Statement of David E. Patton

Statement of David E. Patton Executive Director, Federal Defenders of New York Before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security October 17, 2019 Oversight Hearing on "The Federal Bureau of Prisons and Implementation of the First Step Act" EFTA00100180 Statement of David E. Patton Executive Director, Federal Defenders of New York Before the Judiciary Committee of the House of Representative Subcommittee on Crime, Terrorism, and Homeland Security October 17, 2019 Oversight Hearing on "The Federal Bureau of Prisons and Implementation of the First Step Act" Mr. Chairman and Members of the Subcommittee: Thank you for holding this hearing and for the opportunity to testify. At any given time, Federal Public and Community Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they are too poor to afford counsel. An overwhelming majority of people incarcerated in Bureau of Prisons (BOP) are our clients, and we are grateful for this opportunity to discuss the BOP and the First Step Act (FSA). The BOP has a long history of acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress. For decades the BOP took an unreasonably restrictive view of good time, resulting in thousands of years of additional overall prison time. For decades it refused to exercise the authority given to it by Congress to release incarcerated people who were terminally ill, infirm, or otherwise suffered from extraordinary circumstances. For decades it has not made nearly full use of its statutory authority to release people to Residential Reentry Centers (RRCs). And for decades it has not provided enough vocational, educational, mental health, and substance abuse programming despite abundant need and lengthy waitlists. The FSA will solve some of these problems, most notably clarifying the good time credits and offering an avenue to the courts for compassionate release. But the FSA also provides the BOP with significant added responsibility and authority. As a result of the Act, the BOP will now establish and implement a risk and needs assessment system that will directly determine how long tens of thousands of people serve in prison. If not done wisely, there are countless ways the system will result in unfair, biased, and overly punitive outcomes. With history as a guide, this committee should be very concerned about whether the BOP will rise to the challenge of these new responsibilities. Oversight has never been more important. Although the focus of my remarks will be on national BOP and FSA issues, I will start with a discussion of two BOP facilities in my home district in New York City, the Metropolitan Detention Center (MDC) in Brooklyn, which is the largest federal pretrial detention center in the country, and its counterpart in downtown Manhattan, the Metropolitan Correctional Center (MCC). Repeated problems at the facilities and well-publicized events of the past 1 EFTA00100181 year are part of a larger story about why strong oversight of the BOP is so desperately needed. Fire at the MDC Under the best of circumstances, the MDC is a miserable place to be incarcerated. The federal jail located in Sunset Park, Brooklyn houses over 1,600 people, most of whom are pretrial detainees awaiting trial in the Southern and Eastern Districts of New York. The Federal Defenders of New York represents roughly half of them. Most of the rest are represented by appointed counsel from the Criminal Justice Act Panel. The vast majority of those incarcerated at MDC are poor people of color. On a regular basis we witness inexcusable treatment of our clients: poor medical treatment and psychiatric care, arbitrary placement in solitary confinement, unnecessary impediments to legal visiting, and even rape by corrections officers (which have resulted in several indictments). The space itself is cramped with little opportunity for any exposure to the outdoors. Even with those conditions as a baseline, during the week from January 27 to February 3, 2019, the MDC reached a new low. On Sunday, January 27, there was a fire at the MDC that knocked out the electrical panel controlling a sizable part of the institution, including cell and common area lighting, much of the kitchen equipment, and most of the inmate phones and computers, among other things. Despite the severity of the situation, the only thing MDC officials told us (or anyone else) was that attorney and family visitation was being suspended that day. The next morning, we were once again told that visitation was suspended with no explanation. We peppered prison officials with questions. We were told all was okay — just a problem with lighting in the visitation area. Then the calls from our clients started. The only phones working were the direct lines to the Federal Defenders' office. "There's no heat in here." "We're being locked down in the dark." "I'm not getting my medication." Temperatures outside were hovering in the single digits during one of the coldest stretches in New York City's history. Most of our clients lack money for the commissary and are relegated to wearing short-sleeved scrub-like uniforms. They are cold when the heat is functioning properly and set to 68 degrees. When it's 40 or 50 degrees inside, as we were hearing, merely cold becomes torture. We immediately contacted MDC officials, and they denied any problem with the heat or medical care. As the reports from our clients continued, we began filing emergency motions before the trial judges in their cases, asking for release or removal to safer conditions. We asked the MDC for a tour of the facility but were denied. As we sought relief in court, federal prosecutors reported to the judges that MDC officials were telling them that all was fine; our concerns were overblown, and our clients were lying. On Thursday, January 31, the New York Times reported on the conditions. In a statement to the Times, prison officials minimized the problems and stated that "the electrical failure was related to Con Edison, which it said had been `dealing with numerous power emergencies in the community."' That, of course, was a lie, and Con Edison quickly refuted it. The Times story included not just our lawyers' and clients' accounts but those of the 2 EFTA00100182 correctional officers who work there. According to the officers, temperatures were "freezing," and people in cells "just stay huddled up in the bed." 'We didn't have heat in the building, we didn't have light." With the press attention and the corroboration of the officers, our complaints began to be taken seriously. On Friday, February 1, the Chief Judge of the Eastern District of New York, Dora Irizarry, ordered that we be given access, and the head of our Eastern District office, Deirdre von Domum, entered the facility — now five days after the fire and loss of power. What she found was horrifying. It was after sunset, and the small cells containing two people each, were pitch black. The only lighting was emergency lighting coming from the common areas. Our clients had been locked down in those cells for the past 24 hours and for various long stretches throughout the week. Some cells had heat; others were frigid. People needing new medication couldn't get it. People who require Continuous Positive Airway Pressure machines (CPAPs) couldn't use them because of the lack of power. Their lives were in danger, and they were terrified. One man with an open wound showed Ms. von Domum (and later a federal judge who also toured the facility) his puss-covered bandages that hadn't been changed in two weeks. Another, who suffered from ulcerative colitis, showed her his bloody bedding that had not been changed because of the lack of laundry services. Everyone was scared and cut off from the world: no family visits, attorney visits, or phone calls other than use of the direct line to the Federal Defenders during the rare moments they were let out of their cells. I toured the facility the following day with various local and federal officials, including Chairman Jerrold Nadler and Representative Nydia Velazquez. Chairman Nadler asked the Warden, Herman Quay, why there wasn't a better plan for a power outage of this sort and why there wasn't more of a sense of urgency to fix it — and, in particular, why the electricians were not working that day, much less around the clock. The warden had no answers. Representative Velazquez expressed her anger that the previous day when she had come for a tour, MDC officials only showed her the common areas, not the cells, by falsely telling her the inmates were locked down for a "count" — a brief, temporary tally of the population. In fact, they were still locked down as of Saturday afternoon — going on 48 hours. And despite numerous corrections officers corroborating the lack of heat in certain areas throughout the week (and the week before), the warden continued to deny any problems. On our tour that afternoon we saw many of the same problems Ms. von Domum had seen the night before: frantic, scared people locked in pairs in tiny, unlit cells. Some cells had heat; others did not. One cell registered 50 degrees on a portable thermometer. The next day, on the heels of the press attention and the vigorous prodding of Chairman Nadler and Representative Velazquez, the power was restored. In the wake of the debacle, at the request of Chairman Nadler and Representative Velazquez, the Office of the Inspector General of the Department of Justice (IG) investigated the incident. The IG Report confirmed and even amplified many of the problems. But its ultimate recommendations fell well short of real accountability. 3 EFTA00100183 Let's start with the problems it confirmed and amplified. The power problems had nothing to do with Con Edison. There were longstanding facilities management and building maintenance problems, and those problems were the cause of the crisis. There were in fact serious heat problems — problems that pre-dated the electrical fire and were exacerbated by MDC employees' mistakes. During the crisis, inmates were being locked down for extended periods of time. The majority were not given extra blankets or long sleeved clothing. Medical care was compromised. The provision of food was seriously impacted. There was no contingency plan for legal or family visitation. There was no plan for people who require electricity for medical equipment such as CPAPs. There was a serious lack of transparency and communication with the courts, attorneys, media, and the families of those incarcerated. Unfortunately, the IG Report failed to discuss MDC officials' lies. The institution lied in its press release saying Con Edison was to blame. Warden Quay lied about there being no heat problems. He lied about inmates not being locked down. He lied repeatedly about the severity of the situation and its impact on medical care and safety. And predictably, there has been no real accountability. Warden Quay was promoted. He now overseas multiple federal prisons in Pennsylvania. I say predictably because this lack of accountability is consistent with many years of IG reports finding severe mismanagement at the MDC. Earlier reports have detailed serious problems with the MDC's management of solitary confinement, the treatment of sentenced women housed in the East Building, and separately, multiple instances of serious sexual assaults of men and women by corrections officers. Many of the problems identified in those reports (and many others) remain. Suicide at the MCC The other pretrial federal jail in my home district that has gained notoriety recently is the MCC in downtown Manhattan. Media attention has focused on the death of Jeffrey Epstein whose high profile case and suicide at the MCC brought scrutiny to the management of the institution. I do not have any personal knowledge regarding the circumstances of Mr. Epstein's death, and I therefore cannot comment on what failings at the institution led to it. But I can say with confidence that a variety of problems, similar