First Step Act-Only for the correctional cerebral!

It’s been far too long since I wrote a blog so giddy up! The catalyst for my rants is usually media driven so the DOJ presser about the First Step Act (FSA) from last Friday did the trick! Actually; that, in combination with many stories from various outlets simply led me to a blog long overdue.

When writing about my displeasure with the FSA, I always point out my negativity is related only to the “back end” prison related aspects of the law. Reading the various stories from over the week end, one was led to believe hundreds of people were lining up to release at the doors of our federal prisons around the country which was far from reality.

First, the good conduct time release adjustments (7 days) had little impact on people in prison as the majority affected where either already in the community halfway house, home detention, being transferred to ICE custody or released to a detainer. The people with approaching halfway house dates actually lost time in the halfway house decease because the BOP did not automatically adjust halfway house dates accordingly. The bright side of this is that the term of supervised release now begins sooner but that’s not much comfort for people actually needing a longer re-entry transition in a structured community setting. 

I’ll admit that even one person released early is a victory but the four thousand plus figure quoted was simply an administration exploiting general statistics. You know what they say about lies and statistics.

It was not this embellishment that struck my reformers cord but the subsequent paragraphs of the DOJ press release which followed.

Specifically, the “new and expanded BOP programs”, the “expansion of Compassionate Release and home confinement”, the effective re-entry programs, funding and my favorite; the new risk and needs assessment tool.

I’m going to take these fallacies one at a time:

Expanded BOP programs: This paragraph of the press release was most interesting because the only thing under it was that “the BOP coordinated with the US Probation Offices and created individualized release plans for every inmate to ensure a seamless transition”.   The BOP case manager has submitted individual release plan approval letters for decades. Anyone involved in this process should remember the last time the government recreated the wheel was with the “Inmate Skills Development System Program”.  The AOUSC, mainly the US Probation Offices were supposed to enter load data in that system in the early stages to identify risk and needs but it fell upon the BOP to enter the data after sentencing. Then after many years of implementation and millions of dollars, the BOP abandoned the ISDS a few years back. I always wondered what the relationship was between the contractor that made millions from that program and the select government officials and politicians that came up with it in the first place. I’ll get into more about re-creating the wheel and Déjà vu all over again, when I discuss the “IRC” and “new” risk assessment tool below.

Compassionate Release: Equally entertaining is the press release was this “new procedure” to obtain Compassionate Release. To this day, I am aware of people from around the system being denied compassionate release.  I actually had a case this week where the person asked me for assistance on a CR denial. I was told by the agency the BOP Office of General Counsel had “no record of the request”, yet the person had a copy of the Compassionate Release referral cover letter addressed to the OGC and signed by the Warden. My confusion on this one is that many years ago the BOP changed the policy and developed computer tracking assignments to track requests plus they designated a “Compassionate Release Coordinator” at each facility. I’m scratching my head as to why they couldn’t track this one case, but more importantly, wondering how many more have fallen through the cracks of the bureaucracy.

The reality about the small increase in compassionate release cases is not a DOJ agency accomplishment. It is disingenuous for the attorney general to take credit for this increase when it is NOT the executive branch that is responsible for the approvals. The FSA simply allows people denied CR by the BOP to seek recourse with the courts directly so it is the Judicial Branch of government which should be commended for exercising the proper correctional judgement the agency could not. The BOP is still the “Agency of No” as Jaime Felner of Human Rights watch put it so eloquently many years ago.   

Expanded Use of Home Confinement: This one is equally perplexing. Even though the BOP was chastised by the DOJ-IG in a 2016 audit on this specific issue, the bop fails to place eligible people on direct home detention or the AOUSC- Federal Location Monitoring Program. If you don’t believe me, go to U-TUBE and access the 3:33 minute video by IG Horowitz who summarized this in person.

https://oig.justice.gov/multimedia/video-11-15-16.htm

I correspond with dozens of incarcerated people from around the country who constantly get told by BOP staff, “we don’t do that here” when they make a direct request for home confinement. The actual home confinement policy dates back to the 1990’s and states clearly “all” people are eligible for consideration. When I worked for the agency I placed Medium security, old law and new law people in direct home detention.

Today, the Residential Re-entry Managers still are under-utilizing both the contracted resources and USPO Federal Location Monitoring Program. I correspond with several USPO”s, including some Chiefs, who indicate they have the resources but are seldom contacted by the BOP to monitor people under FLM. The other comical part of this paragraph in the press release is about the Elderly Offender Pilot. Similar to the first pilot in 2009, the BOP continues to deny eligibl offenders under their discretion. I am aware of people in minimum and low security facilities who have been denied placement on direct home confinement even after their residence was approved by the USPO.  Forcing people into the halfway house who can be electronically monitored at home only occupies a bed needed for someone truly needing structured transition and makes communities less safe.

Funding: While 75 million might sound like a lot of money; there are 122 facilities. This amount is a drop in the bucket considering the allocation is for the overall total implementation of the FSA and not dedicated only to programs. Like previous DOJ funding, the BOP has a way with using the money as they see fit for “implementation” and it is difficult to decipher where the money actually goes given the nuances of federal budgeting and accountability. I vividly remember when the BOP was initially awarded funding under the Second Chance Act to create “Re-entry Affair Coordinator” positions. Many facilities changed the name of the “Volunteer Coordinator” positon to Re-entry Affairs and the BOP used that statistic as a talking point for position “creation” which was disingenuous. Those familiar with staff “augmentation” and overall staffing shortages should realize 75 million does little nationwide to expand programs. What’s equally disturbing is that amount alone is less than what is needed nationwide to build out the residential re-entry center infrastructure to honor the eventual incentives relative to the “extra good time credits”. I’m sure CORE-Civic and Geo staff are hard at work lobbying politicians for some of that 75 million and from the people they just worked with at the agency before they retired to their prearranged landing spot.  

Risk and Needs Assessment Tool: This is probably the topic I have the most problem with. Like the ISDS, the re-creation of the wheel is costly, takes longer to implement and is less effective than the tool currently utilized by the agency culture. The BOP already has a great risk assessment tool that was never implemented correctly and can be modified. While I’m happy to see the IRC incorporated some of the facets of the existing tool, a new system is/was not needed. The cynical side of me would love to know who is profiting from this aside from academics and others in the NGO Mafia world. While I can’t get into all the aspects of Congressman Nadler’s letter to the Hudson Institute, I do wish someone would hold the administration and Hudson accountable to answer all of his questions. Reform is big business and the dot.orgs often fly under the radar of scrutiny. I hope someone will follow the money as we go forward! At the end of this blog I’m attaching something I sent to several of the IRC members. The best risk assessment system is not some algorithm or academic exercise.  Risk assessments can be done under the existing system as intended provided the BOP returns to the treatment staffing levels conceived of when they developed the concept of unit management. The agency has digressed from treating people with dignity and developing treatment relationships to maintain safe facilities and communities. It’s not a magic tool predicting future behavior that should be the focus but the mutual respect developed by populations and their treatment teams as they accomplish correctional treatment goals. Unfortunately the treatment focused “walking and talking” concept of the late 80’s early 90’s has been replaced with an “us vs them” mentality. 

Final Rant:   The answer to the problem is not a white collar bill like the First Step Act. You can develop all the tools you want and call it “reform” but first there needs to be agency leadership, active oversite by the Deputy AG but most importantly, transparency and accountability of the BOP. There are far too many chiefs within the bureaucracy, while the Indians are being augmented. Close the regional offices and reallocate funding to the “trenches” of the system, mainly treatment staff and programs. Broaden then follow various current policies on education and training, expanding the Tier 2 volunteer program and stationing Federal Probation officers at facilities. Lastly, expand the BOP Ombudsman Office to objectively look into issues such as the MDC Brooklyn electrical problem, murder of Whitey Bulger and why the staffing levels at USP Canaan are no more than when Eric William was brutally murdered. Before we recreate the wheel by another crime bill, blue ribbon commission, task force, study or tool, let’s focus on the fundamentals of leadership, accountability and changing the agency culture which got us in this place to begin with.      

Letter to IRC members on my letterhead:

June 14, 2019      

To: IRC/FBOP/NIJ  

I am writing today with feedback as a citizen, stakeholder (FedCURE) and retired BOP employee with over 30 years of experience working directly with people incarcerated in the federal prison system. I respectfully request this feedback be considered and put on the record.

