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Beware the Ides… and the Rumors They Bring – Update for March 15, 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.

C’MON, PEOPLE…

caesar220315The Old Farmer’s Almanac reports that the full moon doesn’t happen until the end of the week, so I am unsure what accounts for the email box blowing up with rumors straight from inmate.com. Perhaps the Ides of March? They sure didn’t work for Julius Caesar.

Email 1: “Have you heard any talk about the FBOP or DOJ giving an extra 54 days good time for any reason. From what I understand nothing new has been done but inmate.com is spreading rumors and would like to hear from the expert.”

Email 2: “There is a rumor going around that the bop is giving an extra 54 days to all inmates come March 14 and that all inmates are getting a year off their sentence due to the covid pandemic. Is there any truth to this rumor?”

Email 3:  “How true is it that in some institutions they are giving 10 months of your sentence due to covid-19 lockdowns?”

bidenleprechaun220315Answer: Nope, nope, nope… President Biden is more likely to appear at a press conference dressed in a leprechaun suit than the government is to grant extra good time for COVID. First, neither the Dept of Justice nor the Federal Bureau of Prisons has the power to award more good-conduct time. The 54 days a year is set by Congress in 18 USC § 3624(b)(1). The rumor that either agency will do so is dead wrong.

Second, none of the bills getting any consideration by House or Senate committees proposes more blanket good time because of COVID or for any other reason.

Email 4: “What RIGHTS ‘got’ passed IN CONGRESS last night?”

Email 5:  “I heard Congress is supposed to be voting on something in late Spring, sometime in June, do you know if that’s Equal Act/Criminal Justice Reform?”

Congress votes on things all the time. It just passed a $1.5 trillion spending bill last week. But nothing has been passed on criminal justice reform by the entire Congress in its 14 months of existence. The House did pass the EQUAL Act – which would reduce punishments for crack cocaine to equal those for powder cocaine – but that bill’s stalled in the Senate. Right now, nothing is scheduled for floor time in the House or Senate on criminal justice reform (although that does not mean something won’t be in the future).

Time magazine last week ran a mostly complimentary article about Biden’s criminal justice accomplishments. But even it admitted that his efforts have fallen short: “The President said that he would revamp clemency power and use it for non-violent offenders and those incarcerated on drug crimes; Biden has not commuted or pardoned anyone so far. The US Sentencing Commission, which helps govern and address disparities in federal cases, currently has six open seats; Biden has not nominated anyone for the commission. Reducing the prison population was supposed to be another priority in Biden’s administration; there has not been much follow-through on that: The prison population is at around 1.8 million and while there was a period of decarceration at the start of the COVID-19 pandemic, that has since stalled.”

The article mentioned Biden’s failure to push the George Floyd Policing Act through the Senate, but did not even note the stalled  EQUAL Act, MORE Act, or First Step Implementation Act – all of the highest-profile reform bills now pending in Congress.

grid160411With the midterm elections coming up this fall – where all of the House of Representatives and one-third of the Senate is up for re-election – crime is going to be a major issue, and the Democrats are nervous. That usually means that the kinds of issues important to federal prisoners – retroactivity, EQUAL Act, marijuana reform, fixing First Step – are unlikely to be brought to a vote, because incumbents don’t want to take a stand they might have to defend on the hustings.

Finally, Email 5:  “Over 65 yrs old can release immediately, is it true?”

Oh, c’mon, people…

Time, Criminal-Justice Reform Was a Key Part of President Biden’s Campaign. Here’s How He’s Done So Far (March 7, 2022)

Washington Post, In San Francisco and elsewhere, Democrats fight Democrats over where they stand (February 17, 2022)

– Thomas L. Root

How Shall I Release Thee? Let Me Count the Ways – Update for January 7, 2020

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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 GOLDILOCKS OPTION

All of the New Year’s Eve revelers had not yet left Times Square when the first rumor of the new year landed in my email inbox. An inmate reader wrote: “The Bureau of Prisons is saying that even though the law now says that good time is to be applied based on length of sentence, the ‘rules’ say that they are to evaluate an inmate at the end of the year for good conduct, therefore it can only apply to time served.”

corso170112Not so fast, my friend. As the Old Man of 2019 disappeared through the door – and ‘good riddance!’ many of us thought  – the BOP issued a proposed change to 28 CFR § 523.20 it intends to follow in applying the changes in the good time statute (18 USC § 3624(b)(1)) brought about by the First Step Act. The notice, of course, was published in the Federal Register, where everyone was sure to see it.

