat. You know, rules that interpret other rules. And unlike the adoption of last January’s formal rules, there was no rulemaking proceeding, no “notice and comment” period, and scant indication the changes were coming.

The First Step Act spelled out prisoner eligibility in detail, But that hasn’t stopped the BOP from adding its own bells and flourishes.

The good news in the memo (such as it is) is that

• the BOP’s official stance is that ETCs will be applied first to reduce sentence length, and second to more halfway house and home confinement. The agency had been doing that since last January, but it had never announced that as BOP policy. Given how arbitrary the BOP can be, the announced adoption of the reduction-first approach as policy is a good thing.

• any halfway house or home confinement awarded using ETCs will be granted “in addition to release needs-based recommendations made under the Second Chance Act.” In other words, if the Second Chance Act would have entitled a prisoner to placement in a halfway house for six months even without ETCs, and you have 120 days of ETC credit applied to halfway house, you would be placed for 10 months.

• the Auto-Calc system will update ETCs monthly.

• the BOP verified that ETCs may be applied toward early release in addition to the early release benefit for RDAP graduates. In other words, RDAP now double counts toward early release, up to 12 months off for successful completion of the program as well as an additional credit of up to 150 days ETC credits for finishing RDAP.

• In order to earn 15 days credit for every 30-day period instead of 10 days for every 30-day period, inmates need to (1) start out with a low- or minimum-risk PATTERN level; OR (2) have dropped to a low- or minimum-risk PATTERN level and maintained it for two consecutive assessment periods. This is good news, because a number of inmates who entered the system with low or minimum scores have been told in the past few months that they have to have two consecutive assessment periods under their belts before getting 15 days of ETC credits in a month.

thebad220914But there is bad news in the memo, too:

• The memo codifies what I first learned last month. The BOP will not credit ETCs toward early release for inmates who are 18 months from release. At 18 months, the BOP says, “the release date becomes fixed, and all additional ETCs are applied toward” halfway house or home confinement.

This is a slight improvement over what the BOP was saying a month ago. In a declaration the BOP filed in Marier v. Bergami, the BOP manager said the cutoff was 24 months. But it still means, practically speaking, no inmates with sentences of less than 42 months will have enough time to collect ETCs entitling them to 12 months off their sentence (the maximum allowed by law).

This also means that unless an inmate can complete the in-custody portion of RDAP with at least 18 months left, the RDAP ETCs will apply to more halfway house or home confinement, not more time off.

Pavlo complained in Forbes last week that “with this more restrictive condition, BOP is even going against the Department of Justice’s intent of FSA which was to ‘transfer eligible inmates who satisfy the criteria in § 3624(g) [awarding of FSA credits] to supervised release to the extent practicable, rather than prerelease custody [halfway house and home confinement]’… In Fiscal Year (FY) 2019, the cost of incarceration fee for a federal prisoner at a federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. It costs less than half that to place a minimum security prisoner on home confinement and it costs nothing if the prisoner is not in custody at all. Thousands of prisoners will be affected by this unilateral decision by the BOP. For many prisoners, their date for returning to society has been prolonged by a memorandum that is both unfair and arbitrary.”

• The memo states that “inmates who refuse or fail to complete any portion of the needs assessment and/or refuse or decline any program recommended to address a specific identified need area, are considered “opted out” and will not earn ETCs.” This hardly seems to be bad news, except that it assumes that the failure to complete needs assessment or refusal or declining to take a program is intentional.

More than one inmate has already reported that he or she was marked “refused” for not taking a program that simply was not available at the time. One inmate only saved from being marked “refused” by proving that he had sent the staff member responsible for the program a request to be put on the “wait list.”

• Starting eight months ago, the memo says, “all components of the SPARC-13 needs assessment must be complete to be eligible to earn ETCs. Failing to do so is considered ‘opted out.’ In other words, if an inmate fails to complete a required survey to enroll in a recommended program which addresses a specified need, the inmate will not be eligible to earn FTCs.”

