Tag Archives: Second Chance Act

Second Chance for Second Chance – Update for April 14, 2025

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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.

BUREAU OF PRISONS REVERSES COURSE ON HALFWAY HOUSE

Last Thursday, the Bureau of Prisons hastily walked back its March 31st memo limiting Second Chance Act halfway house placement—which under 18 USC 3624 can be up to 12 months—to only 60 days (with RDAP placement limited to 125 days).

badidea161003The BOP tersely announced in a press release that “[b]ased on concerns about how these limitations impact the population, BOP will not proceed with the planned changes to limit SCA placement to 60 days. A new memo was issued today, April 10, 2025, rescinding the previous guidance.”

The memo is not yet publicly available.

In its March 31st memorandum, the BOP cited budget constraints for the limitation and stated that prisoners “releasing to the community under Second Chance Act (SCA) authority after April 21, 2025, will have their dates adjusted and reduced to a maximum of 60 days.”

Writing in Forbes, Walter Pavlo said that the reversal resulted from an “uproar” from inmates, their families, advocates, and civil rights attorneys. The reversal coincides with a BOP warning of a renewed scam where people impersonating BOP employees were shaking down families for money to secure quicker halfway house placement for loved ones.

pooremptypockets231017Pavlo says that “the BOP is going to be honoring the earlier dates given to prisoners to start their halfway house placement.” This may be, but the financial pressures on the agency that resulted in the March 31st restriction remain unchanged. Without the text of the new memo available, whether the good old days are back remains unclear.

BOP, Second Chance Act (SCA) Placements – Previous Guidance Rescinded (April 10, 2025)

Forbes, Bureau of Prisons Rescinds Controversial Limits On Halfway House (April 10, 2025)

– Thomas L. Root

Second Chance Act Restrictions Constrict Halfway House Placement – Update for April 7, 2025

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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.

IT’S ALL ABOUT THE BENJAMINS

benjamins210222Bureau of Prison inmates were rocked last week by a systemwide announcement that prisoners with a Second Chance Act (SCA) halfway house placement on or after April 21st would see their placements reduced (but how much is unknown), and any future designation will be limited to a maximum of 60 days. Inmates completing the Residential Drug Abuse Program (RDAP) – who formerly got 180 days in most cases – will now be limited to 125 halfway house days.

A little background: The Holy Grail for the 94% of federal prisoners who will someday be released is getting to halfway house, a residential facility located in a community setting in which former inmates and recovering substance abusers transition to outside living with regular jobs, banking, family relationships, and the like.

If my unscientific survey of the hundreds of my newsletter readers who have cycled through halfway houses is any indication, halfway house living is fairly miserable. It features an unpleasant mix of all levels of violent and nonviolent state and federal inmates, a staff that is poorly trained compared to Bureau of Prisons personnel, extra layers of bureaucracy, and petty rules enforced with the constant fear of being sent back to a secure institution. Still, for virtually all prisoners, halfway house represents the promise of relative freedom to walk the streets (subject to curfews and severe limitations on where they are going and where they may not tarry), see loved ones, and work in a job where they feel like employees instead of inmates.

One of the first questions a new federal inmate asks is when he or she will be eligible for halfway house placement. Eligible prisoners can earn First Step Act credits for successful programming, with the first 365 credits shortening their sentences by up to a year. Any credits over 365 entitles a prisoner to more halfway house or home confinement time.

Even if prisoners are ineligible for earning FSA credits, the Second Chance Act of 2007—codified in 18 USC 3624(c)—permits (but does not require) the BOP to place any inmate in a halfway house for up to 12 months.

halfwayhouse250407The BOP has always been focused on placing the inmates at the highest risk of recidivism and with the greatest need for services in halfway house. Contrary to inmates’ prevailing belief, halfway house was never intended to be a reward for good conduct or an accolade for good character, but rather a prerelease tool to increase the chances that the corrections system would never see the prisoner again.

The BOP has traditionally employed a five-factor metric to place inmates in halfway house and to determine the duration of their stay. The five-factor review focuses on the resources of the facility, the prisoner’s offense, and the history and characteristics of the offender.