to those at the MDC, plague the institution. Both institutions are chronically short-staffed, or so officials tell us when legal or social visitation is cancelled or when we wait for hours to be able to visit with clients. Both institutions have extremely limited educational or vocational programming. Corrections officers at both facilities have committed egregious sexual assaults against inmates. And in both, medical care is abysmal. In addition to those problems, there is the matter of the physical space. The MCC is a cramped, vertical building with the only "outdoor" recreation located on the roof of the building in a space covered by thick fencing that barely allows for a view of the sky. The unit at the MCC where Epstein was housed, "9 South," keeps people in small, virtually 4 EFTA00100184 windowless cells for 23 hours a day. The MCC was built in the 1970s with a capacity for roughly half of the number of people now held there. And it was initially built without rooms for attorney visitation even though it is a pretrial detention facility. The limited number of attorney visitation rooms now create expensive and aggravating delays. Here in New York City, the local jail at Rikers Island gets deserved attention for its deplorable conditions, yet in their own way, the federal pretrial facilities can be worse. I have often had clients who were initially held on state charges at Rikers and then brought to the MCC or MDC to face federal charges. Because of the conditions, many have asked me if it's possible to return to Rikers. Several years ago, the U.S. Attorney's Office for the Southern District of New York sued the local New York-run Rikers Island over jail conditions, but the office has never done anything about the MCC, the federal facility where the U.S. Attorney's Office itself sends people. Indeed, when legal action is taken against the MCC or MDC, it is the U.S. Attorney's Office that represents the institutions. There are legal, administrative, and cultural barriers to U.S. Attorney's Offices playing the same role with respect to federal jails as they play with state and local facilities. For that reason, Congress should explore other avenues for providing outside accountability for places like the MCC and MDC that have thus far proved entirely resistant to change. The First Step Act Shortly before the fire at the MDC, Congress passed and the President signed the FSA. The FSA gives the DOJ, and the BOP specifically, significant additional authority and responsibility to help prisoners succeed in their communities upon release and thereby reduce recidivism. But it can only succeed if the DOJ and BOP faithfully implement the will of Congress. A Lath of Programming To meet the twin goals of improved public safety and reduced levels of incarceration, the FSA relies heavily on the BOP offering substantially increased programming and productive activities for incarcerated individuals. To date, the BOP has failed to provide adequate programming to meet current needs, much less the increased demand that will be required to make the FSA a success. The true extent of the deficit is not known because the BOP has not been transparent about the number of programs offered, the capacity of these programs, and the length of the waitlists for these programs. The BOP has failed to respond to requests from Congress for this information, and provides even less information to the public. What we do know indicates the BOP is not providing enough individuals with sufficient quality programming. Available data shows waitlists to participate in the BOP programs are long: 25,000 people are currently waiting to be placed in prison work 5 EFTA00100185 programs,' at least 15,000 are waiting for education and vocational training,2 and at least 5,000 are awaiting drug abuse treatment.3 And, assuming the sample used to develop the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) is representative, DOJ data indicates almost half (49%) of individuals serving federal sentences of incarceration complete no programs; that a vast majority have no technical/vocational courses (82%) or federal industry employment (92%) and well over half (57%) have not had drug treatment while incarcerated despite indication of need.'' Access to quality programs also varies from one institution to another.5 This is unfortunate because programs such as Federal Prison Industries (also known by its trade name, UNICOR) has been proven to reduce recidivism by 24%.6 Participants in FPI are also 14% more likely than similarly situated individuals who did not participate to be employed after release for prison.7 ' See BOP: UNICOR, Federal Bureau of Prisons, https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp (estimating the participation rate at 8%). 2 See Oversight of the Federal Bureau of Prisons Before the H. Subcomm. on Crime, Terrorism, Homeland Stain? and Investigations of the H. Comm. on the Judiciafy, 115th Cong. 20 (2018) (BOP Director Inch). 3 See Dep't of Justice, Bureau of Prisons, Drug Abuse Treatment Program, 81 Fed. Reg. 24484, 24488 (Apr. 26, 2016) ("over 5,000 inmates waiting to enter treatment"); Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives: Final Recommendations of the Colson Task Force on Federal Corrections 36 (Jan. 2016) Cat the end of FY 2014, more than 12,300 people systemwide were awaiting drug abuse treatment"). Substantial waitlists also exist for mental health programs and trauma therapy programs for female inmates. See Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Use of Restrictive Housing for Inmates with Mental Illness 51 (2017); Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Management of Its Female Inmate Population, 19-22 (2018). ° See Office of the Attorney General, U.S. Dep't of Just The First Step Ad y.2018: Risk and Needs Assessment System 47, tb1.1 (2019) (DOJ Report). s See, e.g., BOP, Directory of National Programs, https://www.bop.gov/inmates/custody_and_care/docs/20170913_Directory_of National_Progra msl.pdf; Office of the Inspector General, U.S. Dep't of Just, Review of the Federal Bureau of Prisons' Release Preparation Program i (2016) (finding that the BOP "leaves each BOP institution to determine its own [Release Preparation Program (RPP)] curriculum, which has led to widely inconsistent curricula, content, and quality among RPP courses"). See FPI and Vocational Training Works: Post-Release Employment Project (PREP) at http://www.bop.gov/resources/pdfs/prep_summary_05012012.pdf; see also Federal Bureau of Prisons, UNICOR: Preparing Inmates for Successful Reentg through Job Training, http://www.bop.gov/inmates/custody_and_care/unicor.jsp. 7 See Federal Bureau of Prisons, UNICOR: Preparing Inmates for Successful Reentry through Job Training, http://www.bop.gov/inmates/custody_and_care/unicor.jsp. 6 EFTA00100186 The BOP has a long history of not providing sufficient programs. Moving forward, because the recidivism reduction efforts of the FSA are meaningless without adequate programming, our primary concern is whether the BOP will provide a broad range of programs, and sufficient program capacity, to comply with the FSA requirement that the 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." The BOP's past performance, with long waitlists, and inconsistent access and quality across institutions, makes it difficult to have confidence that the BOP will meet its statutory obligations in this regard. The Risk and Needs Assessment System Also critical to the success of the FSA is a risk and needs assessment system that is transparent, fair, and unbiased. Early signs indicate that the system will not meet any of those criteria. The FSA required the DOJ to develop a risk and needs assessment system that, among other things, would determine "the recidivism risk of each prisoner" and "the type and amount of evidence-based recidivism reduction programming for each."9 The system, through its impact on the ability of incarcerated people to earn early release credits, will directly govern how much time people serve in prison. This makes it a high-stakes tool, and testing for accuracy and bias is crucial. Indeed, Congress understood the stakes and called for transparency throughout the FSA, including a mandate that the risk and needs assessment system be "developed and released publicly."1° Congress also repeatedly required that the system be monitored for bias." On July 19, the DOJ issued a report announcing the initial development of PATTERN. The DOJ Report on PATTERN provides very little information about its development. This is 8 First Step Act of 2018 (FSA), Pub. L 115-391, Title I, § 102(a) (Dec. 21, 2018) (codified at 18 U.S.C. § 3621(h)(6). FSA at, Title I, § 101(a) (codified at 18 U.S.C. § 3632(a)). " See, e.g, FSA at Title I, § 103 (requiring the Comptroller General to conduct an audit of the use of the risk and needs assessment system every two years, which must include an analysis of "[t]he rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates."); FSA at Tide I, § 107© (requiring the Independent Review Committee to submit to Congress a report addressing the demographic percentages of inmates ineligible to receive and apply time credits, including by age, race, and sex); FSA at Tide VI, § 610(a)(26) (requiring the Director of the Bureau of Justice Statistics to annually submit to Congress statistics on "Mlle breakdown of prisoners classified at each risk level by demographic characteristics, including age, sex, race, and the length of the sentence imposed."). 7 EFTA00100187 extremely troubling because the development of PATTERN, as with all risk assessment tools, necessarily relies on both empirical research and moral choices.12 Based on the limited information provided in the DOJ Report, we have concerns, and even more questions, in both areas. Additional information is needed to assess many important issues including: PATTERN's accuracy; its scoring mechanisms; its fairness across age, gender, race and ethnicity; whether it will exacerbate racial disparity in the federal prison population; its impact on privacy interests; and whether it is consistent with the congressional mandate to "ensure" that "all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceradon."13 Transparency in the methods for developing, validating and bias testing PATTERN is vital. Full transparency is a primary way (along with accountability and auditability) to create and justify confidence by stakeholders and the public. Indeed, across risk assessments in criminal justice, the secrecy that permeates black box instruments causes significant concerns about how reasonable they are in practice. Full transparency requires the DOJ to release the same dataset used by Grant Duwe, Ph.D., and Zachary Hamilton, Ph.D., to create PATTERN.14 This is consistent not only with the transparency directives in the FSA,l5 but also with the advice of leading organizations such as the National Center for State Courts, which recommends that independent evaluators determine whether their independent "research findings support or contradict conclusions drawn by the instrument developers."" For a fuller listing of the information that must be known and why, I am attaching as Exhibit A the Federal Defenders' letter to the NIJ. 12 Michael Tonry, Legal and Ethical Issues in the Prediction of Recidivism, 26 FED. SENT'G REP. 167, 167 (2014). " 18 U.S.C. § 3632(a)(5)(A). 14 See DOJ Report at 42-43. 15 See supra notes 10& 11. 16 Pamela M. Casey et al., National Centerfor State Courts, Offender Risk dr Needs Assessment Instruments: .4 Primer.