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Five Years Later, BOP Still Doesn’t Have First Step Act Right – Update For October 27, 2023

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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.

FIVE YEARS SHOULD BE LONG ENOUGH TO GET FIRST STEP ACT RIGHT

firststepB180814The First Step Act, including its innovative system for granting credits to inmates who complete programs designed to reduce recidivism, is 5 years old in less than two months. But it took three years of fits and starts before the Bureau of Prisons pretty much had a final set of rules for administering FSA credits (after a proposal that was as miserly as the final rule was generous hanging around for a year of comments).

Now, almost two years later, the BOP is still muddled in trying to launch a computer program of forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody for halfway house or home confinement (HH/HC). The agency still lacks a comprehensive list of what types of inmate employment or education constitutes “productive activities,” which are supposed to continue a prisoner’s earning of FSA credits. And the BOP continues to deny HH/HC placement because it lacks resources, despite First Step’s requirement that inmates be placed to the full extent of their FSA credits.

Writing in Forbes last week, Walter Pavlo observed that “prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.

“Now,” Pavlo said, “nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term… One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting matches what is expected. This moving date is important because it can also determine when prisoners can leave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form of confinement that is far less expensive.”

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

First Step is important to Congress. When BOP Director Colette Peters appeared for a Senate Judiciary Committee oversight hearing chaired by Senator Richard Durbin (D-IL) last month, “her answer failed to address the continued shortcomings of the implementation,” Pavlo said. “There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward-looking FSA credits…This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented ‘soon.’ Over a year since those declarations, there is still no program to accurately calculate when a prisoner will leave an institution.”

The BOP is facing a substantial halfway house bed shortage as well. There is also the issue of insufficient halfway house space. Unlike HH/HC placement for prisoners without FSA credits, 18 USC 3624(g)(2) does not give the BOP discretion. Subsection 3624(g)(2) says that if a prisoner is eligible (has FSA credits not already applied to a year off of the sentence), he or she “shall be placed in prerelease custody as follows,” describing halfway house or home confinement. There’s nothing hortatory about it. The BOP is required to put the prisoner in HH/HC. Excuses not accepted.

halfway161117Pavlo argued that “the only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.”

Forbes, Time For A Bureau Of Prisons Task Force To Implement The First Step Act (October 16, 2023)

– Thomas L. Root

Now’s Your Chance, Colette – Update for September 18, 2023

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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.

REDEMPTION FOR COLETTE PETERS IS AT HAND

kumbaya221003On Friday, I reported on last week’s furball at the Senate Judiciary Committee oversight committee hearing, at which Bureau of Prisons Director Colette Peters was soundly thrashed by senator after senator about her agency’s poor correspondence record when it comes to responding to Congressional inquiries.

Specifically, after being warned last fall (during an otherwise kumbaya hearing welcoming Peters as the new director after the unlamented departure of Michael Carvajal) that various letters and requests for information the Senate had sent to the BOP over the previous years had gone unanswered, Colette has let another year’s worth of Senate interrogatories pile up. Her excuse that answers to senators’ letters had to go through a “review process” was as lame as it sounded.

Committee chairman Sen Richard Durbin (D-IL) ended the contentious session with some good advice for Peters: “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.” She promised to do better, albeit in a fuzzy way that promised no hard deadlines.

mail210312Lucky for Peters, her chance to turn over a new leaf on responding to Senate concerns has already arrived. Last Tuesday, Sens Durbin, Charles Grassley (R-IA), Joe Manchin (D-WV) and Shelley Moore Capito (R-WV) wrote a letter to Peters “regarding allegations of serious misconduct” occurring at FCC Hazelton. The letter asked that DOJ and the BOP “immediately investigate disturbing whistleblower reports of abusive treatment of incarcerated individuals and other employee misconduct… These reports, combined with public reporting on FCC Hazelton’s dire staffing shortages and proliferation of weapons contraband, paint a grim picture of the institution’s inability to ensure a safe environment for those in BOP custody and employees alike.”

