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.