Tag Archives: BOP

The Short Rocket – Update for April 12, 2024

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rocket-312767We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, some short odds to end the week…

Gun Cases Still Being Decided While Rahimi Await SCOTUS Decision: Holding that the government had not satisfied its burden to justify that 18 USC § 922(g)(1)’s prohibition on all felons possessing guns is “consistent with the Nation’s historical tradition of firearm regulation,” an Eastern District of Michigan US District Court judge threw out a § 922(g) indictment against Ron Williams in late February.

Meanwhile, a Northern District of Illinois court has dismissed a § 922(g)(5) case against Heriberto Carbajal-Flores for possessing a gun while illegally or unlawfully being in the United States. Heriberto had had two prior motions denied, but the court reversed itself based on the 3rd Circuit’s Range v. AG and 7th Circuit’s Atkinson v. Garland decisions.

The government has appealed both cases.

United States v. Williams, Case No. 23-cr-20201, 2024 U.S. Dist. LEXIS 30849 (ED Mich., Feb 22, 2024)

United States v. Carbajal-Flores, Case No. 20-cr-00613, 2024U.S. Dist. LEXIS 40974 (N.D.Ill. Mar 8, 2024)

BOP Proposed Social Media Ban Draws Fire: Two civil rights groups blasted the BOP last week for a proposed crackdown on imprisoned peoples’ access to social media—including a possible ban on accounts run by family on the outside. The ACLU and Knight First Amendment Institute at Columbia University said the proposed procedures would violate the Constitution.

socialmedia240412Inmates’ rights advocacy groups say that the rule would restrict the 1st Amendment rights of not only prisoners but also people not in BOP custody. Ebony Underwood, whose nonprofit We Got Us Now works with the children of incarcerated parents, called the social media proposal “archaic and so inhumane.”

Knight wrote in reply comments:

For the nearly 2 million people who are incarcerated in U.S. jails and prisons, maintaining connection with loved ones and communities is associated with better physical and mental health outcomes, reduced recidivism, and successful reentry into society. Social media is increasingly becoming an important part of that connection. As one formerly incarcerated journalist recently recounted, using social media through his wife allowed him to pursue a writing career, stay in touch with his community, and give him hope of reintegration upon release.

The public comment period closed on April 1. The federal register website shows that the proposed rule received 219 comments, though only 22 have been posted online.

The Appeal, Civil Rights Groups Decry Proposed Federal Prison Social Media Crackdown (April 4, 2024)

Techspot, US prison system proposes total social media ban for inmates, sparking First Amendment concerns (April 2, 2024)

Knight 1st Amendment Institute, Comment re: BOP social media rules (April 1, 2024)

BOP Dumps ACA: After being blasted by the DOJ Inspector General last November for its conflict-riddled relationship with the American Correctional Association, the BOP last week announced that it would not renew its $2.75 million contract with the accreditation organization.

ACAaward240307The ACA, which accredits prisons, first started accrediting BOP facilities in 1980. However, the Bureau said on Monday it has decided to part ways. However, a report issued by the Dept of Justice Inspector General found that instead of providing an independent evaluation of BOP facilities, the ACA “instead relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

In an announcement last week, the BOP said it “has decided to explore other options to ensure continued improvement and innovation in correctional standards for the well-being of adults in custody and the FBOP’s workforce. The FBOP remains committed to a rigorous assessment of its policies and practices involving all levels of leadership to inform continuous organizational improvement.”

Law360, BOP Drops Accreditation Org After IG, Sens. Raise Concerns (April 1, 2024)

DOJ Office of Inspector General, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (Nov 2023)

– Thomas L. Root

The Phone Just Keeps On Ringing For the BOP – Update for March 26, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PHONE CALL MAY BE A SCAM… OR NOT

The Bureau of Prisons reissued a press release last week warning prisoners and their families of a phone scam in which callers identify themselves as BOP employees and demand money for halfway house or home confinement placement. The BOP stated that it “will not contact individuals to request personal information or money.”

money170419This scam, of course, would not fool federal inmates. They already know that getting the BOP to place people in halfway house or home confinement for the amount of time they’re entitled to for their FSA credits can’t be solved with mere bribes (which are illegal anyway and would just get prisoners more time).