hazelton181106The problems at “Misery  Mountain” are nothing new.  The letter to Peters, however, is quite detailed, alleging that:

  • Hazelton staff released the wrong incarcerated individual from the facility after failing to properly identify the correct individual scheduled for release.
  • A group of inmates escaped from the prison camp and supervisory staff attempted to cover it up.
  • Supervisory Hazelton staff falsified documents, encouraged inmate abuse, and covered up alleged abuse and escapes of incarcerated individuals. The falsified documents include medical assessments, incident reports, duty rosters, and time and attendance sheets, along with requests to tamper with corresponding security cameras to cover up inmate escapes. The employees engaged in these practices have not been disciplined, and, in some cases, received promotions, despite open investigations into their misconduct.
  • A staff member punched a prisoner on camera.
  • Staff members use restrictive housing punitively against prisoners and engage in a pattern of physical abuse of inmates in the SHU.
  • Staff repeatedly use racial slurs against other staff members and prisoners.
  • Staff urinated on prisoner property.
  • Staff has forced prisoners to urinate and defecate on themselves as a condition of being released from restrictive custody.
  • Staff assaulted a prisoner, breaking his ribs.
  • Staff beat a SHU prisoner so severely that he had a seizure and had to be hospitalized.
  • Staff shreds personal inmate mail and failing to provide inmates access to their mail. 
  • The existence of an internally organized group comprised of staff at various levels within FCC Hazelton facilities that are partially responsible for the misconduct at the facility, known as the “Good Ol’ Boys Club”. 

The letter asks for information regarding the investigation of abuse by no later than October 3rd, including a list of abuse allegations at FCC Hazelton since 2013, a list of FCC Hazelton staff members who have been promoted or transferred while under investigation for inmate abuse, copies of all documents regarding crimes and transfers of BOP staff who have been charged with a crime at FCC since 2013, and the number of employees who continued to work with inmates while under investigation for inmate abuse

WBOY-TV in Fairmont reported that it asked the BOP for a statement and got this:

The Federal Bureau of Prisons responds directly to Members of Congress and their staff.  Out of respect and deference to Members, we do not share our Congressional correspondence with the media. 

Unbelievable220811That’s rich. According to the Judiciary Committee, the BOP doesn’t even share its Congressional correspondence with Congress.

One would think that the BOP cannot ignore this letter.  But then, no one’s lost money yet betting against Bureau of Prisons transparency.

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

Letter to Merrick Garland and Colette Peters from Sen Richard Durbin et al. (September 12, 2023)

WBOY-TV, Whistleblower alleges staff are covering up abuse, escapes at FCC Hazelton (September 13, 2023)

– Thomas L. Root

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 2023

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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.

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

It’s Peters Versus The ‘We Be’s’ At BOP – Update for May 31, 2023

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TEN MONTHS IN, COLETTE PETERS’ JOB HAS NOT GOTTEN EASIER

peters220929Last week, Walter Pavlo – usually a strident critic of the Bureau of Prisons – wrote a somewhat hagiographic report on BOP Director Colette Peters’ efforts to change the direction of the agency.

Pavlo reported on the BOP’s late-April conference in Colorado of every warden and regional director in the BOP for a bi-annual meeting in Aurora, Colorado. “As part of the event,” Pavlo recounted, Peters “had those who were formerly incarcerated address the group to be a part of what Director Peters calls ‘Listening Sessions’. We… were provided a stage to speak to this group of corrections executives to talk about the challenges facing the BOP. In looking at the faces of those in the audience, it was a bit of a shock for them to hear from former inmates about how to better run a prison, but such is the new approach by Director Peters, who also promised a listening session from victims of crime as well. At the conclusion of the presentation, the audience politely applauded and Director Peters then rose from her chair to emphasize the importance of the event. Slowly, but surely, those wardens and regional directors also rose to show their appreciation, or their perceived buy-in of the event. Time will tell.”

