I have written a monthly blog for the Sentencing Partners Newsletter for the past two years and thought I’d start to post them to my blog. Below are the past few articles including some hot off the press info I just received from inside. Enjoy…….
Federal Time Credits-Down Memory Lane
A few months back, I indicated I was going to track the months that have elapsed since the BOP internally circulated a draft program statement entitled, “ First Step Act of 2018-Time Credits: Procedures for Implementation of USC 3632(d)(4). I am unaware of any specific changes that have evolved in the past thirty-two months aside from what I am experiencing firsthand within the trenches of the system. It is unfortunate I am not able to report that the SENTRY and INSIGHT systems have been fully integrated and operational. While the BOP is on record indicating an August first activation, I doubt anyone is surprised given the agency’s record of accomplishment. Prior to this article, I reviewed my First Step Act file so I can provide a summary of the FTC and related issues in advance of the imminent system integration.
The FSA was implemented over a two-year phase in period and the BOP was required to meet several deadlines ending in the “application” of FTC in January of 2022. The FTC chaos ensued from the very beginning when the BOP made drastic final rule changes for implementation compared to the proposed rules due to public outcry. During the phase in period, the agency had not been tracking credits for the period in which they eventually decided to award in the final rule. They then applied large, FTC awards up to one year to people who had not completed any programming or productive activities. I received several calls at that time from people who were astounded that they were awarded a year and released even though they had not participated in programs. At the same time, I received as many calls from people who completed numerous programs but were not awarded any credit. I attribute this chaos to the lack of policy and the inability of the agency to have an automated computer system for tracking. BOP staff were equally confused but the common statement I heard was, “We are tracking it through the back door, but it’s applied in the Central Office”! There was also finger pointing between the facility, Office of Research and Evaluation (ORE), The Office of Information Technology (OIT), The Correctional Programs Branch and the Designation and Sentence Computation Center. Technically, this only involved two of the ten BOP divisions as the DSCC is under the Correctional Programs Division and ORE/OIT is under the Information Policy and Public Affairs Division referred to as IPPA.
It took me weeks to determine how the agency was awarding FTC because of the confusion and inconsistent application around the country as well as the BOP’s practice of governing by internal memoranda. One of the first major issues from my perspective was the automatic link between the application of FTC and the SPARC-13 ( FSA-Risk and Needs Assessment). If a person failed to submit FSA related Trulinks surveys or refused recommended FSA programs, they were automatically ineligible for the FTC to be applied. This is still happening and is disturbing because thousands of people are in refusal status who do not even realize it. The ramifications of refusal are not limited to the people eligible for the credit because prosecutors and judges reviewing compassionate release petitions are considering refusals as a negative factor. I have yet to determine how a refusal may impact other non-FTC incentives.
The PATTERN recidivism risk and needs assessment has also proven to be problematic in this equation because if a person does not have an excludable current or prior offense, they must have a minimum or low recidivism risk assessment for the FTC award to be applied. PATTERN is now in its fourth revision which the BOP began using in May of this year and many people have received a higher recidivism risk levels compared to the previous version of the algorithm. Transparency is an issue with PATTERN because most facilities are not providing the actual scoring sheet for people to verify the accuracy. It is exceedingly difficult to administratively appeal a PATTERN score without being able to attack any of the fourteen data points. I have reviewed hundreds of PATTERN worksheets and often find errors in criminal history scores which have a significant impact on the overall risk level. The other major issue is the application of the drug program scoring relative to inconsistent DRG assignments.
In recent months, the Correctional Programs Branch has provided staff internal guidance, clarification and how to respond to inmate requests. Last week, I read a cop out response from a Warden that referred to an internal memo from Susan Giddings, Chief-Unit Management Section of the Correctional Programs Branch. I am going to assume it was relative to guidance that listed five conditions which can make an eligible person ineligible including : Detainers, No Supervision Imposed by the Court, Deportation Order, FRP -Refuse, and Medium or High recidivism risk level. On April 29, 2022, she submitted a declaration in Case #1:22-cv-00294, ND/AL, Eastern Division (Robert S. Stewart, Jr. v Warden FCI Talladega) which identified an incorrect calculation of a person’s FTC and explained some of the FTC process with an assertion the new system would be operational within 90 days.
