Déjà vu all over again?

I have tracked the various criminal justice reform bills for decades from a unique perspective inside the federal prison system. Each time, it’s the same old song and dance. First come the press releases; then rumors run rampant with the prison population while NGOs and politicians raise money for all the “wonderful work” they are doing regarding reform.  Families then celebrate and people within the system line up at the door for release. The last phase of the process is disappointment when nothing comes to fruition as everyone waits to repeat the vicious cycle. Is this time different?

We have been at this juncture many times before with high expectations. It is easy to get caught up in the hype given social media and especially after the barrage of stories and press releases last night followed by the statements made by President Trump. While I usually cry foul at this time, I’m willing to finally say there is a small chance something will get passed in the lame duck session but that’s about as far as I am willing to go.

I am writing this article to briefly clarify where we are at in the process to combat rumors within the prison population and provide a sense of reality to the false expectations I am already hearing.  My Corrlinks is lighting up as we wait for the final compromise draft so I’m basing this article on the First Step Act as passed in the House and the statements released by the various politicians and advocacy groups in tune with the process.

The First Step Act (FSA) as passed in the House was dead on arrival in the Senate because it lacked the front end reforms (referenced below) in the Sentencing Reform and Corrections Act (SRACA) sponsored by Senator Grassley. This caused a rift in the advocacy world between the front end and back end reformers. At this point, the breakthrough agreement is a compromise solution to combine the bills to include both front end (sentencing related) and back end (prison related) measures.

As a BOP insider, I (nor the BOP) are fans of the way the back end measures are written from a practical policy perspective. The same word continues to come up when speaking with the BOP and the word is “convoluted”. While it’s premature to get into the weeds of each prison issue; they generally revolve around incentives for new, evidenced based educational and vocational programing, a new risk assessment tool, extended RRC (aka: halfway house) placement for earned good time credits and the correction to the way the BOP calculates good conduct time to every year sentenced vs served (54 from 47 ). Aside from the potential for retroactivity to this recalculation, the remainder of the back end measures will take years to implement.

The BOP must first “develop” a new risk assessment tool and has one year to develop it after the bill is passed. In addition, the programs already completed prior to the passage of the bill are not credited for the additional good time credits. Overall, the BOP is given far too much discretion on who receives the credit and/or incentives.  Those of you who remember “The Jason Chaffetz bill” might remember how it came under attack by the Federal Public and Community Defenders for being discriminatory. People should not be punished and awarded more good time based on their crime. The sentence is the punishment and it is the unequal treatment of people in the system that might serve a political sound bite but its the same flawed “tough on crime” logic that got us this Jim Crow incarceration nation to begin with!

What most politicians fail to realize is that the BOP does not have the bed space capacity for longer RRC placements to begin with, which is one of the major incentives regarding the extra good time credits. The current infrastructure has not even be able to Honor the intent of the Second Chance Act of 2007, plus the contracting process for additional beds is a complicated and a multi-year process. While all these measures sound practical to politicians, they are not.

The much needed front end measures as reported include:

Eliminate the “924 stacking” regulation making it a federal crime to commit a federal crime while you have a gun

Eliminate “three strikes” and you’re out mandating that three-time offenders receive a life sentence. Expand “the drug safety valve” to allow judges to make an exception for nonviolent drug offenders when it comes to mandatory minimum sentences.

Make the “Fair Sentencing Act” of 2010, which reduced the sentencing disparity between offenses for crack and power cocaine, so that pre-2010 offenders have the right to retroactively seek a reduction in sentencing.

Let’s hope the front end measures referenced above remain intact while someone brings some sanity to the BOP related measures which is unlikely. Senator Mitch McConnell has already made some cautionary statements regarding the ability to get the legislation through this session given other priorities while some democrats feel they may be able to get a broader bill when they take control of Congress.  That may be the best curse of action so stay tuned……

Dear Mr. Kushner

It appears the recent rumblings within the political landscape of justice reform have led to a potential compromise bill in the Senate looming for September. I’ve watched various reform bills since the 1980’s and can honestly say this is the first bill even remotely close to passage. I’d like to thank you for your efforts in keeping reform in the sights of the administration but also challenge you to think outside the box of the “Right/Left Coalition”, academics and advocates inside the beltway.

From a practical perspective, a Senate compromise bill must have meaningful reforms like the expansion of the safety valve provisions, making the Fair Sentencing Act (FSA) retroactive and reducing some of the more draconian mandatory minimums, especially clarifying the “stacking” in reference to 924(c). These “front end” components included in the Sentencing Reform and Corrections Act (S.1917) were omitted in the First Step Act (H.R.5682) which has caused consternation among many in the advocacy world.

