[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT HEARING ON THE FEDERAL BUREAU
OF PRISONS AND IMPLEMENTATION OF THE
FIRST STEP ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, OCTOBER 17, 2019
__________
Serial No. 116-58
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
45-882 WASHINGTON : 2021
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member STEVE COHEN, Tennessee
HENRY C. ``HANK'' JOHNSON, Jr., F. JAMES SENSENBRENNER, Jr.,
Georgia Wisconsin
THEORDORE E. DEUTCH, Florida STEVE CHABOT, Ohio
KAREN BASS, California LOUIE GOHMERT, Texas
CEDRIC L. RICHMOND, Louisiana JIM JORDAN, Ohio
HAKEEM S. JEFFRIES, New York KEN BUCK, Colorado
DAVID N. CICILLINE, Rhode Island JOHN RATCLIFFE, Texas
ERIC SWALWELL, California MARTHA ROBY, Alabama
TED LIEU, California MATT GAETZ, Florida
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana
PRAMILA JAYAPAL, Washington ANDY BIGGS, Arizona
VAL BUTLER DEMINGS, Florida TOM McCLINTOCK, California
J. LUIS CORREA, California DEBBIE LESKO, Arizona
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
JOE NEGUSE, Colorado BEN CLINE, Virginia
LUCY McBATH, Georgia KELLY ARMSTRONG, North Dakota
GREG STANTON, Arizona W. GREGORY STEUBE, Florida
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief of Staff
BRENDAN BELAIR, Minority Staff Director
------
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
KAREN BASS, California, Chair
VAL DEMINGS, Florida, Vice-Chair
SHEILA JACKSON LEE, Texas JOHN RATCLIFFE, Texas, Ranking
LUCY McBATH, Georgia Member
THEORDORE E. DEUTCH, Florida F. JAMES SENSENBRENNER, Jr.,
CEDRIC RICHMOND, Louisiana Wisconsin
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
DAVID N. CICILLINE, Rhode Island LOUIE GOHMERT, Texas
TED LIEU, California TOM McCLINTOCK, California
MADELEINE DEAN, Pennsylvania DEBBIE LESKO, Arizona
DEBBIE MUCARSEL-POWELL, Florida GUY RESCHENTHALER, Pennsylvania
STEVEN COHEN, Tennessee BEN CLINE, Virginia
W. GREGORY STEUBE, Florida
JOE GRAUPENSPERGER, Chief Counsel
JASON CERVENAK, Minority Counsel
C O N T E N T S
----------
Thursday, October 17, 2019
Page
OPENING STATEMENTS
The Honorable Karen Bass, Chair of the Subcommittee on Crime,
Terrorism, and Homeland Security from the State of California.. 1
The Honorable Guy Reschenthaler, a Member of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of
Pennsylvania................................................... 3
The Honorable Doug Collins, Ranking Member of the Committee on
the Judiciary from the State of Georgia........................ 3
WITNESSES
Panel One
Kathleen Hawk Sawyer, Director, Federal Bureau of Prisons
Oral Testimony................................................. 5
Prepared Statement............................................. 8
Antoinette T. Bacon, Associate Deputy Attorney General,
Department of Justice
Oral Testimony................................................. 17
Prepared Statement............................................. 19
Panel Two
David Patton, Executive Director, Federal Defenders of New York
Oral Testimony................................................. 82
Prepared Statement............................................. 84
Supplemental Statement......................................... 161
Melissa Hamilton, Reader of Law & Criminal Justice, University of
Surrey School of Law
Oral Testimony................................................. 167
Prepared Statement............................................. 169
John P. Walters, Chief Operating Officer, Director, Hudson
Institute Political Studies and Co-Director, Center for
Substance Abuse Policy Research, Hudson Institute
Oral Testimony................................................. 188
Prepared Statement............................................. 190
Andrea James, Founder and Executive Director, National Council on
Incarcerated and Formerly Incarcerated Women
Oral Testimony................................................. 195
Prepared Statement............................................. 197
STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED FOR THE RECORD
Statement submitted by the Honorable Jerrold Nadler, Chair of the
Committee on the Judiciary from the State of New York for the
record......................................................... 30
Statement from Jay Chattelle, submitted by the Honorable Hakeem
Jeffries, a Member of the Subcommittee on Crime, Terrorism, and
Homeland Security from the State of New York for the record.... 42
Statement from the Brennan Center for Justice at NYU School of
Law, submitted by the Honorable David Cicilline, a Member of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Rhode Island for the record.................. 58
Statement from Norman Reimer, Executive Director on behalf of the
National Association of Criminal Defense Lawyers, submitted by
the Honorable David Cicilline, a Member of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of Rhode
Island for the record.......................................... 69
APPENDIX
An article entitled ``As new U.S. law frees inmates, prosecutors
seek to lock someback up,'' Reuters, submitted by Dr. Melissa
Hamilton for the record........................................ 206
A letter to Hugh Hurwitz, Acting Director, Bureau of Prisons,
February 6, 2019, addressing heating and electrical issues,
submitted by the signed Members of Congress and Members of the
Senate for the record.......................................... 215
A letter to Hugh Hurwitz, Acting Director, Bureau of Prisons,
February 6, 2019, addressing treatment of detainees, submitted
by the signed Members of Congress and Members of the Senate for
the record..................................................... 219
A letter to Attorney General Barr and Hugh Hurwitz, Acting
Director, Bureau of Prisons, April 8, 2019, addressing good
time credits, submitted by the Honorable Karen Bass, Chair of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of California for the record.................... 224
A letter to Hugh J. Hurwitz, Acting Director, Bureau of Prisons,
March 19, 2019, addressing concerns of deadlines has lapsed to
implement the First Step Act, submitted by the signed Members
of the Committee on the Judiciary for the record............... 235
QUESTIONS AND ANSWERS FOR THE RECORD
Questions for the record from the Honorable Jerrold Nadler, Chair
of the Committee on the Judiciary from the State of New York
for the record................................................. 238
Answer to question and report from Kathleen Hawk Sawyer to the
Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York for the record............ 240
OVERSIGHT HEARING ON THE FEDERAL
BUREAU OF PRISONS AND IMPLEMENTATION OF THE FIRST STEP ACT
----------
Thursday, October 17, 2019
House of Representatives
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 3:15 p.m., in
Room 2141, Rayburn Office Building, Hon. Karen Bass [Chair of
the Subcommittee] presiding.
Present: Representatives Bass, Nadler, Jackson Lee,
Jeffries, Cicilline, Dean, Mucarsel-Powell, Cohen,
Reschenthaler, Collins, Chabot, McClintock, Lesko, Cline, and
Steube.
Staff present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma,
Member Services and Outreach Advisor; Julian Gerson, Staff
Assistant; Ben Hernandez-Stern, Counsel; Joe Graupensperger,
Chief Counsel; Milagros Cisneros, Detailee; Monalisa Dugue,
Deputy Chief Counsel; Veronica Eligan, Professional Staff
Member; Jason Cervenak, Minority Counsel; Andrea Woodard,
Minority Professional Staff.
Ms. Bass. The Subcommittee will come to order. Without
objection, the chair is authorized to declare recesses of the
Subcommittee at any time.
We welcome everyone in this afternoon's oversight hearing
on the Federal Bureau of Prisons and the implementation of the
First Step Act.
I now recognize myself for an opening statement.
I first want to acknowledge the loss of a great giant and
champion for criminal justice reform, our colleague, Mr. Elijah
Cummings. We were all by his passing this morning, and our
hearing was a little bit delayed as we took the opportunity to
acknowledge him on the floor of the House a few minutes ago.
As he recently stated, the American people demanded that
their representatives in Washington fight for them and for what
affects their lives on a day-to-day basis. That is precisely
what is being done when we hold oversight hearings such as
these, and today, of course, we will hold it in his memory.
The First Step Act is a bipartisan measure signed into law
on December 2018. Since its enactment, we have been monitoring
its implementation. The process has generated a series of
questions and raised valid concerns. Today's hearing is an
opportunity to have an open discussion about the status of the
First Step Act. We will evaluate how the law has progressed in
the past 10 months, with the goal of ensuring that it meets its
intended purpose to be a legitimate first step toward reforming
our criminal justice system.
The First Step Act is the result of years of discussion,
vigorous debates, and a reflection of both the dedication and
determination of all those involved. The bill doesn't attempt
to address all the ills within our current system. As the title
reflects, we are just at the beginning of a very long process.
It has established Federal prisons reforms and generated
important but modest improvements to our sentencing laws.
Specifically, it allowed the 2010 Fair Sentencing Act to
apply retroactively. It scaled back certain harsh and unjust
sentencing practices and is helping to ensure that we address
mass incarceration at the front end rather than simply at the
back end. The law expands the eligibility of defendants for
safety valve relief, which allows for judicial discretion to
depart from a mandatory minimum sentence, in certain instances.
A provision in this law eliminated the ability to stack firearm
enhancements within the same indictment, which has historically
resulted in excessive sentences. These are just some of the
sentencing reform provisions in this law, and we should
continue to build upon them.
As for the prison reform efforts, this law addresses a
number of issues related to conditions and places of
confinement in our Federal Bureau of Prisons, including, for
instance, a ban on the shacking of pregnant prisoners during
labor and delivery. The law also provides for a significant
expansion of recidivism reduction programming as part of the
earned time credit system, and I am pleased that we were able
to get some of the major issues addressed.
However, like every new program, there are trials and
error. Where we applaud the many positive things about this
law, we must honestly address any shortcomings early in the
process to ensure this law lives up to its intended purpose.
This is why Congress routinely conducts oversight hearings to
provide transparency to ensure well-intentioned laws are
functioning as we intended them to, and to provide solutions
for any unintended consequences.
I know one unintended consequence that has received a great
deal of media attention is the fact that one of the individuals
who was released because of First Step then was involved in a
horrific crime that resulted in the death of someone. I know
that there will be other weaknesses that we determine in the
law, but I hope that this does not detract from the need in our
country to really examine our criminal justice system.
In addition to discussing the progress made thus far with
the First Step Act implementation, I would also like to hear
about the overall conditions of BOP. For example, the problem
that happened with some of the conditions in the Metropolitan
Detention Center in Brooklyn, the problem that they had with
extremely cold temperatures during a seven-day partial power
outage in New York.
We have a lot to discuss, and therefore I want to thank
both panels of witnesses for coming, and I look forward to your
testimony.
It is now my pleasure to recognize the Ranking Member for
his comments.
Mr. Reschenthaler. Thank you, Madam Chair, and I want to
thank you for holding this important hearing today on oversight
of the Bureau of Prisons.
Last year, Congress passed, and the President signed into
law, one of the most sweeping criminal justice reform measures
in recent history. The First Step Act was the product of
lengthy bipartisan and bicameral negotiations. Today, we are
again working in a bipartisan fashion to ensure that the First
Step Act is properly and effectively implemented. If the First
Step Act is not implemented correctly there will be no
subsequent steps, and as the Republican sponsor of bipartisan
legislation that would seal criminal records for certain
nonviolent offenders, I want to make sure that we see more done
on criminal justice reform.
My first elected office was that of a district judge, which
is really the front lines of the criminal justice system. In
that position, I handled everything from traffic issues to
truancy to even preliminary hearings on murder cases, and
sometimes all in the same day. It was truly an eye-opening
experience, and it helped me understand that ultimately, we can
reduce crime by ending the revolving door between prison and
the streets. You can be strong on crime while also being smart
on crime.
I would like to examine the issues affecting our
correctional officers' safety, including new methods for
bringing contraband into prisons, understaffing, and
prosecution for assaulting officers. Just a few weeks ago I
heard first-hand from CEOs at USP Hazelton about threats that
they face every day. We must do more to keep these men and
women safe, both on the job and at home with their families.
I look forward to hearing from our witnesses and about the
issues and so much more as we move forward with criminal
justice reform.
Thank you, and I yield back the remainder of my time.
Ms. Bass. We will now hear from the Ranking Member of the
full committee.
Mr. Collins. Thank you, Madam Chair. I appreciate that.
Welcome, Director Hawk Sawyer and Associate Deputy Attorney
Bacon. I want to thank both of you for your service and we are
happy you are here with us today, and I also want to thank Ms.
Bass. This hearing is one that I have waited for since
basically we started this session. I am glad to have it and
thank you for finally coming, and the full Committee chairman
as well.
The Bureau of Prisons is tasked with protecting society by
confining offenders in the controlled environments of prisons,
community-based facilities that are safe, humane, cost-
efficient, appropriately secure, and that provide work and
other self-improvement opportunities to assist offenders in
becoming law-abiding citizens. It is the duty of the BOP not to
merely provide housing, food, and security for Federal inmates
but to assist those inmates in becoming law-abiding citizens
upon their release. All Americans have an interest in that,
because we all know the vast majority of Federal inmates, well
above 90 percent, will someday be released, regardless of what
efforts have been done to reduce recidivism.
I don't think think anything happens in random chance. I
believe, frankly, and from my faith perspective, God has his
hand upon everything. Today is an amazing day in which we
celebrate the home-going of Elijah Cummings, one who influenced
this body in amazing ways. As I spoke earlier today, and I will
not reflect on those words from earlier today, but he had an
amazing way to connect with people that other people didn't
connect with, from an amazing position of power, and he did so
with a heart and compassion.
Today is also a day, with this hearing, after being,
hopefully, rescheduled for so many times in the previous
months, we get to it today, our celebration of the First Step
Act. With my friend, Hakeem Jeffries, who is not here right
now, I think Elijah would be very pleased with what has come,
with a bill that he and I introduced this year, the FAIR Act,
which we actually take this a step further in gaining
employment for those who have been incarcerated and removing
barriers to that.
In this room today, from several of the rows back that I
see the faces, there are those who have benefitted from the
First Step Act. You are here today because of what happened
when a body came together and saw beyond our differences and
saw what we could do together. I see the advocates who have
been here, and which we have laughed, we have cried, we have
struggled, and we see something actually come.
Today's hearing is one that is long overdue, but it is also
one that is welcomed in the environment in which we have today.
