Tag Archives: PATTERN

Pinching a Statute ‘Til It Hollers: BOP and Earned Time – Update for December 2, 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.

BOP ROLLS OUT PROPOSED FSA EARNED TIME RULES

Twenty-three months after passage of the First Step Act authorized the Federal Bureau of Prisons to give earned time credits to inmates who complete programs that have been shown to reduce recidivism, the BOP is finally getting around to adopting rules on how such credits will be rewarded. And, unsurprisingly, the BOP is making Ebenezer Scrooge look like Santa Claus.

scrooge201202First Step focused on assessing each prisoner’s likelihood of recidivism and rolling that assessment into a recidivism and needs assessment system known as PATTERN. The BOP was then to determine which of the programs identified as likely to reduce recidivism each inmate needed. As the inmate completed the programs, he or she would see the PATTERN score – ranging from “high risk” down to “minimum risk” – decrease. To encourage the prisoners to complete the programs, First Step authorized the award of “earned time credits,” equal to 10 to 15 days for each 30 days of programming completed. The earned-time credits can be used for more halfway house, more home confinement, or up to 12 months of early release.

Of course, the devil’s in the details. The language in the Act says:

A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.

rules201202What exactly does First Step mean by “30 days of successful participation?” The BOP has finally announced proposed rules to define that, and the definition is a doozy.

The proposed rule figures that “30 days” means 30 program days. A “program day” is eight hours, the BOP says. In other words, a 500-hour program would be worth 500 hours/8 hours-to-a-day, or 62.5 program days. Completion of the 500-hour program would award an inmate two months (60 days) of program credit, which is worth 20 days earned time credit for inmates with medium or high recidivism risk, and 30 days credit for inmates with minimum or low risk.

In the BOP, a 500-hour program takes 12-18 months to complete.  That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.

results201202The proposed rule does settle one question which has been coming up often in the last few months: FSA earned time credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction Program and Productive Activity assigned to the inmate based on the inmate’s risk and needs assessment, and only for those successfully completed on or after January 15, 2020.

The proposed rule does not address the procedures for determining whether an individual inmate will have FSA earned time credits applied towards prerelease custody, early transfer to supervised release, a combination of both, or neither. Instead, it only addresses the procedures for earning, awarding, loss, and restoration of FSA credits.

The public may submit comments to the BOP on the proposed rule until January 25, 2021.

Federal Register, Proposed Rule: FSA Time Credits (November 25, 2020)

– Thomas L. Root

Double Secret PATTERN Scoring – Update for June 1, 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.

BAIT AND SWITCH?

bait200601For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.

First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.

It was intended to be a win all around.

The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.

The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.

The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.

topsecret200601We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”

ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”

So, as Dean Wormer might have said, it’s like a double secret PATTERN score.

doublesecret200610
Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”

The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”

ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.

ProPublica, Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out (May 26)

Sentencing Law and Policy, “Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out” (May 27)

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

– Thomas L. Root

BOP Issues Earned Time Credit Program List – Update for January 20, 2020

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BOP ROLLS OUT FINAL PIECE OF FIRST STEP ACT

teeth200120For those who have been living in a cave for the past 18 months, let’s start with some background. Congress passed the First Step Act in December 2018, the first significant criminal justice legislation in 30 years or so. The public relations centerpiece of the Act was a program to be implemented by the Bureau of Prisons that would assess inmates not just for security risks (something that the BOP has done since the Feds took their first prisoner – the guy who stole General Washington’s wooden teeth – almost two and a half centuries ago), but for the inmate’s risk of recidivism and his or her programming needs that would presumably reduce the chance of reoffending.

The program would then match the inmates with prison programs that would address those needs. Inmates who successfully completed the various programs would be granted “earned-time credits” which could be used for additional halfway house or home confinement. The first 12 months’ worth of credit could even be applied to reduce sentence length by a year.

tortoise190722The Act gave the BOP ample grace period to adopt the assessment tool and implement programming, but time finally ran out yesterday. And just under the wire, last Wednesday the Dept. of Justice announced implementation of the final recidivism and needs assessment program, known by the acronym PATTERN. The final version contains several minor changes from last summer’s draft, alterations made in response to public comments filed last fall. Two days later, the BOP published a list of the programs it currently has or will be adopting, and announced the beginning of earned time credits for federal inmates for completing programing intended to reduce recidivism.

“Beginning today, inmates will have even greater incentive to participate in evidence-based programs that prepare them for productive lives after incarceration,” Attorney General William Barr was quoted as saying in last week’s DOJ press release. “The First Step Act is an important reform to our criminal justice system, and the Department of Justice is committed to implementing the Act fully and fairly.”

