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CTSTAR-logo-rgbLike a growing number of jurisdictions, the District of Connecticut has a Support Court program (reentry court) that works closely with individuals on federal supervised release, as well as a select number of defendants who have plead guilty and are awaiting sentencing. The program has been an incredible asset since its inception. However, like many useful programs, it wants for funding. In this regard, CT Star has started a fundraising effort. In particular, CT Star is enlisting the help of judges, attorneys, court personnel, etc. to volunteer to run in the October 8 Hartford Marathon.

Although the first time since the 2002 D.C. Marathon that I’ve run (in the training sense), I have registered for the half-marathon at the persistent urging of my friend and colleague Audrey Felsen. This is a great cause and one to which I hope you can donate.

Click here for my fundraising page. Knowing that there are those willing to help CT Star meet (and hopefully far exceed) it’s $7,500 goal, will definitely serve as encouragement on those days I’d rather do anything then get up early and get in some miles. More than that, however, the moneys will prove invaluable to a population that is too often overlooked, namely individuals committed to getting their lives back on track. It is only with the help of Support Court and you that a greater array of services can be provided. PLEASE DONATE NOW!!!

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I have written before about the Bureau of Prisons’ atrocious performance serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1) (and Guideline Section 1B1.13). Sadly, matters have improved little. Over at the Cato Institute, Nat Hentoff shines a light on the Bureau’s continued resistance to affording judges the opportunity to reconsider sentences previously imposed, often decades prior.

Hentoff details the dogged, pro bono efforts of Attorney Ellen Lake and “the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.” Having had no success with an application for executive clemency filed as part of the Department of Justice’s clemency initiative, Attorney Lake began pursuing Mr. Tapia-Ponce’s compassionate release. And, when the Director refused to act on (approve or deny) the most recent recommendation that a motion be filed, Attorney Lake sought relief directly from the sentencing court.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

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Last May, I had the pleasure of presenting via a webinar sponsored by the Association of Federal Defense Attorneys: Understanding the BOP’s 500-Hour Residential Drug Abuse Program (RDAP). That program, which runs more than an hour-and-a-half, is now available on-line.

For those unfamiliar with the AFDA, it regularly offers excellent, topical CLE for federal practitioners. The programs are webinar-based, meaning, among other things, that they can be accessed at one’s leisure from the AFDA’s archive. Individuals interested in joining the AFDA can click here.

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The use of solitary confinement by corrections systems, including the Bureau of Prisons, has drawn increasing scrutiny in recent years (see, for example, here and here). In this regard, Mary Buser, a former Assistant Unit Chief in the Mental Health Department on Rikers Island, has just published a book, LOCKDOWN ON RIKERS: Shocking Stories of Abuse and Injustice at New York’s Notorious Jail, that focuses on the practice, among other issues. The following excerpt reflects Ms. Buser’s account of events she witnessed as well as her perspective that most inmates in solitary are non-violent rule breakers often suffering from impulse control disorders, rather than the “worst of the worst.”

Daisy Wilson was my first encounter with someone who might be considered evil, but contrary to the perception that jails are filled with “bad people,” I found few at Daisy’s level of sociopathy. Most are somewhere in the middle, ordinary people who are drug-addicted and may have committed a crime while under the influence of drugs or alcohol, those who’ve made errors in judgment or who’ve acted impulsively or out of desperation. With a little guidance and support, so many in that middle range had the potential to find their way and move on.

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Earlier this Summer, Charles E. Samuels, Jr. issued a memorandum concerning his intention to retire from the Bureau of Prisons by year’s end, following 27 years of service — 3.5 of which were as Director. The announcement has led to conjecture and commentary regarding who should next helm the agency. In late July, a group of law professors wrote Attorney General Lynch encouraging “a national search focusing on identifying an experienced innovator who has a demonstrated commitment to reform—decarceration, improved conditions of confinement, education and rehabilitation, racial justice, and gender equity. The goal of the search should be a new director who can not only bring about substantial changes at the BOP but also lead American corrections more generally.” In a follow-up piece in the Washington Post, three of the professors expanded on their thinking:

The decision matters a lot. The BOP’s director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation’s benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.

Since Bennett’s era, the BOP’s leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better.