My perspective is unique because I was involved with training BOP correctional programs staff, auditing facilities, writing policy and classifying thousands of people since the 1980’s under the various classification manuals and current risk assessment tool. I have worked in all types of prison units including pre-trial, witness security (witsec) min, low, medium and high. I currently testify around the country on federal prison issues and train federal defenders and judges on the BOP in general. One of my passions is federal prison reform.  (CV attached) 

I am providing feedback to various areas under review by the IRC. My primary focus is on the risk assessment tool. 

I am strongly recommending you consider using the existing SENTRY classification tool (BP-338) with minor modifications given the practicality of seamless implementation, cost effectiveness, training and familiarity within the BOP culture. No additional staffing would be needed for this option.

Before I make my points, I ask you one question:

Can you right now explain the difference between “security level” and “custody level”? 

This is the single most misunderstood concept even with BOP staff and is the key to understanding the applicability and efficacy of the current tool.  The security levels (min/low/med/high) should be of less emphasis than the custody level; (ie risk) – (Max/In/Out/Community). 

I can tell you with certainty, when individuals are classified under the current risk formula (BP-338); more often than not, the computer program recommends a reduction in “custody” which is totally independent of security level. Historically, certain cases with violence or of a high profile nature were identified as “Exception” cases so any reduction in custody, (aka: risk) required approval from a higher authority such as the warden. It is important to understand I am NOT referring to a reduction in security level with this reference and the aspect of custody should be considered the “risk level” and totally independent of security level.    

When I speak to advocates and academics inside the beltway regarding the current tool; they are unaware it includes dynamic factors, hence some of the opposition to the existing tool. The dynamic factors in combination with the static factors determine the recommendation regarding “custody” with the treatment staff having the final determination on the decision to approve or deny the reduction. I will assume you understand the concept of the “variances” in the current SENTRY computer program scheme.   

Without getting too much into the “weeds” of custody; think of custody as an equivalent to the reduction in recidivism (ie: risk) that is totally separate than the assigned security level (Min/Low/Med/High). The graduated, 4 level, custody classification system of Maximum, In, Out and Community is what determines the individual’s responsibility and what correctional environment they can be managed in. The current methodology is something the BOP can easily understand and implement. The FSA refers to risk as minimum, low medium and high which will totally confuse the agency culture because of the 4 level security level system.  

To better understand this concept, one must understand this from a historical perspective. In the 1980’s, before the wide adoption of satellite camps, inmates who were classified as even medium and high security could be assigned “OUT” custody so they could be assigned gate passes to work outside the institution perimeter. At that time, it was a 6-level system (1 through 6), with custody levels 5 and 6 being the equivalent to today’s high security.  Even inmates with levels 4’s and 5’s were able to obtain gate passes because their risk level (ie: custody) was considered low.

 Analogy 1: A medium security person who was reduced to “Out” custody was determined to be a minimal/low risk of recidivism because we felt he had the responsibility to go outside the fence and work on the reservation with two hr. intermittent supervision. The BP-338 form/formula would recommend a reduction in custody and staff had to approve the custody reduction or deny it with reason using sound correctional judgement. As stated previously, some cases needed a higher review authority approval for a reduction. At that the time the BOP even had work/study release.

Analogy 2:  When the same person progressed and was under 2 years from release, we had the ability to approve “community” custody to participate in community programs because we felt they had minimal risk (or the lowest risk) of recidivism. In fact, this methodology actually exists today; “John Smith” who is a “High” security level in a United States Penitentiary (“USP”) departs for the Residential Re-entry Center (“RRC”). Mr. Smith goes from “IN” custody to “COMMUNITY” custody immediately to participate in community programs at the RRC. Custody is discretionary depending on the risk factors entered into the computer program, and the unit team or the warden in exception cases has the authority to increase or decrease custody level at any time during the sentence regardless of the security level. Therefore, the lowest risk for recidivism would be “community” and the highest risk would be “Maximum”.

For instance, I can recall an Aryan Brotherhood member on my caseload who had committed manslaughter who was assigned a gate pass (ie: low risk) because of the time that had elapsed since the instant offense, his programming, behavior and ensuing release date. The 338 custody classification system recommended the reduction, the unit team supported it and the warden approved it because of the “low risk”. That situation explains the general concept how almost anyone can be considered and approved for a minimum or low risk so it is already within the agency framework for implementation. From my recollection that person became a mentor after release and was involved with “Kairos” prison ministry.

The BOP has lost that concept within the culture because of the adoption of satellite camps. There are no longer incentives or practical reasons to reduce a person’s custody, so you will see a majority of the classification cation forms that recommend reductions in custody at low, medium and high security facilities are arbitrarily denied. In addition, even in camps people are often denied community custody routinely which inhibits community program development like work & study release.     

It’s important to remember when the data is keyed on the BP-338 (PPG7), the computer always makes a recommendation regarding the new custody (increase, decrease, or same). It’s the unit team’s final decision to approve the recommendation because there is a tendency in the program to recommend a decrease when it may not be warrant when all factors are assessed. 

Summary: It is my contention, statutorily even people with medium and high security could be the lowest risk living in camps and participating in work and/or study release under the existing classification framework.

A concern I have from a field perspective is the exclusion of certain people from earning the extra good time. The FSA has the potentially be discriminatory and the white collar lobby surely is behind aspects of this legislation. 

Ineligible Prisoners

Let’s look at the “violence” definition and people excluded from earning the extra good time. This aspect of the FSA is extremely confusing because the BOP has a policy entitled “Categorization of Offenses”, PS # 5162.5, which is the policy to determine who is excluded from receiving program benefits based on the nature of their crime as a “Crime of Violence” or as a “Director’s Discretion” case.  Why would we have an entire, meticulous policy on this subject but create another arbitrary list of exclusionary crimes referenced in this bill? Never mind the USSC Manual/Guidelines, categorical approach, etc. which also determines violence.

https://www.bop.gov/policy/progstat/5162_005.pdf

I am going to assume the authors here were unaware that the aforementioned BOP policy exists and/or they do not realize the BOP has SENTRY “CMA” computer assignments for violent crime classification and the WALSH Act (sex offender cases). It’s confusing to say the least why we would have a separate list when this is already in the policy and agency practices? Note: in my humble opinion, we should remove ALL the Director’s discretion exclusions because it inhibits people from receiving Drug treatment due to the inability for early release.  People are punished for their crimes by the length of the sentence and should not further be further punished when in the system. ALL people should be eligible and be able to earn the benefits regardless of the crime aside from Life sentences. We did not make such distinctions under the old law when it came to extra or statutory good time. 

Recidivism reduction Programs:

With regard to recidivism reduction programs, this bill focuses too much on the programs over the individual’s treatment plan, abilities and criminogenic needs. We all know what happens when the BOP incentivizes a program like RDAP (Residential Drug Treatment). The waiting lists grow, the populations compete for program entrance and even create false stories in the pre-sentence reports to obtain program placement. Aside from the non-existent programs in the first place, the less savvy and marginalized population are denied program placement as they compete for acceptance. The end result is frustration, program manipulation and delays in programming. I’ve actually seen hundreds of people who didn’t need or qualify for RDAP had they not created a fictitious history prior to the PSR interview. It’s a cottage industry today. This actually makes institutions less safe and benefits the white collar types.

The actual BOP philosophy and policy consists of a comprehensive correctional treatment plan that addresses multiple deficit areas that are vital to rehabilitation and recidivism reduction. What is important to this concept is that as long as the inmate is making satisfactory progress towards the individualized, comprehensive correctional treatment plan, they should receive program benefits (ie: extra time) despite if the “program” itself is classified/determined as one that reduces recidivism.

This concept takes the focus off of program itself and the inmates “shopping’ for the magic program where the incentive is more important than the program benefit. While it is practical to have evidenced based, recidivism reducing programs; someone of border line intelligence should earn the good time regardless of what program they complete regardless of the program classification. 

It’s not a one size fits all situation. One person with cognitive deficiencies and poor impulse control can be awarded for simply participating in the GED and staying out of trouble vs a person of higher intelligence and no behavior issues would need to address their deficits by different programs fit for their own criminogenic factors.

In addition, comprehensive correctional treatment plans also address multiple deficit areas like education, behavior control, vocational training and substance abuse. Evidenced based programs “proven to reduce recidivism” must be utilized but only as part of the total comprehensive correctionaltreatment plan.

None of the above can be accomplished unless the BOP follows their own policy on a meaningful program review process rather than a hurried, sign the paper and get out philosophy. BOP administrators need to understand it the fundamental breakdown of the team process due to staffing jeopardizes public safety just as much as an escape, if not more. The sad part of this is that there needs to be a re-examination of the unit management concept and either scrap it or staff it as historically intended. The agency’s art of pretending they practice unit management principles can be easily debunked by a review of nation-wide practices. The most profound non legislative recommendation to reducing recidivism is to return to manageable case-loads of 100 people per case manager and counselor and conduct classification meetings like it was intended with a multi-disciplinary team which also includes the personal attendance of the psychology services and the education representative. This relationship development fosters safer institutional environments and protects the public.           

