Urban Institute - Next Steps in Federal Corrections Reform, Implementing and Building on the First Step Act, 2019
Download original document:
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
JUSTICE POLICY CENTER Next Steps in Federal Corrections Reform IMPLEMENTING AND BUILDING ON THE FIRST STEP ACT Julie Samuels, Nancy La Vigne, and Chelsea Thomson May 2019 The topic of federal corrections reform is hardly new. The precipitous growth of the federal prison system following the passage of tough-on-crime measures in the 1980s has, in recent years, prompted a swelling chorus of legislators and advocates representing a diverse array of views, all calling for reform. These efforts led Congress to pass the First Step Act, signed into law by President Trump in December 2018. First Step focuses on improving public safety through rehabilitative programming, incentivizing people incarcerated in the Federal Bureau of Prisons to take part in programs and treatment aligned with their risks and needs, and enabling those assessed at the lowest risk levels to earn credits toward faster release to community supervision by completing recidivism-reduction programming. The law also includes several sentencing reforms to reduce the application and extent of lengthy prison sentences owing to mandatory minimums for drug offenses and weapons enhancements, along with other improvements to the prison system. This report briefly chronicles the growth and challenges in the federal prison system leading up to the passage of the First Step Act (First Step), including the findings and recommendations of the Charles Colson Task Force on Federal Corrections, which were grounded in research and evidence. We review key measures in First Step, describe the actions and oversight needed for faithful and vigorous implementation of the act, and highlight some of its limitations. Working from the original set of Colson Task Force recommendations, this brief concludes with a description of additional measures that represent the next logical—and evidence-based—steps in federal corrections reform. History of Growth in the Federal Prison System In recent decades, the federal prison population has soared, growing more than sevenfold since 1980 despite the national crime rate plummeting over the same period. The steep increase in the size of the federal prison system was largely fueled by policy changes such as the Sentencing Reform Act of 1984, which established strict federal sentencing guidelines, abolished parole, imposed truth in sentencing at 85 percent, and created a distinct term of supervised release, and the Anti-Drug Abuse Act of 1986, which established mandatory minimum penalties for drug offenses based on drug type and quantity rather than the individual’s role in the offense. FIGURE 1 BOP Population 250,000 200,000 150,000 100,000 50,000 0 Source: BOP website, https://www.bop.gov/about/statistics/population_statistics.jsp#old_pops. URBAN INSTITUTE The result of these and other highly punitive policies was a federal prison population that peaked at nearly 220,000 by 2013, accompanied by a colossal annual Bureau of Prisons (BOP) budget of almost $7.5 billion in 2016, up more than $7 billion from 1980 (James 2014). The BOP was characterized by dangerous overcrowding, escalating costs, and insufficient programming and services to prepare people for law abiding lives after release. Although the judicial and executive branches implemented important changes to address the bloated federal prison system, lasting and fundamental change required congressional action. 2 NEXT STEPS IN FEDERA L CORRECTIONS REFORM BOX 1 Federal Drug Penalties and their Impact The majority of tough-on-crime policies that fed the increase in population and time served in the federal prison system focused on people convicted of drug trafficking offenses, with nearly half of the standing BOP population composed of people sentenced for drug offenses (49 percent) by the end of FY 2014. Of the more than 90,000 people in federal prisons for drug offenses at that time, 59 percent were sentenced to a mandatory minimum penalty. FIGURE 2 Drug Admissions and Standing Population Standing Admissions 120,000 100,000 80,000 60,000 40,000 20,000 0 FY 1994 FY 1996 FY 1998 FY 2000 FY 2002 FY 2004 FY 2006 FY 2008 FY 2010 FY 2012 FY 2014 URBAN INSTITUTE Source: Transforming Prisons, Restoring Lives, 2016 (derived from Task Force analysis of BOP FY 1994–2014 data). Mandatory minimums almost doubled the time served for those they affected at sentencing, resulting in, on average, an 11-year sentence for people convicted and sentenced for drug offenses with mandatory minimum penalties versus a 6-year sentence for drug offenses not subject to a mandatory minimum (CCTF 2016). People of color, especially black men, have been particularly affected by certain mandatory minimums (USSC 2011). Crimes involving crack cocaine are punished more harshly than those involving powder cocaine, and black people are much more likely to be convicted of crimes involving crack. Congress lessened this disparity with the Fair Sentencing Act of 2010, which resulted in a substantial reduction in federal prosecutions for crack offenses. But