* Courts 19 (2014) (stressing that third party audits are valued because "it is always helpful to know whether existing research descriptions about the reliability, validity, and fairness of a tool have been replicated by others." Any "decisions based on a [risk and needs] tool which grossly misclassifies the risk levels of offenders may not simply fail to improve outcomes; they may actually do harm to the offender." As a result, "[i]nstrument validation is not only important to ensure that decision making is informed by data, but to establish stakeholder confidence."); see also Nathan James, CONG. RESEARCH SERV., Risk and Needs Assessment in the Federal Prison System 11 (July 10, 2018) (Congressional Research Service report concerning risk assessment in the federal prison system positively citing the recommendation of the Council of State Governments that independent third parties should be permitted to validate the tool to assess accuracy by race and gender). 8 EFTA00100188 The importance of transparency is heightened by some of the initial known aspects of the system. For instance, the DOJ's definition of the central measured outcome in the risk assessment: recidivism. The definition the DOJ chose is unduly broad, sweeping in revocations for minor technical violations such as failure to timely report a change of residence, or failing to timely notify the probation officer of being questioned by police." This broad definition of "recidivism" is inconsistent with the goals of the FSA to successfully reintegrate individuals in their communities and protect the public. Another choice that signals the need for vigilance and concern is the decision to release a risk assessment tool that has a racially disparate impact, particularly on black males. According to DOJ data, white males are far more likely than black males to fall in the minimum and low risk categories, 57% versus 27% respectively.18 We are concerned the BOP has not, and will not, take appropriate steps to ameliorate this disparity. Relatedly, we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.19 Until then, the BOP appears to be relying on its current "needs assessment" that was criticized by the Office of the Inspector General back in 201620 Management of FSA Timelines and Requirements We are also concerned that the BOP will not implement other components of the FSA within the required timeframes, unnecessarily delaying access to programs that reduce recidivism, and incentives for participating in them. No information has been provided on whether the risk assessment tool has been finalized following public comment and is now ready to be used (or is already being used) by properly trained BOP employees to complete the initial intake for each incarcerated individual by January 15, 2020. No information has been provided regarding whether training is progressing such that BOP staff will be capable of completing that initial intake. While the DOJ indicated it would take four months to develop advanced training, it is not clear whether development efforts have begun.21 No information has been provided on whether the BOP has started assessing newly-committed " See, e.g., USSGS5D1.3(c)(4), (c)(5), (c)(9). DOJ Report at 62, tbl. 8. DOJ Report at 64, 78. 20 Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Release Preparation Program 14 (2016) ("the BOP's current method [of assessing risk and needs], which relies heavily on staff discretion to identify and tailor RPP programming efforts to inmate needs, may not be as effective or efficient as the more systematic tools that many state correctional systems use'). 21 DOJ Report at 86. 9 EFTA00100189 inmates. And critically, no information has been provided on how soon after the commencement of a sentence, individuals can expect to start participating in programming. Time and again, the BOP has proven unable to meet even basic standards in the management and care of the federal inmate population. Indeed, virtually every time the BOP has been scrutinized—from managing its compassionate release program, to preparing individuals for reentry22 —the agency has proven itself unable to effectively allocate its resources, collect data, and provide baseline care for the individuals in its keep. Closing Residential Reentry Centers Under the FSA, people who complete certain programs in custody will soon begin earning credits that, in theory, they can exchange for greater prelease time in community corrections, including the possibility of additional time at Residential Reentry Centers (RRCs). But if reentry capacity decreases instead of expands, these credits may be worthless. Sadly, because of the BOP's recent practices, that is exactly what is happening. My colleague, Lisa Hay, the Federal Defender for the District of Oregon, has detailed this problem in a letter to the Director of the BOP, Kathleen Sawyer. (Attached as Exhibit B). In the letter she explains that at least 20 reentry centers have closed or ceased accepting federal inmates since 2017, and more closures appear likely. This loss of bed space cripples efforts to enhance successful reentry of incarcerated citizens, undermines the criminal justice goal of rehabilitation, and consequently threatens community safety. Reentry centers can provide the opportunity, in a less structured setting than prison, for individuals to engage in needed treatment, find employment, and continue reconnecting with their family and community. Once lost, these precious resources are difficult to replace. The closing of RRCs is in keeping with a long history of the BOP failing to release people as early as the law provides. The Second Chance Act of 2007 doubled the amount of sentenced time that federal prisoners were eligible to spend in reentry centers from six months to up to one year. 18 U.S.C. § 3624(c). During this "prerelease time," the individual is not released from his or her federal sentence but is serving the sentence in an alternative n See, e.g., Office of the Inspector General, U.S. Dep't of Just., The Federal Bureau of Prisons' Compassionate Release Program 53 (2013) ("[W]e found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release. It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided."); Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prism' Release Preparation Program i (2016) ("Significantly, we found that the BOP does not ensure that the [Release Preparation Programs (RPPs)] across its institutions are meeting inmate needs. Specifically, BOP policy does not provide a nationwide RPP curriculum, or even a centralized framework to guide curriculum development ... [Further,] the BOP does not have an objective and formal process to accurately identify and assess inmate needs or determine which RPP courses are relevant."). 10 EFTA00100190 setting. Defenders were encouraged by this Congressional recognition that our clients and their communities both benefited when reentering individuals were given more time, in a gradually less structured setting, to engage in treatment, employment counselling, parenting classes, and other programs designed to ensure the safety of the community and the success of the resident after incarceration. Despite this mandate from Congress, however, the BOP was slow to change, and the amount of prerelease time that individuals were awarded to spend in reentry centers remained low. In 2011 Defenders wrote to then Director Thomas Kane to express concern about this failure to implement the Second Chance Act.23 In 2012, the General Accountability Office issued a report that similarly noted the BOP's failure to adequately implement Congressional mandated alternative options to incarceration, including use of reentry centers.24 After the GAO report, the BOP did begin to utilize reentry centers more fully, awarding slightly greater prerelease time to individuals. But the amount of this prerelease time awarded by the BOP is again declining. According to the most recent report submitted by the BOP to the House and Senate Judiciary Committees, the average length of placement in reentry centers decreased by almost 20% from the first quarter measured (April — June 2017) to the last quarter (January-March 2018), resulting in almost a full month less of reentry time by the last quarter (an average of 119 days compared to 146 at the start of the year).Th Notably, even the high, four-month average represents significantly less time than the one year authorized by Congress. The BOP acknowledged in a 2017 memorandum that "due to fiscal constraints," the average length of stay was "likely to decline to about 120-125 days."26 Anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor's wall reading: 'We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says." Numerous reentry centers confirm that lengths of stay have declined significantly over the last few years. The BOP's formal or informal restrictions on prelease time harm individuals serving federal sentences by limiting their opportunity for structured reentry into the 23 Letter of FPD Thomas Hillier to Bureau of Prisons' Director Thomas Kane, dated November 16, 2011. (Exhibit B, Attachment A). 20 Government Accountability Office, Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison (Feb. 2012) available at https://www.gao.gov/products/GAO-12-320. 25 Utilization of Community Corrections Facilities: Report to Congress (Apr. 2017- Mar. 2018). (Exhibit B, Attachment E). 26 Memorandum of Acting Assistant Director, Hugh Hurwitz, Oct. 10, 2017. (Exhibit B, Attachment C). 11 EFTA00100191 community. The limits also harm reentry centers because the declining lengths of stay mean that facilities are not operating at full capacity. Many reentry centers increased capacity with the encouragement of the BOP and now find they are in difficult fiscal straits as individuals spend more time in prison and less time in reentry centers. Conclusion If past predicts future, there is good reason to question whether the BOP will comply with either the spirit or the letter of the FSA and take the steps Congress envisioned to reduce recidivism, improve public safety, and reduce unnecessary incarceration. I began my testimony with the story of last year's crisis at the MDC because I think it is sadly indicative of the lack of accountability throughout the BOP. The stakes for successful implementation of the FSA are high. As Congress recognized, the overwhelming majority of people in prison will get out and become our neighbors again. If they are treated with harshness, neglect, violence, and inhumanity in prison, they are much more likely to respond in kind when they get out. Robust programming, use of a fair and unbiased system to award early release credits, and thoughtful planning for reentry are key to the FSA's success. It will not happen without vigorous oversight I thank this Committee for recognizing that and holding this hearing. 12 EFTA00100192 EXHIBIT A EFTA00100193 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10th floor New York, NY 1007 Tel: (212) 417-8738 Co-Chairs David Patton Executive Director Federal Defenders of New York Jon Sands Federal Defender District of Arizona September 13, 2019 David B. Muhlhausen, Ph.D. Director National Institute of Justice Office of Justice Programs Department of Justice 810 Th Street NW Washington, DC 20531 Re: DOJ First Step Act Listening Session on PATTERN Dear Dr. Muhlhausen: Thank you for inviting comment from the Federal Public and Community Defenders regarding the Department of Justice's (DOJ) development of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) as part of its obligations under the First Step Act (FSA). The Federal Public and Community Defenders represent the vast majority of defendants in 91 of the 94 federal judicial districts nationwide, and we welcome the opportunity to provide our views. PATTERN will directly affect how much time many of our clients spend in prison. This makes it a high-stakes tool, and means testing for accuracy and bias is crucial. Indeed, Congress understood the stakes and called for transparency throughout the FSA, including a mandate that the risk and needs assessment system be "developed and released publicly."' Congress also repeatedly required that the system be monitored for bias.' The limited information released by the DOJ in its July 19, 2019 I First Step Act of 2018 (FSA), Pub. L. 115-391, Tide I, § 101(a) (Dec. 21, 2018) (codified at 18 U.S.C. § 3632(a)). 