The BOP policy regarding this process is governed by Program Statement 5322.13, Inmate Classification and Program Review(Program Statement 5322.13) which utilizes a comprehensive correctional treatment plan concept, instead of singling out a “Program” for an incentive approach.

When an inmate arrives at a federal prison facility, he/she receives an Initial Classification meeting within four (4) weeks of arrival (referred to as “Team”). At that time, feedback is solicited from the Psychology Services representative and Education Advisor, and a comprehensive correctional treatment plan is established with short-term and long-term goals for the inmate.

For example, a comprehensive correctional treatment plan for an inmate may specify the following: attend General Education Development (“GED”) courses for twenty (20) hours a week, with the long-term goal of GED completion in one year; complete the basic drug education program within 6 months with the long-term goal of transferring to a Residential Drug Abuse Program (“RDAP”); pay the assessment of $100 by paying down $25.00 monthly which satisfies the Inmate Financial Responsibility Program (“IFRP”). Further, the RDAP, the most desired single program, exemplifies the need for a comprehensive correctional treatment plan. This incentive-based program is not offered everywhere and the maximum program benefits are sometimes missed given to late enrollment dates due to waiting lists at many institutions. In addition, there are literally cottage industry type businesses creating drug abuse histories prior to the pre-sentence interview in order to qualify to attend the program. These offenders are occupying needed beds better utilized for inmates with actual abuse histories. Therefore, program shopping and manipulation may be curtailed with an individualized, comprehensive correctional treatment program.

Mentorship Pilot programs: I am a strong supporter of expanding the Tier 2 volunteer program but it is hard to fathom how the agency is going to develop pilot programs and expand tier two volunteers to justice involved individuals when there are already many impediments to the volunteer program in general. Community members and organizations seeking Tier 2 credentials are often denied and are unaware of such clearances exist. Expanding a viable Tier 2 volunteer system with community entities like religious organizations, educational institutions, and other NGO’s is the practical solution for mentorship. Many people are unaware of the volunteer policy even exists:

https://www.bop.gov/policy/progstat/5300_022.pdf

Unrealistic incentives

It is unimaginable the BOP has the necessary RRC infrastructure to comply with this legislation. The BOP recently terminated 16 contracts nationwide and ordinarily places even high risk inmates for less than a 6 months in the RRC.

The agency never honored the spirit and intent of the Second Chance Act of 2007 to begin with. It is well documented and pointed out even by the DOJ-IG that inmates with low risk receive longer placements than high risk inmates and direct home detention is extremely under-utilized, including the Federal Location Monitoring program administered by the AOUSC.

There is insufficient infrastructure for such a good time incentive without a massive and costly expansion of existing and new contract facilities.

More Visiting/phone: The BOP does not have the infrastructure to facilitate more visiting and telephone privileges. It is also disingenuous to refer to “more email“, when email is already unlimited. There is a limited number of telephones and computers in each unit to facilitate this incentive. In addition, the BOP does not have the staffing and existing visiting room space to facilitate more visiting.

It should be noted all these incentives are “at the discretion of the warden”.  

The incentives also signal to me the privatization lobby has planted the seeds to get video technology in every prison which can enable the agency to curtail in person visiting. That is just another way to gouge the inmate population and marginalized families similar to the telephone exploitation.

Transfer closer:  This incentive is also disingenuous as the bill stipulates “if space available”, etc. The BOP finds it hard to place people within 500 miles with the existing facility infrastructure so this additional, discretionary incentive simply won’t happen. 

 These incentives are science fiction. They will collectively create a false expectation resulting in frustration and unsafe institution environments. 

I respectfully request this feedback be considered and I would be happy to address any issues, questions or clarify any of the content! I am also attaching the notes from my Colson Task Force testimony which covers some of these same areas. 

Sincerely, 

Jack Donson”

What have we become?

The gloves slightly come off 😉

It’s been too long since I wrote a blog so I’ll get busy with a topic advocates and politicians continue to dance on the tables over. I never even got on the table after the First Step Act was signed into law because it is ill conceived, poorly written, convoluted, underfunded and infiltrated with white collar & private prison interests.

Maybe I’m just upset because I am close to being considered “Elderly” under the law based on the changes in the Elderly Offender pilot program criteria of the Second Chance Act reauthorization.  You would think in a society where people are living longer, the authors of the bill would have at least thought about changing elderly to “older” when it comes to age 60! But why should I be surprised when there is no attention to detail anywhere in this legislation?   

While I’m optimistic in life, my pessimism of the federal advocacy world isn’t much different than the pessimism I have of the beltway at large which is comprised of opportunists, academics and lawyers stroking their egos while  complimenting each other at elaborate fund raisers and awards ceremonies. The other day, I heard a fellow advocate coin the term “littlerichkids.org”. Priceless!  Later, I visited the web page of an organization referenced in a recent DOJ press release about the FSA and it was littered with dozens of pictures reflective of the aforementioned descriptive.     

My consternation is that beltway justice reform is big business, controlled by lobbies and philanthropists with self-interests who accomplish very little reform given enormous financial expenditures. I keep a file marked “NGO Mafia” which contains hundreds of organizations which I view no different than the prison industrial complex profiteers aside from them flying under the radar of scrutiny. I’ve devoted a chapter of a book to these organizations and someday hope to sift through the raw data and arrive at some hard figures for the money spent in the name of reform on studies, blue ribbon commissions, consultants, think tanks and organizational expenses. Every time a new crime bill is entered, there’s an economic and social media feeding frenzy during the process and more so after it is signed into law. ALEC is usually proud.   

Prison reform issues have been studied to death and the answer is not another new study, new program, threat assessment tool or algorithm. For the most part, the answer is to treat people with dignity and put correctional treatment, education and training on an equal footing with incapacitation. This can only be accomplished by reducing the administrative bureaucracy costs and reallocating them to increase the number of people directly working with the incarcerated in the trenches of our prisons. Hiring and promotion practices and basic training philosophy must move away from the concept that prisoners are the enemy.

The 6 regional BOP offices need to be closed and prison industries (aka: UNICOR) needs to be re-created from scratch with stronger public/private partnerships.  A viable Tier 2 volunteer program needs to cultivated as well, including other partnerships with carefully chosen NGO’s , faith based organizations and universities.     This can all be done under the existing policy and statutory framework but only with a commitment to transparency, accountability and leadership the agency has been lacking in for many years. The BOP is a quasi-militaristic organization and the DOJ-Deputy AG must take a more active role in accountability.  In addition, the BOP Ombudsman office should be expanded and developed to be an independent conduit to assist the DOJ to this end.  It can be done rather easily and is cost effective.        

As I am typing this, I received an email which contained a letter dated April 8, from Congressman Jerry Nadler to the BOP and NIJ on the implementation of the First Step Act. I hang my head in shame as many of the things they asked for in the letter are right on the BOP website including the Compassionate Release policy which was updated in accordance with the FSA almost 3 months ago. What have we become?     

It’s been a while!

I’ve been remiss in posting at this location so thought I’d get out a few points while I had some down time in this 6 degree weather! I’ll keep to the flavor of the month by making a few observation of the seriously flawed Fist Step Act. I say flawed mainly from a prison perspective as the front end provisions are good, even if they don’t go far enough.

As of late, the BOP revised the first relevant policy to the FSA in January on Compassionate Release. In the policy cue is an Operations Memorandum on Home Confinement which I wrote in detail about on a legal blog at : http://joaquinduncan.com/newsletters/Feb2019Newsletter.pdf. I contribute monthly to Todd’s legal newsletter which is a must read.

As predicted, the litigation has already begun and a habeas in Oregon was successful with the release of someone a few weeks ago when the judge ordered the BOP to recalculate the good conduct time. However, I also heard a similar habeas was denied in Texas.

My confusion; rather the confusion of the authors of the bill, is why did they put the good time “fix” in section 102 because that section involved the “extra” time credits for participating in recidivism reduction programs. This gave the agency the discretion to delay the implementation of the recalculation for a least 210 days until the risk assessment tool is developed. My general concern about the good time “fix” is regarding the mass email sent to staff and people in prison which indicated the fix does not apply to everyone which is a misinterpretation of the law. Let’s hope the BOP comes to that realization sooner rather than later.