Now that the FSA has been passed in the House, the Senate has the choice to put lipstick on a pig or seize the momentum and be known as the Congress that facilitated a turning point in our nation’s history by replacing the incarceration nation with a more effective and equitable justice system and correctional treatment model. This balancing of sentencing reform and practical prison reform measures can lead to safer prisons and communities by providing the training, education and treatment our marginalized populations deserve in the broader spirit of reformative justice.

I have attended many of the Senate Judiciary meetings on reform over the years and have been a strong opponent to the BOP-prison related reforms as written; mainly the time credit provisions. My criticism stems from my direct experience of over 3 decades working in the trenches of the system with the incarcerated. While Senator Grassley should be commended for being steadfast by insisting on front end reform measures, deeper thought is needed on the prison related aspects of reform legislation.

I beg for circumspection of the current bills which are inadequately written, discriminatory and will take years to fully implement. The prison related measures are not only cumbersome from an administration stand point, they create more bureaucracy and give the Federal Bureau of Prison’s far too much discretion in accomplishing the intended goal of recidivism reduction. I speak on this issue with authority going back to the “Old Law” where people were eligible for release on parole at 33% of their sentence. Below I will frame a simple, practical and cost effective legislative measure that could literally be implemented over night and hope you or someone in the administration has the vision and courage to consider it as a viable alternative to what is currently proposed.

Something that has flow under the radar from July was House Resolution 933 which acknowledged the “War on Drugs has been a failed policy in achieving the goal of reducing drug use, and for the House of Representatives to apologize to the individuals and communities that were victimized by this policy.” While I don’t believe apologies are necessary, this concept helps me better explain the needed good time fix and correctional treatment emphasis in context for reformers, academics and politicians who are not directly involved with prison administration. I commend the people with the administration’s ear like CUT#50, professional athletes, entertainers, and academics but I also believe they are missing practical feedback from a policy and implementation perspective when it comes to both the good time solution and evidenced based correctional treatment programs.

I think most reasonable people will admit the war on drugs and more importantly, “Truth in Sentencing Laws” have been an overall failure especially in regards to our inner city populations. If someone committed a federal crime on October 31, 1987, most sentences had parole eligibility at 33 % of the term and even Life sentences had parole eligibility in 10 years with a 30 year mandatory release date. If that same person committed a crime the day later, on November 1, 1987, they would be required to serve over 85 % of the sentence while the Lifers all will die in jail because there is no longer good time for Life sentences; even for the non-violent drug offenders.

Truth In Sentencing Laws have not only failed our communities but they have created more dangerous institutional environments for staff and the incarcerated because they removed the previous incentives for people to maintain clear conduct and participate in correctional treatment programs. What’s equally troubling is that many of the Lifers who are now elderly are no longer a risk to the community and incur enormous financial costs to tax payers as they age. The overall net gains of truth in sentencing laws were a windfall for, and expansion of, the prison industrial complex, less safer communities, the deterioration of the family unit and for creating the world’s leader in incarceration per capita.

What is needed is simply the return to the normalcy of the “Old Law” (pre 11/1987) good time system which is fair for all sentenced people, allows for safer institutional environments and has incentives for correctional treatment programming and good behavior. The older justice professionals reading this might recall a time in the 1980’s when the federal prison system was a progressive and often emulated penal model. When people participated in programs and earned the maximum amount of what was referred to as “extra” and “statutory” good time, they released to community supervision at approximately 66% of the sentence imposed, provided they maintained clear conduct.

Let me be clear that I am NOT advocating for returning to a parole system (33 %) or an increase in the US Parole Commission bureaucracy! I am only suggesting a return to the middle ground solution and historical normalcy of the good time procedures (66 %) prior to the failed war on drugs (85%).

There are still “old law” people incarcerated in the federal system so the policy, training and overall infrastructure is present for immediate implementation. There is even an assessment tool with static and dynamic factors which can be quickly modified vs the proposed years it will take to study and “develop” a new risk assessment tool. The current proposed time credits under the various crime bills circulating in Congress attempts to re-create the wheel in a convoluted way, giving the BOP far too much discretion on implementation; but more importantly, it discriminates against people of color. In addition, the bills place too much emphasis on single, magical recidivism reduction programs over the individual’s correctional treatment plan and their criminogenic factors.
People are sentenced to prison for the severity of their crime and should not be further punished with the unequal awarding of good time credits simply because it fulfills a political “tough on crime” soundbite as the “war on drugs” did! We need to return to a fairer system with a better balance of treatment vs punishment and that starts with a restoration of sanity to the previous good time system, staffing our prisons appropriately at the treatment level along with more accountability, transparency and responsiveness by the Federal Bureau of Prisons. Many other progressive federal prison reforms can also be accomplished by broadening the existing statutory and policy framework.