We understand that when we see the Bureau of Prisons, we see
the Department of Justice coming together and taking seriously
what this Congress said that we want to see happen here and
giving us good input. I am so glad to see, Director, you are
back, and we have talked about this before. This is what we are
supposed to be about.
So, for those who are here today who have benefitted from
something from Congress, consider yourself lucky. Most of what
we do seems to not benefit a lot of people, but for you it
benefitted. This Committee can do this. As Elijah Cummings was
so fond of saying, ``We are better than where we are. We are
better than this.'' This is a good day for this hearing. It is
a good day to show what we can do when we understand that
people and policy are what we are about, not what we talk
about.
Thank you for being here, and Madam Chair, thank you for
holding this hearing. I yield back.
Ms. Bass. Thank you very much, Representative Collins. I
appreciate you mentioning our colleague, Hakeem Jeffries. I am
sure he will be with us shortly, and between the two of you
played the leading role in making sure that First Step got to
the finish line.
You also mentioned and acknowledged the audience, and I
just would like to take a moment and ask for those people that
benefited by First Step if you would please stand.
[Applause.]
Ms. Bass. In another setting, perhaps in a more informal
briefing, I think that it would be very helpful and important
to hear some of your stories. There is nothing like putting a
face and a story to policy that we attempt to develop and
implement here.
Now, I want to introduce our witnesses. We will now hear
from our first panel, Dr. Kathleen Hawk Sawyer is the Director
of the Bureau of Prisons and Antoinette Bacon, who is an
Associate Deputy Attorney General with the Department of
Justice and is steering the implementation of the FSA and the
risk assessment tool developed to implement it, the prisoner
assessment tool targeting estimated risk and needs, our
PATTERN. Thank you both for joining us today. We welcome our
witnesses and thank them for participating in today's hearing.
Now, if you would please rise I will begin by swearing you
in.
Raise your right hand. Do you swear or affirm, under
penalty of perjury, that the testimony you are about to give is
true and correct to the best of your knowledge, information,
and belief, so help you God?
Ms. Sawyer. I do.
Ms. Bacon. I do.
Ms. Bass. Thank you. Let the record show the witnesses
answered in the affirmative. Thank you, and please be seated.
Please note that your written statements will be entered
into the record in their entirety. Accordingly, I ask that you
summarize your testimony in five minutes. To help you stay
within that time there is a timing light on your table. When
the light switches from green to yellow you will have one
minute to conclude your testimony. When the light turns red it
signals that your five minutes have expired.
Thank you, Dr. Sawyer and Dr. Bacon. We will now proceed
with your testimony.
TESTIMONY OF KATHLEEN HAWK SAWYER
Ms. Sawyer. Good afternoon, Chair Bass and Congressman
Reschenthaler. I appreciate the opportunity to discuss with you
today the mission and the operations of the Bureau of Prisons
and our progress in implementing the First Step Act. I thank
the Judiciary Committee for their work over the many years in
support of the Bureau of Prisons. This subcommittee, in
particular, has been integral to our operations for many
decades, including years of tremendous population growth, rapid
expansion, and the opening of many new institutions.
I thank you and your colleagues for your groundbreaking
criminal justice reform work through the bipartisan support of
the First Step Act. Programming to assist inmates in returning
to their communities as law-abiding citizens has always been a
cornerstone of our mission. In fact, we have long held that an
inmate's reentry journey begins the very day they enter our
custody, and with the First Step Act we look forward to further
enriching those offerings to help improve the lives of our
inmates, and thereby help keep our communities safer.
I was honored, two months ago, to be selected by the
attorney general to return to lead the Bureau of Prisons and to
work alongside the finest corrections professionals in the
world. I began my career as a psychology intern at one of our
prisons and held positions of increasing responsibility, from
associate warden to warden, and before my original appointment
as the bureau's sixth director, in 1992, a position I held
until my retirement in 2003.
While much has changed since my last term as director, the
foundation of the Bureau is sound. We have been challenged by
the dramatic growth that we experienced commensurate with the
budget cuts that followed the tragedy of 9/11, and the shift of
focus from crime to terrorism. These factors have seriously
strained the Bureau.
Our over 35,000 staff play a critical role in the criminal
justice system, yet the great work our staff does every day
goes largely unseen by the American public. This inherently
dangerous work, particularly at our high-security facilities
where we house our most dangerous inmates, is a responsibility
we take very seriously. Unfortunately, we have experienced
significant staff shortages that make our job even more
difficult. In my first eight weeks as director I have placed
great emphasis on filling the almost 3,700 vacancies
nationwide.
Also in my first eight weeks, I have mobilized a thorough
systems overview to identify areas of strengths and weaknesses
and have identified three initial areas of emphasis. One is
staffing, one is training, and one is an emphasis on the basics
of sound correctional practice. Our system is the largest in
the nation, housing over 176,000 inmates across the United
States, and this return to the bedrock of sound corrections is
critical to ensure that staff nationwide are following the
policies and procedures that keep staff, inmates, and the
public safe.
The Bureau, like corrections nationwide, also continues to
face dangerous security threats from the introduction of
contraband. Synthetic drugs, illicit narcotics, and contraband
cell phones are some of the chief threats. The use of drones to
drop contraband onto prison grounds is an ongoing problem that
continues to evolve. We have deployed contraband-detecting
technologies and we continue to leverage new technology and
cutting-edge solutions to effectively detect and interdict
prison contraband.
Our aging infrastructure is another area of concern. Almost
half of our prisons are over 30 years old, and some, like
Leavenworth, Atlanta, and Lewisburg date back over 80 years to
the very beginnings of the Bureau of Prisons. Prison facilities
are subjected to much heavier than normal wear, since they are
continuously used, 24 hours a day, 365 days a year. This aging
infrastructure affects institutional security, as critical
systems sustain extensive wear and tear, as well as premature
deterioration. We are focusing on repairing and/or replacing
key systems but require significant funding to ensure that all
facilities can be maintained as continued infrastructure
decline occurs.
The implementation of the First Step Act is a priority for
the Bureau, and I am pleased to report that we have made great
progress. We have updated policies, are implementing the many
requirements of the act. We are working closely with the
Department of Justice and the Independent Review Committee on
new risk and needs assessment that the Act requires. We have
listened to the important comments of the many interested
stakeholders, from crime victims to a broad array of advocacy
groups.
The statutory timelines in the Act were formidable, but I
am proud to say that the Bureau and the Department have met key
deadlines, particularly the release of the new risk and needs
assessment system, and we continue to remain focused on a full
and balanced implementation of the First Step Act.
That concludes my formal statement, and I would be happy to
answer any questions that you might have.
[The statement of Ms. Sawyer follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Bass. Thank you. Ms. Bacon?
TESTIMONY OF ANTOINETTE T. BACON
Ms. Bacon. Good afternoon, Chair Bass, Mr. Reschenthaler,
and Members of the committee. I am Antoinette Bacon, Associate
Deputy Attorney General, and I appreciate the opportunity to be
here today to discuss the Department of Justice's ongoing
efforts to fully implement the first Step Act.
Both the attorney general and the deputy attorney general
have consistently and emphatically stated that the Department
will work diligently to implement the First Step Act, and they
both have been actively engaged in these efforts. For example,
both have met with the Independent Review Committee to learn
from this group of highly esteemed experts, and each visited a
BOP facility to see firsthand the quality, education, and
vocational programs, and to speak with inmates and staff who
participate in these programs and deliver these programs.
Following their lead, our team has worked tirelessly to
ensure that the act's many reforms are implemented in a way
that reduces recidivism, that provides opportunities to
offenders, and that protects our communities. The written
testimony contains greater detail on this, but in my remarks, I
would like to highlight several ways in which the Department
has been demonstrating its commitment to the act.
First, we met the very ambitious July 19th deadline to
publish a new risk and needs assessment system called PATTERN.
PATTERN obtains the highest level of predictability of any
current system. It contains 17 different factors, 11 of which
are dynamic, which means that they can change during a period
of incarceration. PATTERN was validated for males and female
inmates separately.
Importantly, DOJ did not create PATTERN in a vacuum.
Instead, we consulted with the Independent Review Committee,
the Administrative Office for U.S. Courts, the National
Institute of Corrections, and over two dozen diverse
stakeholder groups. Then, once announced, we opened PATTERN to
a 45-day study period, to solicit additional input, including
input from BOP's union. We are currently reviewing all this
feedback and are working in collaboration with the Independent
Review Committee to identify appropriate changes to the tool.
Going forward, the Department is committed to studying
PATTERN's effectiveness. We want to know if it is working. To
that end, the National Institute of Justice has just announced
an intention to release a solicitation to evaluate and to
validate the tool. Based on that research, along with other
data, we fully intend to refine and make appropriate changes to
the tool going forward.
Developing PATTERN was only one part of the First Step Act.
The Department has had equally robust implementation with the
act's other requirements, which include, for example, reduced
sentences. On July 19th, the deputy attorney general announced
that approximately 3,100 Federal prison inmates were released
from BOP custody as a result of the increase in good conduct
time that the Act allowed. As of last week, approximately 2,139
inmates have received sentencing reductions, pursuant to the
retroactive application of the Fair Sentencing Act of 2010,
which closed that gap or narrowed that gap between crack and
powder cocaine sentencing.
The second key area is effective reentry programming.
Helping offenders successfully reintegrate into the community
is a key factor in preventing and reducing recidivism and
really finding gainful employment. Getting a good job is part
of that process. To further that goal, BOP has launched a
ready-to-work initiative which connects private employers
looking to hire returning citizens with inmates nearing
release.
To further assist with reentry, the deputy attorney general
announced that the Department of Justice has prioritized $75
million in order to fully fund the First Step Act to its
authorized fiscal year 2019 level, and that funding is being
used in a variety of ways, including helping with job readiness
by increasing vocational opportunities, by expanding education
programs, including providing English as a second language
workbooks and textbooks, and helping the female inmate
population by expanding access to programs that are targeted
specifically to females' needs.
These are just some of the ways we are working to
faithfully implement the First Step Act, and I look forward to
working with you as we seek to provide opportunities, reduce
recidivism, and protect our communities.
Thank you.
[The statement of Ms. Bacon follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Bass. Thank you very much. We will now begin our five
minutes of questioning, and I will begin.
I would like to ask the Honorable Hawk Sawyer, in terms of
the implementation, and specifically the provisions in the
First Step Act that addressed pregnant women. So, my question
is what has changed in the BOP in regard to pregnant women?
Ms. Sawyer. A couple of things have changed, some we really
did not need to change. We did not historically really use
shacking of female pregnant inmates to any extent. If we had an
inmate that was acting out in some way to where it threatened
the life of the inmate themselves, and especially their unborn
child, we would, at times, have to restrain them. So, we put
clearly into--
Ms. Bass. What does acting out mean?
Ms. Sawyer. Some of our pregnant women have mental health
issues also, the typical issues that some of our inmates have.
Ms. Bass. Right.
Ms. Sawyer. So, when they are flailing about, fighting our
staff, resisting any kind of--
Ms. Bass. Right.
Ms. Sawyer. --calmer interaction, then we feel that we do
have to subdue them, and we do it as gently as we possibly can,
and when necessary, restrain them. To tell you, since--
Ms. Bass. How would be they be restrained?
Ms. Sawyer. They could have handcuffs placed on them. They
could have their arms attached to a chair, until we calm them
down. To the chair's concern, this has occurred once in the
last year. It is not something that we do, except when it is
absolutely necessary.
The way in which the change that has occurred, though, is
we have defined this even more explicitly in our policy. We
have instituted a reporting system where if it ever occurs it
needs to be notified up through the ranks, so we find out about
it. The part we did change, though, is we were never as clear
on postpartum inmates.
Ms. Bass. So, also, during pregnancy--I am not talking
about labor and delivery but I am talking about pregnancy--
Ms. Sawyer. Right.
Ms. Bass. --women then do not routinely have chains around
their waists? They don't routinely have chains on their feet?
Ms. Sawyer. We don't handcuff them, use chains--
Ms. Bass. You don't have handcuffs when they are being
transported around the facility?
Ms. Sawyer. Exactly. When a woman first comes to our
institution, we automatically do a pregnancy check, because
sometimes they come in and don't even realize they are
pregnant.
Ms. Bass. Right.
Ms. Sawyer. So, we make them very aware of their condition,
if they are pregnant. We put it very clearly in their file so
that any staff interacting with them knows that they are
pregnant, and we are very cautious to make sure we do not
restrain pregnant women in any way. As I indicated, the real
change for us has been in the postpartum women. We were not as
clear and explicit. We now have it clearly in policy that for
12 weeks after delivery we are utilizing the same--treating
them in the same way we do during the course of their
pregnancy.
Ms. Bass. Wonderful. Thank you very much. I would like to
ask Ms. Bacon about the assessment tool. I think there was a
request made from the Committee to see the assessment tool, and
I was wondering if you have it available for us to look at.
Ms. Bacon. Yes. So, currently the Department is taking
under consideration the approximately 170 comments we received
during the 45-day study period, and working in close
collaboration with the Independent Review Committee.
Ms. Bass. Let me ask you something about those comments.
So, people were commenting--they saw the tool and they were
commenting on the tool?
Ms. Bacon. They saw the tool as described in the report
that the Department of Justice issued on July 19th.
Ms. Bass. They didn't actually see the tool itself?
Ms. Bacon. That is correct.
Ms. Bass. So, do you have the tool available so that we can
see it? I understand you are reviewing it and all of that, but
I would like to see what the instrument is.
Ms. Bacon. The tool is not yet complete, because we are
still taking into account not only the approximately 170
comments but also the Independent Review Committee had a series
of--
Ms. Bass. So, it is not actually being used right now
because it is not finished?
Ms. Bacon. It is not being used right now.
Ms. Bass. Okay. So, when part of the criticism of First
Step, the release of a couple of individuals who have committed
crimes, I think there was the assumption that they were
assessed, and something happened. So, how are people released
if there is not a risk assessment tool available?
Ms. Bacon. Currently they are being assessed under the
existing BOP system, which is called BRAVO, and that tool was
designed many years ago to assess risk of prison misconduct,
and to try to determine what is the risk level while
incarcerated.
Ms. Bass. Do you have that instrument I could see?
Ms. Bacon. Yes. That instrument is available.