I’ve recently voiced concerns to the advocacy world about the agency and have a bad feeling in general about recent developments. I’m doing this 30 years and try to keep a balanced and neutral perspective about the BOP given the difficult mission and lack of line staff and treatment resources. It’s easy to be a BOP “hater” when incidents like MDC Brooklyn kick off but I understand what it’s like to work in the trenches of the system with your hands tied behind your back and questionable leadership driving the ship.

In fact, since General Inch hit the road, the DOJ has still not appointed a Director. It didn’t take Director Inch long to assess the agency and decide it was a task far more difficult that he had realized. I had almost an hour one on one with him early on at which time he told me he was “assessing the situation for 90 days then was going to start taking out targets”. I think the biggest target was on his back because he was a needed outsider.

Most people are unaware a majority of the senior leadership in the BOP central office have NEVER worked in a prison. What’s also disturbing is the there are almost 20 vacant warden positions throughout the agency which is which is nearly 20 % of all facilities. Equally interesting is the most senior regional director is in the position for less than a year. It’s not that difficult to abandon ship to the private sector when your daddy is recruiting you to jump and you can basically double your income by collecting your pension on top of the new salary. It makes me wonder what type of signing bonus AD Frank Lara received for sending that BOP memo to all wardens to place people in private ICE contracts prior to his retirement to GEO? I guess that’s for the House Judiciary to determine. These leadership issues are some of the things which give me the greatest concern.

While this blog is a bit more critical than most, I want to end with a positive note that despite the top heavy management structure and leadership void; there are many professionals in the trenches of our federal prisons who take pride in what they do, day in and day out. It is my impression, we are near or at a rock bottom or significant incident within the agency which is going to bring the focus back to adequate line staffing and a correctional treatment model on equal footing with incapacitation.

The Lone Wolf speaks

I recently testified in a sentencing and the prosecutor asked me if I was a “Lone Wolf”? Apparently he read one of my blogs looking for dirt and that’s about all he could come up with.  I answered, “absolutely” when it comes to Criminal Justice form.

I perpetually hang my head in shame when I view the commentary, op eds and press releases on justice reform issues when it comes to the prison aspects! Enter: The First Step Act.   It was comical watching an ex-police commissioner on TV the other night who is now a federal prion expert for doing a minute in a camp!  When asked about the bill, the best thing he had is how it would reunite families!  Are you kidding me?  The bill does not accomplish this nor does it accomplish a majority of the “prison reforms” it claims to but I guess it makes people in the administration feel good!

Rather than writing a blog about the numerous shortcomings of the legislation, I’m just going to cut and past what I sent to hundreds of our incarcerated by way of Corrlinks and a newsletter shortly after I read the draft: (Note: I feel it’s a public service to keep the population informed because this hype usually has families and the incarcerated thinking release is imminent)

Hi all:

“ I had a chance to quickly go through the First Step Act draft that hit the net today. It’s the same old, disingenuous garbage as previous bill versions when it comes to the BOP sections/issues. The front end sentencing reforms are good and the same ones referred to in my last blog and/or email. ( 924 Stacking issue, broadening the safety valve, Fair Sentencing Act retro-activity, etc.) However;

 

First, anyone releasing in the next two years won’t be impacted if it was passed yesterday, when it comes to the BOP time credits provisions. Page 35 of the draft gives the BOP two years to determine the risk level of everyone incarcerated. (min/low/med high) They are needlessly re-inventing the wheel.

As far as the prison related issues:

BOP/AG has 180 days to come up with the new risk tool & evidenced based programs, and 180 more to implement, so one year is burned right out of the gate. Then the BOP has to assign a risk to everyone and as I said above, they have 2 years !

Anyone who completed programs prior to passage are NOT credited for the new good time credits. So after a year, when they identify risk and programs, people start earning the credits after each month they are in a “recidivism reduction program”. (10 days extra a month & 5 more for min/low risk)

The problem is all that does is get you an earlier RRC – provided there are beds! A joke. There are no beds. It also talks about direct Home Confinement which can be done since the 90’s. I guess the 75 million a year approved could go towards more beds but the contracting process takes a few years in itself. (enter- The Private Prison Lobby)- Don’t forget GEO et.al. have been entering this space which has literally no oversite and huge profit margins.

Not to mention, the time and satisfactory progress is awarded at the BOP’s discretion. Then there’s a laundry list of cases who can’t even earn the extra time, including non-citizens. I don’t even think this bill is constitutional and will negatively impact people of color disproportionately. It’s similar to the Chaffetz Bill way back which drew a lot of opposition by the Federal and Community Defenders organization.

Then there’s the language about transferring closer to home provided there are beds! Another joke- No infrastructure to accomplish this. 

Then there’s the extra visiting at the warden’s discretion!

Of course there is an incentive to spend more money as they gouge you in the commissary!  

Phone minutes go to 510 from 360 ! Big deal, I think not……..

A real funny issue is unlimited email! There is already unlimited email!

 

They also change the way the Good Conduct Time is calculated to 54 days for each year sentenced (vs served)but no mention to retro-activity? I have spoken to legal experts who say say this will be retroactive. (47 to 54 for each year of the sentence). A long overdue change!

They did change some compassionate release language and terminology and looks like they extended the SCA of 2007- Elderly Offender (pilot) time frame to 66 % and lowered the age 60. If I am reading it correctly, they may have removed the minimum 10 years to serve as well. These people don’t even understand the bop already incorporated some of the Elderly Offender provisions in the CR policy a few years back so now we have redundancy and some confusion because of the similarities. Who ever wrote this has a very limited understanding of BOP policy, process  and culture  

They also appear to have re-defined “Community Confinement” in a broader way to include rehabs, and other facilities. That’s good on the mitigation side if I’m reading that right.

I need to research a few other issues that references federal law but I doubt its anything significant.

Bottom Line: They could have accomplished much more, in much less time at less costs but private interests, politicians and lobbies don’t benefit from that! They do not deal with the fundamental core reform issues like accountability, transparency and leadership but that’s just inherent in the swamp I guess.

I’ll keep you posted…………”  End of quote,  End of email…………..

 

 

 

Déjà vu all over again?

I have tracked the various criminal justice reform bills for decades from a unique perspective inside the federal prison system. Each time, it’s the same old song and dance. First come the press releases; then rumors run rampant with the prison population while NGOs and politicians raise money for all the “wonderful work” they are doing regarding reform.  Families then celebrate and people within the system line up at the door for release. The last phase of the process is disappointment when nothing comes to fruition as everyone waits to repeat the vicious cycle. Is this time different?

We have been at this juncture many times before with high expectations. It is easy to get caught up in the hype given social media and especially after the barrage of stories and press releases last night followed by the statements made by President Trump. While I usually cry foul at this time, I’m willing to finally say there is a small chance something will get passed in the lame duck session but that’s about as far as I am willing to go.

I am writing this article to briefly clarify where we are at in the process to combat rumors within the prison population and provide a sense of reality to the false expectations I am already hearing.  My Corrlinks is lighting up as we wait for the final compromise draft so I’m basing this article on the First Step Act as passed in the House and the statements released by the various politicians and advocacy groups in tune with the process.

The First Step Act (FSA) as passed in the House was dead on arrival in the Senate because it lacked the front end reforms (referenced below) in the Sentencing Reform and Corrections Act (SRACA) sponsored by Senator Grassley. This caused a rift in the advocacy world between the front end and back end reformers. At this point, the breakthrough agreement is a compromise solution to combine the bills to include both front end (sentencing related) and back end (prison related) measures.

As a BOP insider, I (nor the BOP) are fans of the way the back end measures are written from a practical policy perspective. The same word continues to come up when speaking with the BOP and the word is “convoluted”. While it’s premature to get into the weeds of each prison issue; they generally revolve around incentives for new, evidenced based educational and vocational programing, a new risk assessment tool, extended RRC (aka: halfway house) placement for earned good time credits and the correction to the way the BOP calculates good conduct time to every year sentenced vs served (54 from 47 ). Aside from the potential for retroactivity to this recalculation, the remainder of the back end measures will take years to implement.

The BOP must first “develop” a new risk assessment tool and has one year to develop it after the bill is passed. In addition, the programs already completed prior to the passage of the bill are not credited for the additional good time credits. Overall, the BOP is given far too much discretion on who receives the credit and/or incentives.  Those of you who remember “The Jason Chaffetz bill” might remember how it came under attack by the Federal Public and Community Defenders for being discriminatory. People should not be punished and awarded more good time based on their crime. The sentence is the punishment and it is the unequal treatment of people in the system that might serve a political sound bite but its the same flawed “tough on crime” logic that got us this Jim Crow incarceration nation to begin with!

