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”