2 See, e.g., FSA at Tide I, § 103 (requiring the Comptroller General to conduct an audit of the use of the risk and needs assessment system every two years, which must include an analysis of "[t]he rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates."); FSA at Title I, § 107(g) (requiring the Independent Review Committee to submit to Congress a report addressing the demographic percentages of inmates ineligible to receive and apply time credits, including by age, race, and sex); FSA at Tide VI, § 610(a)(26) (requiring the Director of the Bureau of Justice Statistics to annually submit to Congress statistics on "[t]he breakdown of EFTA00100194 Federal Public & Conumuuty Defenders Legislative Committee 52 Duane Street, 104 Floor New York, NY 1007 Tel (212) 417-8738 report (DOJ Report) confirms the need to assess PATTERN for accuracy and bias. For example, reported data indicates PATTTERN will have a racially disparate impact, particularly on black males. As illustrated in the charts below, based on the DOJ Report, white males are far more likely than black males to fall in the minimum and low risk categories.' Racial Disparities in Eligibility for Full Earned Release Incentives White Males Black Males Il 57% 27% • Minimum/Low • Minisnum/Loot • Medium/High • Medium/High This matters because these are the categories that are eligible for higher rates of earned time credits and eligibility for supervised release and prerelease custody.' The DOJ Report fails to provide the level of transparency required for meaningful evaluation of PATTERN. Below, we detail much of the additional information needed to fully assess PATTERN for accuracy and bias. We look forward to providing additional thoughts after the DOJ has released this information and hope our comment here is only the beginning of an ongoing dialogue with the DOJ regarding PATTERN. I. RISK ASSESSMENT PATTERN is a risk assessment tool "designed to predict the likelihood of general and violent recidivism for all BOP inmates!' It places "individuals into four categories: high, medium, low or prisoners classified at each risk level by demographic characteristics, including age, sex, race, and the length of the sentence imposed."). 3 See U.S. Dep't of Just., The First Step Art of 2018: Rick and Needs Assessment Sytem 62, tbl. 8 (2019) (DOJ Report) (reporting 57% of white males in the developmental sample fall in the minimum and low risk categories while only 27% of black males fall in those same categories). 'See FSA at Title I § 101(a) (codified at 18 U.S.C. § 3632(d)(4)(A), providing more earned time credits for some individuals in the lowest two risk categories); Title I § 102(6)(1)(13) (codified at 18 U.S.C. § 3624(g)(1), restricting eligibility to transfer to supervised release or prerelease custody to individuals in the minimum or low risk categories, absent warden approval under specified circumstances). 5 DOJ Report at 43. 2 EFTA00100195 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10'h Floor New link, NY 1007 Tel: (212) 417-8738 minimum?'" These risk categories determine the number of credits an individual may earn by participating in programs and productive activities, and also eligibility to attribute those credits toward supervised release or prerelease custody.' In other words, the risk categories will directly affect how much time many individuals spend in prison. The development of PATTERN, as with all risk assessment tools, necessarily relies on both empirical research and moral choices.' Based on the DOJ Report, we have concerns, but even more questions, in both areas. Additional information is needed to assess many important issues including: PATTERN's accuracy; its scoring mechanisms; its fairness across age, gender, race and ethnicity; how much it will exacerbate racial disparity in the federal prison population; its impact on privacy interests; and whether it is consistent with the congressional mandate to "ensure" that "all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceration."' A. Transparency & Accountability: Development, Validation and Bias Testing Transparency in the methods for developing, validating and bias testing PATTERN is vital. Full transparency is a primary way (along with accountability and auditability) to create and justify confidence by stakeholders and the public. Indeed, across risk assessments in criminal justice, the secrecy that permeates black box instruments causes significant concerns about how reasonable they are in practice. 1. Dataset Full transparency requires DOJ to release the same dataset used by Grant Duwe, Ph.D., and Zachary Hamilton, Ph.D., to create PATTERN.10 This is consistent not only with the transparency directives in the FSA," but also with the advice of leading organizations such as the National Center for State Courts which recommends that independent evaluators determine whether their independent "research findings support or contradict conclusions drawn by the instrument developers.)912 • DOJ Report at 50. 7 See supra note 4. See Michael Tonry, Legal and Ethical Issues in the Prediction of Recidivism, 26 FED. SENTT; REP. 167, 167 (2014). • FSA at Tide I § 101(a) (codified at 18 U.S.C. § 3632(a)(5)(A)). See DOJ Report at 42-43. "See supra notes 1 &2. 'Pamela M. Casey et al., National Center* Slate Courts, °fender Risk a' Needs Assessment Instruments: .4 Primer* Courts 19 (2014) (stressing that third party audits are valued because "it is always helpful to know whether existing research descriptions about the reliability, validity, and fairness of a tool have been replicated by others." Any "decisions based on a [risk and needs] tool which grossly 3 EFTA00100196 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 1(1,K Floor New York, NY 1007 Tel: (212) 417-8738 • Access to the full dataset would permit independent researchers to assess validity and algorithmic fairness using a variety of measures and calculations." • Despite recognizing the existence of multiple measures and calculations concerning validity," the DOJ Report focused mostly on the Area Under the Curve (AUC). The AUC, however, has limited utility as a measure of relative risk.15 Further, when tools are assessed using multiple measures of predictive validity (e.g., correlations, calibration metrics, Somers' D), results for the same tools vary.14 • Access to the dataset would allow interested parties to complete 2 x 2 contingency tables (number of false negatives, false positives, true negatives, true positives) for general and violent recidivism at each cutoff (minimum to low; low to medium; medium to high) by age, gender and race/ethnicity groupings. These contingency tables would provide important information on the degree to which the categorizations created by the cut-points capture true positives and true negatives (in addition to the associated recidivism rates that the DOJ Report included)." • The dataset would allow independent researchers to compute the algorithmic fairness measures called balance for the positive and negative classes by calculating average scores by recidivists versus non-recidivists across each age, gender, and racial/ethnic groupings. misclassifies the risk levels of offenders may not simply fail to improve outcomes; they may actually do harm to the offender." As a result, "[ijnstrument validation is not only important to ensure that decision making is informed by data, but to establish stakeholder confidence."); see also Nathan James, CONG. RESEARCH SERV., Risk and Needs Assessment in the Federal Prison System 11 (July 10, 2018) (Congressional Research Service report concerning risk assessment in the federal prison system positively citing the recommendation of the Council of State Governments that independent third parties should be permitted to validate the tool to assess accuracy by race and gender). "For example, release of the full dataset would allow independent researchers to calculate relevant measures such as false positive rates, false negative rates, positive predictive value, negative predictive value, equal calibration, balance for the positive class, balance for the negative class, diagnostic odds ratios, correlations, treatment equality, and demographic parity. The importance of these various measures are discussed and calculated regarding other risk tools in sources cited in the DOJ Report. See DOJ Report at 38-39 nn.20-24. " See DOJ Report at 28 (discussing multiple algorithmic measures of racial bias). 15 See Melissa Hamilton, Debating Algorithmic Fairness, 52 UC DAVIS L REV. ONLINE 261 (2019); Jay P. Singh, Predictive Validi?Perfonnance Indicators in Violent Risk Assessment, 31 BEHAV. So. & L. 8, 16- 18 (2013). 16 See general? Sarah L. Desmarais et al., Performance of Recidivism Risk Assessment Instruments in U.S. Correctional Settings, 13 PSYCI4OL So. 206 (2016). 17 See Richard Berk et al., Fairness in Criminal Justice Settings: The State of the Ad, SOC. METHODS & RES. (forthcoming 2019). 4 EFTA00100197 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10th Floor New York, NY 1007 Tel: (212) 417-8738 • Access to the dataset would allow interested parties to complete the bivariate correlations between predictors and risk outcomes which the DOJ Report indicates were completed by the developers, but are not reported.' • Access to the dataset would permit independent researchers to test for bias, including comparing each racial/ethnic grouping. As discussed above, the DOJ Report indicates the need for additional inquiry regarding racial disparity and other biases." First, DOJ data show that black males are far less likely than white males to fall into the two lower risk categories that receive the full benefits of earned time credit and eligibility to use those credits for supervised release or prerelease custody.20 In addition, the relative rate index (RRI) of 1.54 reported in Table 8, but not discussed in the text, comparing white to non-white males, also shows PATTERN has a racially disparate impact' More information is needed, including data on Native-Americans and Asians, which is not included in the DOJ Report' Access to the data would allow independent researchers to isolate individual factors and determine which contributed to any disparate impact. For example, research on the Post- Conviction Risk Assessment (PCRA) found that "Black offenders tend to obtain higher scores on the PCRA than do White offenders" and that "most (66 percent) of the racial difference in the PCRA scores is attributable to criminal history.s23 Because PATTERN plays a role in determining how much time a person spends in prison, a similar finding of racial difference with PATTERN could "exacerbate racial disparities in prison.s2' Identifying " See DOJ Report at 65 n.17. " See flora note 3 and accompanying text " See M. 21 See DOJ Report at 62, tbl. 8 22 See William Feyerherm et al., Identification and Monitoring in Dept. of Just Office of Juvenile Justice and Delinquency Prevention, Disproportionate Minority Contact Technical Assistance Manual, 1-1, 1-2, 3 (4th ed. 2009) (recommending the RRI be calculated separately for each minority group that comprises at least 1% of the total population scored); BOP Statistics: Inmate Race, Federal Bureau of Prisons, https://nw.bop.gov/about/statistics/statistics_inmate_race.jsp. 'Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race, and Recidivism: Predictive Bias and Disparate Impact, 54 CRIMINOLOGY 680, 700 (2016). 24 Id. at 705; see also id at 703, 705 (explaining that as assessment of whether a tool produces "inequitable consequences" depends on "what decision they inform" and that "some applications of instruments might exacerbate racial disparities in incarceration"). 