Last fall, the BOP began providing inmates with tally sheets showing them the date they would be eligible for halfway house assuming they earn the maximum number of FSA credits possible for them to get. The sheet also included the convenient but questionable administrative practice of adding the maximum 12 months they could also be granted for halfway house under Second Chance. The listing had an asterisk note warning prisoners that they were not automatically given 12 months, but rather explaining that the number of months of halfway house they would be allocated under SCA would be determined later and only after the individualized five-factor review.

fineprint180308Hardly anyone reads the fine print, and that applies with extra vigor to prisoners searching for as much hope as they could find. In many minds, 12 months of SCA halfway house on top of all of the FSA halfway house they could earn became an entitlement, not just a possibility.

In crafting the First Step Act, Congress made the policy error of treating halfway house as a reward for successful programming. The more programs completed, coupled with good conduct and a low risk of recidivism, would result in a prisoner earning more halfway house. This turned the BOP’s approach to halfway house on its head: instead of halfway house resources being used for people who needed it most, First Step allocated the resources to people who needed it least.

Money, That’s What I Want:  Amidst all of this prerelease fantasy, no one has appreciated the sobering truth behind the COIF numbers. “COIF” – the Cost of Incarceration Fee – is a calculation the BOP publishes annually of how much it costs to keep a federal inmate locked up. In Fiscal Year 2023 – the last year for which COIF data are available –the average COIF for an inmate housed in a BOP prison facility was $120.80 per day. The average FY 2023 COIF for a Federal inmate housed in halfway house was $113.53 per day.

It seems like a no-brainer. It clearly costs less to place a prisoner in a halfway house than to keep him in prison, right?

Maybe but maybe not. The COIF consists of “the obligation encountered in Bureau of Prisons facilities (excluding activation costs)” incurred in keeping an inmate, according to 28 CFR 0.96c. “Obligations” are how much is booked, not how much is actually spent. Right now, for example, the BOP calculates that its facilities repair costs are $3 billion, costs that have not been paid (and may never be paid).

Shaneva D. McReynolds, president of FAMM, said last week, “Prisons come with a menu of fixed costs that do not apply to halfway houses and certainly do not apply to home confinement.” Her point was that the BOP should maximize the number of months and number of inmates in halfway house, but her point disproves her position.

Fixed costs, by definition, do not increase according to inmate count. In other words, if $100.00 of the prison COIF represents fixed costs and $21.00 represents marginal costs, then sending a prisoner to halfway house only saves the BOP $21.00 while costing it about $114.00 in contract fees to the halfway house. Net loss to the BOP: about $93.00 a day per prisoner placed in halfway house. The prison is still there, the light bill still has to be paid, staff still has to be paid, the roof still needs to be fixed.

moneythatswhat231128No one doubts that the BOP is bleeding cash. The agency currently has nearly 6,000 fewer employees than needed, a shortfall costing over $437 million in overtime charges, BOP associate deputy director Kathleen Toomey told Congress in February 2025. A third of the FY 2023 overtime went for almost 76,000 outside medical trips and 84,000 hospitalizations.

Prison consultants Dr. Susan Giddings and Bruce Cameron wrote last week that halfway house placement “is actually more expensive than the cost of incarceration in a minimum-security prison and, in many cases, a low-security prison as well.” They said,

It’s too late for this fiscal year. The damage is done, and all the Bureau can do is stop the hemorrhaging. But if President Trump and Congress act now, fiscal year 2026 could be turned around. Home Confinement placement is significantly less costly than halfway house or incarceration, but in order to take advantage of the savings and better use the residential halfway house resources more efficiently, the status quo is not the answer. It’s time to flip the table and get something done.

Phillip Nunes, executive director of the Eastern Ohio Correction Center and president of the International Community Justice Association, told prison consultant Walter Pavlo that halfway houses currently have capacity and could expand without needing new contracts with the BOP.

Former BOP Acting Director Hugh Hurwitz said the same in the Atlanta Journal-Constitution last December. Hurwitz told prison consultant Walter Pavlo last week that the proposed 60-day limit is insufficient for inmates – particularly those who have served long sentences – to make the adjustment to the street.

No room at the inn?

While Giddings asserts that halfway house costs more than imprisonment – which, because the prison costs include fixed and marginal costs alike while halfway house is all marginal dollars – Pavlo disputes the claim: “It is difficult to see how the BOP’s decision to limit halfway houses is going to end up saving any money. In fact, both the First Step Act and the Second Chance Act, both heavily reliant on halfway house placement, were passed by Congress overwhelmingly on the assumption that they would save money on the costs of incarceration.”