More concerning is a scam in which callers claim to be US Probation Officers and demand personal information or money for halfway house or home confinement placement or relocation approval. Real USPO officers actually do call families from time to time, but usually just to make a home inspection appointment.

Phonescam240326Lesser-known phone frauds that may affect the BOP: Roll Call reported last week on the 38% haircut BOP took on its facilities budget in new appropriations bill. Last year, the BOP got $290 million repair and maintenance, but only $108 million came through regular appropriations. The other $182 million came through emergency funding.

Due to last summer’s Fiscal Responsibility Act, any call Director Peters gets from Congress promising emergency money this year is probably a scam. The paltry $179 million the BOP got “reflect[s] a thoughtful, serious approach to what can be achieved in a single given year… and then also given the overall environment of the Fiscal Responsibility Act,” Assistant Attorney General Jolene Lauria told Roll Call, trying to put a good spin on a repair budget that falls 96% short of the $3 billion needed to fix decaying infrastructure.

A phone call that would not be a scam: If a BOP warden gets a call from the front gate that a herd of inspectors from the Dept of Justice Office of Inspector General is demanding to be let in for an unannounced inspection, it’s probably the real thing.

IG230518Speaking at a National Press Foundation function recently, DOJ Inspector General Michael Horowitz said, “My 500 personnel [are] comprised mostly of auditors and law enforcement agents. We also have evaluators and inspectors. One of the things we’re doing now, by the way, is unannounced inspections of federal prisons, and those are much smaller groups compared to the auditors and the agents.”

Horowitz contrasted innocent mistakes found in some DOJ offices to recent BOP revelations: The problems the IG uncovered in other offices were “usually… one of the lawyers who didn’t quite understand rules, didn’t abide by the rules, played fast and loose with the rules and got in trouble… Wasn’t, you know, generally people stealing, people being bureaucratic. It was, you know, people trying to get things done right. And then on the other hand, go to the Federal Bureau of Prisons, which the current director is the 8th director in my 12 years there, right?”

Horowitz also said, “Whistleblowers are critical to who we are, what we do. We take their complaints seriously, we take retaliation against them particularly seriously. But whistleblowers are very important part of what we do.”

BOP, Phone Scams Impacting Adults in Custody (August 23, 2023, reissued last week)

Fiscal Responsibility Act, HR 3746 (June 3, 2023)

Roll Call, Congress cuts federal prison infrastructure funding (March 20, 2024)

Nationall Press Foundation, ‘The Truth Still Matters’: Justice Department Inspector General Highlights Non-Partisan Work (March 15, 2024)

– Thomas L. Root

10th Circuit Finds 7-Year Old Inmate Suit Suddenly “Moot” – Update for March 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

10th CIRCUIT GIVES “STRATEGIC PRISONER TRANSFERS” A LIFT

whoopass240315Just yesterday, I wrote about the BOP buying a whole crate of whoop-ass from a federal judge by shipping a prisoner beyond the court’s jurisdiction while a civil action was going on.

The 10th Circuit takes a much more sanguine view of the practice, it seems.

Michael Bacote has spent seven years litigating claims that the Federal Bureau of Prisons violated his 8th Amendment rights at ADMAX Florence by acting with deliberate indifference to his mental disability. Michael’s retained psychiatrist concluded that he had both an intellectual disability and a mental disorder. After BOP psychologists examined Michael in response to his psychiatrist’s report, they agreed. BOP policy forbids placing prisoners with Mike’s condition at Florence, so the BOP transferred him to the mental health unit at USP Allenwood.