5 EFTA00100198 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10d, Boor New York, NY 1007 Tel: (212) 417-8738 which factors generate the disparate impact would open an opportunity to brainstorm with people across disciplines about how to ameliorate such impact? • Access to the dataset would allow independent researchers to evaluate test bias employing the hierarchical modeling method considered best practice in the educational testing literature as referred to, but not reported in, the DOJ Report? • Access to the dataset would allow interested parties to determine whether there are mistakes in the DOJ Report regarding the recidivism rates by ordinal ranking. Table 5 reports general recidivism rates of 9% (minimum), 31% (low), 51% (medium), and 73% (high). Table 9 reports identical recidivism rates in each of these categories for while maks,' which might either be coincidental or a mistake in reporting. • Similarly, access to the dataset would allow independent researchers to determine the correct AUC for violent recidivism as defined by the developers. The DOJ Report is inconsistent, reporting in one table the AUCs for violent recidivism as .78 for males and .77 for females.' In another table, they are reversed, indicating AUCs of .77 for males and .78 for females? These differences are not significant in terms of numbers, but flaws such as these (reasonable considering the tight time frame which the PATTERN team faced) call for independent audits to check for other potential errors. 2. Eligibility Additional information is needed regarding the assumptions behind the assertion that "99% of offenders have the ability to become eligible for early release through the accumulation of earned time credits even though they may not be eligible immediately upon admission to prison. That is ... nearly all have the ability to reduce their risk score to the low category."3° Without more information it is impossible to test this assertion, but it appears suspect in light of: the percentage of the developmental sample that fell in the medium and high categories (52% of all and 58% of men);' that high scores are likely driven by static factors such as age of first conviction and criminal history 26 See Richard Berk, Acturag, and Fairness for Juvenile Jmike Risks Assessments, 16 J. EMPIRICAL LEG. STUD. 175, 184 (2019). 26 See DOJ Report at 29 (referring implicitly to what is known as the Cleary method). 27 See DOJ Report at 59, tbl. 5 & 62, tbl. 9. 22 See DOJ Report at 57, tbl. 3. 26 See DOJ Report at 60, tbl. 7. J0 DOJ Report at 57-58. 31 See DOJ Report at 59, tbls. 5 & 6. 6 EFTA00100199 Federal Public & Community Defenders Legislative Committee 52 Duane Street, Ind, Floor New York, NY 1007 Tel: (212) 417-8738 score; and the limited number of programs/productive activities currently available (with correspondingly far fewer points allocated by the tool)? 3. Developmental Sample Additional information is needed regarding the developmental sample. • Additional information is needed regarding the attributes of the developmental sample. The DOJ Report includes apparently contradictory, or at least confusing information, about the composition of the developmental sample. o The DOJ Report indicates the BOP provided its contractors, Duwe and Hamilton, with a dataset used to "develop and validate" PATTERN containing 278,940 BOP inmates released from BOP facilities between 2009 and 2015," which included "only those inmates released to the community," and excluded "released inmates who died" and those "scheduled for deportation"30 DOJ also reports that developers relied on a smaller "eligible sample size" of 222,970, described as "those who were released from a BOP facility to a location in the United States and had received a BRAVO assessment," which may mean that 55,970 individuals from the original dataset (20%) were excluded from what became the developmental sample because they had not been scored on BRAVO." More information is needed regarding the excluded individuals, including demographic characteristics, and reasons they may have been released but not scored on BRAVO. Such a reduction in the sample size could introduce sample bias. o It appears that the training sample contained individuals who were released in 2009- 2013, and the test (or validation) sample contained individuals who were released in 2014-2015." More information is needed about why the training and test samples were drawn from different years. Information is also needed regarding what consideration was given to the possibility that there were risk-relevant differences between the groups. For example, policy changes, such as the retroactive 2014 amendment to the drug guidelines, may have resulted in a different composition of n See Emily Tiry, Julie Samuels, How Can the Fint Step Act's Risk Assessment Tool Lead to Farb. Release from Federal Prison?, Urban Wire, Crime and Justice (Sept. 5, 2019), https://www.urban.org/urban- wire/how-can-first-step-acts-risk-assessment-tool-lead-early-release-federal-prison. J3 DOJ Report at 43. 34 DOJ Report at 42-43. J5 DOJ Report at 46. 36 See DOJ Report at 49 & 50. 7 EFTA00100200 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 104 Boor New York, NY 1007 Tel: (212) 417-8738 individuals released in 2015 than in prior years.37 It is important for stakeholders to understand whether the differentials in samples here also embed bias into the tool. o More information is needed regarding why the size of the developmental sample used in the DOJ Report is significantly lower than the number of federal prisoners released in those years, as indicated from another official database. An online tool for calculating the number of released prisoners offered by the Bureau of Justice Statistics indicates that 385,405 individuals were released from federal correctional institutions from 2009-2015? Yet, the DOJ Report specifies that its developmental sample includes only 278,940 released prisoners? Specifically, it is important to know whether the reported exclusions for death and deportation'10 account for the entire differential or whether there are additional explanations. Similarly, more information is needed about the size of the training and test groups. The DOJ Report indicated the training group as 66% of the total developmental sample, with the test group as 33% of the sample, but also described the training group as including 5 years of releases, with the test sample including only 2 years of releases. Information is needed to explain this apparent discrepancy:" • Additional information is needed regarding the sample descriptive statistics (including recidivism rates). Table 1 provides data on the entire eligible developmental sample, but is also needed separately for each of the (a) training sample and (b) test sample." • Additional information is needed regarding the sample descriptive statistic on "BRAVO-R Initial: History of Escapes." The total reported percentage is 86%, but no information is provided regarding whether this means there is 14% missing data on this factor, and if so, how missing data cases were scored." • Information is needed regarding the inter-rater reliability scores for the evaluators concerning the development sample, both training and then test data. These statistics will provide information relevant to whether PATTERN can be scored consistently, as J7 See Remarks for Public Meeting of the U.S. Sentencing Comm'n, Washington, D.C., at 2 (Jan. 8, 2016) (Honorable Patti B. Saris, Chair) (recognizing that approximately 6,000 offenders were released on or about November 1, 2015 as a result of the 2014 amendment to the drug guidelines). 38 These were calculated using an online tool and narrowing to federal prisoners. See Bureau of Justice Statistics, Corrections Statistical Analysis Tool-Prisoners, https://www.bjs.gov/index.cfinhy=nps. 39 See DOJ Report at 42. 4° See DOJ Report at 42-43. 11 See DOJ Report at 49-50. 42 See DOJ Report at 46-48, tbl. 1. 43 See DOJ Report at 48, tbl. 1. 8 EFTA00100201 Federal Public & Community Defenders Legislative Committee 52 Duane Street, Ins Floor New York, NY 1007 Tel: (212) 417-8738 recognized by the DOJ Report, but for some reason not reported." Low inter-rater reliability outcomes decrease the utility of a tool. 4. Weighting The DOJ Report indicates that PATTERN involves "analytically weighting assessment items,sJ5 but more information is needed on whether the weights are assigned solely through the points identified for each of the factors included in Table 2," or are somehow reweighted in an algorithm not discussed in the report. The DOJ Report provides so few details on weighting, it is unclear what type(s) of models were used (such as regressions) and/or whether any type of machine learning (supervised or unsupervised) was employed. If the former, more information is needed regarding whether and how step-wise procedures were used, data on intercorrelations, and if multicollinearity exists. If the algorithm was developed with any form of machine learning, this more "black box" method has different and profound implications on transparency of the developmental procedures. 5. Overrides The DOJ Report does not mention overrides. Information is needed regarding whether PATTERN allows for policy overrides and/or discretionary (also referred to as professional) overrides, and if so, whether there will be a supervisory approval process for discretionary overrides. Information is also needed as to whether any of the final scores in the development sample (training and/or testing involved overrides of original scores and the reasons for such overrides. 6. Relevant Research Copies of two governmental papers cited in the DOJ Report, but not readily available to the public, must be made available. Specifically, documents detailing the BRAVO-R, from which "PATTERN builds,'TM' and relevant RRI computations are cited as important to understanding PATTERN' but are not readily available to the public. 7. Definitions & Scoring More information is needed regarding the definitions of key terms and rules for scoring. • Recidivism. It appears that for purposes of developing and testing PATTERN, "general recidivism" is broadly defined to include "any arrest or return to BOP custody following release" More information is needed to determine whether this is as (unduly) broad as it appears, and includes revocations for minor technical violations such as failure to timely • See DOJ Report at 27. 45 DOJ Report at 50. 16 See DOJ Report at 53-56. • DOJ Report at 44; 64 nn.8 & 9. a See DOJ Report at 66 n.25. • DOJ Report at 50. 9 EFTA00100202 Federal Public & Community Defenders Legislative Committee 52 Duane Street, Ind` Floor MA./ York, NY 1007 Tel: (212) 417-8738 report a change of residence, purportedly lying in response to queries from a probation officer, or failing to timely notify the probation officer of being questioned by police.50 Similarly, it appears that for purposes of developing and testing PATTERN, "violent recidivism" is defined as "violent arrests following release.s51 More information is needed here, as well, regarding what kinds of arrests are considered "violent." A separate discussion in the DOJ Report regarding whether the instant offense was violent, appears to cite a definition of "violent recidivism."' More information is needed regarding whether this is also the intended definition of violent recidivism. If so, more information is needed about what is included in "other violent.s53 Defenders are concerned that revocations, arrests, and misdemeanor convictions are poor and biased proxies for the kind of serious re-offenses targeted by the recidivism-reduction programming at the core of the FSA. In addition, more information is needed regarding whether any mechanism was used to exclude pseudo-recidivism (prior offenses that were not detected and pursued—subject to arrest or return to prison as a result—until after the instant offense). • Age of First Arrest/Conviction. More information is needed regarding whether the first risk factor for purposes of developing, testing and implementing PATTERN is age of first arrest or age of first conviction. The DOJ Report contains contradictory information, referring to both arrest and conviction without explanation for the inconsistency.' If looking to conviction, is the relevant age determined by the individual's age on the date of the alleged conduct, date of arrest, or date of conviction? More information is also needed about what is being counted in the "under 18" category. It is unclear whether this factor sweeps in all juvenile adjudications (including status offenses), or is limited to convictions in adult court. Among our many concerns with this factor is the relative unreliability of juvenile 5° See, e.g., USSG §5D1.3(c)(4), (c)(5), (c)(9). DOJ Report at 50. 