Last week, Peters told Federal News Network that her greatest challenge is to be at BOP long enough to change the “we be’s” employed by the agency. “’We be’ here when you got here, ‘we be’ here when you leave,” she said. “And what I tell people is that isn’t what happened in Oregon. I was able to stay for ten years. I hope I’m able to have a significant tenure here in order to make that happen. But you are absolutely right. Real change happens, boots on the ground. It’s the wardens that we need to lean into. It’s the captains we need to lean into. It’s the lieutenants that can really, really establish and set that culture.”

revolvingdoor230531One thing Peters has in abundance is challenges. The DOJ Office of Inspector General reported in May on decaying BOP facilities and just last week told ABC News, “We’re seeing crumbling prisons. We’re seeing buildings that we go into that have actually holes in the ceilings in multiple places, leading to damages to kitchens, to doctor’s offices to gymnasiums. And they’re not being fixed.”

Earlier this month, the Government Accountability Office added the BOP to its ‘H List,’ citing the “BOP’s longstanding challenges managing staff and resources, and planning and evaluating programs that help incarcerated people have a successful return to the community.” The Partnership for Public Service recently issued its annual survey of the best and worst places to work in the government and the BOP ranked dead last among 432 agencies.

sadprison210525The BOP sex abuse scandal continues to fester, but it’s a good sign that the DOJ is being very public about it. Last week, the US Attorney in the Northern District of Florida announced that former recreation CO Lenton Hatten pled guilty to a one-count indictment charging him with sexual abuse of a female inmate at FCI Tallahassee.

Pavlo argues that “Colette Peters is a different leader but she is indeed a leader who is not afraid to establish a new direction for an Agency that is searching for one. Even if those who are in the BOP disagree with Peters’ approach, they all know that the path the Agency is on is not sustainable without change. Director Peters has, for now, the support of Congress, something that her predecessor lacked.”

Forbes, Colette Peters’ Challenge: Change The Culture Of The Bureau Of Prisons (May 22, 2023)

Federal News Network, How BOP Director Colette Peters plans to raise employee engagement (May 26, 2023)

ABC, Inside the crisis of the crumbling federal prison system (May 26, 2023)

US Attorney Northern District, Fla, Former Federal Correctional Officer Pleads Guilty To Sexual Abuse Of An Inmate (May 26, 2023)

– Thomas L. Root

Senators Consider Sexual Assault (And How to Stop It) – Update for February 7, 2023

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GRASSLEY, DURBIN, PADILLA MEET WITH BOP DIRECTOR PETERS TO FURTHER INVESTIGATE SEXUAL MISCONDUCT

Senate Judiciary Committee Chairman Richard Durbin (D-IL) and Senators Charles Grassley (R-IA) and Alex Padilla (D-CA) met with Bureau of Prisons Director Colette Peters last Wednesday to discuss sexual misconduct by BOP personnel and the Dept of Justice’s efforts to root it out.

sexualassault211014The meeting followed letters that Grassley, Durbin, Padilla, and Senator Dianne Feinstein (D-CA) sent to DOJ last year seeking information about sexual misconduct allegations against BOP staffers.

“I appreciate that DOJ convened a Working Group to address sexual misconduct by BOP employees and that BOP has begun implementing reforms to enhance prevention, reporting, investigation, prosecution, and discipline related to staff sexual misconduct,” Durbin said. “DOJ’s report in November was evidence of the desperate need for reform and improved oversight. I will continue pushing BOP and DOJ to ensure that BOP operates federal prisons safely, securely, and effectively.”

The meeting comes as a new report released by the DOJ’s Bureau of Justice Statistics reported that prison and jail staff rarely face legal consequences for sexual assault.

BJS released data on more than 2,500 documented incidents of sexual assault in federal and state prisons and jails between 2016 and 2018. Despite federal laws intended to create zero-tolerance policies for prison sexual abuse, most notably the Prison Rape Elimination Act, the report found that staff sexual misconduct perpetrators were convicted in only 20% of jailhouse incidents and only a 6% of substantiated prison incidents. Fewer than half of the perps lost their jobs.