The Sobering Reality:  Giddings and Cameron said that while the BOP announcement cutting halfway house placement was “devastating” for many prisoners and their families,” it is unsurprising:

The Bureau has had to prioritize lengthy First Step Act (FSA) prerelease placements over SCA placements for months. These lengthy FSA placements, anywhere from 12 to 26 months in length, tie up halfway house and home confinement resources for well beyond the average four- to five-month placement. The issue was further exacerbated by the previous Administration’s refusal to support the Bureau in court challenges regarding whether the Bureau had any discretion in these designation decisions to include cases where the individual presented public safety risks. The Bureau was told the only consideration was the time credits: nothing else mattered.

The BOP has argued in court that it is not required to honor FSA credits for halfway house, but it has lost that fight. So how do you pay a big new bill required by law from a budget that is already under intense pressure? Answer – you stop spending on any part of the budget over which you have control.

One inmate told me that at her facility, “Girls were devastated. Screaming, crying, shutting down, signing out of RDAP.” Another prisoner demanded to know whether it was true that “Trump passed a new law to where federal inmates can only get 60 days of halfway house now a that you can’t get up to 6 months anymore?”

Of course, Trump had nothing directly to do with this. As far as implementing the SCA, nothing in that law required the BOP to give prisoners any halfway house time. Whether there is a solid legal challenge to last week’s decision has yet to be seen.

Race to the Courthouse:  If my email can be believed—and I got a lot of email on the subject—inmates are now filing a blizzard of suits challenging the BOP action. The cottage industry of people who provide litigation support services to federal prisoners is leading the charge.

Badlaw200804One newsletter reportedly told inmate readers that the matter could be challenged using the same theory that won in Rodriguez v. Smith, a 2008 9th Circuit decision. A more careful review of Rodriguez would have shown even a casual reader that several decisions since then—such as Hindman v. Inch—have held that the Rodriguez holding was superseded by the SCA and has been reduced to a historical curiosity.

Another prisoner complained to me that the BOP “wants to keep us in prison longer, which means spending more money to keep us locked up. Then they don’t want to implement the Second Chance Act, which is law. We can’t break the law, but they clearly can by not implementing the Second Chance Act.”

Blame First Step for encouraging the belief that halfway house is an entitlement and blame the BOP’s administrative laziness for convincing prisoners and their families that a full year in halfway house was a given.

As for the BOP’s intentions, it’s not about keeping people in prison longer. It’s all about the Benjamins, baby.

Giddings and Cameron, The Bureau Takes Additional Drastic Actions to Contain Costs as They Struggle with Budget Issues (April 1, 2025)

Cost of Incarceration Fee, 89 FR 97072 (December 6, 2024)

Forbes, Bureau of Prisons Is A “Powder Keg” With Problems (April 4, 2025)

Forbes, Under Budget Pressure, Bureau Of Prisons To Cut Halfway House Time (April 1, 2025)

Atlanta Journal-Constitution, The Bureau of Prisons has plenty of open beds for reentry (December 6, 2024)

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008)

Hindman v. Inch, Case No 2:17-cv-00323, 2018 U.S. Dist. LEXIS 46834 (S.D.Ind., March 22, 2018)

– Thomas L. Root

Bad Cases Make Hard Law – LISA Newsletter for September 12, 2024

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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.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act.  Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root

No Second Chance for Federal Elderly Offender Home Detention? – Update for May 9, 2024

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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.

SECOND CHANCE ACT REAUTHORIZATION BILL INTRODUCED, BUT NOTHING’S IN IT FOR FEDERAL PRISONERS

second170119Republican Carol Miller (WV) and 10 co-sponsors have introduced a bill to reauthorize the Second Chance Act of 2007 by extending a number of its grants and programs intended to benefit states and counties for prisoner reentry after serving their sentences. All of which is good.

Only two provisions in the 2007 Act are of interest to federal prisoners–the provision authorizing (but not requiring) the Federal Bureau of Prisons to grant up to 12 months of halfway house and the Elderly Offender Home Detention pilot program.

The right to grant up to 12 months of home confinement–enshrined in 18 USC § 3624(c)–remains unaffected by the proposed bill.

Parenthetically, prisoners complain all the time that the BOP is denying them their Second Chance Act rights to 12 months of halfway house, but the Act only lets the BOP grant up to 12 months of halfway house (it was a max of 6 months before that): the BOP is not obligated to grant as much as a single day of halfway house time if it deems it unnecessary or undesirable to do so.

elderly190109Given that the SCA of 2007 introduced the elderly offender pilot home detention program, which let the BOP send nonviolent offenders age 60+ home for the last third of their sentences, I hoped the reauthorization bill would extend the date of that program. It expired September 30, 2023. Unfortunately, the reauthorization bill does not mention the EOHD program at all.