the effects of the old law persisted because the original Fair Sentencing Act was not applied retroactively. Note: The total federal prison population includes a small share of special populations, such as pretrial holds and those convicted of DC Code felonies. This box focuses on the federally sentenced population only. NEXT STEPS IN FEDERA L CORRECTIONS REFORM 3 In response, in January 2014, Congress appropriated funds to establish the Charles Colson Task Force on Federal Corrections (Task Force), which produced a robust array of policy recommendations designed to reduce the size and cost of the federal prison system while preserving public safety. The bipartisan Task Force, which included former lawmakers, criminal justice practitioners, and other experts with experience at both the state and federal levels, conducted a year-long fact-finding mission to identify the drivers of prison population growth and develop policy recommendations designed to reduce recidivism, improve public safety, and hold all criminal justice actors accountable. The work of the Task Force included data analyses, reviews of the research evidence, examination of state criminal justice reform strategies, public hearings, stakeholder roundtables, and a visit to a federal prison facility, along with focus groups with people housed there. The Task Force was guided by the following principles: Sentencing decisions and correctional interventions should be tailored to each individual, ◼ including their risks, needs, and assets. Correctional policy should be designed to improve public safety by affording people the tools ◼ for successful release and reentry and reduced recidivism. Imprisonment, because of both its deprivation of liberty and its high costs, should be used only ◼ when serving the goals of sentencing,1 and the term of incarceration should be no longer than warranted to achieve those goals. Correctional policies and practices should be guided by data and informed by research ◼ evidence. Reforms should be designed to promote public safety and conserve taxpayer dollars, with any ◼ savings generated from reforms that divert people from prison used to provide more treatment and programming and promote safer and more humane conditions of confinement. Through its analysis, the Task Force concluded that long drug sentences, driven by mandatory minimum penalties, were largely responsible for the growth of the federal prison population and its associated harms. In developing its recommendations, the Task Force was informed by research evidence showing that lengthy sentences do not improve public safety (a finding that was reaffirmed in a recent US Sentencing Commission recidivism study (USSC 2017)) and that it can be more beneficial to provide high-risk people with intensive programming or supervision than people assessed as low or moderate risk (Andrews and Bonta 2002; Andrews et al. 1990; Lipsey and Wilson 2007; Lowenkamp and Latessa 2002). Task Force’s recommendations were organized by several priorities: (1) reserving the use of prison for people convicted of the most serious offenses; (2) promoting a culture of safety and rehabilitation in federal facilities; (3) incentivizing participation in risk-reduction programming; and (4) ensuring successful reintegration by using evidence-based practices and supervision and support. Recognizing that policy reforms require oversight and interagency collaboration to ensure they are implemented as intended, the Task Force also recommended (5) enhancing the coordination, performance, 4 NEXT STEPS IN FEDERA L CORRECTIONS REFORM accountability, and transparency of federal corrections agencies and (6) reinvesting savings to support the expansion of necessary programs, supervision, and treatment. First Step Act and its Implementation First Step embodies much of the spirit and many of the recommendations of the Colson Task Force, though it is not nearly as ambitious. The act curbs several excessive mandatory minimum penalties and incentivizes people to reduce their risk of recidivism and transfer to community custody earlier. Reforms include changes that can reduce length of stay in federal prison (with transfer to supervised release 12 months or less prior to the end of the sentence), required risk assessment and expanded recidivism reduction programming, and prescribed improvements to various policies and conditions of confinement governing those in BOP custody. The legislation also adds reporting requirements to improve transparency and accountability. First Step’s key provisions are as follows: ◼ It applies the 2010 Fair Sentencing Act retroactively, reducing mandatory minimum penalties for crack offenses to benefit people sentenced before 2010; ◼ broadens the existing safety valve, giving judges greater discretion to sentence someone below a drug mandatory minimum penalty, based on criminal history; ◼ revises enhanced mandatory minimum penalties for people with prior drug felonies, reducing mandatory life without parole for a third felony drug offense to 25 years and reducing the 20year mandatory minimum for a second felony drug offense to 15 years; ◼ reduces the severity of “stacking” 18 U.S.C. § 924(c) gun offenses, ensuring