“Staff sexual misconduct led to the perpetrator’s discharge, termination or employment contract not being renewed in 44 percent of incidents,” the report states. “Staff perpetrators were reprimanded or disciplined following 43% of sexual harassment incidents.”

rape230207Not everyone is sanguine about BOP efforts, nor – according to the report’s findings – should they be. In a recent release, the advocacy group FAMM said, “The Department of Justice (DOJ) is stepping up prosecutions of prison sexual assault. While commendable, jailing the abusers is not enough. It won’t heal survivors’ trauma or stop this from happening in the future. We need independent oversight to make real change. The BOP has shown that it cannot be trusted to mind its own foxes in its own hen houses.”

Sen. Charles Grassley, Grassley, Durbin, Padilla Meet With BOP Director Peters to Further Investigate Sexual Misconduct (February 2, 2023)

DOJ Bureau of Justice Statistics, Substantiated Incidents of Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 (February 2, 2023)

Reason, New Data Show Prison Staff Are Rarely Held Accountable for Sexual Misconduct (February 3, 2023)

FAMM, How the Department of Justice is Failing Victims of Sexual Assault in Prison (January 24, 2023)

– Thomas L. Root

BOP’s Got Nowhere to Go But Up – Update for January 3, 2023

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THE BOP’S NEW YEAR RESOLUTIONS

peters220929Director Colette Peters has been at the Bureau of Prisons now for five months. As she begins her first complete calendar year at the agency, she’s not lacking for material when she compiles a list of new year resolutions.

Starting my ninth year of writing about the BOP – and being an average joe who is happier suggesting resolutions to other people than I am adopting resolutions of my own – I have some suggestions for Director in the unlikely event her list is too short.

(1) Change the Culture: The BOP has nowhere to go but up. Last year, the Partnership for Public Service‘s 2021 rankings of the best places to work in the federal government ranked the BOP in 431st place. This was out of 432 agencies. The BOP ranked dead last in 8 of 15 categories, including “effective leadership,” “innovation” and “teamwork.”

BOPad230103(2) Hire people: Walter Pavlo observed last week that “hiring new staff in this environment is difficult.” National Council of Prison Locals president Shane Fousey called it, “a staffing crisis of epic proportions.” Staffing issues lead to inconsistent and nonexistent programming, poor healthcare, loss of opportunities for sentence credit and community confinement, and institutional safety issues.

Of course, you cannot hire the people you need to work at an agency that is feeding at the bottom of the federal employment hierarchy.  No leadership, no teamwork, no innovation… no employees.

Just last week, Pavlo wrote that an FCI Miami inmate died choking on his own blood while in a COVID quarantine. His cellmate (apparently, quarantine was in the SHU), pounded and screamed for help for 90 minutes before a CO – who was responsible for multiple housing units, came along for count. Kareen Troitino, the local CO union president, said of the incident, “As a cost savings initiative, the Agency is jeopardizing lives by forcing one officer to supervise two units. This loss of life would have never happened if we had one officer in each building as we had in the past.”

(3) Clean Up Internal Investigations: Last month, the Senate Permanent Committee on Investigations found that BOP employees had abused female prisoners in at least 19 of the 29 federal facilities over the past decade. In June 2021, the Dept of Justice revealed that as of 2018, inmates reported 27,826 allegations of sexual victimization, or a 15% increase from 2015. Of the 27,826 allegations, over half were staff-on-inmate sexual abuse. The BOP has over 8,000 internal affairs misconduct allegations that haven’t been investigated.

SIS230103The misconduct ranges from BOP leaks and lies that placed Whitey Bulger in general population at USP Hazelton (where he survived for under 12 hours) to ”corruption at the US Penitentiary Atlanta in Georgia to the Dept of Justice’s failure to count almost 1,000 deaths in custody across the country, to abusive and unnecessary gynecological procedures performed on women in Dept of Homeland Security custody,” according to Sen. Jon Ossoff (D-GA).

