Lessons learned

I recently came to the realization the best way to take this blog was to periodically cover the lessons learned during my work in the trenches of the Federal justice system as an advocate, consultant and reform freak. Going forward, I will focus on prison and legislative reforms while keeping an eye on what I refer to as “The NGO Mafia” and the “private prison industrial complex”.

Here are some observations and lessons learned during an action packed week in the Federal justice system.

My week started out with a trip to Virginia to testify in a “Miller” re-sentencing. The Supreme Court case of Miller vs Alabama overturned mandatory Life sentences for Juveniles, and then Montgomery vs Louisiana made it retroactive.

I was testifying in regards to the remarkable prison adjustment a now 34 year old had made since his confinement at the age of 15. In his adolescence he committed heinous crimes with mother and his adult brother, both who are serving Life sentences.

Given the evolution and study of brain development, the fact that this person was under the influence of his adult family members and his ability to excel as well as avoid assimilation into the prison subculture;, one would hope there would be redemption, compassion and common sense exercised in our federal judicial system. I am not an optimist when it comes to our justice system having served a career in federal prison environments involving daily interaction with thousands of people living in the system. That being said, I went to the hearing with the expectation of a positive outcome with the potential for a second chance. It was a 4 hour emotional hearing and many family members for two murdered victims provided the court with heart wrenching testimony about the impact the crime had on their lives. I have attended victim impact panels and victim trainings before but this was more intense than I had previously experienced. As each person gave their testimonial, my optimism waned. When it was all said and done, the judge imposed a 65 year sentence as recommended by the prosecutor. My perception was that the sentence was long determined before the hearing as the judge read from a prepared statement with a matter of fact demeanor.

You can call it a “second chance’ but this 32 year old will be 70 years old upon release. I have no problem with “punishment” but the mitigating factors warranted something more in the range of the defense attorney’s recommendation for 35 years.

Lesson: Punishment trumps mitigation in Virginia!

On Wednesday, I traveled to Connecticut to conduct prison related training for Federal Judges and United States Probation Officers. I was impressed with the progressive nature of the court staff and their focus on correctional treatment with a desire to better understand out Federal prison system. We travel all over the country to conduct this training and I am constantly reminded of the lack of understanding Federal prison culture, policy and nuances. A wall exists (no pun intended) between the courts, the prison system and the public. The frustration in this lack of accountability and transparency is apparent in my conversations with attorneys, court personnel, families and even law enforcement. It was refreshing to have a positive, upbeat dialogue with the court staff after the let- down suffered at Monday’s sentencing.

Lesson: Our Federal prison system needs to make a better effort on the education, responsiveness and transparency for court personnel and the public so people being sentenced can receive adequate correctional treatment and re-entry preparation.

At the end of the week, I came across an article in my daily reading that hit close to home and covered a point broader in nature which I had never given much consideration to. The Opioid and prescription drug epidemic has decimated both the urban and rural areas of our country where overdoses have skyrocketed. I worked in a Federal jail operation for many years and our saying was “3 hots and a cot”. It’s well known jail populations receive very little correctional treatment services which is a big issue when you consider the information contained in the following article:

Of course the downside to this is the further institutionalization of people with addiction issues; however, it is something to reconsider.

Lesson: More treatment options at the front end has the potential to be built upon during incarceration and could potentially create a safer environment and a reduction in recidivism.

 

Let’s have the DOJ re-create the wheel on Federal prison reform! “NOT”!!

I felt it was time for a 2017 blog and Deputy Attorney General Sally Yates’s remarks at Harvard’s Law School were the catalyst to set me in motion.

https://www.justice.gov/opa/speech/deputy-attorney-general-sally-q-yates-delivers-remarks-harvard-law-school-sentencing-and

My mantra has consistently been that many Federal prison reform initiatives can be accomplished under the existing policy framework through leadership, accountability and thinking outside the box. There is no need to re-create the wheel of bureaucracy which takes years to implement and in many cases requires new legislation. The academics, administrators and lawyers driving the reform bus have a limited understanding of BOP policy, culture and nuance. A perspective from the trenches is missing from the dialogue and that also includes the constructive feedback from justice involved people!

Two aspects of the deputy’s speech were troubling to me from a prison reform perspective.  The first quote is from the above DOJ link: (bolded for emphasis)

there were no uniform standards for the operation of these facilities, and BOP was not collecting good data about which halfway houses were performing well and which ones were not.  So last month, we took a number of steps to fix these problems, leveraging BOP’s purchasing power to impose standards, improve outcomes, and strengthen this private market.”

Having held assignments in the New York City Community Corrections office, the above statement floored me. The BOP has had extensive, uniform community corrections standards and policy for decades. There is also a “Statement of Work”, Operational and program review audit guidelines and a full time BOP contract oversight specialist.  Just refer to the below links and you can see the myriad of regulations:

https://www.bop.gov/business/docs/res_reentry_ctr_sow_2012.pdf

https://www.bop.gov/policy/progstat/7300_009_CN-3.pdf

https://www.bop.gov/policy/progstat/7030_001.pdf

https://www.bop.gov/policy/progstat/1210_023.pdf

You get my point.

So I wonder if the people who attended the Harvard speech think the BOP is just developing residential re-entry standards?  I’d also like to know if the Deputy AG is under this false impression from what someone at the BOP told her or did she come to that conclusion internally?

This boils down to my points on leadership, transparency and accountability. How could a person with such high stature not realize there are standards? I think it would be better if someone at the DOJ came to the realization that if the they just decided to disengage from private corrections companies then why are we contracting out halfway houses to the private sector? At upwards of $100 per bed, per day, I suggest we re-group on this entire concept of private contracting and come up with a better solution.