that people with first-time firearm offenses cannot receive the 25-year mandatory minimum sentence intended for those with repeat offenses; ◼ revises good conduct time calculation, increasing the credit from 47 days to 54 days per year of the sentence imposed (15 percent) and applying the credit retroactively; ◼ reforms compassionate release program for people facing “extraordinary and compelling” circumstances to increase its use and the transparency of the approval process; ◼ reauthorizes the elderly pilot with modified age and time served criteria, broadening eligibility for the program, which allows people to be placed on home confinement earlier than would otherwise be allowed; ◼ requires development and implementation of a risk and needs assessment instrument for the entire population that is reviewed by an outside Independent Review Committee (IRC) and made publicly available (BOP must also expand in-prison programming and services tailored to the risk and needs of the population); and ◼ establishes incentives and rewards for participation and completion of evidence-based programming and productive activities, including phone and visitation privileges, transfer to an NEXT STEPS IN FEDERA L CORRECTIONS REFORM 5 institution closer to release residence, additional benefits to be developed by BOP, and time credits for those who are eligible. o Eligibility to earn time credits is based on a person’s offense of conviction, and there is a long list of ineligible offenses, including people convicted of certain fentanyl, heroin or methamphetamine trafficking offenses, sex offenses, gun offenses, violent offenses, and terrorism. Almost 50,000 people are excluded by these carve-outs (USSC 2019). The amount of credit that can be earned is determined by risk level. o For those assessed at low or minimum risk, earned time credits can be applied toward early transfer to prerelease custody—either in a halfway house, home confinement, or (in certain instances) early supervised release. The law holds great promise in both incentivizing and improving programming for people housed in BOP, reducing their risk of recidivism, allowing early transfer to prerelease custody for some, and shortening time served for almost all federally sentenced people currently in BOP custody, provided it is implemented as intended. However, translating First Step into practice will be challenging because of the law’s complexity and the need for multiple agencies to change how they do business. Successful implementation will require the commitment and buy-in of the DOJ and BOP, education and training for relevant government officials and practitioners (as well as potential beneficiaries of the act), adequate funding for the law’s new requirements, faithful development and execution of the risk and needs assessment tool, and outside oversight to monitor progress (including concerns about disparate outcomes) and hold government officials accountable. DOJ commitment and buy-in. Although some parts of First Step are very prescriptive, BOP and DOJ retain considerable discretion in how the law will be implemented. Some provisions (i.e., sentencing and compassionate release) became effective when the law was enacted in December, while others (e.g., risk and needs assessment system and expanded programming) are scheduled to become effective over the next few years. An overarching question is whether DOJ/BOP will adopt an expansive or restrictive view as it drafts new policies and guidelines governing these policy changes, including rules for earning time credits and transferring to prelease custody or supervised release. More specifically, overarching questions include the following: How quickly will BOP and other government actors move to implement the various provisions? ◼ Will statutory deadlines be met? » When will the first beneficiaries of the revised good time credit be released: July 2019, or will their release be linked to the release of the risk assessment tool, which could be delayed? » When can people incarcerated in BOP facilities begin accruing time credits under the revised calculation given it hinges on a final risk and needs assessment tool? Will input from outside experts, such as the IRC, be incorporated into BOP/DOJ decisions, and ◼ how open will the process be for input from stakeholders and the public? 6 NEXT STEPS IN FEDERA L CORRECTIONS REFORM ◼ How will prosecutors respond to the sentencing reforms and expanded opportunities for early release through compassionate release and the elderly pilot? Will they embrace the spirit of the changes or develop work-arounds? The precise meaning and limits of many of the law’s provisions are likely to be litigated and decided by the courts. Although clarifying good conduct time is the most straightforward of First Step’s provisions (and the only one that can benefit almost all BOP residents similarly),2 other provisions may not have their intended impact or could yield a disparate impact, particularly on people of color, those without the means to retain private counsel or outside advocates, and non-English speakers. Concerns about possible disparities apply to the implementation of various provisions: