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”

Crunch Time for Federal Prison Reform

I listened in on the Washington Post Criminal Justice forum yesterday. One of the panels involved Congressman Goodlatte of the House Judiciary who seemed a bit pessimistic about movement on criminal justice reform during this lame duck session of Congress.

What was telling is rather than speak of an upcoming vote, he mentioned there was a member “briefing” last week and there would be one again this week.   Kevin Ring of FAMM was equally sullen and it seemed like the only person on the panel with passion was Steve Cook of the National Association of Assistant U.S. Attorneys who oppose reform as articulated in their September 8 letter to House members.  http://www.naausa.org/site/index.php

I pull no punches with my take on reform that it is big business within the beltway and profitable like the Prison Industrial Complex. It’s great for lobbyists, politicians, egos and what I refer to as the Beltway “NGO Mafia”. I am a bit tainted having worked with people within the system for 30 years but; like the Aerosmith song, “it’s the same old song and dance”. (In my humble opinion). I truly hope I’m wrong this time because the media campaigns attached to the current lobbying efforts have even me wondering if this time is different.   

This morning, I read a National Review article from Grover Norquist about how it’s time to pass reform. These articles and the references to this “Right/Left” coalition are becoming passe. From a procedural standpoint, none of the 11 reform related bills have passed the full house or senate. Though the Sentencing Reform and Corrections Act (aka: SRACA) gets the most hype as of late, it still needs to come to a full vote then be reconciled, etc.

I’m deeply disappointed in the Corrections related provisions of SACRA which penalize our more marginalized populations by unequally awarding extra good time and allowing the Bureau of Prisons too much discretion and time regarding program implementation. My mantra is there are many more practical solutions to reform which can be implemented within the current policy and statutory framework.

Long ago, I wrote about our squandering of the perfect storm of prison reform and have been in many heated discussions because of my skepticism. I’ve watched clients and families give hundreds of thousands of dollars towards this hype for decades and it appears the end game is no different this time. I am looking forward to both the House and Senate to prove me wrong but I’m not holding my breath in doing so.  

On the bright side, companies like Google have recognized the need for reform and the societal impacts of the carceral state. Let’s just hope their resources; like that of philanthropist billionaires, doesn’t go to lobbyists, politicians and organizational budgets. Federal prison reform does not need to be some massive legislative undertaking. It starts with leadership, vision and a field perspective all missing from the reform table.   

Who do I pay for early release? (When it sounds too good to be true; it is!)

I wrote this blog at the request of Jeff Grant over at Prisonist.org. I thought I would re-post it on my site because I’m seeing more and more people getting into the consulting arena and it’s not just the white collar people who fall prey to consultants. The bottom line is beware when someone directly solicits by aggressive telemarketing, scare tactics and things that sound just too good to be true.  Here it is and I hope you enjoy:

I’ve worked with white collar individuals in various Federal prison settings off and on for almost three decades. One common theme that has remained a constant is how highly educated professionals seem to lose all sense of discernment when indicted by the government. Savy business People who are ordinarily in control of their affairs often become victims of profiteers, mainly prison “consultants”.

Probably the most prevalent issues are people being solicited to “pay” for a transfer, designation, longer halfway house placement or my favorite “early release”.  There is  a growing cottage industry of RDAP “Consultants” promising early release  and others selling extended halfway house under the “Second Chance Act”.  RUN and HIDE!

What most people don’t realize until after they become incarcerated is that paying for RDAP, a transfer, designation and more halfway house is basically a scam. Very troubling to me is that spouses, children and parents often fall victim to these solicitations even after someone reports to prison. It seems all sense of rationality disappears when the fear, anxiety and nativity take hold when a person is facing a prison term.

I once had someone on my caseload who paid $7,500 to be designated to a specific location. Unfortunately, the facility I worked at was not the place they wanted to go to! One thing profiteers realize is that when the court recommends a specific location, the Bureau of Prison’s compliance rate is approximately 74% because it is policy for them to accommodate judicial recommendations. The non-compliance rate would be higher, however, many times the recommendation is not commensurate with the individuals classification and/or program needs.