More recently, former Senior OLC Counsel and U.S. Pardon Attorney Margaret Colgate Love has offered a counterpoint to the professors’ proposal, questioning looking outside the agency–an idea she had previously supported–given the Bureau’s design and inherent mandate: Continue reading

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Through the Federal Register, the BOP has announced proposed “revisions to the Residential Drug Abuse Treatment Program (RDAP) regulations in four areas to allow greater inmate participation in the program and positively impact recidivism rates. Specifically, the Bureau proposes to (1) remove the regulatory requirement for RDAP written testing because it is more appropriate to assess an inmate’s progress through clinical evaluation of behavior change (the written test is no longer used in practice); (2) remove existing regulatory provisions which automatically expel inmates who have committed certain acts (e.g., abuse of drugs or alcohol, violence, attempted escape); (3) limit the time frame for review of prior offenses for early release eligibility purposes to ten years before the date of federal imprisonment; and (4) lessen restrictions relating to early release eligibility.”

An .HTML version of the proposed changes can be found here. Public comments, which are due by September 21, 2015, can be submitted here.

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Over at Fusion.net, Cristina Costantini and Jorge Rivas offer a scathing critique of the Bureau of Prisons’ housing and management of non-U.S. citizens, which has largely been handed over to private prison corporations headed by individuals with ties to the BOP and the Department of Justice.

A Fusion investigation found that without a single vote in Congress, officials across three administrations: created a new classification of federal prisons only for immigrants; decided that private companies would run the facilities; and filled them by changing immigration enforcement practices.[…]  Most of the roughly 23,000 immigrants held each night in CAR prisons have committed immigration infractions — crimes that a decade ago would have resulted in little more than a bus trip back home. And now, some of the very same officials who oversaw agencies that created and fueled the system have gone on to work for the private prison companies that benefited most.

The low-security facilities are often squalid, rife with abuse, and use solitary confinement excessively, according to advocates.

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Last week, Inspector General Michael Horowitz sent a memorandum to the Attorney General and Deputy Attorney General concerning “Top Management and Performance Challenges Facing the Department of Justice.” The first identified challenge? Addressing the Persisting Crisis in the Federal Prison System,” namely the system’s ever escalating cost, which consumes a significant percent of DOJ’s budget, and safety and security issues stemming from chronic overcrowding.

Containing the Cost of the Federal Prison System

The costs to operate and maintain the federal prison system continue to grow, resulting in less funding being available for the Department’s other critical law enforcement missions. Although the size of the federal prison population decreased for the first time since 1980, from 219,298 inmates at the end of FY 2013 to 214,149 inmates at the end of FY 2014, and the Department now projects that the number of inmates will decrease by 10,000 in FY 2016, the downward trend has yet to result in a decrease in federal prison system costs. For example, in FY 2000, the budget for the Federal Bureau of Prisons (BOP) totaled $3.8 billion and accounted for about 18 percent of the Department’s discretionary budget. In comparison, in FY 2014, the BOP’s enacted budget totaled $6.9 billion and accounted for about 25 percent of the Department’s discretionary budget. During this same period, the rate of growth in the BOP’s budget was almost twice the rate of growth of the rest of the Department. The BOP currently has more employees than any other Department component, including the Federal Bureau of Investigation (FBI), and has the second largest budget of any Department component, trailing only the FBI.  The Department’s leadership has acknowledged the dangers the rising costs of the federal prison system present to the Department’s ability to fulfill its mission in other areas. Nevertheless, federal prison spending continues to impact the Department’s ability to make other public safety investments, as the Department’s FY 2015 budget request for the BOP is a 0.5 percent increase from the enacted FY 2014 level.

Our work has identified several funding categories where rising prison costs will present particularly significant challenges in future years. For example, inmate healthcare costs constitute a rapidly growing portion of the federal prison system budget. According to BOP data, the cost for providing healthcare services to inmates increased 55 percent from FY 2006 to FY 2013. The BOP spent over $1 billion on inmate healthcare services in FY 2013, which nearly equaled the entire budget of the U.S. Marshals Service (USMS) or the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Continue reading

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OSHA has announced that its January 2014 investigation of FCI McDowell (WV) found that “correctional officers and other staff” there were exposed to “bloodborne pathogens and other workplace safety and health hazards.” Ten serious violations, that is, those where “there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known,” were identified.  These include McDowell’s failure to:

  • Train employees on the bloodborne pathogens policy and limitations of personal protective equipment.
  • Ensure the person conducting training was knowledgeable about the subject.