The SPARC-13 is the Standardized Prisoner Assessment for Reduction in Criminality, a battery of surveys mandated by the BOP’s Initial Review of the SPARC-13 Needs Assessment System, issued last March. Judging from inmate reports, few have been given the surveys to complete. Even if they are asked to do so now, it is not clear whether any programs completed between January 15 and September 8 will count if the SPARC-13 was not done prior to that time.

• the memo states that “while inmates continue to earn FTCs, inmates can only apply the FTCs if they have no detainers, unresolved pending charges, and/or unresolved immigration status issues.”

These restrictions do not appear in the First Step Act and make little sense. It is logical that the BOP would not send inmates to detainers to halfway house or home confinement. That is a long-standing limitation. But there is no security issue in letting inmates with detainers benefit from shortened sentences. If an inmate gets a year off, the BOP simply lets the detaining agency know to pick up the inmate on Sep 12, 2022, instead of Sep 12, 2023, for instance.

Pavlo quotes a retired BOP employee as saying of the memorandum, “BOP is creating their own language and leaving the discretion in the hands of case managers to interpret who is eligible and who is not. They have completely disrespected the intent and FSA law states.”

theugly220914Finally, the ugly. The memo notes that “as a reminder, the unit team will determine an inmate’s eligibility to earn FTCs based on the current conviction and prior criminal convictions.” This means that basic decisions applying the statute are decentralized among close to a thousand unit teams. Given some of the errors already made by unit teams unschooled in the FSA, the amount of administrative remedy and judicial review such decision-making decentralization will spawn is likely to be quite significant.

A final thought: The Administrative Procedure Act (5 USC § 552), with its “arbitrary and capricious” standard, governs just about all federal agencies. However, Congress specifically stated in 18 USC § 3625 that the APA does not “apply to the making of any determination, decision, or order under this subchapter.”

The catch here is that § 3625 is specific to 18 USC Chapter 229, Subchapter C. The portion of the FSA establishing ETCs is set out in the newly-created Subchapter D. Congress either decided not to exempt the BOP’s implementation of the ETC from the APA, or it just forgot to do so. Either way, the ETC program appears to be subject to APA challenges, something new for BOP management.

Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)

BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)

BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)

Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)

– Thomas L. Root

NBC Says DOJ Failing to Assign Earned-Time Credits – Update for July 6, 2022

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NBC NEWS ACCUSES DOJ AND BOP OF BOTCHING EARNED-TIME CREDITS

screwup191028An NBC report aired last Sunday blasted the Dept of Justice for botching the award of First Step Act earned-time credits. “Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, NBC quoted prisoner advocacy groups, inmates and BOP officials as saying.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

“It shouldn’t be this complicated and it shouldn’t take this long,” NBC quoted Kevin Ring, president of FAMM, as saying. “Here we are, four years later, and it’s maddening.”

The BOP gave NBC data showing that as of June 18, more than 8,600 inmates have gotten sentence recalculations and are slated for earlier release due to ETCs. But the BOP’s own data identified about 66,600 inmates eligible to receive ETCs.

NBC quoted BOP officials as saying, “We have no data which suggests inmates had their release dates delayed.”

Others are not so sanguine. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” Walter Pavlo, president of the consulting firm Prisonology LLC, and a Forbes contributor, told NBC.

funwithnumbers170511Making the logjam worse is the revision to PATTERN a month ago. While the change increase the number of points an inmate could have while still being eligible, the change quietly modified some of the point reductions inmates could earn. Completing a GED used to earn a -4, but now only earns a -2. Completing RDAP fell from a -6 to a -4. Past points for violence increased as well.

The effect of the change was to make some inmates who had been eligible for ETCs suddenly ineligible, further jamming up the calculation works. What’s worse, some inmates who had received adjusted release dates have had those dates rescinded.