Ms. Bass. The older instrument?
I would like to see that. Then also, when are you going to
finish the feedback and when will the RFP be available?
Ms. Bacon. We are working very diligently to update the
tool and to make any necessary updates from the listening
session and from the Independent Review Committee's
suggestions, train all of the BOP employees, work with the BOP
union, if necessary and appropriate, on any changes, and have
everybody screened.
Ms. Bass. So, we'd like to see that, as well, in terms of
formal comments. Then when you do have an RFP it will be, who
are you looking for to evaluate it?
Ms. Bacon. The RFP will be issued through the National
Institute of Justice, open to anyone who qualifies under the
terms of the RFP. What we are really trying to--
Ms. Bass. When do you think it will be available?
Ms. Bacon. My understanding is in the very near future.
Ms. Bass. Okay.
Ms. Bacon. Because the goal is to have not only the BOP and
not only the Independent Review Committee and not only the
experts that NIJ hired but another group who all will have
access to the data and can each independently verify and test
and work with each other to make sure--
Ms. Bass. That's good. I am about ready to run out of time.
That is very helpful, and I would like to be notified when that
RFP, before it is going to be released, because when you look
at evaluation, who evaluates it is very critical, and what
their experience is with different populations, their cultural
awareness, et cetera, is critical to an evaluation. So, making
sure that the RFP is widely available to different groups is
very important. Thank you.
Mr. Reschenthaler. Thank you, Madam Chair. This question is
for both witnesses.
I know that the President is deeply committed to the First
Step Act and AG Barr has stated that he is in lockstep with the
President in ensuring swift implementation. Can you just
broadly address what you are doing to ensure that this
bipartisan measure is successful, and if you could provide a
timetable on when those in prison will be able to take
advantage of the recidivism reduction programming in the First
Step Act?
Ms. Bacon. Yes. The attorney general is deeply committed to
ensuring that the First Step Act is fully and fairly
implemented and has been personally involved since the
beginning in ensuring that we were on pace to meet the
deadlines, as evidenced by our ability to meet the July 19th
deadline, which was quite ambitious.
We did not stop at July 19th. In fact, we saw that as the
work just beginning. From July 19th to today, we have been
laser-focused on working on building up the needs part of the
needs assessment system, and also in really taking the feedback
we have received and challenging ourselves to see how we can
improve the system, PATTERN, as drafted. We are currently on
pace to meet all of the deadlines that are in the statute.
Mr. Reschenthaler. Do you have anything to add?
Ms. Sawyer. Well, I would just say that we have already
begun training our staff. Even though we do not have the final
needs assessment, yet we are already starting up the training
for our staff, to have them prepared to move forward once the
risk assessment is completed, and to actually move forward on
the needs assessment portion of it also, to identify the needs.
We are also looking at the program offerings that we have
available in the Bureau of Prisons, and we have received some
funding during this past fiscal year to increase the program
offerings in a number of our education vocational training
areas and our specific program areas. We are kind of planning
out the year ahead with monies we requested into next year of
additional programs we will be able to add, to have available
to the inmates also.
Mr. Reschenthaler. Thank you. My next question is about
COs. A correctional officer can be responsible for, as you
know, supervising as many as 150 inmates at once, and the COs
are unarmed inside the facilities. It is my understanding that
insufficient staffing levels in a more aggressive inmate
population have led to a spike in violence. What is the BOP
doing to prevent violence against staff, and if you have these
statistics, how many assaults took place last year? How many of
these assaults led to criminal prosecutions?
Ms. Sawyer. Okay. I do not have the information here today
on the numbers of assaults and prosecutions, but we will be
very happy to get those for you.
Staff safety is our most critical concern, absolutely, and
the vacancies we have in staffing right now are just
unacceptable. They have come about because of several years of
uncertainty about our budgets, uncertainty about the number of
positions we were allowed to fill. There has just been a lot of
concern with how much money we were going to have and how many
positions we were going to have each year. It has caused us to
fall back in terms of filling positions.
Now, we are ramping up absolutely dramatically and trying
to fill these positions. Since I have become the director, we
have initiated a number of new things. We are getting some new
authorities from OPM. We are trying to get direct-hire
authority at the institutions. We have hired up like two dozen
more staff in our staffing area, just to help process the new
employees coming on board. We have ramped up our recruiting. We
are doing everything we can to get the right bodies coming on
board, get them through the very slow hiring process in the
Federal Government, and getting them into our institutions as
quickly as possible.
Some of the things we have done in terms of protecting our
staff, we have gone, the last few years, to providing stab-
proof vests for our employees, because that was an issue of
concern for some years where some of our employees were
actually being stabbed by the inmates. We have stab-proof vests
for everyone. They are required in all our higher-security
institutions. They do not carry weapons but they carry like a
pepper spray canister with them, which enables them to break
down any disruptive inmates very quickly and stop any
aggressive action. We do everything we can to try to keep our
staff safe but filling up these positions is critical.
As you know, from Hazelton, the new warden there has done a
wonderful job of getting his staffing level up almost to full
complement. So, it is just a matter of us getting all of our
institutions up to that level of staffing.
Mr. Reschenthaler. Just one follow-up question on staffing.
I am being told that nurses and administrative personnel are
being used to supervise inmates. One, is this true, and two, is
there anything being done to curb this augmentation of staff?
Ms. Sawyer. Augmentation is an integral part of how we do
business. I started as a psychology intern at the Bureau of
Prisons. I had to cover posts for correctional officers. We all
are trained as correctional workers first. We all have the same
basic correctional training. So, when a teacher is teaching,
they don't have a correctional officer in that classroom to
guard the inmates while the teacher is responsible for
overseeing those inmates. When I did therapy groups as a
psychologist, I was responsible for providing security. Our
work detail supervisors, they are responsible. We are all
trained as correctional officers first.
So, what has happened, though, more recently, with the
lower staffing, we have had to use augmentation more than we
would like to. So, we need to get us back to a level where
augmenting is good, because, I went from a psychology intern to
a warden. Had I not had all those experiences along the way of
working other posts and details, I would have been ill-prepared
to move into those jobs. So, it is a way we develop and train
our staff.
Our problem today is we are using augmentation too much
because our staffing levels are too low. So, we need to get it
up to a level of appropriate augmentation, but not overly so.
Mr. Reschenthaler. Thank you.
Ms. Bass. Thank you, and we have been joined by the chair
of the full committee, Mr. Nadler.
Chair Nadler. Thank you, Madam Chair. I ask unanimous
consent that my opening statement be placed in the record.
Ms. Bass. Without objection.
[The statement of Chair Nadler follows:]
CHAIR NADLER FOR THE RECORD
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Chair Nadler. Thank you.
Ms. Sawyer, Nydia Velazquez and I were witnesses at the
Brooklyn Metropolitan Detention Center in Brooklyn to the
catastrophic conditions back in January or February. The
inspector general's report recommends that the MDC upgrade its
heating, ventilation, and cooling equipment and put in place a
system to automatically monitor the temperatures throughout the
facility.
It has now been 10 months since the crisis. Have those
upgrades been made?
Ms. Sawyer. We have made most of them, Congressman. We have
been working diligently to make all the improvements on both
the electrical side and the heating and air conditioning side.
On the heating side we have gone through all our heating
equipment, done all the preventive maintenance, checked all the
coils and the wires and everything you could possibly check.
The thing we have not yet done, because we have to get the
funding for it and then put it into place are the sensors that
we would like to have located around the institution to tell us
exactly what the temperature is in each area of the
institution. Because as you know, during your visit, it was
very warm in some parts of the institution and not warm enough
in other parts of the institution, and controlling a large
building is very difficult.
So right now, we are doing it with handheld sensors. We are
going around the institution with handheld sensors and checking
the temperature all the time, very regularly, and having to
convey that back to the powerhouse. The new sensors, which will
be coming in the near future, will be permanently placed around
the housing units and around the institution. They will
immediately feed back, electronically, the information on the
temperatures to the powerhouse so that it can be regulated very
quickly and regularly. That we are still in the process of
installing, but we have made significant improvements.
Chair Nadler. When do you think they will be finished?
Ms. Sawyer. I don't have a specific date. I would be very
happy to get that to you.
Chair Nadler. Well, I mean, two months? Two years?
Ms. Sawyer. We are talking about months.
Chair Nadler. Okay. One of the things that really shocked
me was that they had no census or information as to which
inmates required, let's say, CPAP machines or oxygen machines.
When the power went out those people were helpless. They could
have had strokes or whatever. What has been done about that?
Ms. Sawyer. Well, at the time when this thing was
occurring, Congressman, we offered those inmates who needed the
CPAPs to move to the other housing--the one building had power
and heat; it was okay. It was the west wing, the west building
that had the power and the heating problems. We offered them to
move, and they elected not to move over. Still, that is our
responsibility. That was our fault for not having a backup plan
for them right away.
We now have, in our regulations there at the institution,
what the plan is. The plan is we will not ask them if they want
to move. We will move them over to where the power is available
to them, and make sure that they can plug in their CPAP
equipment, and make sure we know exactly who those inmates are.
The officers there will know who they are, and we get they
right back onto the CPAP immediately.
Chair Nadler. Okay. Now, the IG report also says that until
the upgrades we talked about a minute ago--the temperature
monitors--are made, including the monitoring system, the
inmates should be given long-sleeved clothing, thermal
underwear, or other cold-weather clothing as part of their
standard issue attire, rather than the short-sleeved attire
they get now. With winter approaching, has that been done?
Ms. Sawyer. Absolutely. In fact, we are giving them all
coats as well, just in case. Just in case. We are giving them
extra clothing. We make our own blankets a Federal Prison
Industries so we should never be without enough blankets. So,
we are giving them plenty of blankets, plenty of warm clothing,
and we are actually giving every inmate a coat, just in case.
Chair Nadler. Okay. Are you reviewing the status of all
Federal correctional facilities to determine whether similar
problems exist there, and take appropriate steps to ensure that
what happened at MDC Brooklyn doesn't take place elsewhere?
Ms. Sawyer. Yes, sir, we are. We have initiated--all these
institutions should be reviewed within every one to three
years, in terms of a complete relook at the heating and air
conditioning and electrical systems. Again, because many of our
institutions are so old, preventive maintenance and a lot of
the money that we should be putting into this equipment has
just not been forthcoming to do all the work we would like to
do. But we are trying to target the ones that we think could be
more vulnerable than others, and eventually get to all the
institutions to make sure--
Chair Nadler. I have two more questions in 45 seconds.
Ms. Sawyer. Okay. I am sorry.
Chair Nadler. One of the issues that took place at MDC was
that visitation was cut off to families and attorneys. As a
result, for a period that was too long no one on the outside
knew what was going inside. Families, in particular, were very
anxious and, frankly, terrified not to know what was going on
with their loved ones. Has MDC taken any measures to ensure
that families and attorneys are kept informed if anything like
this ever, God forbid, happens again, and what specific
measures have been taken?
Ms. Sawyer. Right. One of our biggest failings at that
institution, on that situation, was communication. They were so
busy trying to fix the heating and air conditioning, the
heating, and electrical problems, we forgot to be quite as
aggressive at letting all of our stakeholders know--the family
Members, the--
Chair Nadler. You are doing that now?
Ms. Sawyer. We have policy in place--
Chair Nadler. You are doing that now?
Ms. Sawyer. --we have made contacts to repair some of the
damage.
Chair Nadler. Thank you.
Ms. Sawyer. Sorry.
Chair Nadler. In the one second I have left, my last
question is, one of the things that was shocking to me was that
there didn't seem to be any emergency plan in place at that
point. Has that been rectified?
Ms. Sawyer. Yes. We had an emergency plan. We didn't an
emergency plan authority. We didn't have the person in place
that was supposed to be making sure that that emergency plan
was activated right away. That person is now in place. The
emergency plan is there. God forbid this occurs again, but if
it does, we should be much better prepared to deal with it,
sir.
Chair Nadler. Thank you. My time has well expired.
Ms. Bass. Representative Chabot.
Mr. Chabot. Thank you very much, and Madam Chair, I would
like to commend you on holding this hearing. I think this is a
very important hearing. I would like to focus much of my
attention to the Prison Industries program, UNICOR now. I have
been a long-time big supporter of that group and trying to keep
them going in the right direction. I would just note that most
of the people that inhabit our Federal prisons will one day get
out. There are exceptions. We have people that have obviously
murdered multiple people, and the likelihood of them getting
out may be somewhat slim. Most of these folks are going to get
out.
So, to the extent--and that is the case at the local level
as well. So, to the extent that we are able to get these folks
marketable skills that they can put to use when they get out
makes it much less likely that they are going to revert back to
crime. It is my understanding, for example, that you all have
something called the post-release employment project, and if I
have got my numbers straight, I believe that if they were in
Federal Prison Industries and got a skill there is something
like a 24 percent less of a chance that they will end up back
in crime when they get out. Would you like to talk about that?
Ms. Sawyer. That is absolutely true, Congressman, and I
testified before you on Prison Industries issues 20 years ago,
so I know you were a strong supporter of that program back
then. It is one of our most powerful programs and it is
evidence-based that it does have a significant impact upon
recidivism. The 24 percent that you recall is exactly right,
that it is a 24 percent less likely that an inmate is going to
return to crime when they hit the streets, and it is also a 15
percent increase in likelihood that they are going to be
productively employed, a taxpaying citizen back in the
community. It is a powerful program.
At one time, when I was director before, 20 years ago, we
had 28,000 inmates in Federal Prison Industries. We are now at
only 11,000 inmates in Prison Industries. Our authorities and
our ability to be a mandatory source purchase agent from all
the Federal Government has been eroded a lot over the years,
and it is harder and harder for us to get the kinds of work and
orders that we need to employ the kind of inmates we did
before.
We still make 80-some different product lines. It was 122
different product lines when I was here before. We are down to
80-some product lines. We try to diversify as much as possible
so that we don't impact any particular industry in this
country.
We have gotten some new authorities through the First Step
Act which we are hopeful are going to help us raise those
numbers a little bit, but we need all the help we can get to
advance authorities. If we really want to impact inmates
through the First Step Act, Federal Prison Industries is a
critical, critical area that we can do that.