The principal change in PATTERN was to add a dynamic measure of an inmate’s “infraction free” period during incarceration, adding a number of prior programs and UNICOR to the programs that benefitted a prisoner’s PATTERN score, and removing metrics for age at first arrest and voluntary surrender from the PATTERN assessment matrix. PATTERN will also no longer look at whether an inmate participated in education or drug treatment programs to measure initial recidivism risk.

Critics had complained that the draft’s focus on an inmate’s prior run-ins with the criminal justice system weighted the system so that minorities generally would be classified as greater recidivism risks than would white inmates.

EBProg200120The list of “evidence based” programs that can qualify an inmate for earned time credits, published last Friday on the BOP site, identified 70 programs, almost all of which will be available at all BOP facilities. The list included some unsurprising ones, such as working at UNICOR, vocational programs, all drug programs, GED and ESL. As well, many new programs, many aimed as cognitive behavior therapy to address everything from food disorders, insomnia, gambling and anger management.

Each program entry in the BOP release lists the program, duration, number of hours’ earned time credit the program earns, locations where the program is offered, and needs the program addresses. For example, one of the 70 programs is called BRAVE (Bureau Rehabilitation and Values Enhancement), a cognitive behavior therapy program for young males on their first offense, will run for six months, 20 hours per week, and earn an inmate completing the program 500 hours of earned time credit. The program, which addresses programs with antisocial peers and cognitions, will be offered at FCI Beckley and Victorville.

The publication contains no explanation of how the BOP intends to convert earned time credit hours into days, which is what First Step contemplated. In the case of a continuing activity like UNICOR, the program list states inmates can earn 500 earned time credit hours, but it does not specify over what period of time or if that 500 hours is just a one-time award.

falsehope170206The First Step Act authorized the BOP to award earned-time credits retroactively to the adoption date of the Act, but the agency has said nothing about doing so. Inmates have had high hopes that such credits would be granted, but long-time observers – including the undersigned – held out little hope that the BOP would take any discretionary step that conferred a benefit on inmates. So far, even a little hope has proven to be too much.

The BOP list of programs is available here.

DOJ, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (Jan. 15)

BOP, Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities (PA) (Jan. 17)

– Thomas L. Root

BOP Slouches Toward First Step Programming – Update for January 13, 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.

EARNED TIME CREDITS – THE DEVIL’S IN THE DETAILS

devil200113Probably the biggest selling point used by First Step Act supporters when Congress passed the measure in December 2018 was that the bill would deliver evidence-based programming to reduce recidivism. The inmates would be assessed under a new program that accurately gauged their likelihood to be recidivists and their needs that should be met to reduce that likelihood. The inmates would benefit, the public would benefit, the overcrowded and understaffed prisons would benefit, the U.S. Treasury would benefit. Everyone’s a winner!

The programming to reduce recidivism, after more than a year of preparation, is supposed to begin in a week. But the devil’s in the details, and hope for a broad rollout that meets the expectations of First Step backers, let alone those of inmates, is dwindling rapidly.

recividists160314By now, virtually all inmates have undergone an initial assessment under PATTERN, the new risk and needs assessment program developed in response to the First Step Act. According to the Act (a provision now codified at 18 U.S.C. § 3621(h)(1)(B)), the Bureau of Prisons is to begin to expand the most effective evidence-based recidivism reduction programs and productive activities it currently offers and to add any new evidence-based recidivism reduction programs and productive activities necessary to effectively implement First Step by Jan. 20. Subsection (h)(2)(A) gives the BOP until Jan. 20, 2022, to provide such programming for all inmates. During the “phase in” period, priority placement in the programs is to go to people closest to their release date.

As an incentive for participating in the programs, the First Step Act provides eligible inmates with earned-time credits which can be used toward increasing pre-release custody (halfway house and/or home confinement) or swapping time inside the BOP for more supervised release. A Bloomberg Law article described it last week like this: “Earned time credits… do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.”

winner200113But for a lot of reasons the question of whether the BOP is anywhere close to meeting the First Step Act’s timetable remains open. First, as the BOP admitted two weeks ago, PATTERN has not yet been adopted in its final form. Although the BOP has promised to identify its existing programs that will award inmates earned-time credits, it has not yet done so. What’s more, a surprising large number of federal inmates will not be eligible to receive earned time credits because the BOP has determined they are excluded by one or more of the 65 categories of crime or immigration statute exempted from the program by Congress.

The current limits on time in a halfway house (up to 12 months) and home confinement (the lesser of six months or 10% of the sentence) specified in 18 U.S.C. § 3624(c) will not apply to earned time credits. Thus, an inmate can be released to more than a year of halfway house or home confinement after accumulating earned time credits.