Time out for some remedial government class, for those who sat in the back texting their friends. Congress passes bills, which the President signs. Those bills change federal law. Federal law is conveniently restated in the United States Code, which organizes the laws so that they are easy to find.

textinclass200107.jpgLaws quite often sweep broadly and are light on detail. Federal agencies, which are charged by Congress with seeing that the laws are carried out, are entitled to use procedures under the Administrative Procedure Act to adopt rules that give definition to the laws. Imagine Congress passes a law that broadcast licenses should be granted and renewed when the public interest, convenience and necessity requires it. (Actually it did, in § 307 of the Communications Act of 1934.) What the dickens does that mean? Congress delegated authority to the Federal Communications Commission to define what it means by rules adopted pursuant to the APA‘s procedures. Those rules are conveniently set out in the Code of Federal Regulations.

So, contrary to our reader’s perception, the ‘rules’ the BOP seeks to adopt should not contradict 18 U.S.C. § 3624(b)(1), but instead provide the detail needed to implement it. Rules are not laws, and – when a statute and a rule are inconsistent – a law always trumps a rule.

classisover200107Enough high school government class for now… In its Dec. 31 Notice, the BOP proposes to calculate an inmate’s “out date” at the time the sentence commences by assuming all good time will be earned (as it has always done). The actual award of the time for each year of sentence will come on the anniversary date of when the sentence started, after the BOP determines, in the words of § 3624(b)(1), that the inmate has shown “exemplary compliance” with BOP rules and policies. Practically speaking, this means the inmate received no disciplinary reports that took away good conduct time as a sanction.

The “exemplary compliance” standard is nothing new. In fact, the only changes in § 3624(b)(1) resulting from the First Step Act are that (1) prisoners earn up to 54 days of good conduct time each year of their sentences, not for each year they are actually in prison. This results in an extra seven days each year; and (2) credit for the last year of a term of imprisonment shall be given on the first day of the last year of the term of imprisonment.

threebears200107In last week’s Notice, the BOP proposed three alternatives for administering good conduct time under the changed law. The first alterative would be, because the changed statute no longer referred to a “portion of a year,” for the BOP to give no credit for the final part of a year an inmate served. The Bureau rejects this as “an erroneous and unfair interpretation” of the new law. In other words, this porridge was too hot.

The second alternative, the Bureau said, would be to interpret the new law to mean inmates get 54 days for the final part of a year, no matter how short. If a sentence were 38 months, for example, an inmate would get 54 days a year for each of the 3 years, and another 54 days for the last two months. The BOP rejected this interpretation as being too fair, because it “would result in some inmates receiving benefits incongruous with those received by others.” This porridge was too cold.

goldilocks200107The third alternative is the BOP’s Goldilocks choice, one the Bureau believes is neither too unfair nor too fair. The BOP proposes that 54 days’ good conduct time vest on each anniversary of the sentence. For the last year, however, the prorated good time would not be awarded until the last day of the sentence, so an inmate could still lose a part year’s good conduct time up to the time he or she walks out the door.

The BOP thinks this porridge is just right. However, the public may file comments agreeing or disagreeing  until March 2.