Mr. Chabot. Great. Thank you. I certainly understand and I
was, for the last two Congresses, Chair of the House Small
Business Committee. I am now the Ranking Member of the House
Small Business Committee. So, there are some folks, business
folks, that are concerned about the competition, and I
certainly understand. I think we can work through this, though,
and I would like to see an expansion of the number of inmates
that are qualified to be in the program so that we can get job
skills for a lot more of these people, who again, will someday
be out on the street. We don't want them preying on the public.
We want them to have marketable skills and be able to obtain a
job and be self-supporting.
So, the First Step Act, it is my understanding that before
last year only Federal Government agencies could buy products
manufactured by Federal inmates, but with the enactment of the
First Step Act, section 605, expanded potential purchasers to,
for example, the District of Columbia, so the government of the
District of Columbia here in Washington, some nonprofit
entities, and in disaster relief and emergency response
efforts. Is that correct?
Ms. Sawyer. Yes, that is.
Mr. Chabot. Okay. So, I would hope that is something else
that we could work on.
It is also my understanding, as far as the Federal
Government, about 50 percent of the products go to the Defense
Department. Is that right, approximately?
Ms. Sawyer. I don't know if it is exactly 50 percent, but
they are our biggest purchaser, yes.
Mr. Chabot. Okay. Then some of the other agencies is
Homeland Security, the Justice Department, Department of
Transportation, Treasury, Veterans Administration, the Bureau
of Prisons itself, the GSA, Social Security Administration, and
the Postal Service.
Ms. Sawyer. Yes. Yes.
Mr. Chabot. Does that sound right?
Ms. Sawyer. Yes.
Mr. Chabot. The products we are talking about are textiles,
office furniture, recycling, and a number of other things.
So, let me just conclude with this because my time has
almost expired. Anything that we can do to get marketable
skills to those that are inhabiting our prisons, both at the
local and especially at the Federal level, since we are here at
the Federal level, I think we are doing incredible good for
society overall. Because these people will come out some day
and they ought to be working and supporting themselves, not
preying on the public.
Ms. Sawyer. Thank you, Congressman, for your support.
Mr. Chabot. Thank you very much, and I yield back.
Ms. Bass. Mr. Jeffries?
Mr. Jeffries. Thank you, Madam Chair, for your leadership,
and I also want to thank, of course, my good friend, Doug
Collins, for his tremendous leadership of the First Step Act,
and Chair Nadler, all distinguished Members of the committee.
Before I begin my questioning, I just had a statement for
the record that reads, in part--it is from Jay Chattelle, who
is the nephew of Troy Pine, of course, who was the young man
who was tragically killed on Wednesday, October 2nd, in
Providence, Rhode Island, by someone who was released pursuant
to the retroactive application of the Fair Sentencing Act of
2010.
The statement, in part, reads, ``My uncle was a truly great
man and his loss has devastated my family. No family should
have to go through this. But to blame President Trump or the
First Step Act is 100 percent wrong. This bill was passed with
good intentions. Way too many people are in jail for way too
long. Nobody should use my family's name or pain for a
political agenda. At the funeral, my brother spoke of the need
for love and forgiveness, and I wish the world had heard it.
``Anyone who speaks my uncle's name, please speak it in a
way that will draw people together and bring help to people in
these communities, including human beings who have been locked
up for too long. Speak it in a way that brings healing to
people who need it. My family is about God's love and grace. I
hope you will join us in this effort. God bless you all.''
I just ask unanimous consent that this statement be entered
into the record.
Ms. Bass. Without objection.
[The information follows:]
MR. JEFFRIES FOR THE RECORD
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Mr. Jeffries. Certainly, our thoughts and prayers are with
the family of Troy Pine.
Director Sawyer, the First Step Act is designed to help
currently incarcerated individuals successfully reenter
society. Is that true?
Ms. Sawyer. Yes, sir.
Mr. Jeffries. According to the U.S. Sentencing Commission,
almost one-third of Federal offenders are reconvicted in eight
years after reentering the community. Is that correct?
Ms. Sawyer. It is about 40 percent in the Federal system.
Mr. Jeffries. The First Step Act was crafted to sort of
reduce this recidivism by helping to bring to life programs
that provide education, job training, substance abuse
treatment, and mental health counseling. Is that correct?
Ms. Sawyer. Yes, it is.
Mr. Jeffries. The research shows that inmates who
participate in correctional education programs, for instance,
are significantly less likely to recidivate. Is that right?
Ms. Sawyer. Yes.
Mr. Jeffries. For example, I think there was a May 2018
report that the White House Council of Economic Advisors issued
that concluded that mental health programs reduce recidivism by
approximately 21 percent and substance abuse programs by 17
percent. Is that correct?
Ms. Sawyer. I am not familiar with those numbers. They
sound correct.
Mr. Jeffries. That is consistent with the literature as it
relates to the impact of similar programs on recidivism. Is
that true?
Ms. Sawyer. Yes.
Mr. Jeffries. Would you agree that implementing the
First Step Act is the right thing to do for individuals,
families, and communities that have been devastated by what I
would characterize as the failed war on drugs?
Ms. Sawyer. I absolutely support the First Step Act.
Absolutely, sir.
Mr. Jeffries. Would you agree that reducing recidivism
improves public safety in communities throughout the country?
Ms. Sawyer. Yes, sir.
Mr. Jeffries. Is it fair to say, also, that reducing
recidivism saves taxpayer dollars as well by reducing the need
for incarceration and the cost of prosecution and things of
that nature? Is that correct?
Ms. Sawyer. Yes, sir. We have often said that we would like
to work ourselves out of business. We would like to reduce
recidivism to the point that we didn't even need the prisons
that we have today.
Mr. Jeffries. So, we have a framework in place, of First
Step, and as we worked on this legislation, we were very clear
that to deal with mass incarceration as an epidemic we need
sustained energy, sustained intensity, sustained effort, but we
need it to start someplace, with a first step. We have to make
sure that this first step, of course, is successful.
So my question for you is, because I believe the commitment
is there, as was articulated by the Department of Justice, is
what are the resources that are necessary to make sure that we
can bring this programming to life, to really help the people
who can use this programming for them to bring their natural
talents and abilities and their hopes and dreams and
aspirations into reality?
Ms. Sawyer. We have had outstanding programs in the Bureau
of Prisons for years. Our residential drug treatment program,
our education programs, our prison industry programs we
discussed, many good programs. Our limitation, though, was we
never had enough resources to make those adequately available
to all the inmates, to have the positive impact on all the
folks leaving our institutions.
So, that is where we come to today. Resources is going to
be our biggest challenge. We requested funding in the 2019
budget. We got $75 million. We have ramped up, as I said
earlier, our education programs, our vocational training
programs, and some other programs, bringing in our necessary
staff to add to our drug treatment programs and other model
programs that can impact the needs of the inmates. We have
requested funding again for 2020, to increase those even to a
greater extent.
We don't really know for sure what exactly our funding
needs are going to be, because until we complete the needs
assessment, apply that to all our inmates, we don't know for
sure what all the needs are going to be and what other programs
we may need to add to our operations.
Resources are going to be our single only impediment to
fully actualizing the First Step Act.
Mr. Jeffries. Well, thank you, and I just want to thank--I
know Chair Bass acknowledged some of the individuals who are
present with us today who have been released pursuant to the
First Step Act. We fight for you. We appreciate your continued
engagement and involvement and your willingness to be amongst
us today. I yield back.
Ms. Bass. Thank you for your leadership.
Representative Lesko?
Ms. Lesko. Thank you, Madam Chair, and thank you, both of
you, for coming here to testify. I have five questions and they
are all for you, Director Sawyer, and so if you could answer
them fairly fast that would be helpful, so I don't run out of
time.
On August 12th, our committee, Chair Nadler and Ranking
Member Collins, wrote your office and department a letter
asking about the Jeffrey Epstein death in the prison, and I was
wondering what the status is of the AG's investigation into
that.
Ms. Sawyer. I am afraid that the situation is still under
investigation, and so I am really not at liberty to say much
about that just yet.
Ms. Lesko. Okay. In the Department's response to the
committee's letter there seemed to be a lot of blame on the
suicide prevention program coordinator, a doctoral-level
psychologist, for taking Epstein off the suicide watch. Do you
think that is an accurate assessment, and if so, was there any
disciplinary action?
Ms. Sawyer. Again, I am not at liberty to discuss the
Epstein case, in particular, but I would like to give a little
more information on the suicide watch program, because I think
it is very misunderstood.
Ms. Lesko. Okay.
Ms. Sawyer. I am a psychologist. I worked as a psychologist
in the Bureau of Prisons with our inmates for many years. The
suicide watch program is a very stark situation. If we deem you
to be suicidal, imminently suicidal, we place you in a room
with nothing in there except a mattress, a very thick, heavy
kind of a gown that you would wear, so that you could not use
it to strangle yourself with or hang yourself with. Even with
your eating utensils you get kind of scoop so that you can't
hurt yourself with that. It is a very stark and you are watched
constantly--it is very stark environment. It can become
depressive if you are in there too long.
Our average length of time in that status is about 24
hours. We then, though, have the option of moving an inmate to
what we call psychological observation. They are still watched
all the time, but they get clothes back, they get other reading
materials and things in their room, they get more traditional
bedding. It is a much different status. So, we do have the
option of moving from one to the other. Suicide watch is not
our only recourse.
Ms. Lesko. Thank you. There were reports that there was no
video footage of his room when he did. Is that like normal
procedure?
Ms. Sawyer. Again, I can't speak to the Epstein case, but I
can say that a number of our camera systems are faulty and need
to be repaired. In some of our institutions, especially our
high-rises, we are working very diligently to upgrade, not only
to replace the cameras but get digitized cameras, which give
you a much clearer picture as to exactly what is going on. We
are working to improve those in all our institutions.
Ms. Lesko. Thank you. I am switching people now, to my last
question, and this is about John Walker Lindh, who, 17 years
ago, was convicted of a couple of things. He was first indicted
of conspiracy to murder U.S. citizens, two counts of providing
material support and resources to terrorist organizations, one
count of supplying services to the Taliban, and I can go on and
on. Basically, assumed to be a terrorist. Then he was released
this year, after 17 years, so early, apparently on good time.
Can you explain to me--there was reports that he is still
professing in the belief of global jihad and a supporter of the
Islamic State? How does somebody get released early if they are
reportedly still professing those types of things?
Ms. Sawyer. The good conduct time that currently existed in
the regulations prior to the First Step Act required an inmate
to serve 85 percent of their sentence, and if they had no
misconduct issues within the institution, they followed the
rules and regulations, then we had to release them. The Bureau
of Prisons has really no control over when an inmate's sentence
is up.
Now, what we do with individuals who are terrorists in our
system is we monitor them very carefully. Their mailings are
monitored. Their interactions are monitored. We feed that
intelligence out to our law enforcement communities so that
when that individual is released the community to which he is
going, all the law enforcement personnel know exactly what they
are getting, what their thinking is, and what, if any,
possibility there could be of them reoffending. So, that we see
as our responsibility, is once we have to release them, we make
sure whoever is receiving them has a much intelligence as they
can possibly have as to the status of that offender.
Ms. Lesko. Thank you. We did go on timing, so thank you for
that. Also, I want to applaud--I think it is good that we do
have programs that people that are doing a good job and can
contribute to the society. So, I applaud this Committee for
passing that type of legislation, and for you, I wish you all
the success, the people in the audience. Thank you.
Ms. Bass. Representative Jackson Lee?
Ms. Jackson Lee. Thank you, Madam Chair, and to the Ranking
Member for convening this important hearing, and welcome Madam
Director. I think we have worked together in the past.
Ms. Sawyer. Yes, we have.
Ms. Jackson Lee. I am delighted, I believe, that you are
making history, and that is something to take note of.
In the hearings that I have had today, each one of them I
mentioned our friend and colleague, the honorable Elijah
Cummings, and I will do it here, and say that we will always be
reminded of his seeking justice, and that is what we are doing
here today.
I would also like to associate myself with the words of
Congressman Jeffries and the letter that he read, to not use
and misuse a vitally important program of restoration to be
against these kinds of programs.
Let me start, as well, with a question about Mr. Epstein at
the Metropolitan Correctional Center. I heard what you said so
I am not asking for the details. What I am asking for is that
the Congress--and I am saying this because the DOJ is
represented here--have this committee, in particular, and I
know our chairman certainly will have that done, but I want to
be on the record that we want the full, unredacted report as to
each action and response. So, I am making that request to you
and I hope that you will adhere to it, Madam Director.
Ms. Sawyer. Yes, ma'am.
Ms. Jackson Lee. So, let me go to a more generic question.
I visited the Metropolitan Correctional and in my
responsibilities on this committee, I met with a lot of the
corrections officers, dedicated that they were. There is
certainly an alluding to the circumstances of overly exhausted,
sleeping.
What are you doing about the excessive overtime, shortage--
I heard something that I wanted to be very pointed--because of
overtime and the lack of time between days off and working? I
understand, when I spoke to these leaders at Metropolitan, they
were barely getting any time off to go home and come back. They
were doing three shifts. I am just giving the kind of
description. What are you doing about that, because that
certainly impacts justice, it impacts those who are detained,
and it impacts the workers?
Ms. Sawyer. Right. One of our biggest challenges right now
is filling the 3,000 positions that we have vacant, and since I
came on board eight weeks ago, that has been a full court press
of mine. We have hired 20-some new employees in our staffing
offices to try to move the applicants much faster through this
rather slow process of hiring. We have ramped up our recruiting
process. We are getting new authorities from OPM to be able to
give our institutions direct-hire authority so they can hire
straight from the street.
Ms. Jackson Lee. Are you responding, as well, to your
present staff and then some relief as well?
Ms. Sawyer. Right. Absolutely.
Ms. Jackson Lee. I have a short period of time so we--
Ms. Sawyer. Yeah, to our present staff we are trying to use
only voluntary overtime, trying not to mandate overtime. That
is what causes us to use staff from other locations.
Ms. Jackson Lee. Thank you. Thank you very much.
