I only blog when something inspires me to go on a rant for a Federal justice related issue. I have a pulse on the Federal prison system and like to document my thoughts for an “I told you so moment” when these inspirations occur. So here we go…..
Several of my previous rants were focused on the numerous deficiencies of the First Step Act (FSA) as it relates to the so-called reforms regarding the “back end” or prison related aspects. Aside from the discriminatory aspects of the law which reward people, yes people, differently and the unattainable and disingenuous incentives for programming, I am focusing today on the PATTERN risk assessment which purportedly determines the potential for recidivism as either minimum, low medium or high.
PATTERN is a risk assessment tool developed by the DOJ in accordance with the FSA. It includes both static and dynamic factors not very different than the BOP”s current BRAVO assessment tool which calculates a security classification (min/low/med/high) and custody level (in/out/com/max). The FSA mandated the BOP to calculate every person’s recidivism risk level buy a January 15, 2020, deadline, however; that very day the DOJ issued a report changing the PATTERN criteria because of discriminatory scoring criteria and the negative impact it had on marginalized populations such as the “age at first arrest” and the inability to be released on bond.
Unfortunately, and before the BOP had a chance to re-score the risk assessments, prosecutors began using the risk assessment level to oppose compassionate release and related motions. What most justice professionals need to realize is that PATTERN calculates two risk levels including one for the risk of general recidivism and the other for the risk of violent recidivism.
The BOP considers the overall risk level as the higher of the two and only keys the higher level in the BOP data base referred to as SENTRY on the “Inmate Profile” transaction. This profile is what prosecutors point to when opposing release. I recently had a case where the prosecutor pointed out that a “low” risk level was not the lowest which is “minimum”, but the assessment was based on pre-January 15 criteria. Once re-scored, the person was minimum in both general and violent recidivism and it was good we caught it prior to re-sentencing.
Question: Why is the BOP not required to include both risk levels on the profile? I have reviewed cases of people with a high risk of general recidivism but had a medium or low risk of violent recidivism. Judges should be aware of both levels in their decision-making process especially when the government points to it as a talking point to oppose release.
Since February of this year, I have reviewed the files of numerous DC Code Incarceration Reduction Amendment Act (IRAA-Juvenile Lifers) and Compassionate Release cases who had PATTERN scores dated pre-January 15. I wonder how many incorrect PATTERN scores were factored in as part of the decision-making process. But it gets worse!
Concern: Upon scoring several dozen PATTERN assessments for cases pending re-sentencing, I have discovered numerous mis-scored aside from being based on the initial (pre-1/15) discriminatory criteria. But it gets even worse!
As COVID hit, I began experiencing CARES ACT Home Detention (HD) denials based simply on PATTERN scores. While I was initially able to get many PATTERN scoring worksheets from people in prison and from counsel via discovery, the BOP slowly began to withhold the worksheets. PATTERN data is no different than BRAVO data and is releasable because the data does NOT meet the Freedom of Information Act Exempt criteria a case manager considers prior to filing a document in the un-disclosable section of the inmate central file.
I was just informed by sources the BOP is no longer going to load the risk assessment level on the SENTRY inmate profile. This appears to be a calculated attempt to hide the data from attorneys because the profile has been a regular discovery document for IRRA and Compassionate Release cases.
The 500 Hour CHALLENGE program is for people with substance abuse histories and/or a mental health disorder. It is not much different than the Residential Drug Abuse Treatment Program (aka; RDAP). Both are conducted in a modified therapeutic community setting. RDAP not only enables the chosen few to obtain up to a year off the sentence, but it also has a (-6) minus six-point credit off the total risk assessment score. Challenge graduates are only credited one point.
The minimal (-1) PATTERN credit is also applied to the other, long term, intensive residential programs like BRAVE, SKILLS, RESOLVE, etc. What’s perplexing is a one-point credit is equally assigned to a short, ten-hour Adult Continuing Educational (ACE) course according to the draft BOP policy on PATTERN.
There are no (zero) PATTERN credits assigned in the substance abuse section of the assessment for the only mandatory drug program the BOP offers. Specifically, if a person is recommended by the court for a substance abuse program and/or substance abuse was involved in the instant offense or a violation of supervision; a person is required to complete the basic Drug Education Program (15 hrs.). Any other drug education program is voluntary. PATTERN provides a (-3) credit for a person who completes the Non-Residential Drug Program, ( aka: Non-Res.) and a (-6) credit for the RDAP.
Follow this logic.
A person arrives in prison and has no substance abuse history or a minimal substance abuse history not requiring the drug education program. Technically, they are required to receive a (-9) PATTERN credit for “no need”. I have seen many PATTERN worksheets without the (-9) credit upon reviewing actual PATTERN worksheets even though they were keyed in the computer under the SENTRY assignment for no drug program required. I have even witnessed a person without a substance abuse history who was penalized and re-scored from (-9) to (-3) who took the initiative to complete the Non-Residential DAP .
Criminal History (HX):
Even though DC Code Offenders PSR’s now calculate criminal history points, it appears from the dozens of BOP PATTERN scores I have reviewed that the BOP is using the criteria in their classification manual rather than the PSR to determine criminal history points for PATTERN. This is a bit longer and technical to explain but at one time DC Code did not have HX points in the PSR so the BOP classification policy formula was to score prior periods of “imprisonment”. In typical BOP fashion and indifference, I have seen several juvenile group home placements under the DHS scored as imprisonment.
The education scoring area discriminates against people with learning disabilities. If a person drops the GED because of a learning disability, the are scored in that area as zero points vs a (-2) credit for enrolled in the GED and a (-4) credit for completion of the GED.
Age: A heavily weighted scoring area on PATTERN is age. PATTERN decreases 7 points every ten years for people age 30-40, 40-50, 50-60 when at age 60 the scoring drops to zero points. A person at or near one of the ten-year thresholds does not receive a partial credit which may be the difference in the assigned risk level. For instance, a person who is age forty years old is scored with the same amount of points as a person who is thirty-one. There should be similar cut points for the older ranges as the less than age 26 category who are assigned thirty-five points while the age 26 to 29 are assigned twenty-eight points.
I will stop here on the more technical aspects of the assessment but there are more problematic issues than I have indicated. I would like to point out this analysis is based on my experience of analyzing several dozen BOP worksheets based on the draft BOP policy on PATTERN which has been circulating since pre-Covid but has not yet been approved and disclosed on the BOP website.
Like the disastrous soon to be released policy on the First Step Act pre-release time credits (aka: FTC); PATTERN is simply a flawed academic concept and failed experiment because it lacks the understanding of BOP programs policy and practices within the trenches of the system.
The issues described above are partly a result of no formal policy issuance for guidance and both advocates and federal justice professionals should scrutinize this policy once released. The agency must be pressured to release PATTERN worksheet scoring to people in prison the same as when they release the BRAVO classification scoring. This tool is insufficient and not designed for prosecutors to oppose release or the BOP to deny CARS ACT home detention for people susceptible to the virus. We are way past the time for legislators to demand some transparency and accountability of the agency by way of a formal, neutral Ombudsman.