The most recent chatter is that people under twenty-four months from release will only have the credit applied to “pre-release” credit, aka: RRC/HD. The next issue which I perceive is relative to contract capacity quotas. It takes many years and money to build out the RRC infrastructure. For those of you who are unfortunate to be incarcerated since the Second Chance Act, the many initial twelve-month RRC placements after the law was passed ended rather abruptly due to contracted quotas.
UPDATE: On September 8, 2022, the inmates received a Trulincs communication indicating the system was operational and time credits would first be applied to the release date until “365 days were accumulated, or they are at 18 months from their release date whichever happens first”. At this point, the release date is fixed, and the credits will be applied to towards RRC/HC placement. There are other interesting tidbits in there as well so stay tuned………
AUGUST ISSUES (FTC/IFRP)
It has been quiet on the Federal Time Credits (FTC) front over the past month. There is little to report other than I spoke to a BOP person who was informed the Office of Research and Evaluation (ORE) was having a difficult time with the system integration and they anticipate a lot of administrative remedies once implemented. I was also informed about a case that recently transferred to the RRC and during transit, they were awarded time credits that resulted in a past release date. When the person arrived at the RRC, they were rejected because the system would not allow them to be admitted because the sentence computation was closed. This was an undomiciled person, so probation needed to immediately process a public law placement. For those dinosaurs who worked with or served time under the old law, a public law placement refers to a parole condition to reside in the RRC for people who had no place to live. Under the new law, the USPO modifies the terms of supervised release with the court which can only be done if the person waives the right to a hearing. In true BOP fashion, the facility was never notified by the DSCC about the case when they awarded the credits. My confusion on this issue is that the rule published in the register allows the agency discretion to begin supervised release early or award it as “pre-release custody.” The only other thing to report is I am still hearing from attorneys that prosecutors and judges are identifying the “Refusals” keyed in SENTRY regarding the SPARC-13, Risk and Needs Assessment. Anyone submitting a petition for early release under any law should correct such entries before they file. I am not holding my breath for a seamless federal time credit implementation in August!
On the PATTERN front, the BOP finally posted the new PATTERN data points on their website. I was informed that since the algorithm was updated, even the case manager cannot print the specific worksheet with the points breakdown like they could under the past version. I am hoping this is a temporary glitch because it is difficult to file an administrative remedy if you cannot attack any specific scoring area. Something I have not written about in detail, which impacts the algorithm, are the SENTRY drug program (DRG) assignments. This was one of the recent changes in the algorithm which went from a minus (-9) to a minus (-6) credit for “No Need” in block 8 of the PATTERN worksheet. The “need” for drug treatment can be interpreted in different ways and is not clarified in any First Step Act related policy. It is covered in a policy draft which I have reviewed and found confusing. I can devote a future article on the drug program and get into the layers of this issue, but it is beneficial for one to know what specific “DRG” assignments are keyed on their Inmate Profile transaction (PP44). My experience reviewing PATTERN worksheets has been that people are not credited the correct number of points in this line item which has a significant impact on the recidivism risk level. The newest PATTERN version is the fourth revision and is more conservative than previous versions.
I am going to end this article with a few complaints I received about the recent guidance facilities have received regarding the collection of court ordered financial obligations through the Inmate Financial Responsibility program (aka: IFRP). While it is early in my research, it appears the stimulus checks have caused a greater collaboration between the U.S. Attorneys office, Financial Litigation Unit (FLU) and BOP administrators. While the BOP case manager has broad discretion on recommending a specific payment plan, I am hearing disturbing information about people’s trust fund accounts being “garnished” beyond the policy repercussion of IFRP Refusal covered in Program Statement # 5380.08, Financial Responsibility Program, Inmate. After a preliminary review of that policy and Program Statement #4500.12 Trust Fund/Deposit Fund Manual, I find no such authorization, process or guidance about account garnishment. I need to assume (at this point), it is an overreach of the agency’s discretion. The Trust Fund Manual is an often-overlooked policy but has significant information on commissary, telephone (Trufone) and email (Trulincs) procedures.