(4) Use the Tools Congress Gave You: Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon, recently wrote in the Federal Sentencing Reporter that the Sentencing Commission should fulfill its statutory obligation to make recommendations regarding correctional resources and programs. He told Walter Pavlo that “the BOP has failed to adequately implement critical legislation to improve the conditions of people in prison” and since the BOP hasn’t acted, the Sentencing Commission should.

The BOP could address staff shortages and morale problems by getting more people to home confinement, halfway house and early release with the need for USSC oversight, Pavlo also suggests the BOP could expand eligibility and availability of RDAP sentence reductions, “eliminate computation rules that create longer sentences… Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist… [and f]ully implement the First Step Act’s earned time credit program.’ Pavlo notes that “[n]o new legislation would be required for any of these reforms.”

nothingtosay230123(5) Practice Openness: There’s an old admonition about not picking a fight with someone who buys ink by the barrel. It’s not so much ink these days, but a blemish on Peters’s honeymoon as director is the BOP’s continued awkward of the Ft. Worth Star-Telegram’s questions about allegations of systemic abuse at the women’s FMC Carswell.

Although the Star-Telegram rated its reports of Carswell mismanagement and misconduct as one of its most important stories in 2022, the newspaper complained again this week that BOP “administrators have declined interview requests, given blanket statements in answer to questions and failed to provide detailed plans about how the Bureau of Prisons intends to address the problems.”

Associated Press, Biden signs bill forcing the federal Bureau of Prisons to fix outdated cameras (December 27, 2022)

Partnership for Public Service, 2021 Best Places to Work in the Federal Government rankings

Forbes, A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons (December 28, 2022)

Forbes, Federal Inmate Dies Choking On His Own Blood While Locked In Cell At FCI Miami (December 29, 2022)

Amsterdam News, Senate committee finds widespread employee on inmate sex abuse in federal prisons (December 26, 2022)

Business Insider, Inside the federal West Virginia prison where gangster Whitey Bulger was beaten to death (December 31, 2022)

Ft Worth Star-Telegram, Fort Worth’s biggest stories of 2022: What will you remember most about this year? (December 31, 2022)

– Thomas L. Root

Santa’s Bringing Lumps of Coal for the BOP – Update for December 15, 2022

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COAL IN THE BOP’S STOCKING


forcedsex161202Senate Subcommittee Blasts BOP Response to Sexual Assault on Inmates: The Federal Bureau of Prison’s clunky and backlogged system for investigating sexual assault has provided protection to a vulnerable population. That’s the good news. The bad news is that those protected have been BOP employees who commit sexual assault, while the inmates – who, of course, are seldom if ever believed – suffer the indignity of being thrown to the curb after suffering the violence and degradation of sexual assault.

Reduced to its essence, that was the conclusion of a bipartisan report issued Tuesday by the Senate Permanent Subcommittee on Investigations.

The investigation found that the BOP has utterly failed to implement the Prison Rape Elimination Act, and that its ineffectual investigation protocol has led to an 8.000-case backlog of sexual assault complaints. The report says that BOP management failures have “allowed serious, repeated sexual abuse in at least four facilities to go undetected.”

“BOP’s internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result,” the report concluded. “Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms.”

The investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women’s prisons over the last decade. The report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

sexualassault211014Three former inmates testified before the subcommittee, describing “years of horrific abuse by prison staffers who used their unfettered access to vulnerable inmates and threatened them with retaliation if they reported the attacks,” USA Today reported. All three accused the BOP of “often shielding attackers from accountability.”

BOP Director Colette Peters testified that “[a]s an agency, and through the ranks of its dedicated employees, the Bureau continuously works to ensure the safety and wellbeing of our employees, those in our care and custody, and our surrounding communities,” a statement that Ms. Peters should be grateful has not been submitted to the Washington Post Fact Checker.