Before the transfer, the district court dismissed Mike’s case, holding that he had not established that the BOP was deliberately indifferent. Michael appealed, but the transfer occurred while the appeal was pending.

medical told you I was sick221017Last week, the 10th Circuit tossed out his case as being moot. The Court said that “the doctrine of mootness rests on a simple principle: the controversy that existed at litigation’s commencement may dissipate before its conclusion.” The Court held that while Michael’s case was not constitutionally moot, it was “prudential[ly]” so. Prudential mootness concerns “not the power to grant relief but the court’s discretion in the exercise of that power.” Under this doctrine, the 10th said, “If the circumstances of a controversy become too attenuated, prudence counsels us not to reach the merits of the appeal.”

Because Mike was not at Florence anymore, Florence could no longer be deliberately indifferent to him. He had not sued in Pennsylvania for whatever he said Allenwood was doing to him, and there was nothing in the record that would let the 10th decide whether there was a constitutional violation there. “Finally, even if Mike has requested relief that could have a continuing effect,” the Circuit said, “this relief requires us to restrict the conduct of officials outside of this circuit. As a general principle, opinions handed down in one circuit do not bind other circuit courts.”

“We recognize Plaintiff’s concern that some could misinterpret this holding as a license for the BOP to concoct mootness by transferring litigant inmates.” But because Michael had not provided evidence the Bureau acted with an eye toward dismissing the case, the 10th said, “we need not answer” how to treat a strategic prisoner transfer.

habeasB191211Michael’s attorneys warned the precedent-setting opinion did not fully recognize the frequency of strategic prisoner transfers. “Functionally, publishing this decision gives prisons a roadmap for defeating the 10th Circuit’s jurisdiction during the litigation of an appeal,” Mike’s lawyers with the University of Denver’s Civil Rights Clinic said in a statement. “We’re very concerned that the court’s decision will negatively impact incarcerated persons’ ability to have their cases heard on the merits, as it’s difficult — sometimes impossible — for incarcerated litigants to prove that a prison transferred them due to litigation.”

Bacote v. BOP, Case No 22-1325, 2024 USApp LEXIS 5239 (10th Cir, March 5, 2024)

Colorado Politics, 10th Circuit opens door wider for courts to dismiss prisoners’ civil rights lawsuits (March 7, 2024)

– Thomas L. Root

‘The Rape Club’ Front Door Gets Kicked In – Update for March 14, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FBI EXECUTES SEARCH WARRANT AT FCI DUBLIN

And you thought your Monday mornings were lousy.

tigerseat240314Art Dulgov, the warden selected by the Federal Bureau of Prisons Central Office to clean up the sexual abuse cesspool that is FCI Dublin, started his week with over a dozen FBI agents armed with a search warrant swarming over his prison, seizing computers, documents and other evidence and seeking to interview employees, according to an Associated Press report.

The FBI said its agents were conducting “court-authorized law enforcement activity.” But it looked a lot like one agency of the Dept of Justice was raiding another agency of the Dept of Justice. As Rodney Dangerfield might have put it, ‘a tiger eating its young.’

Before the day ended, Warden Dulgov, Associate Warden Patrick Deveney, a captain and the executive assistant who oversaw the prison’s minimum-security satellite camp, were all unceremoniously walked off the compound by their employer.

Dulgov, only three months into his warden gig at Dublin, was the third leader of the low-security female prison since Warden Ray J. Garcia and a half dozen of his underlings were convicted of sexually assaulting multiple prisoners at the institution, which was known by BOP employees and prisoners there as the “rape club.”

Garcia was sentenced to 70 months. BOP records suggest that he is being housed in a non-BOP prison, with a release date set for 2028.

hitroad240314Dulgov and staff are not accused of sexual abuse, but rather of retaliating against an inmate who testified in January in a class-action lawsuit that alleges “horrific abuse and exploitation” at the prison, with rampant sexual assault of incarcerated persons, according to a court filing. However, it is not clear that this was the basis for the FBI search. That search warrant and the affidavit supporting it have not been made public.

After inmate Rhonda Fleming, herself a storied and frequent pro se litigator, accused a BOP lieutenant of retaliation in January testimony before US District Court Judge Yvonne Gonzalez Rogers, the prisoner was transferred to MDC Los Angeles despite the Court’s order that none of the inmate witnesses be removed from Dublin.