I am committed to a program that deals with addressing
pregnant inmates, obviously women. It is SIMARRA legislation
that I have included in some legislation that has made its way
through the House and it is on to the Senate, and that is to be
creative in dealing with women who are pregnant, that may give
birth while they are in prison. There are many different--how
should I say?--proposals. Mine deals with making sure that
there is a bonding and that they are allowed to be with the
child for a period of time. How open are you to that?
Ms. Sawyer. Absolutely. We have six MIT programs right now.
We call them Mother and Infants Together. Six months from the
time the birth occurs to six months after, the mother can be
placed in a halfway house with her child to create that bonding
connection. Then we also contract with the State of Washington
for an ongoing program. If a woman is within 30 month of
release they can keep the baby with them for 30 months, but
they have to be in Washington State, which is undesirable to
some women.
Ms. Jackson Lee. So excellent, and what I will say is, so
you won't mind that being codified so they won't have to be
move to Washington State. I need to get to my other questions.
Though it is not your responsibility, my legislation, that
was added to the First Step Act, had to do with the Independent
Committee. I know that it has been housed somewhere. I would
like you to comment on the value of having that oversight.
Then, lastly, would you please describe, for the DOJ, the
policies in place that will allow inmates to contact counsel or
file complaints when facilities experience emergencies, such as
at MDC?
So, would you--the Committee--
Ms. Sawyer. The Independent Review Committee on the First
Step Act?
Ms. Jackson Lee. Yes.
Ms. Sawyer. I would defer to Toni.
Ms. Bacon. The Independent Review Committee has been a
valuable asset. We have appreciated an open working
relationship with them, and they have provided very hopeful
suggestions and guidance, not only on the tool, on developing
PATTERN, but also on evidence-based recidivism reduction
programs, needs assessment systems, and an overall
implementation plan.
Ms. Jackson Lee. Well, the counsel, can these inmates get
to their counsel when these conditions are not working?
Ms. Sawyer. I am not sure I understand your question,
Congresswoman.
Ms. Jackson Lee. Can you describe the policies in place
that would allow inmates to contact counsel or file complaints
when facilities experience emergencies like at MDC?
Ms. Sawyer. Sure. They should have easy access to be able
to contact an attorney. That is not a big concern for us. What
happened--if you are talking about MDC at Brooklyn, when we had
to shut down our attorney visits for a while because of the
heating and air conditioning, and electrical problems, that was
a temporary situation based upon our utilities problems, and we
have put in place now ways to rectify that should, hopefully,
never happen again, but should it happen again, ways that we
can get them access to the attorneys that they wish to contact.
Ms. Jackson Lee. I am yielding back. I just want to say we
have a detention center in my district 20 years. I do want to
give applause and praise to those staff persons there. I heard
that the Independent Committee--just for the record; I am not
asking for a response--it is not working, and so I want to
follow that up at a later time.
I yield back. Thank you, Madam Chair, for your courtesy.
Ms. Bass. Representative Cline?
Mr. Cline. Thank you, Madam Chair, for holding this
hearing. Thank you to the witnesses for being here today.
Federal Bureau of Prisons plans an important role in
protecting society and confining offenders while they serve out
their sentences. The First Step Act of 2018 includes three
major components, as was discussed--correctional reform,
sentencing reform, and reauthorization of the Second Chance
Act.
It is important to note that nationally and in my home
State of Virginia, crime is at or near all-time lows, and this
is a direct result of laws passed by Congress and by the
States, that ensure violent and dangerous offenders receive
appropriate punishments for their offenses. It is also
important to remember, and keep as a goal, that victims of
crime and their families, should never be robbed of justice,
and violent offenders must be held accountable by our criminal
justice system.
The First Step Act appropriately prevents violent offenders
from earning additional time credits to reduce their sentences.
In my home State of Virginia, the practice of discretionary
parole release was abolished in 1995, and our truth in
sentencing laws require convicted felons to serve at least 85
percent of the pronounced sentence, and they may earn, at most,
15 percent off in sentence credits, regardless of whether their
sentence is served in a State facility or a local jail.
At 23.4 percent, Virginia has the lowest recidivism rate in
the country, among the 43 states that report three-year
reincarceration rates for felons. Of the 12,000 offenders
released from incarceration in Virginia in fiscal year 2014,
who had an opportunity to recidivate, 2,800 were reincarcerated
within three years. Virginia's leading rate can be attributed
to the effective reentry programs and treatments offered by
Virginia Department of Corrections during an offender's
incarceration and its effective supervision in the community
after release.
I did note with interest the Federal Law Enforcement
Officers Association letter to Chair Bass and Ranking Member
Ratcliffe asking for additional resources for probation
officers and additional legislation to give them additional
authorities to ensure their safety during their job of
monitoring this increased number of prisoners who are being
released.
So, I would ask, Ms. Bacon, the First Step Act requires DOJ
to develop a risk and needs assessment system to be used by BOP
to assess the recidivism risk of all Federal prisoners and to
place prisoners in programs and produce productive activities
to reduce this risk. Prisoners who successfully complete
recidivism reduction programming and productive activities can
earn additional time credits toward pre-release custody.
Can you describe how this is being implemented, and are
there any early indicators of success regarding the release
under provisions in the First Step Act?
Ms. Bacon. Yes. So, step one is to develop the risk
assessment tool called PATTERN, that we are in the final stages
of updating, and we intend to publish in the very near future.
Step two is then to screen every single inmate in the Bureau of
Prisons by January 14, 2020, the statutory deadline, through
the risk and needs assessment system, so we can identify what
is the individualized need? What is the particular need of each
person, to help reduce their recidivism risk?
From there, the next step is to identify, from a menu of
evidence-based recidivism reduction programs, what is the
program that is best suited to meet that individual's need?
Then from there, we intend to monitor, study, and validate the
programs to see, one, which programs are working? Which should
be expanded? Where should we go with those, and to identify and
be honest about which ones aren't working, and that we might
look to improve or that might need to be substituted with
others.
So that way, as we evolve and grow, we can maximize the
number of beneficial programs that reduce recidivism and allow
our communities to be safer.
Mr. Cline. Are you going to be looking to States for
examples of programs that may have worked in reducing
recidivism as models for you to use?
Ms. Bacon. Yes, absolutely. That has been part of our
research, is to examine States. Also DOJ, in conjunction with
the Independent Review Committee, recently took a trip to
Canada to learn from our colleagues up north what programs they
use, how effective they are, how they implement, how they
measure. So, we are looking to multiple sources to determine
what are the possibilities out there, where is the strongest
evidence, and what programs give our inmate population, the
Federal population, the best chance of success, yes.
Mr. Cline. I was both a prosecutor and a defense attorney
in Virginia, and on the Courts of Justice Committee there, so I
would encourage you to look to Virginia for some of the
examples of programs that we have used to success.
With that, Madam Chair, I yield back.
Ms. Bass. Thank you.
Mr. Cicilline?
Mr. Cicilline. Thank you, Madam Chair. I, too, want to
acknowledge the loss of our extraordinary colleague, Elijah
Cummings. We have lost a great champion for justice and a
passionate civil rights leader, and someone who was a fighter
for truth in the Congress of the United States. We all remember
him and honor his service.
I also want to acknowledge the tremendous loss of the
family of Troy Pine, and I know a number of my colleagues have
already acknowledged that. While we all support criminal
justice reform, the particular facts of this case I know the
court is reviewing, and we want to be sure that we understand
how that happened. Most importantly, extend our condolences to
his family.
Director Sawyer, I wanted to start with you. I met with the
individuals in my State who run the residential reentry
centers. One of the things that they raised with me is that
very often they get inmates from the Federal Bureau of Prisons
that have done a lot of things like prepared resumes, gotten
their IDs, but that often doesn't get transmitted to the
residential reentry center. There doesn't seem to be a lot of
coordination between the Bureau of Prisons and the residential
reentry centers, which is really undermining the ability of
these individuals to reenter successfully.
So, I am wondering what the Bureau of Prisons can do in
partnership with the residential reentry centers to provide for
a more seamless reentry for inmates, and what steps might be
taken to ensure that some of the work that has been done on
things like getting an ID and preparing a resume, travels with
that inmate to the residential reentry center so they have a
leg up on this reentry work, as they are getting back into the
picture and they are going to reenter the community?
Ms. Sawyer. To be honest, Congressman, I am little
surprised to hear that being raised as a concern, because we
have our staff from the central office in the local community
corrections or reentry staff working directly with the halfway
houses. So, if there is a breakdown in some type of
communication at that level we will look specifically at those
in your region and see what is happening, because--
Mr. Cicilline. That would be great.
Ms. Sawyer. --we felt we had a pretty good line of
communication there, but we will check it.
Mr. Cicilline. They have been involved in this work for
quite a while in the whole New England region and have had the
experience in various places. So, if you would look into it.
Ms. Sawyer. Definitely. Absolutely, sir.
Mr. Cicilline. Similarly, they also raised, during that
meeting, that while the Bureau of Prisons has done a very good
job in terms of moving people back into the community or
entitled to some reduction in their sentence as a result of
this historic legislation, that the kind of backfilling of
those spots for people who now become eligible under the First
Step Act for residential placement, those spots aren't getting
refilled.
So, I am wondering what is the status of the second part of
this? The first part is obviously getting people's sentences
reduced that get back into the community, but as a result of
other sentence reductions they now become eligible for
residential placement. That doesn't seem to be happening, and
they know that because a lot of their folks are getting
released but they are not having anybody refill them, and there
are obviously people in the system who are eligible.
So, what is the status of that second part?
Ms. Sawyer. Well, we target all our eligible inmates to go
out through a residential reentry program because we feel that
is a good halfway step back for them. At least 75 percent of
our inmates released go through the halfway houses.
We can't, though, guarantee that the right number are going
to release into a particular district at the right time. So,
even if we contract for, say, 20 beds at this particular house,
I can't guarantee we are going to release 20 inmates to that
specific locality.
Mr. Cicilline. No, no, I understand. Maybe I am not making
myself clear.
Ms. Sawyer. I am sorry.
Mr. Cicilline. There are people, because of the First Step
Act, now are within close enough time to be--they are at the
end of their sentence, that they are now eligible to be at a
residential reentry center.
Ms. Sawyer. Right.
Mr. Cicilline. They are still at the Bureau of Prisons.
Ms. Sawyer. Right.
Mr. Cicilline. So, is that process of calculating where
those people are so that they get placed in residential reentry
centers and not wait at the Bureau of Prisons?
Ms. Sawyer. Yeah. That is an ongoing, like a revolving
door, that we identify the inmates, we try to get them out
within at least six months of their time. The average stay is
about five months. We try to get them out there as quickly as
we can.
Mr. Cicilline. If you could look at the stats because my
sense is the second half of that may be not happening.
Ms. Sawyer. We will definitely look at that.
We will look at that, for sure.
Mr. Cicilline. My final question, Director, is, the First
Step Act requires the Bureau of Prisons to assess an evidence-
based recidivism reduction programming or productive activity
to each person incarcerated. It is not clear that the Bureau of
Prisons has enough programs to meet this requirement at every
facility. For example, one of the most popular evidence-based
recidivism reduction programs within Bureau of Prisons is the
residential drug abuse program, and it frequently has a waiting
list of 5,000 people. That was one in 2016. It sometimes
requires individuals to transfer to a different facility,
perhaps one with a higher security level than their previous
facility.
So, access to evidence-based recidivism reduction is
crucial to the successful implementation of the First Step Act.
Does the Bureau of Prisons and does every BOP facility have an
evidence-based recidivism reduction program, as defined by the
First Step Act? How many programs are in the BOP catalog? How
many have wait lists? Is there more we need to do? Because that
is a requirement, and if it just doesn't exist throughout the
system, we have a problem.
Ms. Sawyer. The wait list on the drug program is a
misnomer. We identify the drug program for the latter part of a
person's sentence because research shows that if you do it on
the front end of their sentence then they sit without drugs
available in the institution, and then they get out and we
missed the point. So, we schedule it later in their time.
So, the waiting list--we are going to need to change the
name for that, because it is a misnomer. It really is--we have
kind of targeted when we want them to enter the program. We are
going to have to back that up a little bit because now they can
earn the credits and get out a little bit earlier. They are
really not waiting because we don't have beds. 80-six of our
institutions have residential drug treatment programs. We
should be able to accommodate all our inmates.
If not, we mentioned earlier that funding is going to be an
issue. With the new needs assessment coming, we are going to be
able to identify, very clearly, what the needs of the inmates
are, where we are short on programs in particular areas, and
look to growing those programs as time goes on. Some money came
to us in 2019, $75 million, and we are looking for at least
another $75 million in the next one. We are targeting which
programs we think we are going to need, but we won't know
exactly what they are until this moves down the road a little
bit and we can identify the needs and develop the programs to
match those.
Mr. Cicilline. Please let us know, because we want to
advocate for that.
Ms. Sawyer. Absolutely. Thank you, sir.
Mr. Cicilline. Thank you, Madam Director, and I yield back.
I am yielding to myself.
Mr. Cicilline. [Presiding.] I now recognize the gentlelady
from Pennsylvania, Ms. Dean, for five minutes.
Ms. Dean. Thank you, Mr. Chair, and I thank Chair Bass for
holding this hearing. I come from Pennsylvania. I was a State
representative before being elected in 2018, and wanted to
serve on this committee. I served on Judiciary there. Criminal
justice reform is something I care deeply about. So, I wanted
to ask you, in a couple of different areas.
We know that criminal justice reform is an issue that we
need to robustly address. According to a 2018 report by the
Department of Justice, 83 percent of State prisoners released
in 2005, across 30 States, were arrested at least once in the
nine years following their release. That is five out of every
six persons released. That numbers reveals to, I think,
anybody, that the rehabilitation of inmates, at least at that
data point, was not working for inmates, was not working for
our communities.
We have made some progress in the right direction with the
passage of the First Step Act, which seeks to decrease
recidivism rates through a number of the tools that you have
been discussing today.
One of those tools is earned time credits, that I would
like to learn more about, earned by participating in recidivism
reduction programming that could be used to decrease time spent
in prison. Director Sawyer, could you briefly describe that
programming, and who designs that programming?
Ms. Sawyer. If I may, I would like to defer to the
Department of Justice, because they are handling that part of
it more robustly.
