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May 4, 2021

New federal defender laments BOP's response to COVID and the FIRST STEP Act

The Federal Public and Community Defenders sent this new letter today to Senate Judiciary Committee leaders to follow up on the April 15 oversight hearing concerning the Federal Bureau of Prisons.  The 16-page letter covers a lot of ground, and here are excerpts:

For too long, DOJ and BOP have ignored congressional directives to prioritize the safety and rehabilitation of individuals in its custody, and left tools provided by Congress unused. These failures have been exacerbated by a culture that bends towards opacity and against accountability.  We urge Congress to intervene.  At minimum, it must strengthen and increase its oversight of DOJ and BOP to help ensure that federally incarcerated persons remain safe and that Congress’ vision for sentencing and prison reform is realized.  At best, it will enact legislation to smartly and swiftly lower prison populations and to move vulnerable individuals to a place of relative safety.

For the past 13 months, COVID-19 has torn through BOP facilities.  Meanwhile, BOP has failed to take the necessary steps — or to use available resources — to remediate the pandemic’s risk. Even now, despite the increased availability of vaccines across the country, COVID-19 remains a lifethreatening risk to those in BOP custody.  The death count of incarcerated individuals continues to mount, and conditions in federal detention facilities remain dire....

BOP and DOJ have failed to use the tools Congress gave them to safely lower prison populations.  The failure by DOJ and BOP to use tools to move vulnerable individuals to a place of relative safety — either by transferring them to home confinement or by seeking their release through compassionate release — has exacerbated the consequences of substandard medical treatment and care in BOP....

The First Step Act of 2018 (FSA) was intended to shorten certain federal prison sentences and to reorient the federal prison system away from pure punishment and towards rehabilitation.  The FSA’s ameliorative sentencing provisions have made significant strides: as of September 28, 2020, BOP has released 2,509 individuals who qualified for retroactive Fair Sentencing Act of 2010 relief. 

But since the FSA’s enactment, little has been done to advance the Act’s core prison reform: a system designed to reduce recidivism risk by offering individuals incentives in exchange for their participation in evidence-based programming and productive activities.  To create that system, the FSA directed the DOJ to dramatically expand programming in BOP facilities, and to develop a risk and needs assessment system (“RNAS”) that could determine “the recidivism risk of each prisoner” and “the type and amount of evidence-based recidivism reduction programming for each.”  Unfortunately, DOJ and BOP have failed to meet the programming or RNAS mandates and have undercut the promise of the FSA by promulgating restrictive policies behind closed doors....

Even prior to the pandemic, BOP had a long history of not providing sufficient programs.  Because the recidivism-reduction efforts of the FSA are meaningless without adequate programming, and in light of the IRC’s warning, we are deeply concerned that BOP does not have a plan of action to comply with the FSA requirement that BOP “provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration.”  BOP’s past performance, with inconsistent access and quality across institutions, makes it difficult to have confidence that BOP will meet its statutory obligations in this regard.  We hope that Congress will continue to closely oversee BOP’s efforts on this front, and to appropriate sufficient funding to support adequate programming.

May 4, 2021 at 07:12 PM | Permalink

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