sentencing reforms, modified compassionate release and elderly policies, the risk and needs assessment tool, and incentives and rewards, including earned time credits. A priority should be ensuring that people who could benefit from the various reforms are well-informed and well-represented in any required administrative or judicial proceeding and that criminal justice stakeholders are advised about the threat of disparate application of the provisions and take actions to mitigate such outcomes. The statutorily required reports will examine possible disparities in implementation, particularly regarding the new risk and needs assessment system, which should also aid in preventing disparate outcomes. Education and training. As with any new law, it is critical to explain the policy changes to the practitioners responsible for implementing them and to those whose lives could be changed by them. Information about the changes should be widely disseminated. Practitioners, who may not agree with the policy changes, can promote or undermine implementation efforts, so it will be important to emphasize the rationale and intent behind the policies. As part of the education process, concerns about the provisions having a disparate effect (particularly on people of color or with limited means) should be highlighted. The sentencing provisions and revised compassionate release policy require educating judges and other stakeholders, including prosecutors, probation officers, and federal defenders to promote equal application across federal districts. DOJ, the judiciary, and the federal public defenders have already provided some guidance to their representatives in the field. The US Sentencing Commission does not currently have a quorum, however, which will prevent it from promulgating any new guidelines related to First Step provisions this amendment cycle. Advocates, federal defenders, and the defense bar are working to ensure that people who may be eligible can receive the benefits of the law for the prospective sentencing changes, for the retroactive application of the Fair Sentencing Act (which requires each individual to petition the court for a sentence adjustment), and for the compassionate and elderly release policies. Identifying eligible individuals can be resource intensive and the federal defenders may need additional financial and training/technical assistance support. Focus on risk and needs assessment tool. Much of the success of First Step hinges on the development, release, and application of a risk assessment tool. If the tool is delayed beyond the July 2019 statutory deadline, so too will its application, potentially postponing the benefits people can receive from the incentives and rewards, including time earned toward release to supervised custody as well as the NEXT STEPS IN FEDERA L CORRECTIONS REFORM 7 retroactive application of the seven-day good time credit adjustment. Yet developing a tool that accurately predicts risk of recidivism, does not have a racially disparate effect, and includes dynamic factors that can measure the positive impact of BOP’s rehabilitative programming impact on risk will be difficult. The law requires the establishment of an IRC of experts to advise the attorney general on the risk and needs assessment system. The host for the IRC was named in early April, later than the statutory deadline of January 2019. All of these provisions demand oversight and accountability, making the IRC critical to ensuring the risk assessment tool is methodologically sound, validated, and applied in a manner that does not perpetuate or exacerbate racial bias in the system. The risk and needs assessment system is to be aligned with evidence-based programs. BOP, with the advice of the IRC, must review its own programs, scan correctional programming across the country, and determine how to modify and expand its program offerings. Some of BOP’s programming (e.g., RDAP and UNICOR/FPI) have been evaluated and are evidence-based, but a systematic review will be required (Pelissier et al. 2001; Saylor and Gaes 1994). One method for assessing how well BOP’s programming matches the needs of its population is CJ-TRAK, which can help correctional systems identify any gaps in their programming.3 Although First Step states that people may start earning incentives and rewards at the time the risk assessment is released, there are several reasons why that could be delayed, particularly for the earned time credits. BOP may choose to require individuals to have a new risk assessment and/or associated individualized case plan before they can start accruing time credits. In addition, programming needs to be expanded in order for people to comply with their case plans, and internal policies and procedures governing the time credits also need to be in place. BOP should be explicit about when it will permit people to start earning credits, allowing Congress and/or other stakeholders to clarify if their intent was for people to earn credits more quickly. Funding. It is also critical that Congress appropriate the $75 million 4 authorized in First Step for implementing the risk and needs assessment system and new and evidence-based programs aligned