I can go on for hours with personal stories about companies like Esmore, Community First and facility scandals like the “The Le Marquis” in lower Manhattan.  Equally troubling is how the prison industrial complex has been pivoting to re-entry services. Bit I digress……….

The second concern from the speech was relative to the following quote: (also bolded for emphasis)

Last month, we announced that we are building a semi-autonomous school district within the federal prison system – one that will offer programs for adult literacy, high school diplomas, postsecondary education and expanded opportunities for individuals with learning disabilities.  Today, I’m issuing a memo to the director of BOP implementing these changes and laying the groundwork for expanded efforts in coming years.  Among other things, we’re launching a pilot project at two BOP facilities that will blend in-classroom instruction with online education, using tablets customized for the prison environment.”

A quick read of this sounds impressive for the average reform supporter but consider this. What is the definition of “semi-autonomous”? Does she really think a non-transparent, non- accountable agency like the BOP is going to relinquish control?

There is currently extensive educational policy and practices that can be expanded right now without this “school district within the federal prison”. It’s just another re-creation of the bureaucratic wheel where a majority of the money will go to staff positions. Of equal concerns is the “coming years” statement because everything mentioned regarding the educational goals is obtainable within the current policy framework already and who can predict what a future administration will do.

When I began working for the system in the 1980’ there were several universities with BOP partnerships delivering programing funded by Pell Grants.  I found it to be a great outlet for the population and the empirical data of educational programming in relation to recidivism speaks for itself. Check out some of the policies, the first of which was a focus on one of my recommendations to the Colson Task Force on Federal Correction.

https://www.bop.gov/policy/progstat/5353_001.pdf

https://www.bop.gov/policy/progstat/5354_003.pdf

https://www.bop.gov/policy/progstat/5350_028.pdf

While it’s usually fashionable to re-create the wheel and spend millions for consultants to tell you so;  (Hence the Colson Task Force, Boston Consulting Group, etc.), I argue for strong leaders who can think outside the box while prioritizing education and re-entry to an equal footing with institutional security. In fact, public safety, staff safety and institutional security benefit by meaningful education and re-entry programs which occupy idle time, give people a sense of self- worth and help combat recidivism.

While the right/left coalition lick their wounds from the election, let’s hope President Trump can walk the walk and immediately implement change in the Federal prison system by selecting a new director who is a true leader outside the BOP culture who will consider expanding the possibilities under the existing policy framework.

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.

 

 

 

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.

Mr. President, please hear the voices of people from the trenches who have served the government but also those who have served time!(Before you pull out the pen)

Just about every day, there is yet another article on criminal justice reform. Just today, we read about the video released by the Whitehouse regarding the president traveling over the next few weeks to speak with leaders around the country.

While it all sounds great, the president may truly be missing the mark if relying mostly on the feedback of “leaders”. After retiring from the DOJ, it is my experience that it is the “Leaders” who have the most distant perspective from reality when it comes to prison reform and what is really happening at ground level. It is the forward thinkers working in the trenches of our prisons and our people (yes people) who have served time who have a pulse on the system, quality of services and what it will take to accomplish reform. Where are these voices when it comes to ownership and having a seat at the table when “Blue Ribbon” Commissions and task forces are formed?

It’s a great photo op and sound bite when people who have served time are briefly paraded in front of the “leaders” to testify, but where is their seat at that same table? There is a greater need for the stakeholders to be more than just NGO academics, lawyers and lobbyists from within the beltway to drive the reform dialogue. Actually, it is more than just a need for even policy and legislative change. It is equally important to understand and change organizational culture by listening to people who have no ulterior motives or organizational biases and/or filters.

I am concerned on two fronts regarding the recent developments and desperation on Federal crime bill legislation. Both concerns are equally troubling but typical given the dysfunction, mainly status quo, within the beltway.

My first fear is the president will sign anything which makes it to his desk, regardless of the efficacy to fulfill his legacy. My second concern is this climate of desperation, money and lobby groups controlling politicians have finally convinced hold outs to jump on board to move substandard, compromised legislation.

As the companies controlling the prison industrial complex read the writing on the wall, it makes perfect sense for entities like ALEC to pivot from obstructing prison reduction legislation and lobby for bills offering millions for re-entry programs and services. I would imagine the GEO Group and CCA are salivating on the potential of obtaining correctional treatment related contracts where overhead is low and profit is extremely high.

Excuse my pessimism; but as I close my eyes and cross my fingers for a meaningful, comprehensive Omnibus Crime bill, I have a few questions for those within the beltway:

Does anyone remember the Colson Task Force on Federal Corrections? Though I have limited faith in Blue Ribbon Commissions, why would legislation get passed without Colson Report findings when 1 million dollars was just spent to study the BOP, legislation and population reduction?

With such a large BOP bureaucracy and mandate to offer correctional treatment and re-entry services prior to release, why are we allocating so much money to programs which are supposedly already being delivered by paid government workers and current contracts?

What do you tell the people incarcerated and their families who don’t meet the restrictive criteria to be eligible for the extra good time awards and other benefits?

Why does the Sentencing Reform and Corrections Act automatically exclude many types of offenders for political expediency regardless of looking at the underlying causes of the criminogenic factors?

Perhaps the most important question is why have we not taken full advantage of the reforms under the current statutory and policy framework which could be implemented immediately through LEADERSHIP?

As the Sentencing Reform and Corrections Act, SAFE ACT, CORRECTIONS ACT, Reauthorization of the Second Chance Act, Justice Safety Valve Act, Redeem Act and others compete for passage, I hope we won’t look back at this perfect climate of the right/left alliance as a wasted opportunity by passing something as short sighted as the Sentencing Reform Act of 1987!