Tag Archives: hudson institute

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

ACLU Questions Implementation of First Step – Update for April 24, 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.

ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root

Justice Dept. Picks First Step Foe to Spearhead Recidivism Risk Standard Adoption – Update for April 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.

HAS DOJ SENT THE FOX TO GUARD THE HENHOUSE?

As we observed last Tuesday, the Dept. of Justice has announced that it had appointed the Hudson Institute, a right-of-center think tank best known for its national security work, to design a risk-assessment tool that must be in place before prisoners can receive earned-time credit for completing BOP programs designed to reduce recidivism.

bog190312

The appointment, required by the First Step Act to be in place by Jan. 21, was only 78 days late.

First Step requires that a prisoner’s risk of recidivism (different from security and custody levels) be assessed before he or she starts programming. The risk can go up or down, depending on the inmate’s progress. The lower a prisoner’s risk, the more credit that can be earned.

However, the Act does not specify how a person’s recidivism risk level should be calculated. Instead, it instructs the attorney general to consult with an “independent review committee” to design the system.

DOJ said that Hudson Institute will host the independent review committee. Hudson has the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.

henhouse180307Some lawmakers from both parties who backed First Step Act expressed concern late last week at Hudson’s appointment. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Richard Durbin (D-Illinois) said during a confirmation hearing last week. “This… think tank… published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform…’ [and has] now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review system.”

Sen. Mike Lee (R-Utah) described the institute as an “opponent of the First Step Act… I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program, one of whom is Hudson’s chief operating officer, John Walters.

Walters once wrote that it was a “great urban myth” that the country was imprisoning too many people for drug possession and that the 100:1 crack-to-powder cocaine disparity was merely a “perceived,” not a real, racial injustice. In 2015, Walters wrote that the concept of “mass incarceration” was a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”

release160523The New York Times reported last Tuesday that First Step’s retroactive application of the 2010 Fair Sentencing Act has already “prompt[ed] 800 sentencing reductions already, according to the Justice Department. Of that group, nearly 650 inmates have been released from prison. Another 22 inmates have received sentencing reductions under a compassionate release program that is part of the law.” It reported last Saturday that since First Step was passed, 10 prisoners of 23 that have so far been deemed eligible have been released under the First Step’s Elderly Offender Home Detention (EOHD) program.

Testifying last Tuesday before the Appropriations Subcommittee of the House Committee on Commerce, Justice, Science, and Related Agencies, Attorney General William Barr promised “to robustly fund and diligently implement [First Step] at the Department.”

If you want to know where the real headwinds to First Step will come from, look no further that last Saturday’s Times. It’s one thing to support criminal justice reform in the abstract. But when it comes to individuals, the Gray Lady makes it clear that her anti-felon “lock-’em-up” biases are every bit as finely honed as Sen. Tom Cotton’s ever were.

unforgivenfelon190415The newspaper breathlessly reported on one inmate released under EOHD: “The First Step Act offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities. But one person who benefited from the law was Hassan Nemazee, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.” The Times reported that “Mr. Nemazee was charged in 2009 with orchestrating a scheme that defrauded banks of nearly $300 million,” and it complained that home detention “feels a lot like freedom.”

Once the media start picking at the offenses for which inmates who benefit from First Step were convicted, public outrage will not be far behind.

Washington Free Beacon, “DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act” (Apr. 8)

Mother Jones, Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It (Apr. 11)

New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 8)

New York Times, He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul (Apr. 13)

– Thomas L. Root