A couple of interesting factoids appear in the Notice: In the introduction to the rulemaking proposal, the BOP mentioned that the PATTERN risk and needs assessment program has not yet being adopted in final form. As well, the Bureau referred to the glacial pace of recalculating existing inmates’ sentences to add the 7 additional days of good conduct time per year each inmate was awarded by First Step:

Under section 102(b)(2) of the FSA, the recalculation of GCT credit was not effective until the Attorney General completed and released the risk and needs assessment system on July 19, 2019. Although this proposed regulation is not yet in effect, the Bureau re-calculated release dates beginning on July 19, 2019 under the statutory authority of the FSA. Based on these recalculations, 3163 inmates were released from Bureau custody on July 19, 2019; the Bureau is in the process of completing recalculations for the remainder of the inmate population based on the FSA authority, prioritizing recalculations by proximity of projected release date, and releasing inmates as appropriate according to the recalculated GCT release dates.

PB286-200107Of course, many people (your writer included) are at a loss to understand why recalculation of sentences has been such a laborious task. Certainly, even the BOP’s Packard Bell 286s ought to be able to recalculate sentences by running an algorithm that any boot-camp coder should be able to write between video games. But the bureaucracy plods on…

Good Conduct Time Under the First Step Act, 84 Federal Register 72274 (Dec. 31, 2019)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

House Subcommittee Holds Oversight Hearing on First Step, and Tales Abound – Update for October 21, 2019

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A TALE OF TWO BOPs

twocities191022At a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security oversight hearing last Thursday on implementation of the First Step Act, it seemed at times that legislators were hearing about two different Bureaus of Prisons. One was staffed by dedicated professionals who were rapidly “developing guidance and policies to ensure appropriate implementation” of First Step. The other BOP was cutting halfway house, providing inadequate programs and “acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress.”

Dr. Kathleen Hawk Sawyer, the veteran BOP hand brought back from retirement to take over the agency 12 weeks ago in the wake of the Jeffrey Epstein suicide fiasco, told the subcommittee that sentence reductions under the newly-retroactive Fair Sentencing Act has resulted in over 2,000 orders for release, with the release thus far of over 1,500 of those inmates. She told the Subcommittee that BOP “staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change. As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.”

This will come as surprising news to the thousands of people whose sentences have not yet had the revised GCT computations applied to their sentences.

She also reported that since First Step was signed into law, 95 inmates have received compassionate release (although she did not specify how many releasees were recommended by the BOP). She said the BOP has approved 328 inmates for the Elderly Offender Home Detention program, with 242 already on home detention and the balance awaiting placement.

wereonit191022Sawyer Hawk urged the Subcommittee to fund and approve expanded UNICOR purchasing approval, authorizing more agencies, nonprofits and governments to buy UNICOR products. She said UNICOR employment has fallen from 20,000 several decades ago to 11,000 now, but that expansion of the pool of eligible buyers in the First Step Act assured that the number of UNICOR inmate employees would increase.

Sawyer Hawk implied that UNICOR, GED, literacy and drug programs would be among the programs for which earned-time credit was given once the PATTERN risk and needs assessment system was implemented. Apparently, the independent review committee that developed PATTERN also “selected programs to designate as evidence-based recidivism-reduction programs and productive activities,” according to Review Committee member John P. Walters, but neither he nor any other government witness identified what the programs would be.

Sawyer Hawk testified that training of BOP staff is underway for application of PATTERN as well as a yet-undefined system of assessing an inmate’s needs for programming. The suggestion is that BOP staff will select the programs that an inmate can take for earned-time credit according to the individual needs of the inmate for such programming. Sawyer-Hawk said, “The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.”

Walters tried to assuage concerns about PATTERN, telling the Subcommittee that the commission is working on “somewhat substantial” changes aimed in particular at removing possible bias in the tool. He said the contractors who developed the PATTERN system have run 200 additional hours of analysis at the independent review commission’s direction with the hopes of weeding out bias. “Obviously we want the instrument to be valid, but we also want the instrument to capture real differences and not bias,” Walters said.

A much less rosy picture was painted by New York City Federal Defender executive director David E. Patton and Professor Melissa Hamilton. Patton pointed out that current DOJ data show 49% of federal inmates complete no programs, 82% of such inmates receive no technical/vocational courses or UNICOR employment, and 57% of federal inmates needing drug treatment receive none. “Relatedly,” Patton said, “we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.”