What most politicians fail to realize is that the BOP does not have the bed space capacity for longer RRC placements to begin with, which is one of the major incentives regarding the extra good time credits. The current infrastructure has not even be able to Honor the intent of the Second Chance Act of 2007, plus the contracting process for additional beds is a complicated and a multi-year process. While all these measures sound practical to politicians, they are not.

The much needed front end measures as reported include:

Eliminate the “924 stacking” regulation making it a federal crime to commit a federal crime while you have a gun

Eliminate “three strikes” and you’re out mandating that three-time offenders receive a life sentence. Expand “the drug safety valve” to allow judges to make an exception for nonviolent drug offenders when it comes to mandatory minimum sentences.

Make the “Fair Sentencing Act” of 2010, which reduced the sentencing disparity between offenses for crack and power cocaine, so that pre-2010 offenders have the right to retroactively seek a reduction in sentencing.

Let’s hope the front end measures referenced above remain intact while someone brings some sanity to the BOP related measures which is unlikely. Senator Mitch McConnell has already made some cautionary statements regarding the ability to get the legislation through this session given other priorities while some democrats feel they may be able to get a broader bill when they take control of Congress.  That may be the best curse of action so stay tuned……

Dear Mr. Kushner

It appears the recent rumblings within the political landscape of justice reform have led to a potential compromise bill in the Senate looming for September. I’ve watched various reform bills since the 1980’s and can honestly say this is the first bill even remotely close to passage. I’d like to thank you for your efforts in keeping reform in the sights of the administration but also challenge you to think outside the box of the “Right/Left Coalition”, academics and advocates inside the beltway.

From a practical perspective, a Senate compromise bill must have meaningful reforms like the expansion of the safety valve provisions, making the Fair Sentencing Act (FSA) retroactive and reducing some of the more draconian mandatory minimums, especially clarifying the “stacking” in reference to 924(c). These “front end” components included in the Sentencing Reform and Corrections Act (S.1917) were omitted in the First Step Act (H.R.5682) which has caused consternation among many in the advocacy world.

Now that the FSA has been passed in the House, the Senate has the choice to put lipstick on a pig or seize the momentum and be known as the Congress that facilitated a turning point in our nation’s history by replacing the incarceration nation with a more effective and equitable justice system and correctional treatment model. This balancing of sentencing reform and practical prison reform measures can lead to safer prisons and communities by providing the training, education and treatment our marginalized populations deserve in the broader spirit of reformative justice.

I have attended many of the Senate Judiciary meetings on reform over the years and have been a strong opponent to the BOP-prison related reforms as written; mainly the time credit provisions. My criticism stems from my direct experience of over 3 decades working in the trenches of the system with the incarcerated. While Senator Grassley should be commended for being steadfast by insisting on front end reform measures, deeper thought is needed on the prison related aspects of reform legislation.

I beg for circumspection of the current bills which are inadequately written, discriminatory and will take years to fully implement. The prison related measures are not only cumbersome from an administration stand point, they create more bureaucracy and give the Federal Bureau of Prison’s far too much discretion in accomplishing the intended goal of recidivism reduction. I speak on this issue with authority going back to the “Old Law” where people were eligible for release on parole at 33% of their sentence. Below I will frame a simple, practical and cost effective legislative measure that could literally be implemented over night and hope you or someone in the administration has the vision and courage to consider it as a viable alternative to what is currently proposed.

Something that has flow under the radar from July was House Resolution 933 which acknowledged the “War on Drugs has been a failed policy in achieving the goal of reducing drug use, and for the House of Representatives to apologize to the individuals and communities that were victimized by this policy.” While I don’t believe apologies are necessary, this concept helps me better explain the needed good time fix and correctional treatment emphasis in context for reformers, academics and politicians who are not directly involved with prison administration. I commend the people with the administration’s ear like CUT#50, professional athletes, entertainers, and academics but I also believe they are missing practical feedback from a policy and implementation perspective when it comes to both the good time solution and evidenced based correctional treatment programs.

I think most reasonable people will admit the war on drugs and more importantly, “Truth in Sentencing Laws” have been an overall failure especially in regards to our inner city populations. If someone committed a federal crime on October 31, 1987, most sentences had parole eligibility at 33 % of the term and even Life sentences had parole eligibility in 10 years with a 30 year mandatory release date. If that same person committed a crime the day later, on November 1, 1987, they would be required to serve over 85 % of the sentence while the Lifers all will die in jail because there is no longer good time for Life sentences; even for the non-violent drug offenders.

Truth In Sentencing Laws have not only failed our communities but they have created more dangerous institutional environments for staff and the incarcerated because they removed the previous incentives for people to maintain clear conduct and participate in correctional treatment programs. What’s equally troubling is that many of the Lifers who are now elderly are no longer a risk to the community and incur enormous financial costs to tax payers as they age. The overall net gains of truth in sentencing laws were a windfall for, and expansion of, the prison industrial complex, less safer communities, the deterioration of the family unit and for creating the world’s leader in incarceration per capita.

What is needed is simply the return to the normalcy of the “Old Law” (pre 11/1987) good time system which is fair for all sentenced people, allows for safer institutional environments and has incentives for correctional treatment programming and good behavior. The older justice professionals reading this might recall a time in the 1980’s when the federal prison system was a progressive and often emulated penal model. When people participated in programs and earned the maximum amount of what was referred to as “extra” and “statutory” good time, they released to community supervision at approximately 66% of the sentence imposed, provided they maintained clear conduct.

Let me be clear that I am NOT advocating for returning to a parole system (33 %) or an increase in the US Parole Commission bureaucracy! I am only suggesting a return to the middle ground solution and historical normalcy of the good time procedures (66 %) prior to the failed war on drugs (85%).

There are still “old law” people incarcerated in the federal system so the policy, training and overall infrastructure is present for immediate implementation. There is even an assessment tool with static and dynamic factors which can be quickly modified vs the proposed years it will take to study and “develop” a new risk assessment tool. The current proposed time credits under the various crime bills circulating in Congress attempts to re-create the wheel in a convoluted way, giving the BOP far too much discretion on implementation; but more importantly, it discriminates against people of color. In addition, the bills place too much emphasis on single, magical recidivism reduction programs over the individual’s correctional treatment plan and their criminogenic factors.
People are sentenced to prison for the severity of their crime and should not be further punished with the unequal awarding of good time credits simply because it fulfills a political “tough on crime” soundbite as the “war on drugs” did! We need to return to a fairer system with a better balance of treatment vs punishment and that starts with a restoration of sanity to the previous good time system, staffing our prisons appropriately at the treatment level along with more accountability, transparency and responsiveness by the Federal Bureau of Prisons. Many other progressive federal prison reforms can also be accomplished by broadening the existing statutory and policy framework.

While a risk assessment tool and evidenced based programs referenced in the SRACA and FSA are needed; academics and politicians must be aware that incentivized individual programs create waiting lists, manipulation and frustration while academic tools are far less effective than meaningful interaction with correctional treatment professionals once the agency is appropriately staffed to accomplish the mission of unit management as intended and defined in national policy.

I would be happy to come by your office and meet with you or your staff at your convenience to explain these concepts in greater detail.

Sincerely: Jack T. Donson, A Passionate Prison Reformer

Time to rant (Only for serious reformers)

I  always wonder who writes these crime bills and the First Step Act (FSA) is no different.  After reading the flavor of the week, I just need to remind myself there is no reason to get upset because it’s just more beltway dysfunction. While the FSA is actually worse than most of the recent legislation, it has managed to get passed in the House. My DC union connections have assured me it is DOA in the Senate which provides some comfort.

Let’s hope the FSA is just one of the many other head fakes we have experienced in the past few Congresses. I’m going to do something different in this blog by providing some technical information about the bill’s deficits which I recently sent to the BOP. It’s a longer, technical read  and will debate and/or explain the merits of the content with anyone, anytime, anywhere!

The FSA makes me reflect back on the Inmate Skills Development System (ISDS) which was recently discontinued because of its ineffectiveness after many years of implementation and costs. This bill is going down the same road with the new “risk assessment tool”.  It’s also discriminatory, underfunded and gives the agency far too much discretion.

It is obvious the authors never worked in or served time in a federal prison classification or treatment setting or have even a basic understanding of agency policy. My disconnect with this legislation is most of the intended goals can be better accomplished at far less cost with a much quicker implementation under the existing statutory framework aside from the good time fix.

