I’ve been working directly with federal prisoners for thirty-five years, twenty-three with the Federal Bureau of Prisons in classification and programs. It’s hard to astound me on prison issues but reading the DOJ-IG Report on the Whitey Bulger Murder was the most non-adherence to policy and I honestly feel the BOP was complicit in the murder at the direction of the highest levels of BOP management. I could present a two-day seminar (case study) on this report which could educate justice professionals on correctional programs policy, medical policy and process issues and am a bit disappointed that the DOJ missed some important elements making the murder even more egregious.
I testify around the country and often cite DOJ Reports, and while not even being halfway through this report, I feel compelled to publish a few select paragraphs that really took me back from a civil rights perspective. I do feel a bit vindicated that over the past few months I have been contacted by various national media outlets who informed that they have spoken to “Wardens” who have said that the BOP was not at fault for the murder. This report dispels that myth and supports my humble contention that many retiring wardens are not only ignorant, BOP cool aid drinkers, but they were the lynch pins in the BOP leadership void and agency implosion which has festered since the late 1990’s.
Stay tuned for a more micro-perspective on the report in the near future.
DOJ IG Report Bulger 12 2022.pdf (page 31)
The BOP Medical Director further stated that he considered Bulger’s other medical conditions, but those conditions did not automatically default to a particular care level. The BOP Medical Director told the OIG that conditions that do not automatically default to a particular care level may lead to an increase in care level, if those conditions become unstable in that they impact normal daily functions. The BOP Medical Director did not recall at the time of his OIG interview how often Bulger was receiving treatment. However, he stated that his understanding was that Bulger was “stable and could be managed as an outpatient, with outpatient visits every one to six months,” and, therefore, he should be classified as medical care level 2. In addition, the BOP Medical Director stated that the BOP’s Medical Care Level Guidelines were not a “perfect system,” it was impossible to “distill every clinical situation” into the BOP’s guidance, and inmates were often misclassified.26 – –This blows my mind because medical care levels deal with life and death!
26 After reviewing a draft of this report, the BOP Medical Director wrote in a response to the OIG: “It was the medical director’s understanding at the time that Option 1, transfer to another high security care level 3 facility, was not available because of separatee or other security issues, to the best of his recollection. The only remaining viable option then was sending him to a Care Level 2 high security facility that could meet his medical and correctional needs, either as a Care Level 3 or Care Level 2 inmate.” The Medical Director’s understanding, however, is inconsistent with the factual record, because the OMDT Designator had not yet identified possible institutions for Bulger’s redesignation at the time she sought the BOP Medical Director’s opinion. Moreover, as described in the next chapter, two of the options the OMDT Designator later identified for Bulger’s possible placement were high security, medical care level 3 facilities. The OMDT Designator told the OIG she did not list either medical care level 3 facility as her preference, because her “thought process would have been…, if we’re saying he’s no longer Care Level [3], then we shouldn’t send him to a Care Level [3] facility. Pathetic
Page 35
The OIG asked the Senior DAD whether he had any concerns about moving Bulger from an institution with a reputation for being relatively safe to an institution with a reputation for being dangerous. The Senior DAD responded, “We do it all the time,” because often inmates “get in trouble” and “fail.”
Page 35
[T]his whole thing is—it just—it’s one of the things that happened. It’s unfortunate but like I said, and I’ll say this to the day that I die, I would—from what I know now and from what I knew at the time, I would have again concurred with pushing Bulger to Hazelton. I would not change anything that I did or what my staff did even knowing what I know now today. To have this nonsense spewed from an upper-level BOP executive demonstrates the profound disregard for Life. It’s an equal mind blower for me but I am aware of this knuckle dragger’s reputation from over the years so I am not surprised.
Page 44 (Now for the real feedback from the incarcerated)
We also interviewed a third inmate (Inmate 3) who told the OIG that he was aware that Bulger was being transferred to Hazelton approximately 2 weeks before Bulger arrived. He stated that the entire prison knew Bulger was coming to Hazelton. Inmate 3 further stated that he initially overheard other inmates discussing Bulger’s impending transfer, but he did not know how those inmates learned the information. Inmate 3 told the OIG that he eventually also heard multiple BOP officers speaking openly about Bulger coming to Hazelton, as if they were “talking about a football game.” Inmate 3 further stated that both the inmates and staff were speculating about—and inmates were betting money on—how long Bulger would stay alive at Hazelton. Inmate 3 attributed these discussions to the fact that there were several inmates in Bulger’s compound who were in the Genovese Crime Family, which the inmate said had a “beef” with 45 Bulger’s gang. In addition, Inmate 3 told the OIG that after Bulger arrived at Hazelton, multiple inmates were “yelling” about Bulger being a “rat” for about an hour.