“As I have said before,” Ms. Peters testified, “I welcome accountability and oversight; and I welcome this hearing.” One suspects she welcomes root canals without novocaine as well.

Senate Permanent Subcommittee on Investigations, Sexual Abuse of Female Inmates in Federal Prisons (December 13, 2022)

Reason, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes (December 13, 2022)

USA Today, ‘A living hell’: Former federal inmates describe years of sexual abuse by prison officers (December 13, 2022)

Written Testimony of Colette S. Peters before Senate Permanent Subcommittee on Investigations (December 13, 2022)

lumpofcoal221215

Associated Press Documents BOP “Mess Up and Move Up” Culture: AP’s report last Friday on the Bureau of Prisons “Mess Up and Move Up” employee culture, is resonating.

On Tuesday, Sen. Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, said he plans to question Director Peters about an Associated Press investigation that found the agency has repeatedly promoted and continues to stand by Thomas R. Hinkle, a high-ranking official who beat  inmates in the 1990s.

hinkle221215“I am very concerned about the allegations in this article and whether BOP will address abuses, prioritize safety, and improve their flawed approach to misconduct investigations,” Sen. Durbin tweeted in the wake of the story.

The AP reported that the BOP had repeatedly promoted Hinkle, 57, Deputy Western Regional Director, “despite numerous red flags, rewarding him again and again over a three-decade career while others who assaulted inmates lost their jobs and went to prison.”

Responding to the AP’s questions, Hinkle “acknowledged that he assaulted inmates in the 1990s but said he regrets that behavior and now speaks openly about it ‘to teach others how to avoid making the same mistakes.’” BOP Director Colette Peters defended Hinkle, telling reporters he’s a changed man and a model employee, according to AP.

According to AP, those “mistakes” included inmate beatings, sexual assault, and a public drunkenness arrest in Houston that was later dropped.

AP said its investigation showed “that while the BOP has vowed to change its toxic culture in the wake of Dublin and other scandals — a promise recently reiterated by the agency’s new director, Colette Peters — it has continued to elevate a man involved in one of the darkest, most abusive periods in its history… Hinkle’s rise is a stark example of what BOP employees call the agency’s ‘mess up, move up’ policy — its tendency to promote and transfer troubled workers instead of firing them.”

My prediction:  Hinkle’s last day at the BOP is only a few weeks away at most.

AP,  U.S. Senators demand answers after BOP investigation (December 13, 2022)

AP, The story so far: AP’s investigation into federal prisons (December 9, 2022)

AP, AP Investigation: Prison boss beat inmates, climbed ranks (Dec ember 9, 2022)

lumpofcoal221215

Ex-Warden Garcia Convicted: The former warden of FCI Dublin was convicted in Oakland federal court last week of sexually molesting female inmates and forcing them to pose naked in their cells.

Ray Garcia was found guilty of all eight charges and faces up to 15 years. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape. The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, a position diametrically opposed to Bureau of Prisons policy to not accept uncorroborated inmate testimony under any circumstances.

rapeclub221215Garcia, 55 years old, retired from the BOP last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

– Thomas L. Root

Some BOP Tidbits From Last Week – Update for November 8, 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.

LAST WEEK IN THE BOP

sexualassault211014Deputy Attorney General Lisa Monaco told Department of Justice  officials last Wednesday that prosecutors must use “all available tools” to hold BOP employees who sexually abuse women in their custody accountable, including employing a new law that has a maximum sentence of 15 years.

“The Department’s obligation to ensure the safety and wellbeing of those in our custody is enduring,” Monaco wrote. Her memo, obtained by NPR, “follows a high-level review this year that uncovered hundreds of complaints about sexual misconduct by Bureau of Prisons employees over the past five years, but only 45 federal prosecutions during that same period.”

The working group identified weak administrative discipline against some prison workers — and flaws in how prosecutors assessed reports of abuse.