Judge Gonzalez Rogers later admonished an Assistant US Attorney representing the BOP for the transfer in defiance of her order, but accepting the excuse that the BOP misunderstood her directive. The Judge said she would have levied sanctions against the attorney earlier in her career as a federal judge, but settled on the warning instead: “I’ve been around long enough to know that lawyers make mistakes,” Gonzalez Rogers told the AUSA, who apologized for the transfer. “The point is: You need to follow my orders.”

I feel for the AUSA, who didn’t ask for the BOP as a client and probably was as shocked to learn Fleming had been transferred as was the Judge. After the Court learned of the transfer, the BOP got Fleming back to Dublin in record time.

After a January hearing at which Dublin inmates were among the witnesses, Judge Gonzalez Rogers made an unannounced inspection of FCI Dublin on Valentine’s Day. During this inspection, she spoke to about 100 inmates outside of the presence of BOP minders. Later, in an order, she said that the “first-hand communication will prove critical to resolving the pending motions (which will be done after full briefing).”

doitnow240314(The visit also resulted in a virtually unprecedented court order requiring that some physical conditions of the facility – including lack of hot water and the presence of mold and asbestos – be resolved “IMMEDIATELY,” with the Court itself employing the word “immediately” in all capital letters. The Court undoubtedly means it and is not to be trifled with).

The FBI search and management massacre are the latest developments in what the Los Angeles Times calls a “years-long scandal “ surrounding the facility:

Legal experts say what has happened at the federal prison is indicative of the worst aspects of institutions with abusers in their midst.

“There is no accountability with some public entities, and the sexual abuse keeps festering and festering until it blows up,” said attorney David Ring, who has handled high-profile sexual assault litigation involving schools, facilities and Hollywood studios.

“They tend to shuffle the offenders,” he said. “Officials in prisons can be the worst because they are so jaded that all the complaints fall on deaf ears about the guards.”

The Times reported that “a dozen new lawsuits” were filed against the BOP in Oakland federal court last week “alleging more mistreatment and sexual misconduct by staff.”

fbidublin240314
A BOP statement issued Monday characterized the removal of top Dublin staff as being “consistent with unprecedented and ongoing actions” to reform Dublin’s culture, and said that recent unspecified developments “have necessitated new executive employees be installed at the institution.” BOP Regional Director Nancy T. McKinney was installed on Monday as interim warden.

Kara Janssen, an attorney representing some Dublin inmates, said that the leadership changes at Dublin prison haven’t changed much. “This is not a proactive change in leadership,” said Janssen. “The only changes in leadership seem to come through criminal investigations.”

Associated Press, Warden ousted as FBI again searches California federal women’s prison plagued by sexual abuse (March 11, 2024)

Los Angeles Times, Warden is ousted as FBI raids California women’s prison known as the ‘rape club’ (March 12, 2014)

San Jose Mercury News, Warden ousted amid FBI raid at scandal-plagued FCI Dublin women’s prison (March 12, 2024)

KGO-TV, FBI raids Dublin prison plagued by sex abuse; pattern of immigrant women being targeted, lawyer says (March 12, 2024)

SFist, FBI Raids Dublin Women’s Prison, Warden and Three Others Ousted (March 11, 2024)

Forbes, Troubled Women’s Federal Prison Raided By FBI (March 12, 2024)

– Thomas L. Root

Congress Stiffs BOP Employees and Prisoners – Update for March 12, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CONGRESS MAKES BOP RIDE THE BACK OF THE “MINIBUS”

Moneyspigot200220The $460 billion spending bill that funds about half the federal government through September 30th was sent to President Biden last Friday, averting (yet another) government shutdown.

The bill includes six federal appropriations bills – the so-called “minibus” (as opposed to “omnibus”) provisions covering agriculture, energy, transportation and justice programs – must make Federal Bureau of Prisons Director Colette Peters wonder why she shouldn’t just skip the next congressional hearing to which she’s called in favor of a game of pickleball.