Risk Assessment Tool: (Here’s where it get’s technical)

Rather than developing an entirely new risk assessment tool; the current BOP risk assessment tool in the computer system known as “SENTRY” can be modified. The tool known as the “custody classification form” (aka: BP-338) already includes dynamic factors which are referred to in this bill. This tool can be modified to obtain the objective rather than putting the time and resources into the development of a totally new tool which would be unfamiliar to the agency.

When I speak to advocates inside the beltway regarding this tool, they are either unaware it exists or are under the impression that it only includes static factors. That is evident in The Leadership Counsel letter because they are concerned about using the BOP tool. They are simply incorrect because the BP-338, Custody Classification transaction is predominately dynamic factors. They must be confusing it with the BP-337 which is static. Although the initial security designation tool (aka: BP-337) includes static factors, the yearly classification review process (BP-338) includes mostly dynamic factors which are used in other tools nationwide. These dynamic factors determine a recommendation regarding “custody” with the treatment staff having the final determination on the outcome.

Without getting too much into the “weeds” of custody classification; think of custody as an equivalent to the reduction in recidivism (ie: risk) that is totally separate than the assigned security level (Min/Low/Med/High). The graduated, 4 level, custody classification system of Maximum, In, Out and Community is what determines the individual’s responsibility and what correctional environment they can be managed in. The current methodology is something the BOP can easily understand and implement with only minor modifications to the existing SENTRY program. This bill assess risk as minimum, low medium and high which will totally confuse the agency because of the 4 level security level system.

To better understand this concept, one must understand the historical perspective. In the 1980’s, before the wide adoption of satellite camps, inmates who were classified as medium and high security could be assigned “OUT” custody so they could be assigned gate passes to work outside the institution perimeter. At that time, it was a 6-level custody system (1 through 6), with custody levels 5 and 6 being the equivalent to today’s high security.
Even inmates with custody level 4’s and 5’s were able to obtain gate passes because their risk level was considered low.

Analogy 1: A medium security person who was reduced to “Out” custody was determined to be a minimal/low risk of recidivism because we felt he had the responsibility to go outside the fence and work on the reservation with two hr. intermittent supervision. The current BP-338 “tool” recommended a reduction and it was approved by the unit team.

Analogy 2: When the same person progressed and was under 2 years from release, we had the ability to approve “community” custody to participate in community programs because we felt he had minimal risk (or the lowest risk) of recidivism. In fact, this methodology actually exists today; “John Smith” who is a “High” security level in a United States Penitentiary (“USP”) departs for the Residential Re-entry Center (“RRC”). Mr. Smith goes from “IN” custody to “COMMUNITY” custody immediately to participate in community programs at the RRC.

Custody is discretionary depending on the risk factors entered into the computer program, and the unit team or the warden in certain cases has the authority to increase or decrease custody level at any time during the sentence regardless of the security level. Therefore, the lowest risk for recidivism would be “community” and the highest risk would be “Maximum”.

Real Case: For instance, I can recall an Aryan Brotherhood member who actually killed someone but was eventually assigned a gate pass (ie: low risk) because of the time that had elapsed since the instant offense, his programming, behavior and ensuing release date. The 338 custody classification system recommended the reduction, the unit team supported it and the warden approved it because of the “low risk”. That situation explains the general concept how almost anyone can be considered and approved for a minimum or low risk so it is already within the agency framework for implementation. From my recollection that person became a mentor after release and was involved with “Kairos” prison ministry.

It’s important to remember when the data is keyed on the BP-338 (PPG7), the computer always makes a recommendation regarding the new custody (increase, decrease, same). It’s the unit team’s final decision to approve the recommendation because there is a tendency in the program to recommend a decrease when it may not be warrant when all factors are assessed.

Ineligible Prisoners:

Similar to Sec.407- of HR 3356, there is section on page 12, par. 13 (D) which contains a list of crimes which are excludable. This is extremely confusing because the BOP has a policy entitled “Categorization of Offenses”, PS # 5162.5, which is the policy to determine who is excluded from receiving program benefits based on the nature of their crime as a “Crime of Violence” or as a “Director’s Discretion” case. Why would we have an entire, meticulous policy on this subject but create another arbitrary list of exclusionary crimes referenced in this bill?

I am going to assume the authors here were unaware that the aforementioned BOP policy exists and/or they do not realize the BOP has SENTRY “CMA” computer assignments for violent crime classification and the WALSH Act (sex offender cases).

It’s confusing to say the least why we would have a separate list when this is already in the policy and agency practices? Note: in my humble opinion, we should remove ALL the Director’s discretion exclusions because it inhibits people from receiving Drug treatment due to the inability for early release. People are punished for their crimes by the length of the sentence and should not further be further punished when in the system. ALL people should be eligible and be able to earn the benefits regardless of the crime aside from Life sentences. We did not make such distinctions under the old law when it came to extra or statutory good time.

Elderly Offender Pilot changes and extension of the Second Chance Act:

Sec. 403, page 55, par. 8 extends the EOP and changes some criteria. This is confusing because some of the criteria have already been incorporated in the revision to the BOP’s compassionate release policy, some which is actually more liberal than this suggested change.

Compassionate Release, PS # 5050.49: The language in this bill further confuses this specific policy issue with differing criteria.

“b. Elderly Inmates with Medical Conditions. Inmates who fit the following criteria:

■ Age 65 and older. ■ Suffer from chronic or serious medical conditions related to the aging process. ■ Experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility. ■ Conventional treatment promises no substantial improvement to their mental or physical condition. ■ Have served at least 50% of their sentence.”

What is more practical here is to attempt to get the BOP to simply comply with the existing policy rather than expanding and reactivating the pilot which never reached its intended goal. To do this, we can:

1) Mandating the agency to refer cases who meet the program criteria to the sentencing court for a final determination unless the agency can demonstrate/document a credible risk to the community (with input from the USPO).

Example: I once referred a person to the original SCA pilot program who was denied for a “risk to the community” by the BOP-OGC yet the person was housed in a camp, worked alone at night snow plowing the grounds and roads up to the community road, and had been on several unescorted furloughs to a community doctor for medical appointments, etc. The original pilot program had a very low approval rate to begin with and making the criteria more liberal will not result in a significant change aside from the removal of the 10 year eligibility mandate which is a much needed change! I strongly support this aspect of the legislation.

2) Crediting the earned and “awarded” good conduct time towards any program eligibility is practical. This is statutorily possible under 18 USC 3621. The BOP “award” 54 days after each year served in the SENTRY data base and a separate transaction can be run to break down each and every award on the anniversary year. If we are “awarding” it, why would it not be credited towards any program which mandates a set term be completed prior to program participation? We use these very same awards to release inmates to the community so it would be a practical use of the agencies discretion to credit them when it comes to program participation.

For instance, a person who has served 8.5 years should be credited for 10 years and that time applied and calculated towards any criteria where a percentage of time is required. (ie: time served, plus good conduct time awarded is added together and credited towards the 2/3 calculation referred to in this legislation)

Recidivism reduction Programs:

With regard to recidivism reduction programs, this bill focuses too much on the programs over the individual’s treatment plan, abilities and criminogenic needs. We all know what happens when the BOP incentivizes a program like RDAP (Residential Drug Treatment). The waiting lists grow, the populations compete for program entrance and even create false stories in the pre-sentence reports to obtain program placement. Aside from the non-existent programs in the first place, the less savvy and marginalized population are denied program placement as they compete for acceptance. The end result is frustration, program manipulation and delays in programming. I’ve actually seen hundreds of people who didn’t need or qualify for RDAP had they not created a fictitious history prior to the PSR interview. It’s a cottage industry today. This actually makes institutions less safe and benefits the white collar types.

There is simply not a program infrastructure or the staffing for the type of recidivism reduction programs discussed in this legislation.

The actual BOP philosophy and policy consists of a comprehensive correctional treatment plan that addresses multiple deficit areas that are vital to rehabilitation and recidivism reduction. What is important to this concept is that as long as the inmate is making satisfactory progress towards the individualized, comprehensive correctional treatment plan, they should receive program benefits despite if the “program” itself is classified/determined as one that reduces recidivism. This takes the focus off of program itself and the inmates “shopping’ for the magic program where the incentive is more important than the program benefit. While it is practical to have evidenced based, recidivism reducing programs; someone of border line intelligence should earn the good time regardless of what program they complete regardless of the program classification.

It’s not a one size fits all situation. One person with cognitive deficiencies and poor impulse control can be awarded for simply participating in the GED and staying out of trouble vs a person of higher intelligence and no behavior issues would need to address their deficits by different programs fit for their own criminogenic factors.

In addition, comprehensive correctional treatment plans also address multiple deficit areas like education, behavior control, vocational training and substance abuse. Evidenced based programs “proven to reduce recidivism” must be utilized but only as part of the total comprehensive correctional treatment plan.