Hamilton complained that PATTERN was being developed in an opaque process, one in which routine requests for release of the underlying data – something the U.S. Sentencing Commission does as a matter of course – and Freedom of Information Act requests have been ignored. The Brennan Center for Justice “requested release of information on the BRAVO/BRAVO-R tools that the DOJ Report indicates are foundations for PATTERN,” Hamilton testified, “yet were rebuffed because of proprietary claims. This initial assertion of secrecy is deeply concerning.”

casemanagers191022Patton also questioned the BOP’s commitment to halfway house placement. The BOP said in a 2017 memorandum that “due to fiscal constraints,” the average length of halfway house stay was “likely to decline to about 120-125 days.” However, Patton asserted, “anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor’s wall reading: ‘We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says’.”

Rep. David Cicilline (D-Rhode Island), pointedly asked Sawyer-Hawk why people close to release whose dates were advanced by the additional 7 days-a-year good time were not having halfway house dates changed accordingly. Sawyer Hawk expressed surprise, saying that this was not happening throughout the system, and she would look into whether it was happening in New England.

Subcommittee’s questions focused primarily on the heating crisis at MDC Brooklyn, the Epstein suicide at MDC New York, BOP staffing levels nationwide and the PATTERN programming. One noteworthy moment came at the beginning of questions from Rep. Hakeem Jeffries (D-New York). He read a statement from the family of Troy Pine, the man Noel Francisco allegedly murdered in Providence, Rhode Island, several weeks ago. Francisco was released early because of the retroactive Fair Sentencing Act, creating a firestorm of criticism over the First Step Act.

Pine’s nephew urged people not to blame Trump or the First Step Act. “Anyone who speaks my uncle’s name, please speak it in a way that will draw people together, and bring help to people in these communities, including human beings who have been locked up for too long,” Jeffries read from the statement.

A Washington Times column on Saturday agreed: “The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime.

“But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.”

House of Representatives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act (Oct. 17)

Washington Times, First Step Act is working, but the criminal justice system is still broken (Oct. 19)

Providence Journal, Nephew of Providence murder victim: Don’t blame First Step Act (Oct 18)

– Thomas L. Root

Sisyphus Had Nothing on Us – Update for September 24, 2019

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NOTHING HAPPENS FAST – PART 1

sisyphus190924Remember that Greek guy who kept rolling the rock up the hill, only to have it roll back down, and then he’d have to do it again? Yeah, that Sisyphus character… Legal combat with the Bureau of Prisons over the agency’s glacial pace in updating sentences to add the additional 7 days-a-year good time credit is something like that.

Last December, the First Step Act amended the wording of 18 USC 3624(b)(1) to correct a Congressional oversight. Congress had always intended that federal inmates get 54 days per year good-conduct credit, but it had written the statute so badly that the BOP was able to interpret 54 days to really mean 47 days. No fooling. The First Step Act was to fix that.

onecar190924But trust Congress to screw up a one-car parade… even the “fix” was messed up. Congress meant that inmates would immediately retroactively receive seven extra days for every year they had served in their sentences, the be only 47. But the statute was unclear, and the BOP took the position that the extra seven days would only be effective on July 19th (180 days after the statute passed).

Even that hasn’t worked. Since July 19th, I have been bombarded with emails from inmates that the BOP has yet to correct their sentences to add the extra seven days per year. The BOP complains that the process is labor-intensive, and it’s moving as fast as it can.

Attempts to address the problem judicially has thus far come to naught. Case in point: Tim Greene, doing a long sentence for bank robbery, was due to be released August 9th. But with the additional 7 days a year, his release date would be moved back to March 29. He filed a habeas corpus petition in the Northern District of Texas last February, arguing that he was due the extra good time right away, and should be released at the end of March.