After she has explained, the employees’ union bosses have explained, the Government Accounting Office has explained, and the Dept of Justice Inspector General has explained that the BOP’s severe staffing shortfall and crumbling infrastructure can only be fixed by the application of money, Congress cut the BOP’s maintenance budget by 38%, from $180 million down to $110 million, well below the 2023 level.

What’s as bad, the budget leaves salaries flat “despite mounting concerns about safety and staffing at BOP,” according to Fed Manager. The minibus includes $8.4 billion for the agency — on par with fiscal 2023 and about $250 million below the White House’s initial proposal for 2024. 

AFGE Union Council of Prison Locals National President Brandy Moore White promptly condemned the bill: “Failing to provide the Bureau of Prisons with the funding it desperately needs to address staffing, safety, and security issues will make it even harder for employees to do their jobs and make our prisons more dangerous environments both for employees and inmates.”

bloodturnip240312Certainly, this doesn’t make any BOP resolution to its staffing shortfall any easier. The staffing crisis affects everything from lockdowns to FSA credit programs. The maintenance budget cut will give Peters a chance to do more for less. Maybe get blood from a turnip. But more likely  just let her get chastised by Congressional grandstanders at hearings for not have the tools needed to get the job done. Tools that Congress refuses to provide.

New York Times, Senate Clears $460 Billion Bill to Avert Partial Shutdown, Sending It to Biden (March 8, 2024)

Fed Manager, Details on Spending Bills Released, as Congress Works to Avoid Shutdown (March 5, 2024)

Federal News Network, 6-bill minibus rewards some agencies, while slashing budgets for others (March 5, 2024)

AFGE, Budget deal fails to provide agency with needed funding to address staffing, safety, and security issues (March 6, 2024)

– Thomas L. Root

Senators Denounce BOP-ACA ‘Pas de Deux’ (Which Is A More Refined Way To Describe a ‘Circle Jerk’) – Update for March 7, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE SENATORS DEMAND BOP CUT TIES WITH ACA

I agonized over this story. Not because of the content, which is as unsurprising as it is deplorable. But rather, as I asked my wife of 45 years, is it appropriate to use the term “circle jerk” in the LISA Foundation posts?

circlejerk240307I mean, the term really fits. The Federal Bureau of Prisons pays the American Correctional Association to inspect its facilities. Well, not really. The BOP pays ACA to give glowing accreditations to its facilities. As a report issued by the Dept of Justice Inspector General last November found, the BOP doesn’t really want its prisons inspected by outsiders, even friendly outsiders like ACA inspectors. Rather, the BOP is quite happy to inspect itself and then report the results to the ACA, which issues its seal of approval based on the BOP’s self-evaluation.

Sort of like giving yourself a physical, telling the doctor the results, and having the physician issue a clean bill of health based on your evaluation. Or a highly choreographed pas de deux. Or maybe… yeah, sort of like a circle jerk. The BOP pays the ACA, the ACA lets the BOP OK itself, the BOP trumpets its accreditation to the public, and pays the ACA.

As my wife says, “You couldn’t make this s*** up.” A little salty, but a spot-on observation.

wobegon240307The IG’s report said that instead of providing an independent evaluation of BOP, the ACA “relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

Last week, three US senators wrote to the Attorney General and BOP Director Colette Peters complaining that BOP reliance on the ACA for accreditation “has proven to be little more than a rubber stamp, and the BOP’s contract with the ACA has been a waste of taxpayer dollars. We urge the BOP not to renew its ACA accreditation contract when it expires.” The ACA contract, covering all of the BOP’s 122 facilities, is worth $2.75 million.

ACAaward240307The senators, Elizabeth Warren and Edward Markey (both D-MA) and Jeff Merkley (D-OR), complain that while “the ACA claims that ‘[a]ccreditation is awarded to the ‘best of the best’ in the corrections field,’ in practice, ACA accreditation is awarded to virtually every facility that pays the accreditation fee.” The letter argues that “given the critical need for meaningful oversight of BOP facilities and the ACA’s complete failure to provide it, the BOP should not renew its ACA contract after it ends in March 2024. The ACA’s accreditation system is ineffective at best, and at worst misleads the public to believe that a failing facility’s operations are adequate. We urge you to identify alternative means of oversight that involve genuinely independent, rigorous audits of each BOP facility.”