Bloomberg Law reported last week that any earned-time credits inmates receive for completing programs prior to the final implementation of the PATTERN tool – whenever that will be – will not be eligible for redemption until the tool is implemented. What’s more, the article reported, “the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.”

prisonrace200113PATTERN was the subject of a House Judiciary Committee Oversight hearing last October, where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” The Dept. of Justice has not said how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.” Indications are that inmates that have been scored so far have been analyzed under a preliminary version of the tool. Last July, DOJ estimates were that the final PATTERN program would be in place by Thanksgiving 2019.

A further impediment to full implementation of earned-time credit program will be the availability of halfway house beds. In most of the country, there is a shortage of available halfway house beds for federal inmates. The Act provides no additional funding or resources for the BOP to increase the loss of halfway house beds, which was at crisis levels several years ago.

“The BOP has a long history of acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress,” David E. Patton, executive director of the nonprofit Federal Defenders of New York, was quoted as saying by the Washington Post. “For decades the BOP took an unreasonably restrictive view of good time, resulting in thousands of years of additional overall prison time. For decades it refused to exercise the authority given to it by Congress to release incarcerated people who were terminally ill, infirm, or otherwise suffered from extraordinary circumstances… and for decades it has not provided enough vocational, educational, mental health, and substance abuse programming despite abundant need and lengthy waitlists.” Pointing to DOJ data, Patton said wait lists include 25,000 prisoners for prison work assignments, 15,000 for vocational and educational training and 5,000 for drug treatment.

The Washington Post said last week that almost half of BOP prisoners complete no programs, more than half don’t get needed drug treatment, more than 80% haven’t taken technical or vocational courses, and more than 90% have no prison industry employment, according to data.

Help-Wanted180221“The BOP is struggling to fulfill the requirements of the Act as the Bureau is still more than 4,000 positions short,” Shane Fausey, president of the American Federation of Government Employees Council of Prison Locals, told the Post. He complained of “abusive overtime and mandatory double shifts,” adding that requirements of the First Step Act have worsened the crisis.

BOP Director Kathleen Hawk Sawyer told the House oversight committee last October that the understaffing was over 3,700 vacancies and said resolving that “is among my highest priorities… but doing so will take time.”

Bloomberg Law, Insight: The First Step Act—Earned Time Credits on the Horizon (Jan. 9)

Washington Post, Federal prison reform has bipartisan support. But it’s moving slowly. (Jan. 9)

– Thomas L. Root

First Step Act Turns a Year Old – Update for December 26, 2019

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ANOTHER YEAR OLDER AND DEEPER IN DOUBT

firststepB180814A year ago last Saturday, President Trump signed the First Step Act. A year later, I wish it was benefiting as many people in the system as hoped for by its proponents:

• First Step was intended to be just that, a first step. Follow-on legislation, S.697 (dubbed The Next Step Act), will improve prospects for job placement when people are released, is tied up in House and Senate subcommittees. With the 2020 presidential election season starting in two weeks, there is virtually no likelihood (Skopos Labs, the company that handicaps Congressional bills, gives it a 4% chance) that it will pass next year.

• First Step expanded the elderly offender home detention program enshrined in 34 USC § 60541(g)(5). This permits people over 60 years old who are nonviolent offenders to serve that last third of their sentences in home confinement. The rub is that the “two-thirds” referred to in the measure means two-thirds of the whole sentence. With good conduct time credits, a prisoner now serves only 85% of his or her sentence. It appears that no one thought carefully about it, because H.R.4018 was introduced this year to clarify things by permitting elderly offenders to go home at two-thirds of their net sentence (time to be served minus good time) instead of two-thirds of their total sentence. The measure passed the House by voice vote in October. Last week, the bill was put on the Senate Calendar of Business under general orders (the Calendar is a list of all measures, sequenced by order number, that are eligible for Senate floor consideration). Nevertheless, Skopos Labs gives the bill only an 8% chance of passage in 2020.

fairchancebanbox190906• Last week, Congress passed and the President signed the Fair Chance Act, which started life as HR 1076, but was later tucked into a massive defense spending. The bill bars the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

• The Bureau of Prisons reports that so far, over 2,400 Fair Sentencing Act reductions have been granted (reducing prison time by 14,250 years), 380 elderly offender home confinement placements have been approved, 117 compassionate releases have been granted, and more than 1,700 new volunteers have been OK’d to work in institutions.

• Meanwhile, the BOP reported that Fiscal Year 2018 “cost of incarceration fee” per inmate was about $37,500 a year, which works out to about $102 a day. Multiplying this number by the FSA reduction of 14,250 years of prison time suggests that First Step’s crack retroactivity provision of has saved taxpayers around over $500 million.