52 DOJ Report at 46 n.16; 65 n.15. DOJ Report at 65 n.15. m Compare DOJ Report at 46, tbl. 1 (age of first arrest) with DOJ Report at 45; 53, tbl. 2; 65, n.14 (age of first comic/ion). 10 EFTA00100203 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10d` Floor New link, NY 1007 Tel: (212) 417-8738 adjudications' and that "youth of color—and especially black youth—experience disproportionate court involvement.s56 • Infractions. More information is needed regarding the infraction factors. First, what is meant by an "infraction," a "conviction" for an infraction, and a "guilty finding' for purposes of these factors? It is unclear whether the infraction factors will count any and all disciplinary misconduct. Second, how are infractions scored? Would multiple acts during a single course of conduct be counted as one or more? Would multiple acts processed at the same time (whether a single course of conduct or not) be considered one or more? Third, what is the empirical basis for treating all 100 and 200 level offenses the same, such that refusing a Breathalyzer and possessing pot are scored the same as killing and taking hostages?' Fourth, is there any limitation on the reach of this factor? For example, does it look only to infractions in the past year, all infractions while in prison for the instant offense (and whether serving the original sentence or a revocation sentence), all infractions while serving any federal sentence, or for any offense ever, regardless of jurisdiction? We have numerous concerns about counting infractions in any form, and particularly minor infractions, for the purposes of determining eligibility for earned time credits and release under the Act. First, there is minimal due process structure over BOP disciplinary actions. Second, likely varied and divergent infraction cultures and practices from one BOP facility to another would mean the likelihood of attracting an infraction may be due to luck of the draw on institutional assignment. In addition, we are concerned about ex post facto use of infractions to negatively score defendants on PATTERN when individuals had no notice such infractions would count against them for these purposes, particularly in light of the FSA provisions indicating past participation in programs will not be counted to positively score individuals.' • Programs & Technical/Vocational Courses. More information is needed on the types and descriptions of the programs and technical or vocational courses for which points were given for these two variables. For example, information is needed on the name of the programs/courses, the providers, the personnel involved, the number of hours required, the length of the programs/courses, the program/course goals, the definition of completion, ss For example, the vast majority of states do not provide jury trials for juveniles, and "children routinely waive their right to counsel without first consulting with an attorney." Nat'l Juvenile Defender Ctr. (ISUDC), Wend Children: A Mount.* Effective javenik Defender Services 10 (Nov. 2016); NJDC, Juvenile Right to Jury Trial Chart (last rev. July 17, 2014), http://njdc.info/wp- content/ uploads/2014/01 /Right-toJury-Trial-Chart-7-18-14-Final.pdf. 66 Katherine Hunt Federle, The Right to Redemption: javenik Dispositions and Sentences, 77 LA. L REV. 47, 52 (Fall 2016). 57 See Dep't of Justice, Bureau of Prisons, Inmate Discipline Program, Program Statement 5270.09, tbl. 1, (July 8, 2011). 58 See FSA at Tide I, § 101(a) (codified at 18 U.S.C. § 3632(d)(4)(B)). 11 EFTA00100204 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10d, Floor New York, NY 1007 Tel: (212) 417-8738 and the locations where the programs/courses were made available. Information is needed about why the direction of the points for the number of technical/vocational courses is the reverse of what might be expected. Specifically, information is needed on why the tool penalizes an individual for taking a technical/vocational course.59 In addition, information is needed on whether there is an error in the description of the technical/vocational factor when it references the number of courses "created" rather than "completed," and if not, what is meant by courses "created." • Drug Treatment and Drug Education. More information is needed regarding the difference between drug treatment and drug education for purposes of scoring the PATTERN. More information is also needed regarding how drug treatment "need" is determined and scored, including whether it is based on self-report. The DOJ Report suggests it is tied to the BRAVO drug/alcohol abuse indicator, but it is not clear what data informs this factor, particularly without access to the BRAVO-R document requested above. • Instant Offense Violent. More information is needed regarding what constitutes a violent offense. The DOJ Report is unclear on the scope of this factor. The discussion in the text of the DOJ Report points to endnote 16, though it appears the content of the note is actually included under endnote 15.60 But even this is not clear because, in contrast with the "instant" offense discussed in the text, endnote 15 defines "violent recidivism" and looks at the nature of the "arrest.s61 If this definition of violent recidivism is consistent with the definition of instant violent offense, more information is needed regarding whether an instant violent offense requires a conviction in the listed categories, and what is meant by the category of "other violent." In addition, information is needed on the empirical basis for including this factor. It appears to be contrary to DOJ studies of national samples that show lower risk of general recidivism for individuals with an instant violent offense, compared with others.63 Is this factor essentially operating as a policy override for other purposes? • Sex Offender. Additional information is needed on how this factor is scored, including whether it is limited to convictions for sex offenses, or is broader and informed by arrests, self-report, hearsay, and whether it includes exonerated charges. As with other factors, additional information is also needed on whether there are any time limits on how recent the 59 See DOJ Report at 54, tbl. 2. 6° See DOJ Report at 46, n.16 & 65, n.15. The numbering of the Chapter Three endnotes is off, such that the content of the notes does not always match the text It appears that the mismatch begins with endnote 14, which according to the text should have provided information on "non- compliance with fiscal responsibility" but instead discusses "Age at first conviction." 61 See DOJ Report at 46, n.16 & 65, n.15. 62 See DOJ Report at 46, n.16 & 65, n.15. ' See Mariel Alper & Matthew R. Durose, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2006-2014) (2019) (Special Report, U.S. Dep't of Just). 12 EFTA00100205 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10." Flom New York, NY 1007 Tel: (212) 417-8738 conduct must be for it to count. In addition, information is needed regarding the empirical basis for including this factor. It appears contrary to DOJ studies of national samples that show lower risk of recidivism for individuals convicted of sex offenses than other types of offenses.6° Is this factor essentially operating as a policy override for other purposes? • Criminal History Score. Information is needed on whether this is a static figure based strictly on the U.S. Sentencing Commission guidelines' criminal history score at the time of sentencing or whether it can increase at reassessment because of events between sentencing and reassessment. Further, can the criminal history score be reduced at reassessment pursuant to a time decay mechanism? • History of Violence. Information is needed regarding the definition of violence, and whether it requires a conviction for a violent crime. Specifically, which crimes are considered "violent" for purposes of this factor? If not limited to convictions for violent offenses, more information is needed regarding the sources of information that may be considered when assessing this factor, and whether it permits consideration of arrests, prison disciplinary records, hearsay, and/or self-reports. In addition, information is needed on whether there is any time limit for this factor, or some time decay mechanism, as would be supported by available research on desistence. • History of Escapes. Information is needed regarding the definition of escape, including, for example, whether it would include failure to appear in a pre-trial context, or walking away from a halfway house. Information is also needed regarding whether there is a time limit for inclusion of old escapes, or a time decay mechanism. • Education Score. Information is needed regarding the ordinal rankings for the education score for the violent recidivism tool. • Databases. Several factors rely on past criminal conduct More information is needed regarding the databases that will be accessed to determine recidivism, and the known gaps and biases in such databases. • Missing Data. Information is needed regarding what adjustments were made for missing data, and the rate of missing data for each predictor. In addition, information is needed regarding the policy going forward when there is missing data in one of more factor in an individual case. For example, will information about missing data be communicated with the risk score and dassification? 8. Double Counting More information is needed to determine the scope of double counting under PATTERN, and whether any consideration has been given about ways to ameliorate it. " See Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014) (Special Report, U.S. Dep't of Just.). 13 EFTA00100206 Federal Public & Community Defenders Legislative Committee 52 Duane Street, IDIK Floor New York, NY 1007 Tel: (212) 417-8738 • Age. Young age will be counted twice for young first offenders, who will be young at time of first arrest/conviction,65 as well as at time of assessment. • Infractions. Information is needed on whether a single "infraction conviction" that is deemed "serious and violent" would count as both "any" and then again as "serious and violent" infraction. In addition, would an "infraction conviction" that resulted in a criminal conviction also count toward a criminal history score if criminal history is not static? And could an "infraction conviction" also result in points under the history of violence and/or "sex offender" factors? • History of Violence. Information is needed on whether a person with multiple violent priors receives multiple point scores in this single variable. For example, in the male general recidivism tool, if an individual had a minor violent offense < 5 years and a serious violent offense > 15 years, would the individual receive 5 points or 7? • Violence. Information is needed on whether the same violent offense can be counted multiple times, such as in the criminal history score, infraction convictions, instant offense violent, history of violence and/or sex offender. • Sex Offense. Information is needed on whether the same sex offense can be counted multiple times, such as in the criminal history score, infraction convictions, instant offense violent, history of violence and/or sex offender. • Criminal History. Information is needed on whether consideration was given to ameliorating the repeated counting of criminal history, first in the imposition of the sentence based on a guideline calculation that relies heavily on criminal history and then throughout PATTERN, including age of first arrest/conviction, sex offender, criminal history score and history of violence. We are concerned about the inclusion and weight (repeatedly) given to this factor for a number of reasons. Some concerns arise from the unique way in which the guidelines count criminal history, such as including all juvenile adjudications on par with adult convictions (with some difference in decay periods), and using sentence imposed rather than time served as a proxy for seriousness of the offense (affecting the number of points received)." In addition, as mentioned above, research on other risk tools has shown racial differences in scores with black individuals obtaining higher scores than white individuals, where most of the difference "is attributable to criminal history.' Criminal history correlates with race because it reflects prior instances of racial disparity in the criminal justice system or disadvantage earlier in life. Criminal history is not just the product of participation in crime, but of biased practices throughout the criminal justice system. Blacks do not sell "See supra note 54 and related text regarding issue of whether the first predictor looks to age of first conviction or arrest " See USSG §4A1.2(d), (e). 