NBC, Thousands of federal inmates still await early release under Trump-era First Step Act (July 3, 2022)

DOJ, First Step Annual Report (April 17, 2022)

– Thomas L. Root

ETC-Eligible Inmates May All Be ‘Above Average’ – Update for June 21, 2022

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BOP FILING IN HABEAS CASE EXPLAINS INTERIM EARNED-TIME CREDIT POLICY

keillor220621Back before Prairie Home Companion humorist Garrison Keillor had not yet been ‘canceled’ for lusting after women in his heart (or whatever the crime might have been), he created Lake Wobegon, a place where all the women were strong, the men were handsome, and the children were above average. The setting gave its name to the “Wobegon Effect,” a prejudice of superiority also known as illusory superiority.

The BOP – due to sloth, being overwhelmed by events, or by design – may have instituted its own version of the phenomenon. Let’s call it the ‘ETC Effect.”

Recall that the First Step Act mandated that the BOP assess all inmates for their likelihood of recidivism and programming needs.  Prisoners would then complete evidence-based recidivism reduction programming (EBRRs) that would address their needs and make them less likely to reoffend.

To encourage inmates to complete the programming, the BOP would award eligible inmates (and Congress exempted about half of all inmates from the program, probably to look good to those criminal-hating voters back home), First Step directed the BOP to issue ETCs. An inmate can earn from 10 to 15 days a month in ETCs for each 30 days spent in an EBRR or in pursuit of specified “productive activities.” The first 365 days’ worth of ETCs will reduce an eligible inmate’s sentence by up to a year.  Any ETCs beyond that can be used for extra home confinement or halfway house.

Jailbreak done right.
Early release through ETCs – a jailbreak done right.

When the BOP announced its final rules on EBRRs and ETCs in January, it specified that ETCs could be earned from the day First Step became law (December 21, 2018). This meant that a thundering herd of inmates who were close to their release date probably should already be home once their ETCs were applied. In fact, the BOP released a lot of inmates in the days and weeks following adoption of the rules.  But since then, those still in prison have been complaining loudly that their ETC credits have not been applied.

Which brings us to Bob Stewart. Bob got his ETC calculation from the BOP last January, learning he had 75 days of credit as of Christmas Day 2021. But his release falls in October 2022. He argued that this imminent date makes continuous updating of his credits necessary.  The BOP, which has been calculating ETCs inmate-by-inmate in a manual process, told Bob that he would not get an update until sometime in the future when the agency implemented a new “auto-calculation” programming.

Bob brought a habeas corpus action in federal court, arguing that had another 60 days coming as of the filing date in March 2022, and that he was continuing to earn days on a rolling basis until his release date.

The BOP moved to dismiss the action, arguing essentially that Bob would just have to wait for “auto-calc” like everyone else. Included with its filing was a fascinating declaration from Susan Giddings, a BOP official, explaining BOP interim policy.

Susan said that everyone got one manual calculation, and Bob had gotten his. After that, everyone had to wait until the BOP completed installation of its “auto-calculation application to BOP’s real-time information system (known as SENTRY) and full integration between SENTRY and BOP’s case management system (known as INSIGHT).” She estimated that  “auto-calc” would be live by about August 1.

participation220621As interesting was her revelation that every ETC-eligible inmate was getting ETC credit from the day First Step passed or the inmate’s first day in prison, whichever was later. The grant appears to be independent of whether the inmate completed any programming during that time or not.

Bob’s district court was not impressed by the BOP’s reasoning that the law would just have to wait for the agency’s programmers. It ordered the BOP to recalculate Bob’s ETCs every 60 days, whether the “auto-calculation application” was working or not.

The Magistrate’s Report, adopted in full by the District Judge, said,

it is unclear when the automated system will be up and running. While it could be within the next 90 days, that is not guaranteed, and Respondent even hedges this statement with the caveat ‘absent unforeseen circumstances.’ Thus, the assertion that Stewart will receive these credits within the next couple months, i.e., in time for them to impact the remainder of his sentence, is speculative

Now for the interesting part. Susan revealed that the BOP is granting ETCs to every eligible inmate from the day First Step passed or the inmate’s first day in prison (whichever was later), whether any programs have been completed or not.  I have had several inmates confirm this. One disgustedly told me, “There’s this guy in the unit who is asleep in his bunk all day and night, except for meals. He got the same number of ETCs – like 540 or so – everyone else got.”

musicstops220623What this means, in other words, is that every eligible inmate is successfully reducing his or her recidivism risk, every eligible inmate is excelling in productive activities, and – in fact – every eligible inmate is not only eligible, but above average.