to the population’s needs. There was no First Step request in BOP’s 2020 Congressional budget, purportedly because BOP had not yet estimated the funds needed for implementation (DOJ 2019). In early April, the President indicated that there would be an additional request for resources to fully implement First Step, but that request has yet to be made. Oversight/accountability. Transparency about implementation activities would promote accountability and afford an opportunity for those outside the government to highlight instances where implementation choices deviate from the intent or spirit of the law. In addition to the statutorily required reports by the Attorney General, the IRC, and the Government Accountability Office (GAO), it would be helpful to receive regular updates from the BOP/DOJ and the US Sentencing Commission, which will learn about most of the beneficiaries of the law. When the attorney general announced the host for the IRC,5 he also summarized the progress to date under First Step, which was a helpful update for the field. 8 NEXT STEPS IN FEDERA L CORRECTIONS REFORM What Additional Reforms are Needed? Without question, the First Step is an important accomplishment and its impact is already being felt by individuals and families across the country, primarily through the retroactive application of the Fair Sentencing Act and the revised policy on compassionate release. In addition to the positive impact various reforms will likely have over the coming years, the legislation recognizes important principles that can spur future reform: individualizing sentencing and corrections decisions, employing incarceration judiciously, using research and data to improve public safety, and improving transparency about the sentencing and corrections system. However, though some First Step provisions are essentially the same as several of those recommended by the Task Force, many do not go as far as the Task Force and some recommendations are not addressed at all (for a comparison of the how the key First Step provisions map against the Colson Task Force recommendations, see the appendix). Substantial reform work remains to be done. Key areas for future reform include filling the gaps in the First Step Act (e.g., expanding eligibility for earned time credits and making all sentencing provisions retroactive) and embracing additional and more impactful reforms recommended by the Colson Task Force on Federal Corrections (e.g., reducing or eliminating mandatory minimum penalties and creating a second look provision) that were not included in First Step. Specific suggestions are presented below, using the Colson framework. Reserve prison for those convicted of the most serious crimes: ◼ Apply all First Step sentencing provisions retroactively so people sentenced and incarcerated under the old rules regarding repeat drug offenses, gun stacking offenses, and the expanded safety valve would have the opportunity to have their sentences reconsidered under the new rules. ◼ Eliminate mandatory minimums except for drug kingpins (CCTF 1.1). ◼ Apply sunset provision to any future mandatory minimum penalties (CCTF 1.3). Promote a culture of safety and rehabilitation: ◼ Establish a visitation and family affairs office at BOP to oversee and ease visitation procedures (CCTF 2.5). Incentivize participation in risk-reduction programming: ◼ Reconsider all the carve-outs under First Step that exclude people from earning and using time credits. Expand First Step eligibility for early transfer to prerelease custody to include people assessed at medium or high risk. Earned time credits for early prerelease custody could benefit those at higher risk levels who are in the greatest need of support before release. ◼ Authorize earned time credits to be used to reduce the prison term itself (CCTF 3.1). NEXT STEPS IN FEDERA L CORRECTIONS REFORM 9 ◼ Create a second look provision to allow someone to apply for resentencing after 15 years of incarceration (CCTF 3.2). Ensure successful reintegration of people exiting federal prison: ◼ Improve coordination among BOP, US Probation, and Residential Reentry Centers by sharing information on risk and needs assessment, program participation, medical and mental health status, and aftercare information (CCTF 4.2). To enhance coordination, performance, accountability, and transparency: ◼ Create a standing oversight board (Performance Accountability Oversight Board) to monitor the entire BOP. Such a board could “oversee changes in policy and practice, guide and monitor performance measurement and strategic planning activities, review and help shape the delivery of risk-reduction programming and transition planning, and monitor conditions of confinement to ensure they are secure and humane” as the Task Force recommended (CCTF 5.5). ◼ Improve caseload reporting and performance metrics for the corrections and supervision population. Develop metrics and an ongoing review process for performance measurement and disseminate recidivism data annually (CCTF 5.2). ◼ Lift the ban on Pell grants to support those who want to pursue their education beyond the high school level (CCTF 5.6). Reinvest savings to support the expansion of necessary programs, supervision, and treatment: ◼ Appropriate funds authorized by the First Step Act. ◼ Fund US Probation to increase staffing, programs, and services (CCTF 6.1). Conclusion Federal corrections reform has been long overdue. The progress made by the First Step Act can be cemented through effective implementation and built upon through future reform. The Colson Task Force’s recommendations offer a roadmap for further improving federal sentencing and corrections policy. The results would be a federal prison system better aligned with recidivism reduction principles and research evidence, enhanced public safety, a smaller federal prison population, and fewer lives negatively impacted by the criminal justice system. 