Ms. Dean. Absolutely. Thank you.
Ms. Bacon. Yes. We are in the process of identifying
evidence-based recidivism reduction programs, whether those be
programs that are currently offered at the Bureau of Prisons or
maybe programs that are offered in States or in other
locations. The next step is to then match the programs with the
individualized need, and that is a very important step, because
if someone's need is mental health and they are in a drug
program, that is not necessarily going to reduce their
likelihood of recidivism. So that matching is key, and that is
where training of BOP staff and using the experience and the
education of the high-quality staff we have is very important,
because part of this will be the staff matching the program to
the individualized need.
Ms. Dean. Is that going on at this time?
Ms. Bacon. Not yet. Where we are in the process now is
identifying the menu of programs that have appropriate
evidence, and this is an area where, in some cases, the
research has been lacking. Part of the First Step Act, what we
are excited about, is it is definitely an inspiration to
research and study these programs so we can have a better
understanding of which programs are working.
Ms. Dean. I think that helps me bridge to the next
conversation that I wanted to have. I want to focus on
educational aspects of programming, because education for
people in prisons has a clear public safety benefit, reducing
recidivism.
I, too, am heartbroken at the death of Chair, Elijah
Cummings. I, as a little old freshman, had the honor of
introducing legislation with him, so I feel quite sad in his
absence. He and I--he, mostly, but I along with him, introduced
the Promoting Reentry Through Education in Prisons Act, the
PREP Act. The bill would standardize Bureau of Prisons
educational programs, creating an office of correctional
education within the agency. I was inspired by Elijah Cummings'
leadership in this area.
Are you familiar with that legislation, the PREP
legislation, either of you?
Ms. Sawyer. Somewhat, yes.
Ms. Dean. Okay. I am eager to meet with you, meet with
whomever, to try to get as much support as we possibly can for
it. What we do know is if we could create a bureau and
centralize the educational programming, best practices, meeting
the assessment tools that are needed to identify the holes in
the system in education and rehabilitation, and put it across
the system instead of just here and there, we believe it would
make a huge difference.
Ms. Sawyer. Yeah. I was just going to say, we have
education programs at every one of our institutions. We agree
with every single thing that you are saying.
One of the things First Step Act is going to help us with
is it will incentivize inmates to take the programs. We require
them to take education programs, literacy programs, and GED
programs for 240 hours, when they first come into the
institution. Some of them stay with it, and we have a lot of
folks get their GEDs and become literate in our institutions.
Some of them get tired of it and so they don't stay there,
because there was, in their eyes, no benefit, no matter how
much we tried to encourage them.
Once we lost parole, we lost a lot of that incentive. Now,
with the First Step Act, with the earned credits, we have got a
new incentive there for them, that hopefully are going to keep
those inmates in those programs much longer. So, we applaud
that.
Ms. Dean. I appreciate that and I see my time has run out.
There is lots more to talk about, whether it is mandatory
minimums or the programming around substance abuse disorder. I
would love to talk with you more.
Ms. Sawyer. Perfect.
Ms. Dean. Thank you, Mr. Chair.
Mr. Cicilline. I thank the gentlelady. I now recognize the
gentlelady from Florida, Ms. Mucarsel-Powell, for five minutes.
Ms. Mucarsel-Powell. Thank you, Mr. Chair, and thank you to
the witnesses for coming here this afternoon. I think it is
very important that we have the opportunity to discuss the
First Step Act, which makes critical sentencing and prison
reforms to the criminal justice system. It is so important that
these reforms are implemented quickly and fairly, and those
that are in the criminal justice system have that opportunity
to have equal treatment.
I think it is important to talk about the State of the
Bureau of Prisons, because, as you have mentioned, it has a lot
of issues. I think that you were hired just recently. How long
have you been there now?
Ms. Sawyer. Eight weeks.
Ms. Mucarsel-Powell. Eight weeks. It didn't have a director
for over a year. Is that correct?
Ms. Sawyer. We had an acting director for 15 months.
Ms. Mucarsel-Powell. Okay. You have lost about 12 percent
of your total staff. Is that correct?
Ms. Sawyer. Right now, we are down over 3,000 employees.
Ms. Mucarsel-Powell. Is there a reason? You have only been
there eight weeks, but is there anything that you have seen
that can explain why there is such a shortage of staff right
now in the Federal Bureau of Prisons?
Ms. Sawyer. Well, we had very inconsistent budgets for
several years and threats of losing positions. So, we were
concerned about not hiring up too much and then risking having
to riff them, because in some of the budgets we were threatened
with losing positions. One year we kept our positions but lost
the funding for like 1,500 positions. It has been very
inconsistent in terms of both our position allotment and our
budgets. So, a lot of that caused us to kind of get behind the
curve with filling our positions, and now we find ourselves
with a 3,000 backlog in empty positions.
Ms. Mucarsel-Powell. Well, one of the reasons why I am
asking that is because I know that there have been complaints
in one of the Federal Bureau of Prisons in Miami because of the
working conditions. They have actually had to file several OSHA
complaints, and the union has stated that the working
conditions are just very dire for them at this point. So, have
you had a chance to look over those complaints?
Ms. Sawyer. Yes. The issue at Miami, at least, was mold,
and the climate down there is very conducive to mold. Once
anyone identifies any mold--and we ask all of our staff to be
vigilant all the time in terms of any life safety issues,
whether it is with the inmates and staff or whether it is the
facility, as soon as we identify the possibility of a mold
concern we right away come in, we do the mold assessment, we
bring in OSHA, we bring in the contractors to repair them.
Ms. Mucarsel-Powell. They had to file it more than once.
Now, that you are there--
Ms. Sawyer. It recurred. It recurred, is what happened. We
got the mold--the eradication was completed, we thought it was
all taken care of, and then we found it occurring in another
part of the institution. So, those things concern us very much,
and we try--
Ms. Mucarsel-Powell. Can you just give me an update, yes?
Ms. Sawyer. We will do that. Thank you.
Ms. Mucarsel-Powell. I know that you can't really get into
details with the Jeffrey Epstein case, but as you can imagine--
and I think it was the attorney general that stated that Mr.
Epstein's death raised serious concerns that must be addressed.
So, if you can just walk me through, what are the specific
mental health and suicide prevention training that you provide
the personnel that deal with these issues?
Ms. Sawyer. All of our staff, when they come into the
Bureau of Prisons, suicide prevention training is part of their
training at the institution level, at our training academy in
Glencoe, Georgia. We impress upon them suicide prevention. We
also, every year in our annual training, repeat again suicide
prevention training. One of our vulnerable areas are our
special housing units, where inmates are kind of secluded from
everyone else. We do quarterly training with the staff there to
stay on top of suicide prevention issues.
We do a lot of training with our staff, and the issue
oftentimes is that the inmates, they understand the program
too, and if the inmates truly want to die, they know how to,
well, let me say it a little differently. We try to give every
inmate a roommate so that they are never completely alone. Just
the other day we had an inmate that died by suicide, and he
waited until his roommate was taken out of the cell for
recreation and took his life during that time frame.
So, my only point--and again, I am a doctoral-level
psychologist and I have worked suicide prevention in our
institutions for years, it is very, very difficult for those
who do not identify any likelihood--
Ms. Mucarsel-Powell. I only have a few seconds.
Ms. Sawyer. Sure. I am sorry.
Ms. Mucarsel-Powell. Sorry, Ms. Sawyer. Really quickly, but
it seems to be reported that there was a staffing issue in that
particular prison, and because of the augmentation policy it
was someone else that was actually on watch of Mr. Epstein. Is
that correct?
Ms. Sawyer. I cannot speak to anything specifically about
Mr. Epstein. It is still under investigation.
Ms. Mucarsel-Powell. Okay. Okay. Thank you.
Ms. Sawyer. Okay.
Ms. Mucarsel-Powell. I yield back.
Mr. Cicilline. I thank the gentlelady, and I thank the
Ranking Member for her accommodation.
I just wanted to ask, one thing we really haven't touched
on in this hearing, and it is one of the real purposes of it,
is the Independent Review Commission's obligation to assist in
reviewing and validating the risk and needs assessment system.
So, my first question is what was the feedback and advice
from the Independent Review Committee regarding the development
of PATTERN, and what steps were taken to incorporate that
advice, because that is a really central part of this act?
Ms. Bacon. The Independent Review Committee engaged with us
almost immediately on formation and was involved with the
development of PATTERN really from the inception. The
Independent Review Committee met not only with us at DOJ,
working on the implementation, but also had a direct pipeline
to the contractors, Doctors Hamilton and Duwe, who are actually
developing the tool.
So, along the way the Independent Review Committee provided
advice to the contractors, gave suggestions on different ways
the tool could be improved and developed, and that relationship
has continued through July 19th, and as recently, I believe it
was approximately two-weeks ago, we had another meeting with
the Independent Review Committee where they again gave
suggestions to us on how we could improve the tool.
So, I would describe it as a collaborative working
relationship, and we have certainly benefitted at the
Department from their advice and their experience in the
development of the tool.
Mr. Cicilline. Will that information that you are
developing and collecting in this process be shared with
Members of this committee? Can we have that assurance?
Ms. Bacon. In terms of what advice and--
Mr. Cicilline. Well, whether or not the recommendations for
changing it have been incorporated, what the error rate is,
whether this system or this evaluation tool is working.
Ms. Bacon. Yes, that is--
Mr. Cicilline. That is the purpose of the Independent
Review Committee, and we would like to know how the Bureau of
Prisons is responding to that set of recommendations.
Ms. Bacon. Yes. It is very important to us that the tool is
working accurately. We share your concern there. We want a tool
that is accurate and fair. That is the goal going in.
Mr. Cicilline. No, and I understand that. My question is,
will you share with the Committee the results of that analysis
and assessment, both what the recommendation of the Independent
Review Committee is and what the Bureau of Prisons, what
actions you are taking or not taking with respect to their
recommendations?
Ms. Bacon. Yes. To the extent that is possible we intend to
provide as much information as the Committee needs, yes.
Mr. Cicilline. Great. Thank you very much. We will follow
up with you on that. Thank you very much.
With that, I will thank both of our witnesses for your
testimony, and I know that our rules provide for an opportunity
to provide some written questions, which we will do. I would,
also, ask unanimous consent that a statement for the record
from the Brennan Center for Justice be include as part of the
record, without objection, and a statement from the National
Association of Criminal Defense Lawyers.
[The statement of the Brennan Center for Justice follows:]
MR. CICILLINE FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cicilline. This reminds me of just one final question.
On October 8th, it was a FOIA request from the National
Association of Criminal Defense Lawyers, which, among other
things, seeks specific information, including raw data, that
was used to develop PATTERN. To the extent that such
information is in your possession, will you commit to turn it
over as part of that FOIA request?
Ms. Bacon. We are in the process of reviewing that FOIA
request and are processing it.
Mr. Cicilline. Is that a yes--yes-ish?
Ms. Bacon. I can say that we are processing the request.
Mr. Cicilline. We look forward to receiving information
from the committee, and we will go from there.
Ms. Bacon. Thank you.
Mr. Cicilline. We do thank you for your time and for the
testimony before the committee.
At this time, thank you again, Director Sawyer and Ms.
Bacon--we will now proceed to our second panel, and I would ask
our second panel of witnesses to please come forward.
[Pause.]
Mr. Cicilline. Thank you, and welcome to our witnesses.
We are delighted today to be joined by David Patton. Mr.
Patton is the head of the Federal Public Defender Offices for
the Southern and Eastern Districts of New York. He oversees all
aspects of office and employees, while also chairing the
National Federal Defender Legislative Committee and the
Southern District of New York Panel Review Committee, which
makes recommendations about attorneys to be selected as
appointed counsel on the CJA panel. Mr. Patton teaches evidence
to all new Federal defenders at annual national training and
represents individual clients in Federal criminal cases, and we
welcome you, Mr. Patton.
We are joined by Melissa Hamilton. Dr. Hamilton is an
expert on risk assessments and holds a doctorate in
criminology. She is a former judicial clerk on the United
States Courts of Appeal for the Fifth Circuit and a former
editor of the Texas Law Review. Today, Dr. Hamilton teaches at
the University of Surrey School of Law in the UK. She is a
member of the American Psychological Association and has
published dozens of articles in law reviews and scientific
journals on a variety of topics. Some of her main areas of
focus are conducting interdisciplinary research on issues of
risk assessment practices, policing sentencing, and
corrections. Dr. Hamilton is a former police officer and a
corrections officer. Welcome, Dr. Hamilton.
John P. Walters--Mr. Walters is the chair of the
Independent Review Committee designed to oversee the
implementation of the First Step Act. He is also the Chief
Operating Officer of the Hudson Institute, Director of the
Hudson Institute Political Studies, and Co-Director of the
Center for Substance Abuse Policy Research of the Hudson
Institute. Welcome, Mr. Walters.
Andrea James--Ms. James is the Founder and Executive
Director of the National Council on Incarcerated and Formerly
Incarcerated Women and Girls. She is also the Founder of
Families for Justice as Healing and the author of Upper Bunkies
Unite: And Other Thoughts on the Politics of Mass
Incarceration. Ms. James is a 2015 Soros Justice Fellow and a
recipient of the 2016 Robert F. Kennedy Human Rights Award,
which is a very distinguished award, so congratulations. Her
work is focused on ending incarceration of women and girls. We
welcome you, Ms. James.
We welcome all our distinguished witnesses and thank them
for participation in today's hearing. Now, if you would all
please rise I will begin by swearing you in.
Please raise your right hands. Do you swear or affirm,
under penalty of perjury, that the testimony you are about to
give is true and correct to the best of your knowledge,
information, and belief, so help you God?
Mr. Patton. I do.
Ms. Hamilton. I do.
Mr. Walters. I do.
Ms. James. I do.
Mr. Cicilline. Thank you. Let the record show the witnesses
answered in the affirmative. Thank you, and you may be seated.
Please know that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes. To help you
stay within that time there is a timing light on your table.
When the light switches from green to yellow you have one
minute to conclude your testimony. When the light turns red it
signals your five minutes is up.
Mr. Patton, you will begin. You are recognized for five
minutes.