The District Court dismissed the petition as premature, because July 19th had not yet come around, and Tim appealed. By now, it was early June. He filed his brief, a motion for expedited consideration, and a request for conditional release. But nothing happened fast. The government filed its brief a month later, and Tim replied on July 18. The next day, the BOP kicked him out the door, which is exactly what would have happened had Tim done nothing.

nothing190924Last week, the 5th Circuit finally ruled. It held the BOP was right that the extra goodtime only became effective on July 19, making Tim’s petition premature. Because Tim got out July 19, the requests for expedited consideration and conditional release were dismissed as moot.

There are undoubtedly habeas cases in the pipeline over the BOP’s failure to update release dates by applying the extra goodtime, a failure that messes with release plans and halfway house/home confinement placement. But as Tim’s case – which took seven months start to finish – shows, nothing happens fast.

Greene v. Underwood, 2019 U.S. App. LEXIS 28512 (5th Cir. Sept. 20, 2019)

– Thomas L. Root

Bringing Forth A Mouse – Update for July 23, 2019

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BOP RELEASES THOUSANDS (FROM SOMEWHERE) LAST FRIDAY

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

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

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

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

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

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

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

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

Bureau of Prisons, Population Statistics (July 18)

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

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

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

– Thomas L. Root

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

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

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

A really big day… or was it?

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

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

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

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

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

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

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

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

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

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

PATTERNB190722

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

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

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

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

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

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

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

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

Bureau of Prisons, Population Statistics (July 18)

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

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

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

– Thomas L. Root

Final Efforts Fail to Force BOP to Apply Additional Good Time Before July 19 – Update for July 17, 2019

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

LAST-SECOND HAIL MARY ON GOOD TIME BATTED DOWN IN D.C. COURTROOM END ZONE

hailmary170613Sadly, football preseason is still a few weeks away, but that did not stop the New Civil Liberties Alliance, a D.C. legal foundation dedicated to fight federal agency infringement of liberties, from unloading a “Hail Mary” in its suit against the Federal Bureau of Prisons on behalf of an inmate late last month.

NCLA argued that its client, Robert Shipp, is due to be released in November under the old good-time calculation. But under the First Step Act, the extra good time he will get should have let him out in June. Even though he was due to be released from custody last month under a change in federal law, NCLA argued, “the BOP has refused to release him while it waits until July 19, 2019 to apply the new law at its discretion. There are some 4,000 federal prisoners like Shipp across the country who sit in limbo at BOP’s mercy.”

In the Washington Examiner last week, NCLA’s attorney said, “Each day the BOP ignores Congress’ orders, thousands of people continue to be held beyond their lawful release dates, away from their families. BOP is stealing time from them that they will never get back. Agencies like the BOP cannot wait until they find it convenient to follow the law; they should uphold the law and give people the good time credit they have earned.”

judge160229Unfortunately, life imitated sport. NCLA’s request for the emergency order was denied last week. With the clock running out, NCLA filed a motion for an emergency order telling the BOP to calculate the extra good time immediately. The judge held:

Shipp asserts that delaying the effectiveness of the amendment “makes no sense in light of the clearly stated Congressional intent to rectify the BOP’s previous actions in calculating good time credit.” He urges the application of the rule of lenity in his favor because “[a]t worst, the statute is silent as to the effective date for t[he]… good-time fix provision.” And he points to the legislative history of the act, which he contends shows that the good time credit amendment was intended to be effective immediately. But while it is sympathetic to Shipp’s position, the Court cannot agree with his interpretation of the Act. The statutory text clearly points to a single possible interpretation, which trumps any contrary indication of Congressional intent or in the Act’s legislative history. It may be that Section 102(b)(2) was inartfully drafted, and does not reflect what Congress intended in amending 18 U.S.C. § 3624(b). But even if that were the case, “[i]t is beyond [the Court’s] province to rescue Congress from its drafting errors, and to provide for what [the Court] might think… is the preferred result.” Having determined that Section 102(b)(1)(A) is not yet effective, and thus that Defendants are not unlawfully failing to comply with their obligations under 18 U.S.C. § 3624(b), the Court finds that Shipp’s claim is unlikely to succeed on the merits and it denies his emergency motion for injunctive relief.”