10 NEXT STEPS IN FEDERA L CORRECTIONS REFORM Appendix. Charles Colson Task Force (CCTF) Recommendations Compared with First Step Act TABLE A.1 Reserving Prison for those Convicted of Serious Offenses CCTF recommendationsa 1.1 Mandatory minimums for drug offenses First Stepb ◼ ◼ ◼ Gaps/remaining next steps applies Fair Sentencing Act retroactively expands judicial safety valve reduces enhanced penalties for some repeat drug offenses ◼ revises penalties for 18 U.S.C. § 924(c) gun “stacking” ◼ ◼ 1.2 Mandatory minimums for weapon possession ◼ 1.3 Mandatory minimum research and sunset Provisions N/A ◼ 1.4 Alternatives to incarceration N/A ◼ ◼ ◼ repeal drug mandatory minimum penalties, except for drug kingpins (prospective and retroactive) revise sentencing guidelines to reflect role and culpability; prescribe alternatives to prison for lower-level drug trafficking offenses enable judges to sentence below the mandatory minimum weapon enhancement for possession associated with nonviolent offense (prospective) Apply sunset provision to any future mandatory minimum penalties prescribe probation for lowerlevel drug trafficking offenses and consider doing so for other offense types increase use of alternatives to incarceration including frontend diversion courts, problemsolving courts, and evidencebased diversion authorize and fund front-end diversion programs and problem-solving courts, evaluating alternatives a The appendix excludes some CCTF recommendations that were directed to the executive branch. Italicized entries indicate that the provision is included in the First Step, but not in the CCTF. Generally, these provisions do not go as far as the Task Force recommended. b NEXT STEPS IN FEDERA L CORRECTIONS REFORM 11 TABLE A.2 Promoting a Culture of Safety and Rehabilitation in Federal Facilities CCTF recommendations 2.1 Safety and security in BOP First Step ◼ ◼ 2.2 Risk and needs ◼ ◼ 2.3 Programming ◼ ◼ ◼ ◼ 2.4 Conditions of confinement and rehabilitative culture ◼ ◼ ◼ ◼ ◼ ◼ 2.5 Family engagement ◼ enables individuals to earn up to 15 percent off sentence to incentivize good conduct (increasing the good time credit from 47 to 54 days) requires de-escalation training for all staff requires development and implementation of an actuarial risk and needs assessment tool (with assistance from an IRC) requires development of case plans and delivery of evidencebased programming based on individual risk and needs requires development of aggregate criminogenic risk and needs profile of its population requires review of BOP programming and scan of best evidence-based programming. house people with similar risks together, consistent with safety concerns. expand educational and occupational opportunities [in accordance with facility need] bans shackling of pregnant women requires dyslexia screening and programming that accommodates dyslexia limits solitary confinement for juveniles reforms compassionate release program for people facing “extraordinary and compelling” circumstances reauthorizes elderly pilot, with less restrictive age criteria requires review of medication assisted treatment programs Places people 500 driving miles from home Gaps/remaining next steps N/A N/A ◼ ◼ ◼ ◼ ◼ ◼ ◼ ◼ ◼ ◼ 12 conduct a systemwide assessment of facility-specific programming needs allocate programs and treatment offerings in accordance with facility risk and need ensure housing and security procedures respond to specific needs of diverse populations use segregated housing as punitive measure only in extraordinary circumstances develop appropriate and nonrestrictive housing options for those in need of protective custody train all staff on communication, problem solving, and procedurally just resolution practices house people as close to home communities as possible establish visitation and family affairs office to oversee and ease visitation procedures expand video conferencing and other visitation programs enhance support for families of people in prison NEXT STEPS IN FEDERA L CORRECTIONS REFORM TABLE A.3 Incentivizing Participation in Risk-Reduction Programming CCTF Recommendations 3.1 Risk-reduction programming First Step ◼ ◼ ◼ 3.2 Second Look provision establishes incentives and rewards based on risk reduction programming allows eligible6 people to earn time credits based on risk reduction programming that can lead to early transfer to prerelease custody for those assessed at low or minimum risk—either in a halfway house, home confinement, or (in