EOHD is a favorite of Senate Judiciary Committee chairman Richard Durbin (D-IL) and Sen Charles Grassley (R-IA). If the bill passes the House and goes to the Senate, there is a decent chance the EOHD will be added before the bill gets to the Senate floor. However, the bill would have to make it to a vote in the House first, a tall order given that chamber’s dysfunction this year.

HR 8020, Second Chance Reauthorization Act of 2024

– Thomas L. Root

Elderly Offender Program Dies – Update for October 10, 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.

LAW FORCES END OF ELDERLY HOME DETENTION PROGRAM

The Federal Bureau of Prisons’ Elderly Offender Home Detention pilot program (EOP) is over for now, Whether it will ever return is an open question.

okboomer231010Originally adopted as a pilot program in the Second Chance Act of 2007, the EOP was authorized at a single BOP facility only, permitting nonviolent offenders who were 66 years old to serve the final months of their sentences at home. The First Step Act expanded the program to the entire BOP system in 2018, allowing “offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence, and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.”

A great idea: take nonviolent, unlikely-to-offend-again oldsters who are costing the BOP a ton of money for healthcare, and send them to home confinement. OK, Boomer!

But tucked into a corner of the EOP statute at 34 USC 60541(g)(3) was the limitation that the EOP would remain a “pilot program and shall be carried out during fiscal years 2019 through 2023.” Fiscal 2023 ended on September 30th.

By all accounts, the program worked well. Since 2018, the BOP has placed over 1,220 people at home under the program with no reports of new criminal conduct.

Writing in The Hill, former BOP Director Hugh Hurwitz noted a July 2022 Sentencing Commission study showed that the recidivism rate for people over 50 is less than half that of those under 50. “Under the pilot program,” Hurwitz wrote, “only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.”

The Vera Institute of Justice reported six years ago that the cost of keeping older people locked up “is double that of housing younger ones, due to health care expenses.” Even a decade ago, the BOP spent a fifth of its budget on older inmates. The average prisoner age is up about 8% since then. “People serving time on home confinement see their own doctors (while being monitored electronically),” Hurwitz wrote, “and bear the costs themselves, saving taxpayers millions.”

notokboomer231010Walter Pavlo wrote in Forbes that “many are calling for EOP’s renewal. Budget constraints, administrative changes, and shifts in policy priorities left the EOP program hanging in the balance. This termination has raised concerns among advocates and experts who believe that the program’s end is a step in the wrong direction.”

Sadly, reauthorization of the program will require action by a Congress that is not producing much in the way of legislation and is awaiting reauthorization of a program that will send prisoners to home confinement – even a proven one that makes perfect sense – may have a long wait. In fact, I doubt that we will see the program return in the next five years.

Not OK, Boomer.

The Hill, Moving elderly prisoners home saves taxpayer dollars without sacrificing safety (September 27, 2023)

Forbes, Old and Facing Prison (October 7, 2023)

Dept of Justice, First Step Act Annual Report (April 2023)

Vera Institute, Aging Out (December 2017)

– Thomas L. Root

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

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

Nuts and Bolts of Elderly Home Detention – Update for January 9, 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.

ROGER, DODGER, INMATE CODGER – THE ABCS OF THE EOHD

There seems to be a lot of confusion about the Elderly Offender Home Detention program approved by the First Step Act, judging from the questions still piling up in our email.

elderly190109• Where did EOHD come from? Back in 2009, the Second Chance Act of 2007 authorized the BOP to run a two-year pilot program to permit non-violent elderly offenders (65 years and older) to go to home confinement for the remainder of their sentences if they had been down 10 years and done 75% of their sentences. The program was tested at only one facility (FCI Elkton) for a two-year period.

It did not work that well, because the combination 10-year minimum and 75% seemed to eliminate just about everyone who otherwise would otherwise had been eligible.

• What is it now? The First Step Act has now re-established the program, calling it the Elderly Offender Home Detention program. The new EOHD would apply ay every BOP facility – not just one – and be extended to all nonviolent elderly offenders who had completed 66.67% (no longer 75%) of their sentences. The 10-year minimum service of sentence was eliminated.