THE NEVER-ENDING SAGA OF FEDERAL TIME CREDITS
We are just under a month away from the alleged system integration to automatically process federal time credits. I have witnessed inconsistency in the application of credits thus far and have been told by insiders the of SENTRY and INSIGHT will limit the amount of time credit awards. Thus far, manual time credit awards have been liberal for the chosen few who do not have an underlying or prior excludable offense as well as the other restrictions such as detainers, FRP Refusal, etc.
I have many questions from a case management perspective based on the language in the final rule such as: Are awards applied only for the programs recommended in the SPARC-13? What is the process and maximum placement period for “pre-release” custody referrals once the twelve-month award to early supervised release is attained? How does the BOP computer system automatically deal with the residual clause issues for excludable prior offenses? Below is some cut and pasted language directly from the final rule that has led me to raise these questions: (bolded by me for emphasis)
Rule: “For every thirty-day period that an eligible inmate successfully participates in EBRR Programs or PAs recommended based on the inmate’s risk and needs assessment, the inmate will earn ten days of FSA Time Credits.”
Comment: A program may be listed as approved for credits but may not be applied unless it is identified as a risk area (SPARC-13)
“The application of Time Credits would not result in starting the period of supervised release more than 12 months before he or she would otherwise be eligible to do so (i.e., any amount of earned Time Credits in excess of 12 months would be applied to prerelease custody). See Nathan James, U.S. Congressional Research Service, The First Step Act of 2018: An Overview (2019), at 5-6”
Comment: People serving long sentences will theoretically earn the full year as early as approximately twenty-six months from designation provided they maximize credit awards as allowed within the law. At that point, additional time earned will mandate the BOP to provide “pre-release custody” (i.e.: RRC/HD). Because RRC contracts are based on financial contracts with limited bed quotas, how long before all the contracted beds are completely full? I vividly remember the early days of the Second Chance Act when twelve months referrals were liberally awarded until there were no longer any beds. I can only hope the funding for additional contracts was provided already because it could take years for contract opportunities to be advertised and awarded.
“The Bureau is cognizant of the strict categorical analysis required by the Supreme Court in adjudicating whether an offense meets the elements or residual clause of 18 USC 3559. As such, the Bureau after consultation with the Department of Justice will ensure that its facilities receive updated information as to which federal and state offenses qualify or are the subject of litigation and that inmate records are updated to ensure maximum participation in credit-earning EBRRs.”
Comment: While the BOP has historically penalized people for prior violence in the BRAVO security level classification system (BP-338) by including non-violent convictions as violence, it will be interesting to see how this plays out in court as this practice may now impact the earning of time credits. This is going to come down to how/if the computer system integration excludes people from earning credits based on a data point. For instance, currently people with “detainers” cannot be awarded credits, however; the BOP enters a detainer in the SENTRY data base even a detainer is not formally lodged. What is disturbing in this regard is that ancient PSR information such as “UNKNOWN” dispositions are used to justify the detainer entry. This is a bigger issue than most people realize and is sure to cause confusion and litigation. Be aware in the past few weeks, the BOP created case management assignments (aka: CMA’s) for detainers aside from the routine tracking methods in SENTRY.
“Deportable inmates: As the FSA also indicates in 18 U.S.C. 3632(d)(4)(E), an inmate who is subject to a final order of removal under immigration laws as defined in 8 U.S.C. 1101(a)(17) may not have FSA Time Credits applied toward prerelease custody or early transfer to supervised release under 18 U.S.C. 3624(g).”
Comment: Many, if not most, non-citizens do not have the opportunity to get the final order of deportation until the very end or even after the federal sentence expires. So, if the person is not ordered deported, they are simply cheated out of the time credits that could have been applied. Let us hope the agency expands the Institution Hearing Program (IHP) so people have hearings near the beginning of their sentence. My experience is that many non-citizens are detained and sent to the private prison industrial complex AFTER the federal sentence expires.