certain instances) early supervised release directs BOP to assess work programs and feasibility of manufacturing products purchased by the government that are manufactured overseas N/A Gaps/remaining next steps ◼ ◼ ◼ ◼ enable individuals not serving life sentences to earn up to 20 percent off time served by complying with individualized case plans enable all Residential Drug Abuse Treatment Program participants not serving life sentences to earn up to 1 year off time served enable resentencing for anyone who has served more than 15 years of their sentence develop guidelines for Second Look reviews and sentence modifications TABLE A.4 Ensuring Successful Reintegration by Using Evidence-Based Practices in Supervision and Support CCTF recommendations First Step Gaps/remaining next steps 4.1 Prerelease custody and residential reentry centers (RRCs) ◼ requires BOP to have sufficient capacity for expanded prerelease custody provisions ◼ 4.2 Safe and seamless reintegration ◼ requires identification for persons leaving BOP ◼ ◼ ◼ NEXT STEPS IN FEDERA L CORRECTIONS REFORM make recommendations regarding allocation of RRC beds, alternatives to RRC placement, and performancebased RRC contracts improve coordination by establishing a shared information system share information on risk and needs assessment, program participation, medical and mental health status, and aftercare information supervised release and early termination 13 TABLE A.5 Enhancing System Performance and Accountability through Better Coordination across Agencies and Increased Transparency CCTF recommendations First Step 5.1 Establish Joint Department of Justice/ Judiciary Working Group (Joint Working Group) to oversee reforms ◼ 5.2 Caseload reporting and performance metrics N/A requires reporting from BOP, IRC, and GAO Gaps/remaining next steps ◼ ◼ ◼ ◼ 5.3 Establish BOP Office of Victim Services 5.4 Membership, role, and capacity of the USSC N/A N/A N/A ◼ ◼ ◼ 5.5 Permanent BOP Performance, Accountability, and Oversight Board (PAOB) ◼ establishes the IRC to advise AG/BOP on development of risk and needs assessment system ◼ ◼ ◼ ◼ ◼ 14 monitor implementation of recommended legislative and policy changes submit an annual report on reform progress and performance metrics review and expand annual reporting of caseload data for the corrections and supervision population develop metrics and an ongoing review for performance measurement; disseminate recidivism data annually expand voting membership of USSC to include representation of victims, formerly incarcerated individuals, defense attorneys, and experts in sentencing and corrections routinely monitor and report on the impact of sentencing changes revise 2011 mandatory minimum report (N.B. Completed) work with BOP to develop and promulgate performance metrics monitor development of new risk and needs assessment and implementation of new earned time credits oversee development and implementation of comprehensive 10-year plan to restructure federal prison system review BOP oversight, accreditation, auditing, and compliance mechanisms conduct special studies such as review of prerelease custody practices and procedures, focused on RRCs NEXT STEPS IN FEDERA L CORRECTIONS REFORM 5.6 Collateral consequences and barriers to reintegration N/A review federal collateral consequence laws allow Pell grants for incarcerated persons eliminate executive branch criminal history disclosure on employment applications for federal contractors codify criminal history disclosure changes for federal employees and contractors ◼ ◼ ◼ ◼ TABLE A.6 Reinvesting Savings to support the Expansion of Necessary Programs, Supervision, and Treatment CCTF recommendations 6.1 Resources for reform First Step ◼ ◼ 6.2 Develop recommendations for reinvesting savings from the reduced BOP population ◼ Gaps/remaining next steps funds BOP to implement validated risk and needs assessment tool, catalog current program offerings and capacity, and expand necessary programs and treatment authorizes $75 million, 80 percent for BOP implementation ◼ reinvests savings into BOP programming; requires broader reinvestment strategy in required attorney general report N/A ◼ ◼ ◼ fund US Probation to increase staffing, programs, and services fund courts to establish the Second Look function fund USSC to expand capacity and training fund DOJ Office of Justice programs to incentivize frontend diversion programs, problem-solving courts, and other alternatives to incarceration Notes 1 The primary purposes of sentencing in the federal system are deterrence, incapacitation, just punishment, and rehabilitation (Sentencing Reform Act of 1984). 2 An apparent drafting error has delayed the implementation of the revised calculation for good time credits. The effective date is tied to the release of the risk and needs assessment system, which is statutorily required in July 2019, but could be delayed. 