Under the program, an eligible inmate could go to home confinement at 66.67% of the whole sentence, and be released from home confinement to supervised release at 85% of his or her sentence.

home190109• What are the requirements? Most of the requirements have not changed from the pilot program. Anyone seriously thinking about applying for EOHD should read 34 USC 60541(g). Among other requirements, the eligible offender has to be 60 years old or older, cannot ever have been convicted of a crime of violence or sex offense, have served 66.67% of “the term of imprisonment to which the offender was sentenced,” have never tried to escape, whose home detention will save the BOP money, and who the BOP determines “to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.”

• It is 66.67% of what? Our reading of the statute suggests that the two-thirds must be of the whole sentence, not the sentence minus good-time, or minus earned time credits, or even minus RDAP. In fact, RDAP would have to be restructured to let eligible elderly offenders take it early in order to get any meaningful EOHD time.

• Can the BOP adopt other rules on how to run EOHD? We suspect that the BOP will treat it like it treats direct-to-home detention now. The inmate has to have a home that passes US Probation Office inspection, have the landline phone rig needed for monitoring, and have health insurance. The BOP has a lot of leeway in administering the program, and not everyone who is eligible will necessarily be permitted to go home.

When the BOP ran the program at Elkton, there was no program statement, because the program was pretty ad hoc and loosey-goosey. The BOP will probably issue a program statement now, detailing how it intends to administer the program.

One final caveat: the EOHD will not necessarily be available at all institutions. The Attorney General retains the authority to designate only certain institutions at which the EOHD will operate. However, if only somer and not others are designated, it will usher in a land-rush of inmates seeking to get to certain prisons and not others in order to benefit from the Act. If too few institutions are designated, Congress may be irate that the BOP is not using a tool available to it to reduce its costs, especially the horrific cost of elderly medical and nursing care.

denied190109I have already heard of one institution where a case manager confidently told an inmate that the warden would never approve any EOHD participants. The BOP will have a lot of discretion as to how it runs EOHD, but it will not have the discretion to NOT run it.

One benefit inmates have with EOHD may be judicial review. Under 18 USC 3625, virtually all of the BOP’s programs – halfway house, the anti-recidivism programming and placement, for example – are immune from the usual Administrative Procedure Act lawsuits an inmate could otherwise bring under 5 USC 706. However, the EOHD is authorized by a different section – in Title 34 – and appears to be subject to APA challenge if the BOP gets too arbitrary or deviates too far from the statute. That ought to give inmates a bit more leverage than they have with other BOP actions.

Elderly Offender Home Detention, 34 USC 60541(g) (as amended by the First Step Act)

– Thomas L. Root

You’ve Got Questions, We’ve Got Blank Stares – Update for December 27, 2018

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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.

QUESTIONS ANYONE?

questions181227Yesterday, we presented a précis on the First Step Act. It didn’t help much. We have logged over 600 emails asking questions about the effect of the First Step Act on the sentences of existing inmates, and they continue to pour in.

Did we not make everything pellucidly clear?

Apparently not. Here are the most popular questions and our answers:

•   What sentencing changes are retroactive?

Only people with pre-Fair Sentencing Act crack sentences get retroactive relief. There is no retroactive relief for 18 USC 924(c) stacking, for denial of safety valve, or for 851 sentencing enhancements.

That is not to say that these changes will not come, just like the Fair Sentencing Act – which conservatives would not vote for if it was retroactive – finally became retroactive eight years later. But for now, the people with 924(c) stacked sentences, 851 life and 20-year sentences, and non-safety valve sentences are out of luck.

•   How about the seven days extra good time? Is it retroactive?

Yes.

•   When will I get the seven days extra good time?

This question is on everyone’s lips. The change in federal inmates’ sentence computation will be performed by the Bureau of Prisons’ Designation and Sentence Computation Center in Grand Prairie, Texas. It should not be difficult to do, and it is hardly as though BOP did not know this was coming. However, the BOP is a bureaucracy, and no one in a bureaucracy is going to be daring or self-starting enough to throw the switch just because some blow-dried President in Washington, D.C., makes something binding federal law.

As of last Friday afternoon, DSCC said it was waiting for guidance from the Dept. of Justice. Inasmuch as Monday and Tuesday were federal holidays, we doubt anything was forthcoming on those days. Whether DSCC is even staffed, due to the partial government shutdown, is not clear.

Yet, the BOP faces liability for holding people past their release dates, and as of last Friday, nearly everyone’s release date changed. We talked to DSCC today, and we were told that it still awaits direction from DOJ, and does not expect that for two to three weeks. No one appears to be in a hurry there.