Far be it from me to complain when any BOP program works to the benefit of inmates, but still, this is not how it is supposed to work. Someday, maybe someday soon, the music will stop.  That will undoubtedly be an unpleasant jolt to the guy asleep in the top bunk… and to everyone else.

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100512 (N.D. Ala, May 10, 2022) (Magistrate’s Report)

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100482 (N.D. Ala, June 6, 2022( (District Court order)

Giddings Declaration, ECF 11-14, Case No. 1:22cv294, (N.D. Ala, filed Apr 29, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 2022

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BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root

Earned Time Credits Just Got Easier to Spend – Update for June 7, 2022

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PATTERN CHANGES MAKE MANY MORE ELIGIBLE FOR CREDITS

In April, the Dept of Justice told Congress that it would roll out a new version of the PATTERN recidivism risk measurement system in May, one that contained adjustments it said would improve accuracy and possibly benefit up to 33,000 federal prisoners.

Nothing has been publicly announced since, although a lot of inmates have reported that their categories were changing while their PATTERN point scores were not. A hard-to-find report by the Attorney General I obtained last week confirmed that while no scoring categories have changed in the revised PATTERN system – known as PATTERN 1.3 – the cut points did.

PATTERNsheet220131Cut points are crucial, being the level at which an inmate’s recidivism rating changes from “minimum” to “low,” from “low” to “medium,” and from “medium” to “high.” Because the First Step Act generally does not let anyone with a “medium” or higher risk level cash in earned time credits (ETCs), a prisoner’s level can make a difference of up to a year on sentence length, and enhanced home confinement or halfway house.

It is now harder for a male to be a PATTERN “minimum” – the former cut point of “8 or less” fell to a new cut point of “5 or less” – although the female “minimum” cut point rose from “5 or less” to “7 or less.” But the big change is from “low” to “medium.”

The former male cut point between “low” and “medium” rose from 30 to 39. The women’s “low to medium” cut point jumped from 31 to 38. The former “medium to high” cut point went from 44 to 55 for males and 31 to 53 for females.

Under the old PATTERN, 40% of males were “minimum” or “low.” Under PATTERN 1.3, that number jumped to 68%. Female “minimums” and “lows” increased from 78% to 86%. The PATTERN 1.3 changes made 33,070 more inmates eligible to use their ETCs.

cutpoints220607PATTERN is still criticized by some commentators for being insufficiently dynamic, meaning that too much of what goes into scores – like age and criminal history – cannot be changed despite a prisoner’s best efforts. The DOJ report asserted that “PATTERN 1.3 displays dynamic validity… Across the four gender/recidivism tools examined, approximately 25 to 35% of individuals had a lower [risk] designation during their last assessment compared to their first, and between 3 and 5% had a higher risk designation.” The DOJ position suggests that category changes in future PATTERN amendments are unlikely.

PATTERN 1.3 is a welcome change, but real problems with the First Step Act earned time credits remain. Writing in Forbes last week, Walter Pavlo reported that “according to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is ‘mass confusion at every institution,”’ and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.”

bureaucrat200421Pavlo wrote that “BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, [and] many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.”

DOJ, First Step Act Annual Report – April 2022

Forbes, First Step Act Inaction Keeps Federal Inmates In Prison (May 30, 2022)

– Thomas L. Root

Balancing Accounts For Unused ETC Credits – Update for June 2, 2022

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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.

DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root

PATTERN Changes Coming Next Month – Update for April 26, 2022

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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.

PATTERN AMENDMENTS COULD BENEFIT THOUSANDS

The Dept. of Justice told Congress last week that it will soon roll out a new version of the PATTERN recidivism risk measurement system containing adjustments it says will improve accuracy, possibly benefitting up to 33,000 federal prisoners.

