The BOP implementation of the FSA has come under criticism from the beginning but there is a great deal of blame to go around aside from the BOP which includes the DOJ, Independent Review Committee and the legislators who are the most culpable. While many things within the beltway are ill conceived, the FSA is a certain kind of special.
The criticisms I had regarding the bill even prior to it becoming law have focused on its discriminatory and convoluted nature, over emphasis on magic programs and the reinvention of the wheel specifically when it comes to the PATTERN risk assessment and time credits.
Since the beginning of federal incarceration, the federal government has never picked and chosen who did and did not receive good time. Going back to before the “old law” (pre-1987); all people earned both statutory and extra good time despite the nature of the offense. Even under the new law (post-1987), the court’s punishment for a crime was the sentence based on a variety of factors and people entering the federal prison system were treated equally from a good time earnings perspective. This failed concept of tough on crime for political expediency is how we became the incarceration nation in the first place, it is apparent the authors of the FSA consciously chose to disregard the lessons learned to reach a deal with conservatives.
The next criticism is the convoluted and disjointed nature of the legislation itself. It is painfully obvious for people in the trenches of the system to watch this disaster unfold in real time. I am going to leave the PATTERN risk assessment debacle out of this article (now in its fourth revision) because I write on it extensively in a monthly (free) article for the Sentencing Partners newsletter published by Joaquin and Duncan, L.L.C. There was no need to recreate the wheel with this legislation to accomplish the goals, especially when it came to the federal time credits. Within the current BOP SENTRY computer system, there is an efficient way to track time credits since the “old law” that is seamless, understood by staff and covered in regimented policy and past practices. People under that system earned both statutory and extra good time for a maximum benefit to be released at approximately 66% of the sentence rather than the 85 % under current law. I can only assume the academics, advocates and legislators had no working knowledge of the current system and capabilities which could have been modified to accomplish the goals almost immediately in a cost-effective way. My sarcastic thought relative to the beltway is that no one person, entity or institution would have financially benefitted from a simple and seamless solution. While I have many more FSA criticisms, I will leave it there and cover some entities that should be called out due to their lack of responsibility and oversight.
DOJ: The Assistant Attorney General in charge of supervising the BOP director has been missing in action. The BOP is a quasi-militaristic organization and simple orders flow down the chain of command rather quickly. The lack of clear orders, accountability and transparency in the FSA implementation process I which is the status quo for all BOP issues does not need to be that way. Where is the leadership on this and really all BOP issues?
INDEPENDENT REVIEW COMMITTEE: From the beginning, I was apprehensive about assembling chiefs vs indians for this committee. It reminded me of the Colson Task Force on Federal Correction. A group with many impressive bio’s, fancy reports, but no statutory authority working knowledge or intimate insight into the trenches of the current federal prison system. The IRC has not identified many serious problematic issues from a field perspective and their oversight and public criticism of the issues has fallen short of what one would expect.
LEGISLATORS: I have already touched on the law’s discrimination, convoluted nature and re-invention of the wheel. It is probably about time for the political theatre of a congressional oversight hearing so they can call the BOP director names but take no action to effectuate change.
THE BOP: I sometimes get attacked for defending this agency which went from a progressive prison model in the 1980’s to what people have coined as the “Backwards On Purpose” agency! It does not take rocket science to see that its deterioration and implosion was a slow process that took decades to fester given unprecedented population growth since 1987 due to the “new law” and ineffective management in combination with a culture lacking accountability, transparency and oversight. To but it concisely, “It’s the Leadership Stupid’!
RANT: This leads to a brief rant which is the catalyst for this article. While painfully helping people in prison and their counsel obtain FSA time credits they have already earned, I have stumbled upon a myriad of concerning issues with several aspects of the law not yet in the public domain. Yesterday, “took the cake” when I received a call from a DC insider voicing their frustration about an immediate release who did not meet the time credits criteria. I need to leave the details out to respect confidentiality, but the insanity of releasing someone who did not meet multiple FSA criteria is counterintuitive based on numerous cases I have encountered who meet the criteria but have not been awarded the credit. This tells me the “Houston we have a problem” concept is far more profound at ground zero than even I realized.