They are too polite to call it one big circle jerk. Which it is.

The Appeal, Nonprofit Prison Accreditor Perpetuates Abuse And Neglect, Senators Say (February 29, 2024)

Letter from Senator Warren et al. to Atty General and BOP Director (February 28, 2024)

Dept of Justice OIG, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (November 2023)

– Thomas L. Root

Peters May Be The One – Update for March 5, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

Private FSA Tool To Provide Prisoners Data the BOP Won’t – Update for March 4, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LOOKING FOR THE MAGIC DATE

Maybe the sweetest acronym a federal prisoner has ever heard – LDI – is at the heart of a new tool intended to provide all of the information (and more) that the Federal Bureau of Prisons promised with the PRD (projected release date) calculation it has now apparently abandoned.

wise240304LDI – shorthand for “Last Date Inside” – is “the date on which a federal prisoner should be released to pre-release custody (halfway house or home confinement),” according to Wise First Step. Based on an inmate’s most recent sentence computation and First Step Act time credit assessments, Wise says it “will develop a detailed report that outlines key dates you need to be aware of for you to advocate for your referral to pre-release custody.”

Complaints about BOP management of FSA credits – awarded for completion of programs that reduce recidivism – are legion. One prisoner said in an email that an Excel spreadsheet tool was released to case managers last week, but

it is problematic because the calculation tool must be updated every 30 days due to 10-15 FTC earned over that time cycle. This does nothing to ease the burden on Case Managers or help inmates plan accordingly. Even more problematic is the fact that the calculator does not take into account any of the days that will be earned while in pre-release custody… [What’s more,] RRM offices are not accepting “projected days” earned while waiting for the RRM submission to come back.

Another inmate said, “We were also told that sometime in January 2024, we would have access to the PRD on Trulincs [inmate computer system]. Of course, none of that has happened. Now the case managers are telling us that the FSA projected release would NOT help you once you received your 1 year off AND we are not going to have access to the PRD. It has been ‘shelved indefinitely’.”

The BOP announced last December that it was releasing a “Conditional Release Calculator” that provided “needed information regarding the potential positive impact of earning Federal Time Credits (FTC) towards advancing an individual’s release date,” but that calculator reflected only time “applied toward advancing the individual’s transfer to supervised release and an earlier release from FBOP custody,” not transfer to halfway house or home confinement. When in halfway house and home confinement, a prisoner remains in BOP custody.

data240304The major issue in FSA credit application right now is halfway house availability. Writing in Forbes last January, Walter Pavlo observed that inmates are being denied the right to spend their credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.” The First Step Act uses mandatory language, requiring the BOP to place the qualifying inmates in halfway house or home confinement, but agency officials are shrugging their shoulders in feigned helplessness because halfway houses are refusing transfers.

Inmates have been hitting a wall when trying to remedy the denials in court. Just last week, a court threw out a complaint because the petitioner had provided no facts showing that he “has been denied all opportunity to earn time credits, that he has credits to apply, or that he has been denied the ability to apply earned credits to supervised release or another form of prerelease custody.” Another district court ruled against a prisoner, holding that he “fails to include any factual allegations supporting his claim that he was otherwise qualified under Section 3624 of the FSA… for prerelease custody or supervised release.” A decision earlier last month held that “Assuming that petitioner is entitled to a total of 740 days of credits between his prerelease custody and release, his accrued credits are not equal to the remainder of his prison term. He is therefore not eligible to apply FSA time credits at this time…”

itsadate240304Using a proprietary system it has tested over the past six months, Wise will provide a series of dates that tell inmates when to begin advocating for halfway house/home confinement, when to pursue administrative remedies, and when the prisoner’s LDI falls. Wise says in its program description, “The individualized details in this report have enabled hundreds of inmates to accelerate the process for transfer out of prison.”

Wise First Step can be contacted at (202) 921-0200 and email (accepting Corrlinks) at sarah@wisefirststep.org.