None of the above can be accomplished unless the BOP follows their own policy on a meaningful program review process rather than a hurried, sign the paper and get out philosophy. BOP administrators need to understand it the fundamental breakdown of the team process due to staffing jeopardizes public safety just as much as an escape, if not more. The sad part of this is that there needs to be a re-examination of the unit management concept and either scrap it or staff it as historically intended. The agency’s art of pretending they practice unit management principles can be easily debunked by a review of nation-wide practices. The most profound non legislative recommendation to reducing recidivism is to return to manageable case-loads of 100 people per case manager and counselor and conduct classification meetings like it was intended with a multi-disciplinary team which also includes the personal attendance of the psychology services and the education representative. This relationship development fosters safer institutional environments and protects the public.

The BOP policy regarding this process is governed by Program Statement 5322.13, Inmate Classification and Program Review (Program Statement 5322.13) which utilizes a comprehensive correctional treatment plan concept, instead of singling out a “Program” for an incentive approach.

When an inmate arrives at a federal prison facility, he/she receives an Initial Classification meeting within four (4) weeks of arrival (referred to as “Team”). At that time, feedback is solicited from the Psychology Services representative and Education Advisor, and a comprehensive correctional treatment plan is established with short-term and long-term goals for the inmate.

For example, a comprehensive correctional treatment plan for an inmate may specify the following: attend General Education Development (“GED”) courses for twenty (20) hours a week, with the long-term goal of GED completion in one year; complete the basic drug education program within 6 months with the long-term goal of transferring to a Residential Drug Abuse Program (“RDAP”); pay the assessment of $100 by paying down $25.00 monthly which satisfies the Inmate Financial Responsibility Program (“IFRP”). Further, the RDAP, the most desired single program, exemplifies the need for a comprehensive correctional treatment plan. This incentive-based program is not offered everywhere and the maximum program benefits are sometimes missed given to late enrollment dates due to waiting lists at many institutions. In addition, there are literally cottage industry type businesses creating drug abuse histories prior to the pre-sentence interview in order to qualify to attend the program. These offenders are occupying needed beds better utilized for inmates with actual abuse histories. Therefore, program shopping and manipulation may be curtailed with an individualized, comprehensive correctional treatment program.

Good time credit:

The most profound recommendation related to legislative proposals is the discriminatory awarding of good time. Historically & going back to the “old law” pre-1987; the BOP did not factor in the awarding of statutory or extra good time based upon the instant offense behavior. The severity of the offense determines the actual sentence and we have begun to further punish certain offenders after incarcerated for mostly political motives. This Bill is similar to Section 102 (e) 2 C of 3356 which lists categories of offenses who do not benefit from the good time.

What is so confusing about this list is not only what I referred to above regarding the Categorization of Offenses policy but also the “Early Release Procedures’ policy, Program Statement # 5331.02 which also includes excludable offenses and the director’s discretion cases. Although this subsequent policy deals with RDAP and 3621(e)- Early Release, it adds another bureaucratic layer and further complicates the entire concept of pre-release credits. The practical solution to this issue is simply returning to the “Old Law” good time system which was not only fair, equitable, and had the necessary incentives to encourage programming and good behavior; but it increased the safety of staff and inmates because inmates could earn back forfeited awards by maintain clear conduct. Inmates who followed their program plan and met work requirements and good behavior released to supervision at approximately 66% in what was referred to as “Mandatory Release”. The BOP still has old law inmates in the system so the infrastructure, familiarity and training is already part of the agency culture and SENTRY computer system. It could be implemented almost immediately at no cost and little training. Inmates who maximize the credits could be transferred to pre-release custody at 66% under varying degrees of community control based on the risk assessment. I am not suggesting a return to the parole system itself but simply the laws governing the statutory and extra good time.

A practical suggestion in regards to legislation is to use the 66% date as a community control program eligibility date for RRC and/or home detention eligibility (even work/study release).

Mentorship Pilot programs: While I am a strong supporter of expanding the Tier 2 volunteer program, it is hard to fathom how the agency is going to develop 10 pilot programs and expand tier two volunteers to ex-offenders when there are already many impediments to this program. Community members and organizations seeking Tier 2 credentials are often denied and are unaware of such clearances exist. I also question the stats that the BOP has enough of the target population to develop 10 pilots. Expanding a viable Tier 2 volunteer system with community entities like religious organizations, educational institutions, and other NGO’s is the practical solution for mentorship. Many people are unaware of the volunteer policy even exists:

https://www.bop.gov/policy/progstat/5300_022.pdf

Unrealistic incentives–

Good time credits: It is unimaginable the BOP has the necessary RRC infrastructure to comply with this legislation. The BOP recently terminated 16 contracts nationwide and ordinarily places even high risk inmates for less than a 6 months in the RRC.

The agency never honored the spirit and intent of the Second Chance Act of 2007 to begin with. It is well documented and pointed out even by the DOJ-IG that inmates with low risk receive longer placements than high risk inmates and direct home detention is extremely under-utilized, including the Federal Location Monitoring program administered by the AOUSC.

There is insufficient infrastructure for such a good time incentive without a massive and costly expansion of existing and new contract facilities. This is extremely troubling on that no less than 8% of the appropriations in this bill are to be given out in state and local government grants. (page 81, par.2)

More Visiting/phone: The BOP does not have the infrastructure to facilitate more visiting and telephone privileges. It is also disingenuous to refer to “more email“, when email is already unlimited. There is a limited number of telephones and computers in each unit to facilitate this incentive. In addition, the BOP does not have the staffing and existing visiting room space to facilitate more visiting.

It should be noted all these incentives are “at the discretion of the warden”.

The incentives also signal to me the privatization lobby has planted the seeds to get video technology in every prison which can enable the agency to curtail in person visiting. That is just another way to gouge the inmate population and marginalized families similar to the telephone exploitation.

Transfer closer: This incentive is also disingenuous as the bill stipulates “if space available”, etc. The BOP finds it hard to place people within 500 miles with the existing facility infrastructure so this additional, discretionary incentive simply won’t happen.

These incentives are science fiction. They will collectively create a false expectation resulting in frustration and unsafe institution environments.

Other Privatization influences:

The 30 minutes more of telephone time per day incentive & video visitation would provide more revenue for the companies that gouge families especially in light of recent legislation overturning some cap regulations.

The UNICOR provision in this bill allows them to sell products to other “prisons” which means the BOP would be selling products to the private sector prisons they are contracting with. This is problematic for the additional competition for companies in the community but is even more problematic regarding ethical considerations due to the incestuous exodus of retiring BOP wardens and administrators to private sector correction companies. Given the lack of transparency of the BOP it is hard to imagine people retiring will not bend over backwards to please their former BOP mentors and contacts who arrange post-retirement landing sites in the private sector.

Conclusion:

This legislation will take years to develop, is nearly impossible to implement as intended and allows the BOP too much discretion. The incentives such as good time credits cannot be honored because the funding for the infrastructure is not provided. This legislation will not result in a reduction of recidivism or increase public safety. It is underfunded, includes unrealistic incentives and may actually result in less safe facilities. It is discriminatory in nature by treating people differently once incarcerated relative to good time credits and brings back elements of the failed Inmate Skills Development System recently abandoned by the Bureau of Prisons.

Many of the intended goals can be accomplished within the existing statutory and policy framework by stronger executive branch leadership and oversite.

Right under our noses

Last week I attended the Smart on Crime Innovations Conference at the John Jay College of Criminal Justice. While it was an informative experience of advocates preaching to the choir, I couldn’t help but feel like the movie Groundhog Day. The mantra of academia and the right left coalitions are the same while only the bill numbers have changed. For decades, we have been missing the mark in the federal justice reform conversation. Probably the most impactful presentations at the conference were from Silicon Valley and it was great to see technology companies taking an interest in re-entry.

Academics and organizations have studied these issues to death for decades when the answers have always been right under our noses. Probably the most profound statement I witnessed came from John Wetzel, Secretary of the PA Department of Corrections who spoke of “human dignity” and treating the incarcerated as “people”! As always, there was a discussion of what is the politically correct terminology for the word “inmate” which I’m sure is a frequent discussion at NGO Mafia luncheons and reform conferences. I wanted to jump up and say just insert the word “people” in virtually any situation and the context of the sentence takes care of itself. We will never reverse the stigma of a felony with rhetoric if we don’t address the underlying societal attitudes of our culture with action.