While a risk assessment tool and evidenced based programs referenced in the SRACA and FSA are needed; academics and politicians must be aware that incentivized individual programs create waiting lists, manipulation and frustration while academic tools are far less effective than meaningful interaction with correctional treatment professionals once the agency is appropriately staffed to accomplish the mission of unit management as intended and defined in national policy.

I would be happy to come by your office and meet with you or your staff at your convenience to explain these concepts in greater detail.

Sincerely: Jack T. Donson, A Passionate Prison Reformer

Time to rant (Only for serious reformers)

I  always wonder who writes these crime bills and the First Step Act (FSA) is no different.  After reading the flavor of the week, I just need to remind myself there is no reason to get upset because it’s just more beltway dysfunction. While the FSA is actually worse than most of the recent legislation, it has managed to get passed in the House. My DC union connections have assured me it is DOA in the Senate which provides some comfort.

Let’s hope the FSA is just one of the many other head fakes we have experienced in the past few Congresses. I’m going to do something different in this blog by providing some technical information about the bill’s deficits which I recently sent to the BOP. It’s a longer, technical read  and will debate and/or explain the merits of the content with anyone, anytime, anywhere!

The FSA makes me reflect back on the Inmate Skills Development System (ISDS) which was recently discontinued because of its ineffectiveness after many years of implementation and costs. This bill is going down the same road with the new “risk assessment tool”.  It’s also discriminatory, underfunded and gives the agency far too much discretion.

It is obvious the authors never worked in or served time in a federal prison classification or treatment setting or have even a basic understanding of agency policy. My disconnect with this legislation is most of the intended goals can be better accomplished at far less cost with a much quicker implementation under the existing statutory framework aside from the good time fix.

Risk Assessment Tool: (Here’s where it get’s technical)

Rather than developing an entirely new risk assessment tool; the current BOP risk assessment tool in the computer system known as “SENTRY” can be modified. The tool known as the “custody classification form” (aka: BP-338) already includes dynamic factors which are referred to in this bill. This tool can be modified to obtain the objective rather than putting the time and resources into the development of a totally new tool which would be unfamiliar to the agency.

When I speak to advocates inside the beltway regarding this tool, they are either unaware it exists or are under the impression that it only includes static factors. That is evident in The Leadership Counsel letter because they are concerned about using the BOP tool. They are simply incorrect because the BP-338, Custody Classification transaction is predominately dynamic factors. They must be confusing it with the BP-337 which is static. Although the initial security designation tool (aka: BP-337) includes static factors, the yearly classification review process (BP-338) includes mostly dynamic factors which are used in other tools nationwide. These dynamic factors determine a recommendation regarding “custody” with the treatment staff having the final determination on the outcome.

Without getting too much into the “weeds” of custody classification; 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 with only minor modifications to the existing SENTRY program. This bill assess risk as minimum, low medium and high which will totally confuse the agency because of the 4 level security level system.

To better understand this concept, one must understand the historical perspective. In the 1980’s, before the wide adoption of satellite camps, inmates who were classified as 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 custody system (1 through 6), with custody levels 5 and 6 being the equivalent to today’s high security.
Even inmates with custody level 4’s and 5’s were able to obtain gate passes because their risk level 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 current BP-338 “tool” recommended a reduction and it was approved by the unit team.

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 he 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 certain 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”.

Real Case: For instance, I can recall an Aryan Brotherhood member who actually killed someone but was eventually 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.

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, 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.

Ineligible Prisoners:

Similar to Sec.407- of HR 3356, there is section on page 12, par. 13 (D) which contains a list of crimes which are excludable. This 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?

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.

Elderly Offender Pilot changes and extension of the Second Chance Act:

Sec. 403, page 55, par. 8 extends the EOP and changes some criteria. This is confusing because some of the criteria have already been incorporated in the revision to the BOP’s compassionate release policy, some which is actually more liberal than this suggested change.

Compassionate Release, PS # 5050.49: The language in this bill further confuses this specific policy issue with differing criteria.

“b. Elderly Inmates with Medical Conditions. Inmates who fit the following criteria:

■ Age 65 and older. ■ Suffer from chronic or serious medical conditions related to the aging process. ■ Experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility. ■ Conventional treatment promises no substantial improvement to their mental or physical condition. ■ Have served at least 50% of their sentence.”

What is more practical here is to attempt to get the BOP to simply comply with the existing policy rather than expanding and reactivating the pilot which never reached its intended goal. To do this, we can:

1) Mandating the agency to refer cases who meet the program criteria to the sentencing court for a final determination unless the agency can demonstrate/document a credible risk to the community (with input from the USPO).