TESTIMONY OF DAVID PATTON
Mr. Patton. Thank you, Mr. Chair, Members of the committee.
Thank you very much for holding this hearing. As you said, I
held the Federal Public Defender Office in New York City, and
together with my colleagues around the country, fellow public
defenders and appointed counsel, we represent anyone charged
with a Federal crime too poor to afford a lawyer, and that
means at any given time nationwide we represent 80 to 90
percent of all Federal criminal defendants.
I want to pause for a moment to join the expressions of
sorrow about the loss of Representative Cummings. He was a
great champion for our work and a great champion for our
clients, and we are all going to miss him dearly.
The First Step Act and the Department of Justice's
implementation of it, and the Bureau of Prisons' implementation
of it will impact the lives of our clients enormously. First,
as has been discussed, the Act requires DOJ to develop an
algorithm, a scoring system, to assess every incarcerated--
every federally incarcerated person's risk of recidivism and
needs for programming and treatment.
That score that people receive will directly impact how
much time they spend in prison. It is vital, because some
people may receive no time off their sentence, others may
receive many months or years off. It is vital that the scoring
system, the development of it be transparent, that it is fair,
valid, and that it is unbiased.
I have to say, unfortunately, I have some serious concerns
about those at the outset. First, there has not been as much
transparency as there should be in the development of this
system, and I think we are going to hear more about that.
Secondly, what we do know about it suggests there is a real
danger of very serious racial bias in the use of this system,
and again, I think we are going to hear more about that.
In addition to the scoring system, so much of the success
of the First Step Act will depend on the Bureau of Prisons
greatly increasing the programs and treatment offerings that it
currently offers, and on much more robust reentry planning.
Once again, I think there is a lot of reason for concern.
First, for years the Bureau of Prisons has not had sufficient
programming and treatment for the demand. Many of its programs
really do work, and they ought to be improved, and they ought
to be added to, but they haven't been. With the First Step Act,
that demand is only going to increase. So, if we haven't been
able to do it for years, pre-FSA, I think there is real cause
for concern moving forward.
Second, on reentry, the Bureau of Prisons has been moving
in the wrong direction. They have been closing reentry centers
for the past few years. Once again, the need is only going to
grow under the First Step Act.
Last, I will say this about reasons to be worried about the
Bureau of Prisons' performance moving forward. It has a very
troubling history, certainly in my jurisdiction, of not
creating conditions in prison to help people succeed when they
get out. I wrote, in my written submission, at some length,
about some of the really horrific problems we have had at the
Metropolitan Detention Center in Brooklyn and the Metropolitan
Correctional Center in Manhattan, two very large pretrial
Federal detention centers.
In particular, last winter, during one of the coldest
stretches in New York City's history, they lost power for a
week and they had serious problems with their heating, and
frankly, the MDC's response to that was disgraceful, and it
included--and I don't use this word lightly--outright lies by
MDC officials, minimizing what was going on, and providing
incorrect information about what was going on, that did real
harm to our clients. In the wake of that disaster, the warden
of that prison, MDC, was promoted. He now oversees, to my
understanding, three large institutions in Pennsylvania. So, I
am very concerned about accountability at the Bureau of
Prisons.
I also hope I will get a chance to respond to some of
Director Sawyer's responses to Chair Nadler, because some of
them were just plain incorrect, I am afraid to say.
I will conclude my opening remarks with this. The stakes
for successful implementation of the First Step Act are very
high. As everyone here has recognized, the overwhelming number
of people who enter prison will be coming out and will become
our neighbors again soon. If they are treated with harshness,
neglect, and inhumanity while they are in prison they are much
more likely to respond in kind when they get out. Robust
programming, a fair assessment system, and real thoughtful
reentry planning are key to making that happen. If history is a
guide, without vigorous oversight it won't happen, and that is
why I am grateful to this Committee for holding this year.
Thank you.
[The statement of Mr. Patton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cicilline. Thank you, Mr. Patton.
The chair now recognizes Dr. Hamilton for five minutes.
TESTIMONY OF MELISSA HAMILTON
Ms. Hamilton. Thank you, Chair and Ranking Member, for this
opportunity to speak on this important piece of legislation and
to educate about this risk assessment tool.
There is a bright side here whereby the PATTERN tool has
been unveiled, at least so now I understand the initial
version, despite the very short time frame given. Still, as
with any newly developed risk tool there are many concerning
issues that must be addressed in its implementation to achieve
the well-intended goals of the First Step Act.
I wish to address three key topics: Transparency, accuracy,
and fairness.
On transparency, an unfortunate problem with many risk
tools is their black-box nature by which developers keep much
information secret from the public and the users. This sort of
secrecy plagues PATTERN as well. Even though the DOJ released a
report that contains some interesting data about PATTERN, the
document is conspicuously vague, while not disclosing a host of
information that is necessary to fully understand PATTERN and
its warts.
Secrecy often undermines risk tool implementation because
stakeholders just do not trust it. Confidence by stakeholders
is a necessary condition for success. For example, the Brennan
Center for Justice reports that it requested a document
regarding BRAVO, which is the preexisting BOP-owned risk
assessment tool on which PATTERN is based. Yet, Brennan reports
they were rebuffed with a claim that it was proprietary.
The issue of trust is further evidenced whereby the
National Association of Criminal Defense Lawyers has an
outstanding FOIA request for the datasets, which was presented
a little bit earlier, that would allow independent researchers
then to conduct a third-party audit about PATTERN's abilities
and fairness, because of the gaps in transparency thus far. I
urge the DOJ and NIJ to comply with what is a reasonable FOIA
request.
This leads me to the second point about accuracy. The
report asserts the tool was validated, but for validation
developers used a very limited definition, which simply
signifies the tool's ability to rank recidivists better than a
coin toss.
The tool produces high error rates. By sort of reverse-
engineering the numbers that DOJ has provided, I found high
false positive rates, which means assessing individuals at
higher risk when they actually did not reoffend. Overall,
PATTERN produces a false positive rate for general recidivism
of 32 percent. For violent recidivism, the false positive rate
is at 46 percent. Indeed, the acceptance of a much higher false
positive rate over false negatives appears contrary to the aims
of the First Step Act to incentivize more prisoners to pursue
rehabilitative programs and productive activity.
The high number of false positives seems unnecessary
considering the risk outcomes here are not meant to inform
immediate release unless public safety is not compromised.
Indeed, prisoners who committed the most serious offenses were
already excluded from the First Step law in the first place.
There is an easy fix here. Simply move the cut points
higher so that a greater number of individuals have at least
the opportunity to earn rewards for taking measures to reduce
their risk profiles.
My third point is fairness. PATTERN exhibits disparate
impact, as evidenced by the DOJ report itself. PATTERN assesses
as medium- and high-risk a substantially larger percentage of
minorities. For instance, consider those in those higher-risk
categories, and thus not able to gain the full benefits of the
First Step Act. For males, the rates of higher-risk categories
for whites are 43 percent, compared to Hispanics at 53 percent,
and then African Americans at 73 percent, in the highest-risk
categories.
Further evidence of racial and ethnic disparities is that
PATTERN, at least as it now stands, simply is not calibrated
equally across racial and ethnic groups. In other words, a
medium- or high-risk score is associated with different
recidivism rates along racial lines, indicating either over- or
under-prediction.
A potential fix to this problem, though, is to limit what
is counted to serious crimes, because as it currently stands,
PATTERN counts any criminal act, even minor acts of deviance,
in its criminal history measures and recidivism outcomes.
Changing these definitions may well reduce the inequities for
minorities.
Overall, I believe PATTERN has some merit, yet improvements
could better serve this reform.
Thank you for your time.
[The statement of Ms. Hamilton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cicilline. Thank you, Dr. Hamilton.
I now recognize Mr. Walters for five minutes.
TESTIMONY OF JOHN P. WALTERS
Mr. Walters. Thank you, Mr. Chair. I just wanted to express
my sympathy, as well, to you, the colleagues of Congressman
Cummings. When I last served in the White House Drug Policy
Office, he was Chair Cummings, my authorizing chairman. He was
a steadfast partner and energetic, and most of all he was a
good man. I know you miss him. I miss him as well.
I am here representing as a Member of the Independent
Review Committee. We didn't actually have a Chair. We worked as
a group of six experts designed to give advice to the Justice
Department, as specified under the act. We have a range or
individuals, some of whom's qualifications are also specified
in the act, but they have a broad array of backgrounds in risk
and needs assessment and management of similar Federal programs
and policies and in helping to run institutions of corrections
at the Federal and State level, as well as broad published
backgrounds in international journals and associations on these
matters.
We worked with the Justice Department since the beginning
of the work on the PATTERN risk assessment tool. We have also
been working on the needs assessment and the programming
implementation with regard to the implementation of the First
Step Act. This is a massive change in the structure and purpose
and mission of the Bureau of Prisons and our corrections
system. It is a first step obviously designed to convey change
throughout the United States criminal justice system, from one
that is just holding people as a part of a criminal sentence to
giving them a chance to transform their lives and reenter
society as productive individuals. That requires a great deal
of work, some of which is detailed within the Act itself, as
you know.
We have worked on a couple of things since the release of
the July 19th report. Prior to that report, we did work with
the Department and the contractors designing the PATTERN
system, as well as some of the initial work on the matching
needs assessment and programming.
Since the release of that report, we have worked
extensively to advise on the refinement of the PATTERN system.
Our goal has been to reduce bias in the PATTERN instrument,
both perceived and real bias in the instrument's elements and
the way in which the algorithm is formulated. We have been
allowed, through the Department of Justice, to work directly
with the contractors, and they run over 200 hours of analysis,
at our direction, to test additional sensitivity and to test
for bias within the instrument.
We have made a series of recommendations to the Department
of Justice about changing the PATTERN instrument, some of which
would be somewhat substantial change to the structure of the
instrument to remove any concern about bias while continuing to
predict risk. Obviously, we all want the instrument to be
valid, but we also want the instrument to capture real
differences and not bias.
In addition, we provided proposals on needs assessment. We
haven't talked as much about that, but that is obviously a key
part of the First Step Act and the need to match the
programming in the Bureau of Prisons systems to the needs as
determined by a fair assessment of the individuals coming into
the Federal system.
The range of programs here is somewhat limited in the
current structure, and the evaluation of those programs is even
more limited, we have found. So, the structure of both
identifying the proper way of assessing individuals and
matching the programs is critical, and that is ongoing.
We have also provided additional advice on making this
system more transparent, providing some of the information
previous witnesses have asked, and also providing information
on how the system is working now and what is happening to
released individuals, and closer to real time, so we can see
how the system is evolving.
Finally, I would like to make one point about resources,
which has been touched on earlier, but I think all of us on the
Committee believe is critical. The $75 million that has been
authorized and will be appropriated for the implementation of
the First Step Act of course amounts to about $400 per
individual in the Federal prison system. The $7 billion,
roughly, fiscal year 2019 appropriation, it is a small drop in
the bucket. It is not enough.
I would estimate--just my personal estimate of what is
going to be needed here for a fair implementation, training,
staffing, building things like classrooms in prison
institutions that now exist, is somewhere in the neighborhood
of $300 million to begin with and then programming down the
line at $500 million. I would also strongly urge that at least
10 percent of those funds always go for evaluation and research
and development of programs and refinement of the process of
running these programs. If you don't do this, what you are
going to have is a system that simply can't meet the
expectations--the high expectations that have been stated,
because it is just not going to have the resources that an
institution, the Bureau of Prisons, which is already
understaffed and can't meet its current staffing levels.
Thank you.
[The statement of Mr. Walters follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. [Presiding.] Ms. James.
TESTIMONY OF ANDREA JAMES
Ms. James. Thank you, Mr. Chair. I would also like to thank
Madam Chair Bass and Members of the subcommittee. Thank you for
this opportunity. I also would like to, for the National
Council, on behalf of the National Council, express our
sympathy in the loss of Congressman Cummings, who was a huge
champion for us, and always had an open-door policy for our
concerns. So, we will truly miss him.
Thank you again for this opportunity. Again, my name is
Andrea James. I am the Executive Director of the National
Council for Incarcerated and Formerly Incarcerated Women and
Girls. The National Council is a Membership-based organization
working to end the incarceration of women and girls. It is
honor for me to share our views on implementation of the First
Step Act and next steps Congress should take to transform the
criminal legal system.
Regarding the First Step Act implementation, reforming the
criminal legal system is one of the most important issues of
our time. This country incarcerates more people than any other
developed Nation in the world, with over 2 million people
incarcerated, and increasing number of whom are women and
girls. At the Federal level, we incarcerate approximately
177,000 people, 45 percent of whom are incarcerated for a
Federal drug offense, and a disproportionate number of whom are
Black and brown. This is a national crisis that Congress must
address.
With the passage of the First Step Act, Congress attempted
to build on several important reforms that preceded it, the
Second Chance Act of 2008, and the Fair Sentencing Act of 2010,
to continue to move the ball forward.
While there have been some modest but important
improvements to the system as a result of the passage of the
First Step Act--giving judges greater discretion to depart from
mandatory minimum sentences, making the Fair Sentencing Act
retroactive, reducing some mandatory minimum sentences for drug
offenses, ending juvenile solitary confinement, expanding
compassionate release, and increasing good-time credit to
reduce sentence lengths for individuals currently
incarcerated--there remain key issues with respect to its
implementation and more work that needs to be done to transform
the system.
As a Membership organization with Members inside and
outside of prisons, we receive dozens of emails a week from
women who are confused about the First Step Act, having
received conflicting information, making it difficult for many
incarcerated people to take advantage of what the First Step
Act has to offer.
Much of the confusion has been the result of the exclusions
that were included within the bill and completely bar far too
many people from the act's benefits. Literally 68 categories of
people may not receive earned time credits, despite their
successful participation in educational programming,
essentially closing the door on individuals who most need help
in preparation for successful return to our communities. Also,
excluded are people who are slated to be deported after their
sentence is completed, denying them any chance to prepare in
any way for their transition. As we look towards the future,
Congress must work to avoid unnecessary exclusions that
ultimately undermine efforts to rehabilitate people.