That’s the long answer. The short answer is that we don’t know.

creditsign181227•   How about programs I have already completed? Are credits retroactive?

No, the credits are not. However, a change in 18 USC 3621(h) provides that “beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.” We cautiously interpret this to mean that the BOP can start giving credits for programs successfully completed at any time after last Friday. This does not require the BOP to do so, but it is out there.

•   Are all 924(c) offenses ineligible for earned-time credit?

The Act excludes from earned time credits any offense of conviction under “924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” We read this to exclude all 924(c)s, whether for a crime of violence or for drugs.

•   If you have a 2-level enhancement to your drug conviction for a gun, are you excluded?

No, only a statutory 924(c) conviction excludes you.

miracle181227•   When is First Step effective?

Unless a law says otherwise, it is effective when the president signs it. But do not expect miracles. For the earned time credits, the Attorney General has seven months (until late July 2019) to develop the risk assessment system. The BOP then has 180 days to apply the risk assessment system to everyone and identify the programs that it believes will reduce recidivism (by late January 2020). The BOP then has two years (by January 2022) to fully ramp up the system.

During the initial two years of the program, the First Step Act anticipates, there will be more people wanting programs than there will be program space. The BOP is to put people nearest the end of their sentences in the programs first.

The Elderly Home Detention Program has never had a BOP program statement that implemented it, because it was limited in time and location. The BOP will have to develop procedures to process and judge applications. Nothing prevents someone from applying right away – and we recommend using 34 USC 60541(g)(5)(A) as a guide – but do not expect speedy processing.

Our take about compassionate release, however, is that Congress intends that it be implemented immediately. What is more, the BOP has procedures for dealing with compassionate release applications. While its history of doing so is not especially honorable, there is no need for delay while the BOP spools up a program statement on how to process them.

Nothing else in First Step should require any time for implementation. New or renewed requests for home confinement instead of halfway house, transfers to closer-to-home locations and the extra seven days should be immediate. How quickly the BOP updates sentences to account for the extra seven days is anyone’s guess, but a lot of people with short time will need that done immediately. (See answer above)

•   How do you file for a reduction in a crack sentence because of FSA retroactivity?

You file a motion under 18 USC 3582(c)(2). You should check with the federal public defender in the district in which you were sentenced. Many court ordered the FPD to represent people eligible under 3582(c)(2).

•   Are Guidelines 4B1.1. career offenders excluded from anything under First Step?

No. If you are excluded, it is because of a statute you were convinced of violating.

•   If I was convicted of a crime of violence or a sex offense in my past, does that exclude me from getting earned time credits?

No. Only your current offense will exclude you.

• Who is excluded?

We’ll cover that tomorrow.

now181227•   How soon can people start receiving credits?

Credits could start to accrue as early as the end of July 2019. The Act anticipates that it could take up to two years for the program to completely spool up, and preference will be given to the people who are short time first. This could mean that people with longer dates will not start getting earned time credits right away.

However, there had been discussion that BOP could be expansive in its interpretation of what constituted programs that lessened recidivism, and it could even include UNICOR employment and adult education classes.

•    Did your 21 USC 851 10-year sentence drop to 5 years?

No. Drug sentence enhanced by an 851 notice due to prior drug or state convictions changed, but only natural life (fell to 25 years to life), and 20 years (fell to 15 years to life). Nothing beyond that. And the change is not retroactive.

•   If you are excluded from getting earned time credits, how much halfway house/home confinement will you get?

The Second Chance Act still applies, and theoretically, you are entitled to up to 12 months of halfway house. The BOP has been very stingy with halfway house in the last year and a half, however, and no one knows what the BOP will do.

•   For EOHD, do you serve two-thirds of your sentence or two-thirds of the time between you start and you get good-time release?

If you got 180 months, for example, you serve 120 months. If you get EOHD, you will be on home confinement for 33 months. At 1053 months, you are released on good-time release.

•   If you get 12 months off for RDAP, can you get another 12 months off for earned time credits?

Theoretically, the one does not affect the other. But the BOP has the option to credit you with more halfway house or a shorter sentence, and no one knows how the BOP will decide to apply the earned time credits. No one in Congress discussed this, or, to our knowledge, even thought about it. Some things, like Donald Rumsfeld liked to say, are unknown unknowns.

S.756, First Step Act, passed into law Dec. 21, 2018

– Thomas L. Root