Example: I once referred a person to the original SCA pilot program who was denied for a “risk to the community” by the BOP-OGC yet the person was housed in a camp, worked alone at night snow plowing the grounds and roads up to the community road, and had been on several unescorted furloughs to a community doctor for medical appointments, etc. The original pilot program had a very low approval rate to begin with and making the criteria more liberal will not result in a significant change aside from the removal of the 10 year eligibility mandate which is a much needed change! I strongly support this aspect of the legislation.

2) Crediting the earned and “awarded” good conduct time towards any program eligibility is practical. This is statutorily possible under 18 USC 3621. The BOP “award” 54 days after each year served in the SENTRY data base and a separate transaction can be run to break down each and every award on the anniversary year. If we are “awarding” it, why would it not be credited towards any program which mandates a set term be completed prior to program participation? We use these very same awards to release inmates to the community so it would be a practical use of the agencies discretion to credit them when it comes to program participation.

For instance, a person who has served 8.5 years should be credited for 10 years and that time applied and calculated towards any criteria where a percentage of time is required. (ie: time served, plus good conduct time awarded is added together and credited towards the 2/3 calculation referred to in this legislation)

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.

There is simply not a program infrastructure or the staffing for the type of recidivism reduction programs discussed in this legislation.

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 despite if the “program” itself is classified/determined as one that reduces recidivism. This 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 correctional treatment 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.

Good time credit:

The most profound recommendation related to legislative proposals is the discriminatory awarding of good time. Historically & going back to the “old law” pre-1987; the BOP did not factor in the awarding of statutory or extra good time based upon the instant offense behavior. The severity of the offense determines the actual sentence and we have begun to further punish certain offenders after incarcerated for mostly political motives. This Bill is similar to Section 102 (e) 2 C of 3356 which lists categories of offenses who do not benefit from the good time.

What is so confusing about this list is not only what I referred to above regarding the Categorization of Offenses policy but also the “Early Release Procedures’ policy, Program Statement # 5331.02 which also includes excludable offenses and the director’s discretion cases. Although this subsequent policy deals with RDAP and 3621(e)- Early Release, it adds another bureaucratic layer and further complicates the entire concept of pre-release credits. The practical solution to this issue is simply returning to the “Old Law” good time system which was not only fair, equitable, and had the necessary incentives to encourage programming and good behavior; but it increased the safety of staff and inmates because inmates could earn back forfeited awards by maintain clear conduct. Inmates who followed their program plan and met work requirements and good behavior released to supervision at approximately 66% in what was referred to as “Mandatory Release”. The BOP still has old law inmates in the system so the infrastructure, familiarity and training is already part of the agency culture and SENTRY computer system. It could be implemented almost immediately at no cost and little training. Inmates who maximize the credits could be transferred to pre-release custody at 66% under varying degrees of community control based on the risk assessment. I am not suggesting a return to the parole system itself but simply the laws governing the statutory and extra good time.

A practical suggestion in regards to legislation is to use the 66% date as a community control program eligibility date for RRC and/or home detention eligibility (even work/study release).

Mentorship Pilot programs: While I am a strong supporter of expanding the Tier 2 volunteer program, it is hard to fathom how the agency is going to develop 10 pilot programs and expand tier two volunteers to ex-offenders when there are already many impediments to this program. Community members and organizations seeking Tier 2 credentials are often denied and are unaware of such clearances exist. I also question the stats that the BOP has enough of the target population to develop 10 pilots. 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–

Good time credits: 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. This is extremely troubling on that no less than 8% of the appropriations in this bill are to be given out in state and local government grants. (page 81, par.2)

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.

Other Privatization influences:

The 30 minutes more of telephone time per day incentive & video visitation would provide more revenue for the companies that gouge families especially in light of recent legislation overturning some cap regulations.

The UNICOR provision in this bill allows them to sell products to other “prisons” which means the BOP would be selling products to the private sector prisons they are contracting with. This is problematic for the additional competition for companies in the community but is even more problematic regarding ethical considerations due to the incestuous exodus of retiring BOP wardens and administrators to private sector correction companies. Given the lack of transparency of the BOP it is hard to imagine people retiring will not bend over backwards to please their former BOP mentors and contacts who arrange post-retirement landing sites in the private sector.

Conclusion:

This legislation will take years to develop, is nearly impossible to implement as intended and allows the BOP too much discretion. The incentives such as good time credits cannot be honored because the funding for the infrastructure is not provided. This legislation will not result in a reduction of recidivism or increase public safety. It is underfunded, includes unrealistic incentives and may actually result in less safe facilities. It is discriminatory in nature by treating people differently once incarcerated relative to good time credits and brings back elements of the failed Inmate Skills Development System recently abandoned by the Bureau of Prisons.

Many of the intended goals can be accomplished within the existing statutory and policy framework by stronger executive branch leadership and oversite.

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!