Wise First Step Program

BOP, Conditional FSA Release Date Calculator (December 5, 2023)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

Cuong Mach Tieu v. United States, Case No. 2:23-cv-2858, 2024 U.S. Dist. LEXIS 34442 (E.D. Cal., February 27, 2024)

Cook v. Peters, Case No. 3:23CV2211, 2024 U.S. Dist. LEXIS 32754 (N.D. Ohio, February 26, 2024)

Urenda v Warden, Case No 2:23-cv-1410, 2024 U.S. Dist. LEXIS 22513 (E.D. Cal., February 7, 202e)

BOP Director On Senate Judiciary Hot Seat Tomorrow – Update for February 27, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

JUDICIARY COMMITTEE WANTS ANSWERS ON BOP INMATE DEATHS

critic160816The impact of a trio of government reports berating the Federal Bureau of Prisons continued to reverberate last week. A scheduled appearance of BOP Director Colette Peters and her new nemesis, Dept of Justice Inspector General Michael Horowitz, before the Senate Judiciary Committee tomorrow promises that the cascade of criticism will continue pouring down on the agency..

A February 6 Government Accountability Office report chastised the BOP for implementing fewer than half of prior GAO recommendations on the use of restrictive housing (such as the SHU and Communications Management Units). The report blamed the BOP for failing to “assign[] responsibility for implementing these recommendations to the appropriate officials.”

A February 15 DOJ Office of Inspector General report found that “a combination of recurring policy violations and operational failures” – including deficiencies in inmate assessments and Mental Health Care Level assignments, holding inmates at risk for suicides in single cells, lack of urgency in responding to medical emergencies, and poor after-the-fact recordkeeping – contributed to inmate deaths.

A companion management advisory also issued on February 15 advised the BOP of the OIG’s “concerns” about the “inadequacy” of BOP policies on retaining records of rounds made by SHU COs “to ensure the preservation of those original documents as evidence when allegations of misconduct are raised.”

documentretention240227A Washington Post opinion column by Joe Davidson, who covers federal government issues in the Federal Insider, flayed the BOP as “an agency in crisis.” “The Federal Bureau of Prisons has been a profoundly broken agency for a very long time now,” he quoted David C. Fathi, American Civil Liberties Union National Prison Project director, as saying.

Laura Rovner, director of the University of Denver’s Civil Rights Clinic, who has represented isolated prisoners, is quoted as saying the BOP “is lacking the ability or the will to change, possibly both of those things.”

Last week, Government Executive – a publication aimed at federal managers – reported that the IG found “wildly different document retention standards, ranging from as little as one month to the recommended six months, to as long as 10 years.” The report itself noted that “OIG has conducted numerous investigations of allegations that BOP employees falsified round documentation; thus, such documentation is often important evidence in criminal investigations and prosecutions,” Horowitz wrote. “If documentation related to potential staff misconduct, such as mandatory round logs, are only retained for six months, such evidence may be destroyed before the discovery that a crime occurred.”

bureaucraticgobbledygook24019In her response, Peters called the inspector general’s findings “troubling” and agreed with all of the report’s recommendations, though she stressed that the misconduct cited was one by a “very small percentage of the approximately 35,000 employees . . . who continue to strive for correctional excellence every day.”

Sen Dick Durbin (D-IL), who chairs the Judiciary Committee, has been a supporter of Director Peters but said this month that he was “extremely disappointed” and “disheartened” that BOP officials “have not implemented multiple recommendations to curb restrictive housing. This issue has been studied extensively, and now is the time for action.”

bureaucracybopspeed230501Committee members expressed some frustration with Ms. Peters at the BOP oversight hearing last October for the agency’s habit of being nonresponsive to their written questions, many of which have gone unanswered for over a year. It is unlikely that her effort to palm problems off onto “a very small percentage” of employees or to mouth platitudes about “35,000 employees… who continue to strive for correctional excellence every day” will let her leave the hearing unscathed.