Meanwhile, Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, issued a statement that last week’s “DOJ report on pervasive sexual abuse in our nation’s federal prisons is evidence of the desperate need for reform. The new Director, Colette Peters, needs to show resolve and Congress needs to back her efforts to clean up this sorry mess.”

peters220929BOP Director Colette Peters continued her charm offensive last week, sitting for a lengthy interview with Government Executive magazine. Despite the DOJ Inspector General’s report the week before criticizing the BOP for reflexively disbelieving inmates and whitewashing staff misconduct, Peters said, “We are partnering with the inspector general. I’ve met with him multiple times now to ensure that we’re holding individuals accountable. I’ve met with the U.S. attorneys and asked the same thing: that they take these employee cases very seriously, both because those individuals need to be held accountable, but the person working next to that individual needs to know that their work is valued and that when people are making bad choices, that they’ll be held accountable, so that the employee remaining is safe and secure.”

Peters noted that the BOP will fill 40 additional in its Office of Internal Affairs to address sexual assault backlogs.

Peters also told Government Executive, “[T]here’s a huge perception out there that [First Step Act] implementation didn’t happen or didn’t happen when it was supposed to. But as I review the outcomes and the deliverables we’ve delivered, the programming is happening…While there might have been bumps along the way, the agency has been working really hard to ensure that [First Step Act] implementation happens both at headquarters and in the institutions.”

ombudsman221108I reported last month that Sens Jon Ossoff (D-GA) and Mike Braun (R-IN) had introduced legislation, the Federal Prison Oversight Act (S. 4988) that would establish an independent DOJ ombudsman to investigate the health, safety, welfare, and rights of BOP inmates and staff and create a hotline for relatives and representatives of inmates to lodge complaints. A companion bill, H.R.9009, was introduced in the House by Rep. Lucy McBath (D-GA).

A week ago, Sen. Ossoff told Capital Beat News Service that the bill’s prospects for passage during the Congressional lame-duck session after this week’s mid-term elections “are favorable because it has bipartisan support.”

NPR, Guards who sexually abuse inmates haven’t been punished harshly enough, DOJ memo says (November 3, 2022)

Office of Richard Durbin, Durbin Statement On New Report On Sexual Misconduct By Bureau Of Prisons Staff (November 4, 2022)

Government Executive, We’re Not ‘Shawshank Redemption’: New Federal Prisons Director Tackles the Bureau’s Reputation (November 2, 2022)

Capital Beat News Service, U.S. Sen. Jon Ossoff sees ‘signs of improvement’ at Atlanta federal penitentiary (October 26, 2022)

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Has the BOP Just Had Its ‘George Floyd’ Moment? – Update for October 17, 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.

BOP MISTREATMENT OF DYING INMATE DYING OF CANCER SPARKS OUTRAGE

The murder of George Floyd by Minneapolis police officer Derek Chavin captured the nation’s attention and fury like no event in the recent history of policing and race. With an angry opinion from U.S. District Judge Roy Dalton (Middle District of Florida), the late Frederick Mervin Bardell’s tragic mistreatment may do the same for the Federal Bureau of Prisons.

Fred was housed at FCI Seagoville, finishing a 151-month sentence for possession of child pornography, when he developed an intestinal mass that turned into metastatic colon cancer.  As Judge Dalton put it, “Frederick Marvin Bardell was a convicted child pornographer. He was also a human being.”

In November 2020, Fred filed a motion for compassionate release, complaining that he suffered from “unspecified bleeding,” “metastatic liver lesions (suspected cancer),” and “malignancy in his colon.” His medical expert averred that Fred “ha[d] a high likelihood of having cancer of the colon with likely metastasis to the liver.”

medical told you I was sick221017The BOP admitted that Fred has “liver lesions highly suspicious for metastatic disease” but argued that “to date, no one has determined that [his] condition is terminal.” The Government also maintained that there was no indication that Fred could not receive adequate care in custody. Based on the Government’s assurance, the Court denied his November compassionate release motion.