67 Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race, and Recidivism: Predictive Bias and Disparate Impact, 54 CRIMINOLOGY 680, 700 (2016). 14 EFTA00100207 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10" Floor New York, NY 1007 Tel: (212) 417-8738 drugs or possess guns at a greater rate than Whites." Studies show that Blacks are stopped and frisked or searched at higher rates than Whites, but that Whites who are frisked or searched are found with contraband at higher rates than Blacks who are frisked or searched." And Blacks are arrested more than twice as often as Whites.~0 Charging decisions and bail determinations further compound these racial disparities as individuals move through the criminal justice system.' We urge the DOJ to open discussion to a multidisciplinary team on methods to ameliorate the overreliance upon, and negative impacts of, criminal history. 9. Protective & Promotive Factors Additional information is needed on whether there are any plans to incorporate additional protective and promotive factors in PATTERN. Currently, program/course participation and educational attainment appear to be the only proxies for protective factors included in PATTERN. Similarly, additional information is needed on whether there are plans to incorporate a desistance factor into PATTERN that would significantly adjust the risk rating according to the literature on the age-crime curve and the literature on cessation of offending.i2 We urge DOJ to engage with a multidisciplinary team to consider incorporating more protective and promotive factors to better meet the goals of the FSA. 10. Policy Decisions Risk assessments are not simply math. Every risk assessment involves moral choices and tradeoffs. Some of our questions in this area are incorporated above, such as whether consideration has been given to ameliorating the effects of certain factors that are unacceptable regardless of predictive value. In addition, information is needed generally regarding the mechanisms in place to ensure that issues which have distinct policy implications will be resolved by appropriate personnel—ideally a 66 See Amy Baron-Evans & David Patton, A Response to Judge Pryor's Proposal to 'Fix" the Guidelines: A Cure Worse than the Disease, 29 FED. SENT'G. REP. 104, 112 (Dec. 1, 2016-Feb. 1, 2017). 69 See W. at 112-13 (collecting studies); see also Radley Balko, Op-Ed., There's Overwhelming Evidence that the Criminal-Justice System is Racist. Here's the Proof, WASI I. POST, Updated Apr. 10, 2019 (collecting studies). J0 See Bureau of Justice Statistics, Arrest Data Analysis Tool, 2014 (most recent data available), https://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm#. 71 See supra note 69; see also USSC, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders 7, 33-36, figs. 13-14 (2018). 72 See Cecelia Klingele, Measuring Change: From Rates of Recidivism to Markers of Desistance, 109 J. L & CRIMINOLOGY (forthcoming 2019), https://papers.ssm.com/sol3/papers.cfm?abstract_id=3142405; Ralph C. Serin & Caleb D. Lloyd, Integration of the Risk Need, Responsivi (RNR) Model and Crime Desistance Perspective: Implications for Community Correctional Practice, 7 ADVANCING CORRECTIONS 37, 38 (2019). 15 EFTA00100208 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10.K Floor New York, NY 1007 Tel: (212) 417-8738 multidisciplinary team that includes policymakers and stakeholdersi3—rather than solely data scientists. For example, the decisions on the cut-points, which necessarily impact fairness measures such as false positive rates and positive predictive values, appear to have been made by the researchers and based on arbitrary fractions or multiples of the recidivism rates..~° Yet, where those decisions affect moral and political outcomes with real-world consequences to individuals, they should instead be made by a multidisciplinary team that has the authority and direct interest in such consequences. Risk tool developers have a natural incentive to focus on overall accuracy. However, accuracy may need to yield to other important goals, such as differential validity, group fairness, and individual rights. Selecting the right tradeoff between these sometimes competing goals are more rightly within the power of policymakers and stakeholders. Here, it appears the cut-points were established somewhat arbitrarily without regard to such consequences as the false discovery rate and false omission rate (the reciprocals of positive predictive value and negative predictive value) and equal calibration, among other validity and fairness measures discussed above.~5 Because PATTERN was developed to meet the obligations of the FSA, a preferable method for setting cut-points would be attuned to the goal of maximizing incentives for participation in rehabilitative programs and courses. Increasing the cut-point between low and medium would be more suitable to achieve this goal. Relatedly, information is needed regarding the process, and who was involved, in setting the rules governing the combined (final) RLC. The current rule dictates that the highest risk category from the general and violent scales will be used to set the final RLC. Different choices could have been made that would be more suitable to achieve the FSA's goal of incentivizing and rewarding mon individuals to complete programs and courses. For example, a person who scores low or minimum on one scale and medium on the other should have a final RLC of low. And a person who scores high risk on one scale, yet medium risk on another should be classified for purposes of the final RLC as medium. Additional information is also needed regarding the process for deciding on the definition of "recidivism." This is a policy decision that requires identifying the scope of conduct that should be included, consistent with the purpose of the FSA to successfully reintegrate individuals in the community. For example, what was the process for deciding to include all revocations, including 73 See Partnership on AI, Report on Algorithmic Risk Assessment Tools in the U.S. Criminal Justice System 31 (2019), https://www.partnershiponai.otg/wp-content/uploads/2019/04/Report-on-Algorithmic- Risk-Assessment-Tools.pdf (suggesting an oversight body including "legal, technical, and statistical experts, current and formerly incarcerated individuals, public defenders, public prosecutors, judges, and civil rights organizations"); Danielle Kehl et al., Algorithms in the Criminal Justice System 34 (2017), https:/ /dash.harvard.edu/ bitstream/ handle/1 /33746041 /2017- 07_responsivecommunities_2.pdf?sequence=l&isAllowed =y. See DOJ Report at 50. 73 See DOJ Report at 50-51. 16 EFTA00100209 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 104' Floor New link, NY 1007 Tel: (212) 417-8738 technical violations, and for looking to arrests, despite the literature showing the serious racially disparate impact of looking to arrests, rather than convictions?' In light of the FSA's purpose, a more limited definition of recidivism focused on serious offending would be more appropriate than the broad definition used to develop PATTERN. B. Transparency & Accountability: Implementation Transparency and accountability are both mandated and essential in the implementation of PATTERN. While much remains unknown in this area, we already have several questions which warrant the attention of a multidisciplinary team as PATTERN is implemented. 1. Privacy/Confidentiality It appears that several of the factors in PATTERN, and the yet-to-come needs assessment, may require interviews and be based at least partially on self-reporting. This raises several questions and concerns. Additional information is needed on what protections will be in place to honor an individual's right to be free of self-incrimination. More information is needed on what protections will be in place to prohibit the use of any interview admissions against an individual, either in a new prosecution or prison disciplinary proceeding. Information is also needed regarding how scores and information obtained in the scoring process will be maintained and confidentiality protected. And information is needed on the data retention policies for risk scores, needs assessments, and information obtained to complete the tools. 2. Challenges As discussed above, PATTERN scores and accompanying risk categories will directly affect how much time many individuals spend in prison. Information is needed on the procedures for contesting individual scores and category assignments. Risk assessment is unique enough that treating a challenge like any other grievance is not a sufficient process. Potential concerns include discovering factual errors, contesting judgment calls, challenging an override decision, and correcting a scoring miscalculation. To equip individuals to assess and challenge their PATTERN scores we expect individuals will be provided not only with their final PATTERN score and related risk category, but also scores on each of the individual factors, and information on the limitations of the scores, including the warnings set forth below. And individuals challenging their PATTERN score and category will need more. Indeed, much of the information individuals will need to challenge their scores tracks the information requested above regarding the development, validation and bias testing of PATTERN. In addition, among other information, individuals will need codebooks and scoring sheets, training materials, and inter-rater reliability scores for those scoring the tool. Additional information is needed regarding the plans to ensure adequate information and processes are provided to individuals challenging their PATTERN scores. ~6 See Jennifer Eaglin, Constructing Recidivism Risk, 67 EMORY U. 59, 94 (2017). 