On the PATTERN front, the new scoring criteria implemented in May is certainly causing many people to have elevated risk levels. This means an increase in a level can limit or totally prohibit time credit awards. The BOP continues to publish the old scoring criteria on the website ands case managers tell me they cannot even access the new scoring data points as they did in the previous version. Next month I will focus on the Inmate Financial Responsibility Program as “FRP Refusals” are prohibited from earning credits plus it seems like ethe BOP has been ramping up collection efforts.
PATTERN Changes Approved by DOJ & the FSA Implementation Saga Continues
I had written a few months back about the recommended changes to PATTERN contained in the December 2022 report entitled “Attorney General’s First Step Act Section 3634 Annual Report” . In April, the DOJ released another report entitled “First Step Act Annual Report” with the approved changes, but the recommended cut points changes for the specific risk levels were different than the December report recommendations. It does not appear the BOP implemented any of these changes until early May.
As of May 30, the BOP website continues to post the previous PATTERN worksheet and cut points in effect before the changes. Based on my scoring of PATTERN assessments over the past few months and feedback I am getting from the incarcerated; a significant number of risk levels have increased. I have criticized this tool for how heavily it weighs incident reports and even though one of the changes removes the incident report scoring on line twelve (Time Since Last Incident Report), PATTERN still includes three other line items which score incident report behavior. Academics, algorithms, and high-level administrators simply do not understand or are indifferent to what happens in the trenches of the system. I have seen cases at the margin have their risk level increased from low risk ( incentive eligible) to medium risk (incentive ineligible) based on one moderate incident report for having a piece of spoiled fruit on a locker.
This insanity gets to the core issue of the concept of “overrides. PATTERN takes most of the data from what is referred to as the “BRAVO” tool (Bureau Risk Assessment Verification and Observation) in the SENTRY data base. Most people know the BRAVO tool as the BP-338, while old timers might remember it as the “BP-15”. BRAVO was modified several times since development and a community risk assessment was eventually included based on the four “custody levels.” BOP custody levels are Maximum, IN, Out and Community. I view the four PATTERN risk levels similar as custody levels and the government simply could have made minor modifications to BRAVO to accomplish the goals of PATTERN. My point of emphasis is that BRAVO had an override where staff can look at the individual circumstances and characteristics of a custody classification and override the algorithm. PATTERN has now evolved to a case manager pressing a button at the six-month program review and the risk level is automatically calculated and etched in stone. The bureaucratic recreation of the PATTERN wheel (now in its fourth revision in two years) makes absolutely no sense from a practical correctional treatment perspective.
I sometimes try to defend the BOP to justice professionals and explain that it was a progressive agency in the late 1980’s. I use the analogy that we had people with medium security issued gate passes and even participating in furloughs simply because staff used professional correctional judgment to override the BRAVO algorithm and approve out, then sometimes community custody based on the individual circumstances, etc. Based on the concept of custody classification, there is no statutory agency prohibition from operating a viable work or study release program even from Federal prison camps.
On the Federal Time Credits front (FTC), I continue to receive complaints from people about not being awarded time credits. It is difficult to determine how far out the BOP has adjusted computations and there is still no program statement on the awarding of credits or a single, integrated program transaction to print something like an individual good conduct time computation. (not to be confused with a sentence computation) As of this article, I am going to start documenting the time that has elapsed ( 30 months) since the program statement draft entitled, “First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4)” which was circulated in December of 2019. It is difficult for me to comprehend the lack of oversight, transparency and accountability by the DOJ on such an egregious policy issue.
While the word is getting out about submitting the incomplete TRULINKS surveys to correct the refusal entries in SENTRY for the SPARC-13, I continue to hear of judges referring to the refusing of programs in their decisions to deny compassionate release requests. Prior to submitting a compassionate release application, people should check with their case manager to determine if they are marked as refusal in any of the thirteen areas.
Three new BOP policies were issued in April including, Managing of Aging Offenders (5241.1), Management of Inmate Veterans (5242.01) and Parenting, Children and Families (5355.04).