Senate Judiciary Committee, Hearing on Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons (set for February 28, 2024)

GAO, Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices (February 6, 2024)

DOJ OIG, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

DOJ OIC, Notification of Concerns Regarding Federal Bureau of Prisons’ Policies Pertaining to Special Housing Unit Logs Used to Record Mandatory Rounds and the Retention Period for the Original Logs (February 15, 2024)

Washington Post, Watchdog reports cite long-standing crises in federal prisons (February 23, 2024)

Govt Executive, Federal prison employees falsified logs in case where inmate committed suicide, IG says (February 21, 2024)

– Thomas L. Root

BOP’s Ambitious “Framework for the Future’s” Overshadowed Launch – Update for February 22, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IG REPORT RAINS ON DIRECTOR’S PARADE

rainparade240222The tsunami of the Inspector General’s bad news (which I reported on Monday) threatened to wash away BOP Director Colette Peters’ rollout earlier last week of the agency’s “Framework for the Future,” an ambitious and obese plan “encompassing seven goals and over 180 unique initiatives… set to redefine the Bureau’s operations,” according to the BOP press release, which gushed:

The Executive Team, consisting of Regional Directors, Assistant Directors, and key figures from within the Director’s office, is personally overseeing these initiatives. Their unwavering commitment is geared towards propelling the agency forward, fostering a humane and secure environment, and preparing individuals for successful reentry into communities.

The BOP told employees in a video message last week that Peters had introduced the “Framework for the Future” and “engage[d] and empower[ed] the agency’s dedicated workforce with details about the seven goals.”

somebull240222C’mon, Ms. Peters, please empower your dedicated PR flacks to spare us the bureaucratic happy talk BS, And while we’re at it, seven goals?  One hundred eighty unique initiatives? Let’s keep it simple.

Writing in Forbes, Walter Pavlo said, “Peters was given a mandate by Congress to improve the BOP but many of those needed improvements have been problems for years. Office of Inspector General and Government Accountability Office have both authored scathing reports on the BOP. Peters, who appeared on 60 Minutes earlier this month, understands that the BOP cannot continue to operate inefficiently, and in some cases inhumanely, as it has for decades.”

Pavlo says many believe that Peters is “the agent of change needed to overhaul the BOP… which has been plagued by employee misconduct… increases in healthcare costs, understaffing, and infrastructure decay. The BOP has also had difficulty implementing the First Step Act… Delays in implementation have been caused by early misinterpretation of the law, computer glitches and a shortage of halfway house capacity.”

“The BOP has challenges and now Peters has outlined a plan to overcome them,” Pavlo says, but he warns that “it will not be easy.”

listenup240222Peters has taken a deliberate approach to the problems, which are legion. During her first year as Director, Peters conducted “listening sessions,” including the novel but quite reasonable requirement for wardens of the BOP’s 122-odd facilities to listen to former prisoners, crime victims, subordinates in prison management and line workers, and advocates for change in the system. Writing in a Federal News Network story, Pavlo and attorney Alan Ellis predicted that “[i]t will take another year to judge the new direction Peters wants to take the agency, but expect her to double down on her message of a more humane federal prison system.”

Last summer, Senate Minority Leader Mitch McConnell (R-KY) and Senator Charles Grassley (R-Iowa) proposed making the director of the Bureau of Prisons a Senate-confirmed position in S.2284, the Federal Prisons Accountability Act of 2023. The same measure has been filed in the House of Representatives as H.R.4138 by Rep. Glenn Thompson (R-PA), a member of the House BOP Reform Caucus.

Pavlo and Ellis observed that “Director Peters has enjoyed a long honeymoon with lawmakers, but they will be looking for results in 2024 — and so will many prisoners and BOP staff members.”

Bureau of Prisons, Reforming the Federal Bureau of Prisons (February 12. 2024)

Forbes, Bureau of Prisons Director Lays Out Goals For Improving Agency (February 13, 2024)

Federal News Network, The Bureau of Prisons and the challenges going into 2024 (February 21, 2024)

S.2284 – Federal Prisons Accountability Act of 2023

– Thomas L. Root