In the case I referred to above, the “consultant” missed a very basic policy issue which prevented the desired location which could have been proactively managed prior to sentencing. I often hear attorneys and others comment how the BOP does not follow the recommendation but I beg to differ. I monitored the incoming pipeline (thousands of inmates) of both a camp and medium facility for many years and when the recommendation is commensurate with the level and program needs, it closer to 90%.

I recently had a client who hired me because he said I was the only one who told him it was easy to get into the RDAP. He had contacted many people which he found on line who had a song and a dance about how they would “get him into RDAP” and “get him early release”. For people with a legitimate and documented substance abuse issue, it is extremely easy to get into the RDAP. The BOP automatically identifies, then transfers participants into the program even if the RDAP is not at the initially designated facility. No judicial recommendation is even needed. Recently, an attorney I frequently work with in Baltimore sent me a copy of an email he sent to a consulting company which instructed them to cease and desist contacting his client about getting them into RDAP.  He also forwarded the solicitation materials to me which told the person how a “judicial recommendation wasn’t enough” to get them into RDAP and how they were going to “get them 18 months off the sentence”.  This is quite comical from my perspective but to someone facing a sentence, it’s just what they want to hear.

As I mentioned before; no court recommendation is needed to get into the RDAP plus the BOP policy on early release is clear about how long one receives off the sentence as well as the mandatory amount of halfway house placement (aka: RRC) which is required for the community transitional phase of the RDAP program.  That leads me to my final common area of concern which is regarding the “Second Chance Act” (SCA).

The Second Chance Act of 2007 is simply a law that was passed in 2008, which the Bureau of Prisons operates under. It does NOT mandate the BOP to place people for any specific time period nor did it take away any of the discretion the BOP had prior to its implementation. Most people do not realize the SCA had the most impact on state prison populations, funding and re-entry programs. All it did from a Federal prison standpoint was establish the “Elderly Offender Pilot Program”, (long since closed) and gave the BOP discretion in placing people up to 12 months in the halfway house under 18 USC 3624. You do NOT apply for the SCA!

In summary, I’d like to be clear the victimization of white collar people I refer to is not illegal nor is it limited to white collar people. It’s basically buyer beware that you’re paying for things which will ordinarily occur within the framework of the prison system.  Private outside entities have little control or impact because of the statutory discretion given to the BOP. Though it is practical to be as prepared as much as possible prior to the prison experience; one should carefully reconsider engaging entities who direct market and/or have that magic bullet that sounds too good to be true.

My next blog is going to focus on the issue of “friendly extortion” many white collar individuals face in prison which is not only prevalent in the higher security level facilities but also present in federal prison camps.

 

 

 

Its all about the back end!

Unlike the push from organizations like FAMM who place a greater emphasis on “Front End reforms”, my reform mantra focuses on getting people in the community sooner. Aside from helping individuals, I try to educate professionals on the prison system and how meaningful prison reform can be accomplished within the existing Bureau of Prisons’ (BOP) policy framework. Though I understand legislation is a necessary component of any comprehensive reform movement, there is NOT enough focus and pressure on the Bureau of Prisons to broaden policy applications.

If you’re not a “Johnny Come Lately” in the reform movement, you are aware of the dozens if not hundreds of crime bills that have died in the House and Senate over the past few decades. These bills are a great sound bite, meeting topic and conversation starter for the NGO world but they do little more than raise hopes for people and their families while raising money for special interests.

When I speak about broadening policy applications, a less technical analogy is the Compassionate Release provisions known by the government as Reduction in Sentence Initiatives (aka “RIS”).  The BOP was recently shamed into broadening their authority by reports like “The Answer is NO”. I had the opportunity to be interviewed by Jamie Fellner of Human Rights Watch in my New York Office when she was working on the report.

https://www.hrw.org/report/2012/11/30/answer-no/too-little-compassionate-release-us-federal-prisons#dcb18f

But even after the BOP policy change, there is still more the agency can be doing when it comes to further broadening this initiative. https://www.bop.gov/policy/progstat/5050_049_CN-1.pdf

Now let’s get technical! The Federal Bureau of Prisons operates under two laws when placing people (yes people) in Residential Re-entry Centers (aka halfway houses). Lay people are  fixated on the increase of halfway house placement to 12 months under the Second Chance Act of 2007 in accordance with 18 USC 3624 (c). The BOP actually had the statutory authority to place people over 6 months even before the SCA provided it was approved by the regional office. This blog is not about how the agency has NOT honored the spirit of these SCA changes. I’ll save that for a future story. I am here to explain a more intricate part of the puzzle.