FIRST STEP ACT TIME CREDIT UPDATE & OTHER INCENTIVES
Last month, I emphasized the need for people to check with their case manager and ask if they have been keyed as “Refuse” in any of the risk & needs assessment areas in the SPARC-13. SPARC stands for the specialized prisoner assessment for reduction in criminality. I have learned some new information since last month’s article after receiving complaints from people less than two years from release but were not yet awarded any FSA time credits. I am also going to cover some other FSA incentives because most people are ineligible for the credits which is a flaw in the law and discriminatory in my humble opinion.
Since the implementation of the FSA, there have been several surveys sent to the inmate population via the Trulinks system. If a person did not complete every survey, the computer automatically defaulted to “Refusal” in one of the SPARC-13 areas. I am told there were five different risk/needs areas involved with the surveys and the most common refusal I see is for “anti-social peers.” The policy entitled First Step Act Needs Assessment (5400.01) indicates the specific institution departments that are responsible for a particular risk/needs area. For instance, the Psychology Department is responsible for the anti-social peers area. While a case manager can tell a person they have a refusal in that area, it is the specific department that would need to correct it.
Yesterday, I received an email from a person who was notified that he was being immediately released because we finally figured out (unknown to him) he had multiple refusals for not completing the surveys. The week before, I had contacted the DSCC and was informed his time credits had been “calculated” correctly. While they did not offer any additional information, that led me to determine the credits were calculated but not “applied.” Once the refusals were removed, it took about five business days for the time to be applied and the computation corrected. It is my understanding a staff member from the department responsible for the area of the refusal can change the assignment in the Insight computer system and it will automatically populate in SENTRY which is a different computer system.
While the BOP continues to work on integrating the two computer systems, they still have not issued a program statement on the credits issues while a lot of ignorance and finger pointing is going on internally. I am usually tempered in my BOP criticism, but the things I have been seeing lately are concerning. I spoke to an attorney who was told by a DSCC staff member that they had nothing to do with the credit and blamed the BOP central office. Case managers are equally either disinterested or are ignorant and not being notified of the specific status of the implementation. An executive staff member told me this week that there has been no recent internal guidance and a general sense of confusion among staff at the institutional level. To make matters worse, I was informed of a compassionate release denial for a DC Superior Court person and the judge referenced the multiple “refusals” which listed on the BOP profile.
Other FSA incentives are listed in program statement, 5220.01, First Strep Act program Incentives. Below is some interesting content directly quoted from the policy:
“PHONE AND VISITATION PRIVILEGES.—A prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive— (A) phone privileges, or, if available, video conferencing privileges, for up to 30 minutes per day, and up to 510 minutes per month; and (B) additional time for visitation at the prison, as determined by the warden of the prison.
TRANSFER TO INSTITUTION CLOSER TO RELEASE RESIDENCE”
I have taken issue with this incentive ever since I saw it in the draft legislation because there are so many conditions including “population management” which is the sole reason people are not approved for nearer transfers in the first place. I am recently seeing transfer denials for population management, and low security people being housed in medium security facilities for the same reason!
In addition to additional phone/visitation privileges and nearer release transfer consideration, the Bureau has approved other achievement awards that must be available at every facility.
“FSA achievement awards. Inmates may earn a limited financial award to offset time lost from work as an additional incentive for successfully completing particularly intensive EBRRs in areas where they have identified needs. Trust Fund staff will receive a monthly roster of inmates who have completed a single EBRR program worth 100 hours or more from Central Office Systems Development Branch for this incentive. Preferred housing. Wardens may establish preferred housing units with the approval of the Assistant Directors of the Reentry Services and Correctional Programs Divisions and their respective Regional Director. The Getting Ready for the Outside World (GROW) special mission unit promotes the acquisition of reentry skills by directing participants towards the reentry areas and programs most critical for them, and is likely to be quieter, well maintained, and include a cohort of inmates focused on personal wellbeing and growth. Wardens may also allow inmates to request a specific unit on the compound as preferred housing.”