Memorandum Opinion and Order, Shipp v Hurwitz, Case 1:19-cv-01733-RC, 2019 U.S. Dist. LEXIS 113096 (D.D.C. July 9, 2019)

Washington Examiner, Despite sentencing reform, the US Bureau of Prisons is holding thousands of inmates illegally beyond their release dates (July 8)

– Thomas L. Root

DOJ Says It Will Meet First Step Act July 19th Deadline for Risk System, Good Time Calculations – Update July 15, 2019

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

WHO’DA THOUGHT?

The First Step Act set a hard deadline of 210 days after passage – July 19, 2019 – for recalculating the 7-days-a-year extra good time and for Dept of Justice to adopt a new risk assessment program to be used by the BOP.

deadline190715Now, against the odds, the Attorney General says DOJ and BOP will meet the July 19 deadline for extra good time and adoption of a risk assessment system, despite DOJ blowing the deadline for setting up a risk assessment committee last winter because of the government shutdown.

USA Today and the AP both report that DOJ is expected to lay out the risk assessment rules on July 19, as required by First Step.

Adoption of the risk assessment program is critical, because once it is in place, the BOP then has six months to roll out the programs it identifies as like to reduce recidivism. Eligible inmates taking those programs will earn additional good time at the rate of from 10 to 15 days a month.

No one yet knows what programs will be eligible, but First Step encourages the BOP to be expansive, maybe even including some kinds of inmate employment. Every day I hear from people wondering whether ACE (adult continuing education) or required GED classes or UNICOR employment or even prison orderly jobs will earn extra good time. No one yet knows. But with the risk assessment program in place, the BOP will begin to identify what will and will not count.

July 19th reportedly will see release of about 2,200 additional federal inmates based on the 7-days-a-year good time being awarded for every year of one’s sentence. Fox News reported last Monday that July “will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to “earned good time.” In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the “Second Chance” hiring program.”

norose190715All is not roses with the earned time program, however. FAMM president Kevin Ring said last week that more attention and money is needed to support the new programs. FAMM is also unhappy that a long list of inmates, including those convicted of terrorism, sex crimes, some gun offenses, some fraud crimes and a few drug offenses will be excluded from qualifying for earned time credits. “There is going to be some frustration,” Ring said.

Acting BOP Director Hugh Hurwitz also acknowledged that the exclusions represent a looming inmate management test for prison staffers. “How do you manage inmates who are getting the credits and those who are not? That will be a challenge as we roll this out,” Hurwitz said.

The roll-out comes at a time when the BOP is grappling with persistent staffing shortages. To make up for a shortage of COs, officials have ordered teachers, nurses, kitchen workers and other staffers to serve as correctional officers. The practice, known as augmentation, draws staff away from the kinds of programs that officials are now touting.

Newly-installed Deputy Attorney General Jeffrey Rosen, who toured FCI Englewood last week, admitted First Step provisions “will put additional demands” on prison staffers. He told USA Today that DOJ was reviewing staffing across the BOP, but he believed that current personnel levels were not jeopardizing safety.

multi190715“Everyone who is trained to work at a federal prison learns to participate in the security role,” Rosen said. “But we’re looking at that and plan to do whatever makes sense.”

A number of advocates, however, have called for stronger oversight of the implementation by both BOP and the AG’s office, and for more funding. “We have concerns it might not be implemented appropriately,” said Inimai Chettiar, legislative and policy director at the Justice Action Network.

USA Today, Roofing, paving, artisanal bread: Feds look to kick-start law that will free hundreds of inmates (July 11)

Aiken Standard, A.G. William Barr, Sens. Graham, Scott laud First Step Act during Edgefield prison visit (July 12)

Associated Press, Around 2,200 federal inmates to be released under reform law (July 13)

Fox News, Thousands of ex-prisoners to reunite with their families this month (July 8)

– Thomas L. Root

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

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

JULTEENTH

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root