Under 18USC 3621(b), the BOP has the authority to directly designate people to halfway houses or transfer them at any time provided they meet certain criteria. I vividly remember when the SCA was passed when I worked in a Medium facility in New York. I was/am a BOP policy freak, so I immediately read the bill and took notes. Aside from the increase to 12 months eligibility under 3624(c); the biggest thing I took away was the language was broad enough to allow placement in the halfway house at any time which was also the case in the 1990’s. The BOP later affirmed such via internal memoranda. (Stay with me)

In the early 90’s, I transferred people to what were referred to as “Urban Work Cadres”.  These interagency agreements between the BOP and various Federal agencies allowed for community placement up to 18 months prior to release. I remember placing people in Philadelphia, San Diego and Florida but the Cadres were all over the country. The contracts were similar to work release programs common at the state and local levels but have long disappeared from BOP policy language which at one time did include “work and study release”.

To bring this full circle, under current law and policy, the BOP can immediately implement formal work and study release programs. It would require a build out of the RRC infrastructure which I believe could be less costly with partnerships with NGO’s, (ie: faith based groups) or Interagency Agreements like in the Urban Work Cadre era. People in prison simply need to have demonstrated the ability to be assigned to “Community Custody” in accordance with the classification manual. https://www.bop.gov/policy/progstat/5100_008.pdf  The benefits of such a program, aside from bringing the US into the 21st Century, is to allow people to serve time near their family and support from the vast array of community resources. With the slightly decreasing federal prison population, the government could expand Metropolitan Detention Center (MDC) work cadre populations to accommodate such programs.

I encourage the philanthropists of the world, to consider allocating resources towards tangible reform program initiatives rather than beltway organizational bureaucracies and lobby groups. There are better solutions to many of these problems and money to study them would be better spent on direct services to impact the incarcerated people and their families.  

This is one of many examples I will be writing about over the course of the next few weeks.

SRACA-Truly missing the mark for the incarcerated

As currently written, Senate Bill 2123, or the Sentencing Reform and Corrections Act (SRACA) reduces a number of mandatory sentence provisions for drug offenses, makes crack/powder equalization retroactive, expands those eligible for “safety valve” reductions, reduces mandatory sentences for some types of gun offenses, and allows some inmates to “earn” sentence reduction by programming.

While I applaud the front-end measures in the SRACA (by “front-end”, I mean direct changes to law, mostly for people entering the system) the bill is in some ways ill-conceived when it comes to actually reducing the number of people living within the Prison Industrial Complex. As I lament the two most significant “back-end” aspects of this bill (“back-end” meaning provisions which would benefit and/or release the already incarcerated), it may make far more sense to totally remove them from SRACA all together and re-group.

Let’s take the “Aged” Offender” provisions in Section 210 (Compassionate Release). While it is practical to reduce the eligibility age to 60 and the percentage of time needed to be served at 2/3; the devil is in the details. To frame this aspect historically, one must first reflect back to the Second Chance Act of 2007 (SCA) and specifically the “Elderly Offender” (EOP) pilot program. The original pilot offered early release to inmates over age 65 who had served 10 years or 75% of their sentence, whichever was greater.

I placed several offenders in the EOP program and it gave me a better understanding of what happens when legislation and agency bureaucracy collide. Though the SCA was truly landmark legislation, when it came to back-end reforms, it too was ill conceived. Only 71 inmates out of the 855 applicants to the ELP were approved for program placement. The first way to improve SRACA is to allow the BOP to credit “earned” good conduct time towards EOP program eligibility. Here is an example of one of the cases I processed to bring home this point:

I had a 70 year old assigned to my case load who had served approximately 8 ½ years. The law is clear that the BOP “awards” 54 days after each year served and the credit is included in the computer data base on what is referred to as “Good Time Computation” sheet. Logic would dictate-that someone who has served that amount of time (8.5) plus the “awarded” good conduct time (1.5) would be able to receive credit to trigger the 10 year threshold for program eligibility. Unfortunately, the government prohibited him from submitting the program application until he had actually served 10 years. Then, it took them over 6 months to process the referral. With some cost estimates at $56,000 per year for prisoner elder care; multiply that by 2. But the story gets better.