• We have yet to see whether the PATTERN risk and needs analysis, proposed by the Dept. of Justice with great fanfare last July, and programming that earns prisoners additional time off sentences and in reentry programs will work as legislators hoped. Early reports have the Bureau of Prisons telling many more prisoners they are ineligible than anticipated by the bill, and warning that program credits may not be awarded for several years. Those reports – mostly from inmates and, while not confirmed, seem consistent across the system – are not encouraging.

money160118• Finally, The Sentencing Project reports that First Step’s authorization of $75 million per year – about $400 per prisoner – “falls far short of what is necessary to address the rehabilitative needs of people in prison. In July, the DOJ released data that dramatically highlighted the deficit in federal prison programming. Among the 223,000 people released from BOP custody from 2009 to 2015, 49% had not completed any programming while in custody and 57% of people in need of drug treatment had received no services.”

Reuters, Congress poised to pass bill lowering barriers to work for ex-offenders (Dec. 17)

Sentencing Project, One Year After the First Step Act: Mixed Outcomes (Dec. 17)

– Thomas L. Root

So You Had a Bad Day… Dr. Hawk Sawyer – Update for November 27, 2019

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THE BOP’S TERRIBLE, HORRIBLE, NO GOOD, VERY BAD DAY

Tuesday, November 19, was no kind of day for the BOP.

lazyguard191127First, two BOP correctional officers on duty the morning financier Jeffrey Epstein, in pretrial detention for sex charges, killed himself last summer were indicted under 18 USC 1001 for having faked records that they performed Special Housing Unit inmate counts overnight and one count of conspiracy to defraud the United States for good measure. The New York Times reported one CO was catching up on sports news and looking at motorcycle sales on a government computer, while the other spent time shopping online for furniture. For a couple hours, they slept.

Attorney General William Barr said the suicide was the result of “a perfect storm of screw-ups,” numerous irregularities at MDC New York that gave Epstein the chance to take his own life.

At the same time the indictments were being announced, BOP director Kathleen Hawk Sawyer got grilled by the Senate Judiciary Committee about the Epstein debacle, a mess she was brought out of retirement to fix. She admitted that issues such as officers sleeping on the job have been an ongoing problem. “We’ve been monitoring the cameras… at every one of our institutions to determine how well and how effective our staff members are doing their rounds,” Sawyer said. “We have found a couple of other instances [of guards napping on the job] and we’ve immediately referred those to the inspector general’s office.”

Sawyer also told the Committee that FBI investigators are looking into whether a “criminal enterprise” may have played a role in Epstein’s death.

risk160627The Committee also criticized the proposed PATTERN risk assessment tool which is to be adopted in its final form by the end of November. Sen. Richard Durbin (D-Illinois) complained that PATTERN is “so fundamentally unfair, that it cannot stand without challenge.”

In a PATTERN test run, Durbin said, 29% of white inmates were deemed to be high-risk for returning to prison compared with 59% of black inmates. “Part of the problem is the tool doesn’t distinguish between a traffic stop and a murder conviction,” Durbin said. “It simply measures the risk that someone will be arrested or return to the federal system, and an arrest is not a new crime. A conviction is a new crime.”

The New York Times, Guards Accused of Napping and Shopping Online the Night Epstein Died (Nov. 19)

The Crime Report, Federal Prison Guard Napping Called Ongoing Problem (Nov. 20)

Associated Press, AG Barr: Epstein’s death was a ‘perfect storm of screw-ups’ (Nov. 22)

– 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

Congress Bought the Gun. Now How About Some Ammo? – Update for September 17, 2019

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MORE FIRST STEP MONEY NEEDED, GROUPS SAY

More funds are needed to implement the First Step Act, a coalition of 14 criminal justice reform organizations told the Senate Appropriations Committee last week, as the Committee begins consideration of the Dept. of Justice budget for the next fiscal year that begins on October 1.

money160118Reformers want the Bureau of Prisons to get the full $75 million annual appropriation that was authorized in the law. DOJ has asked for much less First Step Act money, and so far has not formally asked congressional appropriators to raise the total, Inimai Chettiar of the Justice Action Network (JAN), one of the groups that is pressuring for a higher allocation, told The Crime Report.

“We cannot leave it to the Department of Justice to reallocate existing funds to implement these reforms — spreading thin the already limited resources within the Bureau of Prisons,” the groups told Sen. Jerry Moran (R-Kansas) and Sen. Jeanne Shaheen (D-New Hampshire), the chairman and ranking member of the subcommittee overseeing DOJ spending.

In a separate letter, JAN expressed concern about the proposed DOJ risk assessment tool, called PATTERN, which is currently in final review. PATTERN includes a number of “static and dynamic risk factors” to assess a prisoner’s risk of recidivism. JAN complained that the system has too few dynamic factors, which will make it harder for inmates to make changes that will lower their risk factors.

JAN called for more “dynamic” factors to be incorporated into PATTERN to assess and effectively monitor changes in prisoners’ risks and needs throughout their sentences.

The Crime Report, Reform Groups Seek More First Step Act Funding (Sept. 12)

– Thomas L. Root

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