17 EFTA00100210 Federal Public & Community Defenders Legislative Committee 52 Duane Street, 10th Floor New York, NY 1007 Tel: (212) 417-8738 3. Risk Communication Information is needed on the manner in which risk scores and categories will be reported both within and outside the BOP. Studies show that risk communication format matters in how decision- makers understand the results and can be manipulated?' We are concerned that the scores and categories will not be communicated with sufficient context to make the scoring and results translatable to those who were not deeply involved in the development of the tool. To that end, we recommend reporting risk results as the ordinal bins plus that bin's relevant observed (a) recidivism rate and (b) success rate (1-recidivism rate). The communication should also include the definition of recidivism to contextualize the meaning of the rates. In addition, we recommend including a set of warnings to ensure users of the scores and categories understand the tool's limits?' The following list includes ideas on the warnings we believe appropriate in light of our current understanding of PATTERN: • PATTERN is based on group statistics and cannot assess an individual's probability of reoffending, • (as relevant) PATTERN disproportionately judges minorities at higher risk than whites; • PATTERN relies on arrest data, which may merely replicate biases in policing practices; • PATTERN does not include all protective or promotive factors that may reduce the individual's risk prediction; • PATTERN does not predict the aspects of risk regarding imminence, frequency, severity, or duration; • pNrrERN's rankings of risk (minimum, low, medium, high) are merely relative to the population studied; • PNrrERN's score includes criminal history measures that did not require conviction and thereby may overestimate risk because of faulty data; • PNITERN's score may be higher based on evidence of juvenile offending • PATTERN may increase risk when the individual does not engage in various types of programming however, such programs may not have been made available to this individual for reasons not within the individual's control; • (as relevant) PATTERN factors can count the same events twice or multiple times; 77 See Ashley B. Batastini et al., Does the Format of the Message Affect What Is Heard? A Two-Part Stu* on the Communication of Violence Risk Assessment Data, 19 J. FORENSIC PSYCHO1.. RES. & PRAC. 44, 46 (2019); Daniel A. Krauss et al., Risk Assessment Communication Deitulties: An Empirical Examination of the Effects ofCategorical Versus Probabilistic Risk Communication in Sexually Violent Predator Decisions, 36 BEHAV. SCI. & L. 532, 534 (2018); Nicholas Scoria, The Case Against Categorical Risk Estimates, 36 REHAV. So. & L. 554, 558 (2018). 76 Set Wisconsin u. Loomis, 881 N.W.2d 749, 765 (Wis. 2016) (identifying necessary cautions, that may evolve, before considering risk assessment at sentencing). 18 EFTA00100211 Federal Public & Community Defenders Legislative Committee 52 Duane Street, Ifkk Boor New York, NY 10117 Tel: (212) 417-8738 • (as relevant) this PATTERN score represents an override of the algorithm and the reason for the override. 4. User Buy-In Research studies and anecdotal evidence indicate that users (e.g., those scoring the tool and relevant decision-makers who receive scores) tend to distrust, and fwd ways to deviate from, algorithmic risk results if they are not included enough in the process and program.' Information is needed on the methods planned to achieve sufficient user buy-in to improve compliance and consistency in order to achieve the FSA's goals in this endeavor. II. NEEDS ASSESSMENT A core purpose of Tide I of the FSA is to help prisoners succeed in their communities upon release and thereby reduce recidivism. The Act contemplates accomplishing this by providing all individuals in prison evidence-based programming that is designed to help them succeed upon release and that has been shown by empirical evidence to reduce recidivism.' We are deeply concerned that the DOJ has not yet released the needs assessment required by the FSA. We understand from DOJ's Report that the needs assessment is in the works, and there will be an opportunity to comment on that aspect of the DOJ's FSA obligations at a later time. In light of that, we raise only a few critical issues here. 1. Programs Evidence-based programming is the bedrock of the FSA. Other aspects of the risk and needs assessment system only make sense if there is programming. Assessing (and reassessing) needs and assigning (and reassigning) individuals to programming based on those needs require that appropriate and available programming exist!' In addition, the incentives and rewards identified in the law are contingent on participation in appropriate and available programming!' DOJ's Report, however, suggests there are few programs or courses available, as indicated by the relatively few individuals who were scored on them in the developmental sample.' This is consistent with other information that waitlists to participate in BOP programs are long: 25,000 inmates are currently 79 See Jean-Pierre Guay & Genevieve Parent, Broken Legs, Clinical Ovemides, and Recidivism Risk An Analysis of Decisions to Adjust Risk Lath with the LS/ CAR, 45 CRIM. JUST. & BEI-IAv. 82, 83-84 (2018). See FSA at Tide I, § 101(a) (codified at 18 U.S.C. §§ 3632, 3635(3)) and § I02(a) (codified at 18 U.S.C. § 3621(11)). See FSA at Tide I, § 101(a) (codified at 18 U.S.C. § 3632(a)(3)-(4)). n See FSA at Tide I, § 101(a) (codified at 18 U.S.C. § 3632(a)(6), (a)(7), (d)). 83 See DOJ Report at 47, tbl. 1 (showing almost half (49%) of the developmental sample had completed no programs, a vast majority had no technical/vocational courses (82%) or federal industry employment (92%) and well over half (57%) had not had drug treatment while incarcerated despite indication of need). 19 EFTA00100212 Federal Public & Community Defenders Legislative Committee 52 Duane Street, Ins" Floor New York, NY 10117 Tel: (212) 417-8738 waiting to be placed in prison work programs,8° at least 15,000 are waiting for education and vocational training,85 and at least 5,000 are awaiting drug abuse treatment." More information is needed on how programming will be expanded to ensure the goals of the FSA are met. 2. BOP Current Needs Assessment The DOJ Report indicates the BOP is using its current needs assessment until one is developed pursuant to the FSA. More information is needed on BOP's current needs assessment and processes. 3. Responsivity Information is needed about how responsivity will be considered in connecting needs to programs. Relatedly, additional information is needed on the availability of culturally-sensitive programming (e.g., programs in Spanish for those with weak English skills and modification of 10 Step-like programs for non-Christians). III. CONCLUSION PATTERN is a high-stakes tool that directly affects how much time many people will spend in prison. High levels of transparency, accountability and auditability are both required and critical. We appreciate the opportunity to share our questions and concerns and hope there will be additional opportunities for feedback and dialogue after we have received the information identified above. Very truly yours, /s David Patton Executive Director, Federal Defenders of New York Co-Chair, Federal Defender Legislative Committee 84 See BOP: UNICOR, Federal Bureau of Prisons, https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp (estimating the participation rate at 8%). es See Oversight of the Federal Bureau of Prisons Belem the H. Subtomm. on Crime, Tetrotism, Homeland Securi? and Investigations of the H. Comm on Ie Judidag, 115th Cong. 20 (2018) (BOP Director Inch). " See Dep't of Justice, Bureau of Prisons, Drug Abuse Treatment Program, 81 Fed. Reg. 24484, 24488 (Apr. 26, 2016) ("over 5,000 inmates waiting to enter treatment"); Colson Task Force, at 36 Cat the end of FY 2014, more than 12,300 people systemwide were awaiting drug abuse treatment'). 20 EFTA00100213 EXHIBIT B EFTA00100214 LISA C. HAY Federal Public Defender STEPHEN R. SADY Chief Deputy Defender Gerald M. Needham Thomas J. Hester Ruben L. hiiguez Anthony D. Bornstein Susan Russell Francesca Freccero C. Renee Manes Nell Brown Kristina Hellman Fidel Cassino-DuCloux Alison M. Clark Brian Butlers 'Thomas E. Price Michelle Sweet Mark Ahlemeyer FEDERAL PUBLIC DEFENDER DISTRICT OF OREGON 101 SW Main Street, Suite 1700 Portland OR 97204 503-326-2123 / Fax 503-326-5524 859 Willamette Street Suite 200 Eugene, OR 97401 541-465-6937 Fax 541-4654975 Kathleen Hawk Sawyer Director Federal Bureau of Prisons 320 First Street, NW Washington, DC 20534 Branch Offices: October 14, 2019 15 Newtown Street !Medford. OR 97501 541-776-3630 Fax 541-776-3624 Re: Request for Assistance to Avert Further Reentry Center Closures Dear Ms. Sawyer: Susan Wilk Oliver W. Loewy Elizabeth C. Daily Conor Husehy Robert Hamilton Bryan Francesconi Ryan Costello Laura E. Coffin Irina Hughes♦ Kurt D. Hermansen♦ Jessica Snyder* In memoriam Nancy Bergeson 1951 - 2009 ♦ Eugene Office ♦ Medford Office * Research/Writing Attorney This letter is to express the deep concern of the Oregon Federal Public Defender and other federal defender organizations over the collapsing infrastructure necessary to implement statutorily-approved expansions of pre-release custody for federal inmates in residential reentry centers. As a result of Bureau of Prisons' policies and practices, at least 20 reentry centers have closed or ceased accepting federal inmates since 2017, and more closures appear likely. This loss of resources cripples efforts to enhance successful reentry of incarcerated citizens, undermines the criminal justice goal of rehabilitation, and consequently threatens community safety. As a public defender and a board member of the reentry center in Portland, I have seen first-hand how reentry centers provide the opportunity, in a less structured setting than prison, for inmates to engage in needed treatment, find employment, and continue reconnecting with their family and community. Once lost, these precious resources are difficult to replace. I am requesting your urgent assistance to end Bureau of Prisons' practices that have undermined and caused closure of reentry centers and to ameliorate harm already caused. The background for this request is grounded in the Second Chance Act of 2007, which doubled the amount of sentenced time that federal prisoners were eligible to spend in reentry centers (also called "community corrections") from six months to up to one year. 18 U.S.C. §3624(c). During this "prerelease time," the prisoner is not released from his or her federal sentence but is serving the sentence in an alternative setting. Defenders were cheered by this congressional recognition that our clients and their communities both benefited when people reentering society were given more time, in a gradually less structured setting, to engage in treatment, employment counselling, parenting classes, and other programs designed to ensure the EFTA00100215 Kathleen Hawk Sawyer, Director Federal Bureau of Prisons October 14, 2019 Page 2 safety of the community and the success of the resident after incarceration. Despite this mandate from Congress, however, the Bureau was slow to change, and the amount of prerelease time that prisoners were awarded to spend in reentry centers remained low. In 2011, Defenders wrote to then Director Thomas Kane to express concern about this failure to implement the Second Chance Act.' In 2012, the General Accountability Office issued a report that similarly noted the Bureau's failure to adequately implement Congressional mandated alternative options to incarceration, including use of reentry centers.' After the GAO report, the Bureau did begin to utilize reentry centers more fully, awarding greater prerelease time to inmates. Defender knowledge of this change comes from interactions with federal prisoners and from conversations with reentry centers.' Reentry centers report that during this period, the Bureau encouraged reentry centers to expand capacity in order to serve the greater number of prisoners needing placement. For example, the long-established reentry centers in Bangor, Maine, and Portland, Oregon, took out mortgages to remodel their facilities and to expand bed capacity. Unfortunately, the Bureau apparently has now reversed its support for reentry centers, and as a result the system is losing bed capacity just when the First Step Act, enacted by a bipartisan congressional majority in December 2018, may require even greater use of reentry centers. Under the First Step Act, prisoners who complete certain programs in custody will soon begin earning credits that, in theory, they can exchange for greater prelease time in the community. But if r