This person who was residing in a minimum (camp) facility at the time, who plowed the roads alone at night outside the facility, and who went on unescorted doctor appointments in the community was eventually denied program placement because he was considered “a risk to the community”. You can’t make this up.

My overall point on this first issue is that SRACA as written, like the SCA, gives the BOP too much discretion in implementation. My fear is the agency will not take advantage of their full statutory authority to credit the good conduct time to allow program application processing prior to eligibility and will be restrictive in determining community risk. This is why “back-end” reforms typically fail as you cannot dictate by law that an agency changes its mindset and culture. That change has to come from leadership within the agency.

The second issue I lament is regarding the back end extra good time provisions in Section 204 (Pre-release custody). SRACA misses the mark even further on this issue by unnecessarily recreating the wheel on good time, discriminating against certain types of offenders, excessively long implementation periods as well as affording the BOP too much discretion.

I was hired by the BOP in 1988 when a majority of the population was “old law”, pre-Sentencing Reform Act of 1987(SRA). Many individuals were eligible for parole at 1/3 but ALL inmates were awarded statutory good time based on the length of the sentence. ALL inmates could earn meritorious (aka extra) good time for positive work and program achievements. The beauty of the old law good time system was that it had incentives for people to program and to maintain clear conduct. If someone received an incident report, any forfeited good time for misconduct could actually be earned back with lengthy periods of clear conduct. I am not advocating for a return to a parole bureaucracy but simply for the reinstatement of the “old law” good time system to allow release at approximately 2/3 (66%) for people who have programmed and maintained clear conduct.

There are four major questions to consider regarding the convoluted aspects of the SRACA and Section 204, good time credits:

1) Why are we re-inventing the wheel when we currently have the policy, threat assessment tool, and “old law” good time procedures in practice today? There are thousands of old law offenders currently in the system. The old law good time process is fair and understood within the BOP culture. With minor legislative amendment, it could be implemented retroactive to cover all offenders almost immediately at literally no cost. I’ve read SRACA over several times and from a field perspective, I can’t see how it could be implemented in a fair and practical manner given the BOP infrastructure. When you view this in context (old law parole system eligibility at 33%, current law 85%), is 66% really that drastic?

2) Where are we going to place the people who do benefit from the good time credits as written? Didn’t we learn from the Second Chance Act of 2007, that we do not have the necessary build out of the halfway house (AKA Residential Re-entry Centers) infrastructure to absorb the populations for transition? Although the SCA allow 12 month RRC placement at the end of the sentence, the BOP has not honored the spirit and intent of the law. It’s been over 8 years since passage of the SCA and placements over 6 months are few and far between and the government simply does not have the contract bed space to carry this out.

3) Why is there greater emphasis on singling out and developing programs when the BOP philosophy is an individualized treatment plan based on individual need? Didn’t we learn from the manipulation of the Residential Drug Abuse Program (RDAP) that when the program becomes the emphasis and means to a benefit, it created waiting lists, fictitious drug histories for those who could afford coaching and reduced early release benefits? All basic cognitive behavior therapy and educational and vocational programs should qualify for the extra good time regardless if they have been deemed worthy to have “proven to reduce recidivism”. For instance, a borderline personality program plan may simply be to maintain clear conduct and participate in talk therapy. One size does not fit all and we need to refocus on unique individual needs and abilities rather than “magic” programs.

4) Why are we picking and choosing who receives the credit? People receive a sentence based on the crime and their social history. Why would inflict additional punishment on them subsequent to incarceration? It is the “tough on crime” mentality that got us into this mess in the first place so why are we scoring political points to exclude people, many of which are of our marginalized inter-city populations. There are many criminogenic reasons for crime and we shouldn’t pick and choose who and who is not worthy.

As we wait for the House version of the SRACA to pass committee and for a final reconciliation for the President sometime next year, lets’ hope that those within the Beltway can understand the need to improve the bill’s back-end measures or to start from scratch.