I use the phrase, “right under our noses” to mean there is a lesser need to study prison related issues and create new legislation until we have our house in order in the areas of changing organizational culture through leadership and public education while broadening current statutory and policy application. We can’t get ahead of ourselves with innovated programs when there is minimal accountability and transparency to the public by our federal correctional system.

Reform begins by hiring practices, training and what secretary Wetzel called treating people, yes people, with “human dignity”. I’m no bleeding heart liberal and am a believer in personal accountability but reform begins in the trenches of the system in more fundamental ways. Obviously, simultaneous practical reform legislation is needed such as the retroactive application of the crack to cocaine disparity reflected in the Fair Sentencing Act of 2010, expansion of the Safety Valve provision in the sentencing guidelines and increase in the amount of good conduct time earned. However, politicians and lobby groups have corrupted the legislative process and much of the crime legislation is simply missing the mark.

As always, I lament the hundreds of organizations, salaries, rents, egos, etc. of paid reformers and wonder what could be done with the resources if they were applied towards direct programs and services. Some are making a living on reform initiatives which may parallel the income of the prison industrial complex. Unlike dysfunctional bureaucracy, it’s not politically correct to challenge such bureaucracy as we tread water in the status quo of reform.

There is an answer if anyone will listen and it’s right under our noses!

Lessons learned

I recently came to the realization the best way to take this blog was to periodically cover the lessons learned during my work in the trenches of the Federal justice system as an advocate, consultant and reform freak. Going forward, I will focus on prison and legislative reforms while keeping an eye on what I refer to as “The NGO Mafia” and the “private prison industrial complex”.

Here are some observations and lessons learned during an action packed week in the Federal justice system.

My week started out with a trip to Virginia to testify in a “Miller” re-sentencing. The Supreme Court case of Miller vs Alabama overturned mandatory Life sentences for Juveniles, and then Montgomery vs Louisiana made it retroactive.

I was testifying in regards to the remarkable prison adjustment a now 34 year old had made since his confinement at the age of 15. In his adolescence he committed heinous crimes with mother and his adult brother, both who are serving Life sentences.

Given the evolution and study of brain development, the fact that this person was under the influence of his adult family members and his ability to excel as well as avoid assimilation into the prison subculture;, one would hope there would be redemption, compassion and common sense exercised in our federal judicial system. I am not an optimist when it comes to our justice system having served a career in federal prison environments involving daily interaction with thousands of people living in the system. That being said, I went to the hearing with the expectation of a positive outcome with the potential for a second chance. It was a 4 hour emotional hearing and many family members for two murdered victims provided the court with heart wrenching testimony about the impact the crime had on their lives. I have attended victim impact panels and victim trainings before but this was more intense than I had previously experienced. As each person gave their testimonial, my optimism waned. When it was all said and done, the judge imposed a 65 year sentence as recommended by the prosecutor. My perception was that the sentence was long determined before the hearing as the judge read from a prepared statement with a matter of fact demeanor.

You can call it a “second chance’ but this 32 year old will be 70 years old upon release. I have no problem with “punishment” but the mitigating factors warranted something more in the range of the defense attorney’s recommendation for 35 years.

Lesson: Punishment trumps mitigation in Virginia!

On Wednesday, I traveled to Connecticut to conduct prison related training for Federal Judges and United States Probation Officers. I was impressed with the progressive nature of the court staff and their focus on correctional treatment with a desire to better understand out Federal prison system. We travel all over the country to conduct this training and I am constantly reminded of the lack of understanding Federal prison culture, policy and nuances. A wall exists (no pun intended) between the courts, the prison system and the public. The frustration in this lack of accountability and transparency is apparent in my conversations with attorneys, court personnel, families and even law enforcement. It was refreshing to have a positive, upbeat dialogue with the court staff after the let- down suffered at Monday’s sentencing.

Lesson: Our Federal prison system needs to make a better effort on the education, responsiveness and transparency for court personnel and the public so people being sentenced can receive adequate correctional treatment and re-entry preparation.

At the end of the week, I came across an article in my daily reading that hit close to home and covered a point broader in nature which I had never given much consideration to. The Opioid and prescription drug epidemic has decimated both the urban and rural areas of our country where overdoses have skyrocketed. I worked in a Federal jail operation for many years and our saying was “3 hots and a cot”. It’s well known jail populations receive very little correctional treatment services which is a big issue when you consider the information contained in the following article:

Of course the downside to this is the further institutionalization of people with addiction issues; however, it is something to reconsider.

Lesson: More treatment options at the front end has the potential to be built upon during incarceration and could potentially create a safer environment and a reduction in recidivism.

 

Eureka – Outside the Box

Last week, I was invited by Kevin Ring to participate on a panel in the Capitol Building regarding the subject of “Compassionate Release”. FAMM was previewing a new video called 5 to Life” highlighting the many frustrations families feel while trying to navigate the Federal Bureau of Prisons for a terminally ill family member.  https://www.youtube.com/watch?v=z929XbFeoCw&feature=youtu.be

The video reinforces some of the more disturbing aspects of government bureaucracy and the BOP culture in general. The agency has very little compassion for people and families caught up in the American justice system. It was satisfying to participate in the panel discussion after the viewing to repeat my mantra about how many Federal prison reform initiatives can be accomplished internally, without legislation through leadership under the existing policy framework. It might sound simplistic; but leadership, accountability, transparency and a broader application of policy can lead to significant reforms.

It was delightful to hear Judge Gertner, who was interviewed in the video, speak about the “broadening” of policy. Though the BOP does hold all the cards, it’s when they decide to deal them which is fundamental to the equation. One of the points I made during the Q & A was about how the BOP historically tracks and set deadlines for all types of programs and paperwork activities. Going all the way back to the 80’s, I had to process and complete International Treaty Transfer applications (which include extensive paperwork) within 30 days of someone’s request. The BOP still does not mandate a processing time for Compassionate release requests and only recently developed computer tracking assignments after being pressured by Congressional hearings and reports like “The Answer is No” by FAMM and Human Rights Watch. Despite the public attention, pressure and policy changes, compassionate release approvals continue at a snail’s pace. In addition, the BOP continues to deny applications at various levels without providing a completed application to the sentencing court with their recommendation for the final determination. That means the sentencing Judge’s authority is usurped by the agency.

One of the more salient points I made was the Bureau of Prisons is a top/down, quasi-like militaristic agency which operates by internal memoranda via the chain of command. If the BOP Director made the decision to accelerate the process and make CR requests a priority; it would literally happen overnight. In one computer transaction, the BOP can even run a national roster of terminally ill people and take an even more proactive stance on the issue to better facilitate requests. With the shortage of Federal medical center beds, statements by a former BOP Director about medical staffing at crisis levels and yearly cost estimates at upwards of $60,000 a year at taxpayer expense, why would the agency not better facilitate the ability of people to die at home with dignity? Most incarcerated, terminally ill people are NOT a public safety risk given their medical condition and fact the CR program requires they are confined to home detention by electronic monitoring technology under the supervision of a United States Probation officer.

This leads to my “eureka” moment. During the panel, an audience member asked why the BOP is such an obstructionist agency when it comes to this process. I found myself answering the question from a BOP mentality having worked for decades in that culture.  I basically replied the BOP’s primary mission is to “protect the public”. That is the very first thing agency administrators espouse at internal training sessions, staff orientation and the public. Correctional treatment and to a lesser extent, “compassion”, are simply second fiddle. Bureaucrats err on the side of caution and seldom think or act outside the box because they are afraid of a Willie Horton type event. That night I woke in the middle of the night and a thought came to me which is probably too far outside the box for most to comprehend, especially BOP administrators.

What if the BOP culture put correctional treatment and human dignity on equal footings with security? What if their training not only put equal emphasis on these concepts but also allocated equal resources as well? BOP Wardens and other administrators use the example of success by the number of escapes because an escaped person is a public safety risk. So I argue (tongue in cheek but just to make the point) that even if diminished resources for custodial/security purposes resulted in the increase of an escape now and then; it would dwarf the current public risk and costs we currently have by releasing people to communities without providing adequate correctional treatment by way of education, vocation, counseling and humane treatment.

In my humble opinion, issues like CR will not change until outside leadership prioritizes correctional treatment and is held more accountable to the tax paying public by responsiveness and transparency. Changes need to be made within the agency culture and it can start with the better education and involvement of House Judiciary members who control the purse strings for the agency budget. While the BOP has grown more immune to the press, they jump through hoops when they feel their budget is in jeopardy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Footnote:  I was able to write this article without using the word “inmate”. Rather than spending time and resources deciding and changing what we call the incarcerated, I find the word “people” can be substituted in virtually every situation given the context!  Try it next time!