I just returned from the annual U.S. Sentencing Commission seminar in Los Angeles. It is the only forum I am aware of in which the BOP presentation is open to the public. While it is usually a superficial session, this one lacked the technical policy information of past seminars and was more of a public relations campaign expressing greater BOP transparency, accountability and compassion. While I would love to believe this mantra, my day-to-day experiences with incarcerated people and staff tell me otherwise.
For instance, I was able to raise the question in front of over a thousand participants and asked about people who are being approved for less time in pre-release custody than the amount of pre-release credits “earned” under the FSA. I got the impression they were unaware of this issue, as they danced around the question then concluded by saying they simply don’t have the bed space capacity. I needed to return to the microphone to clarify the fundamental concept of my question which was, “isn’t earned pre-release credit similar to statutory good time”?
Under the Second Chance Act, there was no statutory mandate for placement in an RRC, but the FSA is a totally different concept. Apparently in the BOP’s mind, they can disregard the earned time to manage bedspace. I have a strong feeling the magistrate decisions in the ensuing days for the 2241’s may view it otherwise. It’s a bit disheartening that the law requires the agency to have sufficient bed space capacity and that they had several years for the implementation of the FSA. While a partial solution may be the increase of the USPO Federal Location Monitoring Program, the probation officers at the seminar spoke of limited resources to handle any significant numbers.
The RRC bed space impact is also being felt by people who do not qualify for the FSA credits. I am hearing from medium and high security people who have received reduced placements less than their home detention eligibility date and are being incorrectly told they cannot be placed directly into home confinement due to their security level. While the agency has the sole discretion to deny direct HD placement, the policy is clear that everyone is eligible for consideration. Keep in mind, high security people transferred to the RRC subsequently are placed on home detention all the time. The governing policy to be aware of is: Program Statement 7320.01, Home Confinement (bop.gov) (page.7) which states:
PROCEDURES FOR DIRECT INMATE PLACEMENT ON HOME CONFINEMENT. a. Eligibility. Generally, an inmate may be considered eligible for direct placement on home confinement if he or she: has no public safety factors, had excellent institutional adjustment, has a stable residence with a supportive family, has confirmed employment (if employable), and has little or no need for the services of a CCC.
When I worked for the BOP, we placed medium security inmates directly on home detention routinely as far back as the mid to late 1990’s. The RRM’s have the discretion to provide the best placement option after reviewing any facility referral. When I was a CMC, we had our case managers make a statement in the referral form in support of direct home detention and execute the extra BOP agreement form needed for direct placement entitled “Conditions of Home Detention Form”. Form BP-A0460.073, Conditions of Home Detention (bop.gov) . Over the years, the agency has transgressed in utilizing direct home detention, which was even identified by the DOJ Inspector General as a deficiency a few years back.
Some other interesting issues brought up during the seminar were:
The BOP indicated “They were going back to the drawing board” (direct quote) regarding the recent rule they published in the Federal Register regarding the collection of court ordered obligations through the IFRP. It’s a bit perplexing to me that in advance of any specific rule changes that the arm twisting and “new formulas” for collection are being implemented around the country. People need to keep an eye on the new commissary computer code “TS Adjust”. I would be curious what a mainline conversation with the Trust Fund Supervisors would be on this code.
While it is outside my skillset, there were interesting technical discussions on guideline changes on status points and the zero criminal history. I had been under the impression all eligible people would get some relief from the zero history point changes, but it appears it will be a case-by-case review with no guarantee the sentence will be changed. Each district will assemble a team of US Probation Officers, defenders and prosecutors to identify and act on the cases it applies to. The compassionate release changes discussed also will be significant with more clarity and additional categories for relief.
Lastly, the next amendment cycle will also include a focus on the BOP regarding the assessment of certain BOP practices in meeting the purposes set forth in 18 USC 3353(a)(2).
Next month I will be announcing a new, long overdue non-profit organization that is the only one in the country focused strictly on delivering BOP technical training and education to support the federal justice community while also supporting the incarcerated on case management issues.