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February 13, 2012

New GAO report reviews back-end sentencing realities in federal system

Thanks to The Crime Report, I just saw that the US Government Accountability Office has released a notable new report to Congress titled "Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison."

This report, which is summarized on this webpage and is available in full at this link, is a lot more interesting and important for federal sentencing junkies than its title might suggest.  The report provides the most detailed account that I have seen concerning who gets the benefit of the few back-end sentencing mechanisms in the federal system that determine how much time offenders actually serve for their offenses.  Here is part of the summary from the GAO:

BOP’s use of authorities to reduce a federal prisoner’s period of incarceration varies. BOP primarily utilizes three authorities — the Residential Drug Abuse Treatment Program (RDAP), community corrections, and good conduct time.

(1) Eligible inmates can participate in RDAP before release from prison, but those eligible for a sentence reduction are generally unable to complete RDAP in time to earn the maximum reduction (generally 12 months).  During fiscal years 2009 through 2011, of the 15,302 inmates who completed RDAP and were eligible for a sentence reduction, 2,846 (19 percent) received the maximum reduction and the average reduction was 8.0 months.  BOP officials said that participants generally do not receive the maximum reduction because they have less than 12 months to serve when they complete RDAP.

(2) To facilitate inmates’ reintegration into society, BOP may transfer eligible inmates to community corrections locations for up to the final 12 months of their sentences. Inmates may spend this time in contract residential re-entry centers (RRCs) — also known as halfway houses — and in detention in their homes for up to 6 months.  Based on the most recently available data, almost 29,000 inmates completed their sentences through community corrections in fiscal year 2010, after an average placement of about 4 months; 17,672 in RRCs, 11,094 in RRCs then home detention, and 145 in home detention only....

(3) Most eligible inmates receive all of their potential good conduct time credit for exemplary compliance with institutional disciplinary regulations — 54 days taken off their sentence, per year served, if an inmate has earned or is earning a high school diploma; 42 days if not.  As of the end of fiscal years 2009, 2010, and 2011, about 87 percent of inmates had earned all of their available credit.

BOP also has other authorities, such as releasing prisoners early for very specialized reasons, but has used these less frequently for various reasons.

Inmate eligibility and lack of capacity impact BOP’s use of certain flexibilities and programs that can reduce an inmate’s time in prison.

February 13, 2012 at 11:10 AM | Permalink


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This report puts chapter and verse to the underuse of BOP-managed sentence reduction authorities that the Federal Defenders and prison reform advocacy groups have been complaining about for years. At the same time, GAO completely buys into BOP's wimpish hand-wringing "we can't afford to do more." (Translation: "We have money to keep them in but no money to get them out.") It is therefore not surprising, though terribly disappointing, that GAO makes only a single toothless recommendation, asking BOP pretty please to find out how halfway house operators are allocating their massive federal funding. KAPOW! The DOJ IG Report on BOP role in treaty transfers was somewhat tougher, but in the main it seems that everyone in a position of authority is inclined to give BOP a pass. Given the Obama Administration's track record to date, it seems that our hopes for change in the treatment of federal prisoners will have to be put on indefinite hold.

Posted by: margy | Feb 13, 2012 12:39:00 PM

When did the BOP start using 54 days instead of their weird math 47?

Posted by: Curious | Feb 13, 2012 1:44:04 PM

It's in there, Curious: "54 days taken off their sentence, per year served . . ."

It's the "Time-Served" calculus, rather just taking 15 percent off of "Sentence-Rendered," that yields the 47 days of Good Conduct Time. Which raises this excellent question:

Why doesn't the BOP just exercise its discretion to use a straight 15% reduction -- 54 days per year -- instead of applying the convuluted math? Barber v. Thomas says that is the BOP's decision, after all.

One obvious reason is a lack of halfway house space, and re-entry resources likes jobs (Second Chance Act considered). For whatever reason, there may also be a hesitation to use direct home confinements. There is also the practical consequence of the spike of ex-inmates hitting the streets the first time sentences are recalculated, even as the DOJ runs on the premise that we lock up so many to make ourselves safer.

Thus I ask, could the BOP institutionally "flip-flop" to say that sentences should actually be a-week-a-year shorter than it's always done? It wasn't that long ago, after all, that the BOP actually did just the opposite by trying to pull people back from halfway houses to prison (after changing its legal mind, it's true).

Posted by: Jay Hurst | Feb 13, 2012 2:50:51 PM

BOP's "hesitation to use home confinements" is in part attributable to its having ceded decision-making authority to halfway house operators, who have little incentive to send prisoners home, and in part due to its own aversion to risk.

But by the way, the "flip-flop" on BOP's halfway house authority was not BOP's fault, but due to a mean-spirited decision by Main Justice, in turn based on a bogus OLC opinion, that sent 250 prisoners from halfway houses to prison just days before Christmas in December 2002. The courts ultimately held that the OLC opinion was wrong and that BOP had unlimited authority to place prisoners in halfway houses -- but notwithstanding the affirmation of its authority BOP has ever since been extremely conservative in its halfway house placements, and has failed to increase community corrections resources or fully implement home confinement authority. GAO says aw shucks ain't it too bad.

Posted by: margy | Feb 13, 2012 3:35:57 PM

I am a Licensed Marriage Family Therapist. My question=can a person convicted of child porn be allowed in RDAP. Some sites say no but I understand there is a new ruling on this. I am helping several SO

Posted by: g-o digilio | Feb 13, 2012 10:29:11 PM

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