End of quotes.
Now, for the more technical blog info I had initially intended on publishing………..
THE CART BEFORE THE HORSE
After years of delay, earlier this month, the BOP finally issued the policy entitled First Step Act of 2018-Time Credits : Procedures for Implementation of 18 U.S.C. 3632 (d)(4). I have written about this delay for the better part of two years having obtained the policy draft that was circulating within the BOP bureaucracy since at least January of 2020. The agency wonders why it gets continually bashed by the justice community, but the release of such a critical policy so long after the time credit implementation is unacceptable. The absence of this policy has caused inconsistency and confusion within the agency not to mention the lack of transparency for the public. The lack of transparency enables a feeding frenzy for predatory prison consultants who use it as an opportunity for exploiting desperate and naïve inmates and their families.
While none of the information in the policy is earth shattering, there are several important issues one should be aware of even if they have been deemed ineligible to earn the credit. I will try not to cover the more known aspects of the FTC such as the monthly rates, risk levels, etc. as that information seems to be everywhere.
Probably the most significant glitch which has only recently become known (unless you are a regular reader of this newsletter) is regarding the people who did not have credits applied for periods when they were considered to have “Refused” programs (The BOP uses the words “Opted Out”) because of their failure to complete FSA related risk assessment surveys. This issue is currently working itself out and the credits will reportedly be applied by the end of December if the surveys are completed.
For those fortunate enough to qualify for FTC, it is important to understand credits start with the SPARC-13, Risk and Needs Assessment. BOP Staff assess needs based mainly on the PSR in 13 different risk/needs areas. People are then put on waiting lists for the areas in which there is an identified need. The policy reads that a person will remain in earning status “while on any waiting list on the needs assessment, not to exceed two assessment periods” This is something to keep an eye on because I am personally aware of many people that have been on waiting lists since 2020. Two assessment periods are only one year. In addition, the policy indicates should a person decline or opt out of the program, the auto-calculation application will “identify the oldest waiting list associated with the need and the time will be rescinded to reflect the inmate’s refusal.” My concern with program refusals in general is that the policy does not indicate under what circumstances can staff enter a refusal. For instance, can a person on a visit, a hospital call out appointment or under pressure from a UNICOR boss or other supervisor, be considered a refusal?
Remember that this is an automatic process, and a person need only complete the programs recommended by the unit team, not some slick consultant that has convinced one’s family they could help identify the programs for a few thousand dollars to get them released early.
Newsflash: Even people with medium and high risk can be approved for FTC by the warden. While this sounds encouraging, there are many impediments that it will only be approved in rare instances for people that have no public safety factor or one waived by the DSCC, do not have a crime identified in the policy on Categorization of Offenses, no greatest or high severity incident reports during the entire period of incarceration, no prior community-based program or supervised release violations and three years of clear conduct to name a few.
Below are a few more points from the policy worth noting:
Regarding prior offenses, the policy stipulates that a “serious violent felony” is defined by 18 USC 3559- (c)(2)(F). Note that a 924 (c) is a prior exclusionary crime.
People in the Special Housing Unit (SHU) for administrative detention purposes (AD) such as protective custody or pending investigation can remain in earing status until they are placed in disciplinary segregation as a DHO sanction. Not to get too technical, but some facilities housed AD inmates in DS cells so if this automation is directly linked to SENTRY, time could be suspended unintentionally.
A person who was sanctioned to the loss of FTC by a DHO may have part or all the credits restored on a case-by-case basis after clear conduct for two consecutive risk and needs assessments.
The auto-calculation application will credit FTC monthly agency-wide based on 30-day increments in earning status.
RRC and/or HC Referral will ordinarily be submitted to the RRM twelve months in advance of the inmates PRD or at least 60 days prior to the required placement date which is ever greater.
Nowhere in the policy did I see the eighteen months FTC application standard that recently came down via internal BOP memo, however, the detainer exclusion was finally reduced to writing. I am also starting to hear about reduced RRC placements because of bed space issues. Stay tuned as the court cases on different aspects of this debacle continue to pile up.