Regarding the risk assessment tool, we are concerned that
the tool will incorrectly identify women as likely to
recidivate based on static measures such as the crime for which
they were convicted. We therefore urge that the approach to
developing the risk assessment tool be modified. The circle of
people involved in developing the tool must be widened to
include the expertise of qualified formerly incarcerated
people. The Hudson Institute is hosting the development team
and has selected academics who may have strong technical
credentials, but none of whom have direct experience with the
criminal legal system.
Experiences of currently incarcerated people must also
shape the development of the risk assessment tool. By
definition, women serving decades-long sentences will be
flagged as high risk. In fact, they are the opposite. Women who
were serving long sentences are integral to the day-to-day
functioning of the prisons. They teach other incarcerated women
and prison staff the procedures of the prison, including
training for industry jobs, such as UNICOR. Long-timer women
counsel new women adjusting to life in prison, provide comfort
and advice to those separated from their children, and mediate
interpersonal conflicts. These contributions should be captured
in the risk assessment tool.
Women like those who have traveled here with me today--
Virginia Douglas, Justine Moore, and Tiheba Bain, all having
served decades in a Federal prison and now leading the movement
to end incarceration of women and girls who could contribute
significantly to the risk assessment discussion and
development, in addition to the statisticians.
Finally, credit for earned time must be assessed
retroactively, taking into consideration the ways many
incarcerated people already have made great strides in their
personal transformation, against great odds, during years of
incarceration. Ultimately, we recommend that Congress ensures
the Department of Justice addresses all these issues before
anyone is assessed by the PATTERN tool.
Regarding next steps, directly impacted people must have a
seat at the table. As experts in the field, our goal is to
encourage meaningful reform, and we are entitled to ongoing,
meaningful opportunity to explain why we don't believe
something goes far enough and what else is possible. Such is
our fight for inclusion of retroactivity.
I was incarcerated at the Federal Prison for Women in
Danbury, Connecticut, during the passage of the Fair Sentencing
Act and the fix of the sentencing disparity between crack and
powder cocaine. I will wrap up with it was painful to see how
many deserving women could not benefit from its passage because
two sentencing provisions were not applied retroactively, and
it is why we fought to include retroactivity, not only for FSA
but also for changes to Three Strikes, Two Strikes, and 924(c)
offenses in the First Step Act.
[The statement of Ms. James follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. Thank you. We will now proceed with
questioning under the five-minute rule. I will recognize myself
for the first questioning.
Mr. Patton, I understand you had some problems with the
answers that I got--in the questions I asked the director about
the crisis at the MDC in Brooklyn and their response to it.
Could you elaborate?
Mr. Patton. I will. I don't mean to blame Director Sawyer.
I know she has only been in the position for two months, so she
wasn't around when the crisis happened.
Chair Nadler. It is all her fault.
[Laughter.]
Mr. Patton. I think she has been misinformed about some of
the things you asked her about. First, I just had a meeting
with the associate warden of the MDC two days ago, because I am
trying to follow-up with them on a number of these things. I
asked the very same question you did about long-sleeved and
thermal attire because they are not there yet on fixing the
HVAC system, as Director Sawyer acknowledged, and we are coming
up on winter. The answer I got was, no, we are not going to do
that.
Chair Nadler. Not going to get thermal?
Mr. Patton. That will not become part of the standard
issue. We will buy extra sets in case we have an emergency.
That is not what the recommendation is, because there is an
ongoing problem. It needs to be part of the standard issue.
Now, that sounds like a small thing until you sit in a 60-
degree cell in paper-thin, short-sleeved scrubs. It is a real
issue and that was just wrong, at least as compared to what the
MDC is telling us.
She said that the people with the CPAP machines were
offered to move. Now I know, Chair, you were present on one of
these tours. I was personally there. I mean, that is news to
me, is all I will say about that. Those people were terrified.
They were terrified that their life was in danger. They were
suffering. They were not given an option to move somewhere
else.
So, it is important to correct the record on that, because
if there is not an acknowledgement that the problem existed, I
am worried about a solution being put in place to solve it
moving forward.
Lastly, she said that there was a communication problem
that the MDC officials forgot to communicate on some of these
things. There was no forgetting to communicate. We were
peppering them with questions, and we were getting demonstrably
false answers back about what was going on there. That was no
negligence. It was not a slip of the mind among the BOP
officials there. It was intentionally misleading us about what
was happening in the institution.
Chair Nadler. To your knowledge, has anyone been
disciplined or admonished for intentionally misleading?
Mr. Patton. Quite the opposite. My understanding is that
the warden at the time, Warden Quay, not long after this
incident was promoted, and he now oversees multiple
institutions. That is my understanding from press accounts.
Chair Nadler. That is my understanding too, and I must say
that he was, when I was there, completely unresponsive.
Let me ask this, section 404 is a section of the First Step
Act that made the Fair Sentencing Act of 2010, which addressed
the crack/powder cocaine sentencing disparity retroactive.
Although the text of the First Step Act presents a
straightforward application, the Department of Justice, we
understand, regularly takes the position that retroactivity is
not appropriate.
In your experience and for Federal defendants across the
country, how is the retroactive application of the crack
penalty reforms of section 404 being applied? Are they being
applied?
Mr. Patton. At the end of the day, the vast majority of
judges are doing the right thing, but it is not because the
Department of Justice is making it easy. In fact, they are
taking very strained and aggressive litigation positions that
have been highly criticized by judges.
So, for instance, one example on the retroactive
application of the Fair Sentencing Act, the crack quantities,
they are saying our clients are not eligible for relief because
we could have charged a higher quantity back then. So, the
judge should take into account what we could have proven, or
what we could have done.
Chair Nadler. In the absence of a new trial, how can they
do that?
Mr. Patton. Exactly. It is unconstitutional, it is not
fair, and perhaps, most significantly, it is just contrary to
the language of the law and the statute, and what Congress
intended.
There are two separate aspects to the retroactive
application of the Fair Sentencing Act. There is eligibility
and then there is the discretion of the judge about whether to
reduce the sentence. The law doesn't require judges to reduce a
sentence, and for the Department of Justice to say people are--
Chair Nadler. The law does not require it.
Mr. Patton. The law does not require a reduced sentence. It
imposes upon the judge a duty to decide whether somebody is
eligible, and then if they are eligible the judge takes into
account all of these usual sentencing factors and decides
whether or not to reduce the sentence. For the Department of
Justice to make really strained arguments on the eligibility
side is disappointing. It means that even though thousands of
judges are going--not thousands of judges, but in thousands of
cases that are going our way on these arguments, a handful are
not, and they are being selective about how they then appeal
those, because they can be selective about what they appeal and
what they don't. So, they are being very aggressive about
trying to create bad law, from our perspective.
Chair Nadler. Do you suggest the Department is trying to
sabotage the retroactivity feature of section 404?
Mr. Patton. They are doing their best, in my opinion.
Chair Nadler. Thank you. I have one further question. You
mentioned racial and ethnic disparity and disparate treatment
in your testimony. How is PATTERN risk assessment tool still
unfair with regard to race and ethnicity? Can you give us some
specific examples?
I am sorry. That is for Ms. Hamilton.
Mr. Patton. Yeah.
Chair Nadler. Dr. Hamilton.
Mr. Patton. I'm glad it is for Ms. Hamilton.
Chair Nadler. Dr. Hamilton, yes.
Ms. Hamilton. Yes. So, I think I have some slides that can
go up. First let us do, for example, Slide 4B.
It is hard to see but what Slide 4B is doing is giving you
an indication for males. These are the percentages based on
race of those individuals who fall in the minimum and low
category and therefore gain the best benefits of PATTERN. So,
you can see significant differences, based on race, of this
eligibility to earn early release and to be incentivized to go
through a lot of programs.
Then my next one, if we can go to 2B, please.
So, this one is the idea, also, this is for females, 2B.
Sorry, I know we are skipping around.
Well, the next one will be about--I had talked about
differences in calibration. I wanted to show you what it meant.
For females this is going to be on the violent recidivism rate,
and what you will notice on the bottom then is, on the left-
hand side is those who were assessed females at minimum risk
very low, medium, and then on the right-hand side is high. What
you are seeing there in the bars are the recidivism rates of
individuals who were categorized within those four risk
categories.
Notice, then, in each of those-- and I am sorry that it is
very small, but what you are seeing is racial disparity. So, in
any of the four groups where you are seeing differences in
height, that is by race, meaning that, for example, a medium-
risk outcome doesn't mean the same based on risk, or high, it
just doesn't mean high risk means something different based on
racial groups, for females, at least, in violent recidivism.
I do want to say I am very happy to hear from Mr. Walters
that they are correcting for, I would assume, something like
this.
Chair Nadler. Thank you very much. My time has expired.
The gentlelady from Arizona?
Ms. Lesko. Thank you, Mr. Chair, and thank you, all of you,
for being here, first of all.
My first question is for Ms. James, and I applaud your
effort to reduce incarceration of women and children. A couple
of times during your testimony you said your goal was to end,
totally, incarceration for women and children, and I think in
your written testimony you said you are committed to abolishing
incarceration for women and girls.
How are you going to do that? Aren't there some women that
deserve to be in prison?
Ms. James. Well, I think that it is a bold mission that we
have taken on, but we also have been incarcerated women. We
have all lived in prisons. We know for sure, after that
experience, that the environment, as prisons currently exist in
this country, will never help a woman to truly heal and advance
her life.
So we know, because we have been, for some years now,
working on looking at what else is possible for women, what
else is possible for girls, mostly things that are created
within the communities that the women and girls come from, that
could immediately significantly reduce the incarceration
numbers of women and girls, and then help us to advance ideas
about women who may be causing harm to other people, that will
need some other source of resource other than just community-
led programming.
Ms. Lesko. Thank you.
Ms. James. Certainly, a prison is not the place that will
help us to do that.
Ms. Lesko. Thank you. I was just curious, because I was
like, there are some people, that can be released into society
and it is good, but other people I am not so sure about. There
are some people that need to be in prison, is what I am saying.
Ms. James. May I just mention something?
Ms. Lesko. Ma'am, if you don't mind, I have other questions
and I only have five minutes, so thank you.
Mr. Walters, I guess, there have been a few criticisms and
concerns about the Review Committee and the tool and the
assessment and that type of thing. Would you like to address
anything that has been said?
Mr. Walters. Well, I think there were some initial concerns
about the Committee and the background of the people, but I
included the backgrounds in my written testimony, and I won't
take your time to read the backgrounds of the individuals. They
have a diverse group of points of view, but they are highly
professional in what they have done. The Justice Department has
listened to us. We have sat with the attorney general, the
deputy attorney general, as well as Ms. Bacon and some BOP
officials. We have gone through a lot of these items, I think
in a way that is intended by the law. I mean, our job is to
advise, and our job is to advise, as under the law of the
attorney general, and we have tried to address some of these
issues about the structure of the instrument, but also the task
that is involved here--the compression of time for
implementation, the need to look at these programs.
As I mentioned earlier, one factor here that has to be
recognized is the Bureau of Prisons has not evaluated its
programs. I mean, to bring some of these programs in, they are
going to try to bring in programs that have links to programs
that are evaluated or are in areas that we think will make a
difference. They are going to have to go back and look at how
to certify and make them effective. Otherwise, you are going to
have people sitting in programs that really don't do a good job
in helping them with the needs they have.
The whole needs assessment system has limits, and we have
suggested some ways of using some unconventional instruments to
look at needs and to measure whether programs are meeting those
needs, using things like functional improvement in people's
behavior, so we are not just waiting until we look at what
happens after they have been released for three years, after
they have already been in the system.
So, some of those things are more radical changes. They
will, as I said, cost more money to train and implement these
things in the Bureau of Prisons. If you want to meet the goals
of the act, which I think everybody here wants to do, if you
want to meet the goals of the act, our job is to kind of give
our best opinions, and we have a range of them from different
backgrounds, on what that takes. I have nothing negative to say
about the Justice Department's willingness to listen to us.
They have a tough job in implementing it. They implement it; we
don't.
Ms. Lesko. Thank you, Mr. Walters. I do have one more
question, and this one is for Mr. Patton.
Mr. Patton, I have some information that the Federal Prison
Industries has struggled over the past number of years, and it
was kind of surprising to me that there was a reduction--well,
let me read what it says. Since 2009, Federal Prison Industries
sales have dropped 47 percent and we have experienced financial
losses totaling $182 million. During this time the FPI, or
Federal Prison Industries, has closed or mothballed about 40
factories. This reflects a reduction of more than two-thirds in
the percentage of eligible inmates working in the program, from
25 percent in 2000 to less than 8 percent in 2016.
This was really surprising to me. I am from Arizona, and we
have a fairly successful program, the Arizona Correctional
Industries. At least in Arizona, I have heard from industries--
everybody I talk to said they are in great need of workers,
right? So, in Arizona we even have people working as mechanics
on trucks and big semi-trucks. So, it is a good workforce. They
come, they learn a skill, and then they are able to use that
skill when they are released.
So, do you have any idea why this is happening? I think it
is part of this program that we are supposed to be getting more
people to work. I don't understand what is happening here.
Mr. Patton. I wish I had an answer for you. I think that is
probably a good question for Director Sawyer. I agree with you.
That is one of the programs that has really proven to reduce
recidivism, and there is just not enough of it. There are other
programs, similarly, whether it is drug treatment or mental
health counseling, that we know would reduce recidivism,
improve people's lives, and there is just not enough of it. It
is why I mentioned in my opening statement that I have real
concerns that the programming is there to really make the First
Step Act a success.
Ms. Lesko. Well, thank you. Yeah, I agree with you. In
Arizona I was quite impressed with what they all do. You have a
whole call center where people--this is in a women's prison--
where people don't realize when they are getting answers on
something that it is from a woman prisoner inside the prison.
Obviously they are very dedicated and show up to work all the
time.
Anyway, thank you all for your testimony. I appreciate it.
Chair Nadler. The gentlelady yields back.
That concludes our hearing today. I want to thank our
witnesses. I want to thank our Members for attending. I want to
thank our witnesses. With that the hearing will stand
adjourned.
[Whereupon, at 5:25 p.m. the Subcommittee was adjourned.]
APPENDIX
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QUESTIONS AND ANSWERS FOR THE RECORD
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