3 “CJ-TRAK,” Center for Advancing Correctional Excellence, 2014, https://www.gmuace.org/tools/assesscapacity; “Risk-Needs-Responsivity (RNR) Simulation Tool,” Center for Advancing Correctional Excellence, 2011, https://www.gmuace.org/research_rnr.html. 4 $75 million a year for FY 2019 through FY 2023, with 80 percent reserved for use by the Director of the Bureau of Prisons. NEXT STEPS IN FEDERA L CORRECTIONS REFORM 15 5 “Department of Justice Announces First Step Act Implementation Progress,” Office of Public Affairs, Department of Justice, press release no. 19-338, April 8, 2019, https://www.justice.gov/opa/pr/departmentjustice-announces-first-step-act-implementation-progress. 6 The law excludes people from earning credits based on their offense of conviction. The long list of exclusions includes people convicted of certain fentanyl, heroin or methamphetamine trafficking offenses, sex offenses, certain gun offenses, violent offenses, and terrorism. References Andrews, D. A., and J. Bonta. 2002. The Psychology of Criminal Conduct. 3rd ed. Cincinnati, OH: Anderson. Andrews, D. A., I. Zinger, R. D. Hoge, J. Bonta, P. Gendreau, and F. T. Cullen. 1990. “Does Correctional Treatment Work? A Clinically-Relevant and Psychologically Informed Metaanalysis.” Criminology 28: 369–404. Charles Colson Task Force on Federal Corrections (CCTF). 2016. Transforming Prisons, Restoring Lives. Washington, DC: Urban Institute. Department of Justice (DOJ). 2019. Federal Prison System: FY 2020 Performance Budget Congressional Submission. Washington, DC: US Department of Justice. https://www.justice.gov/jmd/page/file/1144626/download. James, Nathan. 2014. The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options. Washington, DC: Congressional Research Service. https://www.fas.org/sgp/crs/misc/R42937.pdf. Lipsey, M., N. Landenberger, and S. Wilson. 2007. Effects of Cognitive-Behavioral Programs for Criminal Offenders. Oslo: The Campbell Collaboration. Lowenkamp, Christopher T., and Edward J. Latessa. 2002. Evaluation of Ohio’s Community-Based Correctional Facilities and Halfway House Programs Final Report. Cincinnati, OH: University of Cincinnati. Pelissier, Bernadette, William Rhodes, William Saylor, Gerald G. Gaes, Scott D. Camp, Suzy D. Vanyur, and Sue Wallace. 2001. “Triad Drug Treatment Evaluation Project.” Federal Probation 65 (3): 3–7. Saylor, W. G., and G. G. Gaes. 1994. Post-Release Employment Project (PREP) Study Links Federal Prison Industries (UNICOR) Work Experience with Successful Post-Release Outcome. Washington, DC: DOJ/BOP Office of Research and Evaluation. US Sentencing Commission (USSC). 2011. Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. Washington, DC: US Sentencing Commission. https://www.ussc.gov/research/congressionalreports/2011-report-congress-mandatory-minimum-penalties-federal-criminal-justice-system. ———. 2017. Recidivism Among Federal Drug Trafficking Offenders. Washington, DC: US Sentencing Commission. https://www.ussc.gov/research/research-reports/recidivism-among-federal-drug-trafficking-offenders. ———. 2019. Sentence and Prison Impact Estimate Summary S. 756, The First Step Act of 2018 (as enacted on December 21, 2018). Washington, DC: US Sentencing Commission. https://www.ussc.gov/sites/default/files/pdf/researchand-publications/prison-and-sentencing-impact-assessments/January_2019_Impact_Analysis.pdf. 16 NEXT STEPS IN FEDERA L CORRECTIONS REFORM About the Authors Julie Samuels is a senior fellow in the Justice Policy Center at the Urban Institute with extensive knowledge of the federal criminal justice system. At Urban, she examines issues related to growth in the federal prison system, federal justice case processing trends, and sentencing and corrections reform. Nancy G. La Vigne is vice president of justice policy at the Urban Institute. She manages a staff of more than 50 scholars and conducts her own research on policing, criminal justice technologies, and reentry from incarceration. Chelsea Thomson is director of center operations in the Justice Policy Center at the Urban Institute, where she provides research and operational support. As a researcher, Thomson focuses on criminal justice reform and is the project director for the Justice Reinvestment Initiative. Acknowledgments This brief was supported by Arnold Ventures. We are grateful to them and to all our funders, who make it possible for Urban to advance its mission. The views expressed are those of the authors and should not be attributed to the Urban Institute, its trustees, or its funders. Funders do not determine research findings or the insights and recommendations of Urban experts. Further information on the Urban Institute’s funding principles is available at urban.org/fundingprinciples. ABOUT THE URBAN INST ITUTE 500 L’Enfant Plaza SW Washington, DC 20024 www.urban.org The nonprofit Urban Institute is a leading research organization dedicated to developing evidence-based insights that improve people’s lives and strengthen communities. For 50 years, Urban has been the trusted source for rigorous analysis of complex social and economic issues; strategic advice to policymakers, philanthropists, and practitioners; and new, promising ideas that expand opportunities for all. Our work inspires effective decisions that advance fairness and enhance the well-being of people and places. Copyright © May 2019. Urban Institute. Permission is granted for reproduction of this file, with attribution to the Urban Institute. NEXT STEPS IN FEDERA L CORRECTIONS REFORM 17