You have to love the construction of the argument. It is not that the BOP is saying it CAN and WILL provide Fred with adequate medical care. Instead, it’s just that Fred can’t prove the BOP is unable to do so. But, as Judge Dalton wrote just two weeks ago, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody, and, regrettably, his condition was indeed terminal.”

Fred filed a second compassionate release motion in February 2021, three months later. The Court granted this motion, which was supported by an affidavit from an oncologist that Fred was likely dying of metastatic colon cancer. The Court ordered Fred released as soon as the Probation Office and Fred’s attorney worked out a release plan appropriate for someone in Fred’s condition.

The BOP didn’t wait for any release plan. In fact, the BOP staff at Seagoville didn’t read the details in the release order at all. Instead, the BOP contacted Fred’s parents and demanded that they fork over $500 for a plane ticket for Fred. As soon as they did, Seagoville sent its inmate driver – who said he was told not to get out of the car – to Dallas-Fort Worth Airport, where Fred – who was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – was unceremoniously dumped on the curb without help or even a wheelchair.

With the aid of strangers, Fred was able to get loaded into a wheelchair, get on the plane, suffer through a change of planes in Atlanta, and finally arrive in Jacksonville. Fred, “who had a tumor protruding from his stomach and was visibly weak and bleeding, unsurprisingly soiled himself during this not so bon voyage,” the judge wrote.

bardell221017Fred’s lawyer and parents met him at the airport. Fred’s father had to take off his shirt and place it under his son to keep the blood and feces off the car seat. They took Fred directly to a hospital, where he died nine days later. His specialist said that if he had gotten prompt treatment when was first found, he would have had a 71% chance of recovery.

Two weeks ago, Judge Roy Dalton held the BOP in civil contempt for ignoring his release order. The judge was clearly frustrated that he could not do more. In what Reason called “a scathing opinion,” the Judge expressed dismay that “while the sanctions imposed are remedial in nature and restricted by law, the Court admonishes the BOP and [FCI Seagoville] Warden Zook for their blatant violation of a Court Order and sheer disregard for human dignity.” Judge Dalton wrote, “The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.”

investigate170724The Court recommended that the Attorney General investigate “the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition,” the opinion states. “On a parallel track, the Court retains jurisdiction to continue investigating the circumstances surrounding the truthfulness of the assertions in the Government’s filings as well as Mr. Bardell’s incarceration and release.”

The Judge’s October 4 opinion appears to have gained national attention through an article in Reason, which also published accounts several years ago about three deaths from alleged medical neglect at FCI Aliceville.  At the time, Reason noted

The Bureau of Prisons listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

sorry190124But in Fred’s case, the BOP’s response was different. BOP Director Colette Peters released a statement offering her condolences to the Bardell family but declining to comment on the specifics of the case because it was the subject of continuing litigation. She promised to cooperate with any investigations into the matter. “My heart goes out to Mr. Bardell’s family, to whom I send my deepest condolences,” Ms. Peters (who was not Director when Mr. Bardell’s mistreatment occurred) said. “Humane treatment of the men and women in Bureau of Prisons custody is a paramount priority. In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened, and how we can prevent it from happening in the future.”

Meanwhile, official attention is being paid to the matter. Senate Judiciary Chairman Richard J. Durbin (D-IL) wrote on Twitter that “the details unveiled in this case are appalling, and may not be isolated.” He called on the Justice Department’s inspector general “to investigate B.O.P.’s treatment of medically vulnerable individuals both while incarcerated and upon their release.”

On Friday, the Justice Department inspector general’s office announced it was opening an investigation into the case.

United States v. Bardell, Case No 6:11-cr-401, 2022 U.S.Dist. LEXIS 181785 (M.D. Fla., October 4, 2022)

Reason, Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer (October 10, 2022)

Washington Post, Judge blasts Bureau of Prisons’ treatment of dying prisoner (October 14, 2022)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

– Thomas L. Root