PATTERNsheet220131The modifications, which come after criticism was leveled at PATTERN last January for implicit racial bias, are intended to significantly increase the number of black and Hispanic men in prison who are eligible to take classes or productive activities that will result in them getting earn time credits (ETCs).

DOJ estimated that 36% more black men and 26% more Hispanic men might qualify as minimum or low risk under the change, with smaller increases for black and Hispanic women.

Even with the changes, DOJ admitted in last week’s report, it is still unable to resolve other racial disparities (such as continued overestimating the number of black women compared to white women who will commit new offenses after release).

DOJ told Congress that even after the anticipated release of a modified PATTERN early next month, it would continue to work “to ensure that racial disparities are reduced to the greatest extent possible.” That could be difficult. Most of that disparity, according to Melissa Hamilton, a law professor at the University of Surrey, results from what happens before prison and application of the PATTERN metrics. “When using factors with criminal history, prison discipline and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education,” she said.

Hamilton told a House oversight committee last January that up to 11% of male and 10% of female inmates have been assigned wrong risk categories due to errors in PATTERN:

• PATTERN was designed to score risk factors at release instead of at the time of assessment. For example, if a 39-year-old man comes in for a 15-year sentence, he has an age risk factor of 21. But PATTERN should assess his age at release (52 years old), which is only 7. The difference is 14 points.

• PATTERN disproportionately predicts higher. Hamilton said, “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk… placing too many individuals into the higher risk groupings.”

• PATTERN “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

Hamilton told the Subcommittee in January that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. NPR previously reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color.” As well, NPR uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds.

recid160321The DOJ’s report to Congress last week puts the best face on PATTERN possible. It said, for example, that “individuals are capable of changing risk scores and levels during confinement. And importantly, these changes relate to recidivism outcomes (i.e., individuals who reduced their risk scores and levels from first to last assessment were generally less likely to recidivate).” Yet the PATTERN scorecard assigns big scores for age and criminal history, scores that either never change or change only with the passage of years. A 21-year-old with one prior felony conviction starts out with a PATTERN score of 38 (a “medium” score). Wrestling that score down by taking programs is not easy.

While admitting that some minority groups are “overpredicted,” DOJ nonetheless crowed that the new PATTERN adjustments “show relatively high predictive accuracy across racial and ethnic groups. That is, the risk scores predict recidivism well for white, Black, Hispanic, Native American, and Asian individuals.”

Of course, that’s what DOJ said when PATTERN was first unveiled in July 2019.

NPR said last week that “only low and minimum-risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.” In fact, tucked into 18 USC § 3624(g)(1)(B) is a provision that would let a medium or high PATTERN inmate use credits if he or she “has shown through the periodic risk reassessments a demonstrated recidivism risk reduction… during the prisoner’s term of imprisonment.”

bureaucrat200421But the BOP would have to exercise bureaucratic discretion to grant a medium or high PATTERN inmate early release or more halfway house/home confinement. God forbid a bureaucrat would risk such a thing. Given that no one has even talked about this alternative award of credit, the chance that any BOP employee would argue for giving a medium/high inmate the right to case in credits is pretty remote.

DOJ told Congress it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for “public safety.” Instead, the department says it will be shifting the boundaries between other risk levels for its general recidivism algorithm.

In the new report to Congress, DOJ again expressed support for the Senate to advance the EQUAL Act (S.79), legislation that would equalize sentencing penalties for crack and powder cocaine.

NPR, Justice Department works to curb racial bias in deciding who’s released from prison (April 19, 2022)

National Institute of Justice, Predicting Recidivism: Continuing To Improve the Bureau of Prisons’ Risk Assessment Tool, PATTERN (April 19, 2022)

Sentencing Law and Policy Blog, Justice Department tweaking prison PATTERN risk tool “to ensure that racial disparities are reduced to the greatest extent possible” (April 19, 2022)

Legal Information Services Associates, Is PATTERN Dooming First Step Programming? – Update For January 31, 2022

– Thomas L. Root