EFTA00100180.pdf

Statement of David E. Patton Executive Director, Federal Defenders of New York Before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security October 17, 2019 Oversight Hearing on "The Federal Bureau of Prisons and Implementation of the First Step Act" EFTA00100180  Statement of David E. Patton Executive Director, Federal Defenders of New York Before the Judiciary Committee of the House of Representative Subcommittee on Crime, Terrorism, and Homeland Security October 17, 2019 Oversight Hearing on "The Federal Bureau of Prisons and Implementation of the First Step Act" Mr. Chairman and Members of the Subcommittee: Thank you for holding this hearing and for the opportunity to testify. At any given time, Federal Public and Community Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they are too poor to afford counsel. An overwhelming majority of people incarcerated in Bureau of Prisons (BOP) are our clients, and we are grateful for this opportunity to discuss the BOP and the First Step Act (FSA). The BOP has a long history of acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress. For decades the BOP took an unreasonably restrictive view of good time, resulting in thousands of years of additional overall prison time. For decades it refused to exercise the authority given to it by Congress to release incarcerated people who were terminally ill, infirm, or otherwise suffered from extraordinary circumstances. For decades it has not made nearly full use of its statutory authority to release people to Residential Reentry Centers (RRCs). And for decades it has not provided enough vocational, educational, mental health, and substance abuse programming despite abundant need and lengthy waitlists. The FSA will solve some of these problems, most notably clarifying the good time credits and offering an avenue to the courts for compassionate release. But the FSA also provides the BOP with significant added responsibility and authority. As a result of the Act, the BOP will now establish and implement a risk and needs assessment system that will directly determine how long tens of thousands of people serve in prison. If not done wisely, there are countless ways the system will result in unfair, biased, and overly punitive outcomes. With history as a guide, this committee should be very concerned about whether the BOP will rise to the challenge of these new responsibilities. Oversight has never been more important. Although the focus of my remarks will be on national BOP and FSA issues, I will start with a discussion of two BOP facilities in my home district in New York City, the Metropolitan Detention Center (MDC) in Brooklyn, which is the largest federal pretrial detention center in the country, and its counterpart in downtown Manhattan, the Metropolitan Correctional Center (MCC). Repeated problems at the facilities and well-publicized events of the past 1 EFTA00100181 year are part of a larger story about why strong oversight of the BOP is so desperately needed. Fire at the MDC Under the best of circumstances, the MDC is a miserable place to be incarcerated. The federal jail located in Sunset Park, Brooklyn houses over 1,600 people, most of whom are pretrial detainees awaiting trial in the Southern and Eastern Districts of New York. The Federal Defenders of New York represents roughly half of them. Most of the rest are represented by appointed counsel from the Criminal Justice Act Panel. The vast majority of those incarcerated at MDC are poor people of color. On a regular basis we witness inexcusable treatment of our clients: poor medical treatment and psychiatric care, arbitrary placement in solitary confinement, unnecessary impediments to legal visiting, and even rape by corrections officers (which have resulted in several indictments). The space itself is cramped with little opportunity for any exposure to the outdoors. Even with those conditions as a baseline, during the week from January 27 to February 3, 2019, the MDC reached a new low. On Sunday, January 27, there was a fire at the MDC that knocked out the electrical panel controlling a sizable part of the institution, including cell and common area lighting, much of the kitchen equipment, and most of the inmate phones and computers, among other things. Despite the severity of the situation, the only thing MDC officials told us (or anyone else) was that attorney and family visitation was being suspended that day. The next morning, we were once again told that visitation was suspended with no explanation. We peppered prison officials with questions. We were told all was okay — just a problem with lighting in the visitation area. Then the calls from our clients started. The only phones working were the direct lines to the Federal Defenders' office. "There's no heat in here." "We're being locked down in the dark." "I'm not getting my medication." Temperatures outside were hovering in the single digits during one of the coldest stretches in New York City's history. Most of our clients lack money for the commissary and are relegated to wearing short-sleeved scrub-like uniforms. They are cold when the heat is functioning properly and set to 68 degrees. When it's 40 or 50 degrees inside, as we were hearing, merely cold becomes torture. We immediately contacted MDC officials, and they denied any problem with the heat or medical care. As the reports from our clients continued, we began filing emergency motions before the trial judges in their cases, asking for release or removal to safer conditions. We asked the MDC for a tour of the facility but were denied. As we sought relief in court, federal prosecutors reported to the judges that MDC officials were telling them that all was fine; our concerns were overblown, and our clients were lying. On Thursday, January 31, the New York Times reported on the conditions. In a statement to the Times, prison officials minimized the problems and stated that "the electrical failure was related to Con Edison, which it said had been `dealing with numerous power emergencies in the community."' That, of course, was a lie, and Con Edison quickly refuted it. The Times story included not just our lawyers' and clients' accounts but those of the 2 EFTA00100182 correctional officers who work there. According to the officers, temperatures were "freezing," and people in cells "just stay huddled up in the bed." 'We didn't have heat in the building, we didn't have light." With the press attention and the corroboration of the officers, our complaints began to be taken seriously. On Friday, February 1, the Chief Judge of the Eastern District of New York, Dora Irizarry, ordered that we be given access, and the head of our Eastern District office, Deirdre von Domum, entered the facility — now five days after the fire and loss of power. What she found was horrifying. It was after sunset, and the small cells containing two people each, were pitch black. The only lighting was emergency lighting coming from the common areas. Our clients had been locked down in those cells for the past 24 hours and for various long stretches throughout the week. Some cells had heat; others were frigid. People needing new medication couldn't get it. People who require Continuous Positive Airway Pressure machines (CPAPs) couldn't use them because of the lack of power. Their lives were in danger, and they were terrified. One man with an open wound showed Ms. von Domum (and later a federal judge who also toured the facility) his puss-covered bandages that hadn't been changed in two weeks. Another, who suffered from ulcerative colitis, showed her his bloody bedding that had not been changed because of the lack of laundry services. Everyone was scared and cut off from the world: no family visits, attorney visits, or phone calls other than use of the direct line to the Federal Defenders during the rare moments they were let out of their cells. I toured the facility the following day with various local and federal officials, including Chairman Jerrold Nadler and Representative Nydia Velazquez. Chairman Nadler asked the Warden, Herman Quay, why there wasn't a better plan for a power outage of this sort and why there wasn't more of a sense of urgency to fix it — and, in particular, why the electricians were not working that day, much less around the clock. The warden had no answers. Representative Velazquez expressed her anger that the previous day when she had come for a tour, MDC officials only showed her the common areas, not the cells, by falsely telling her the inmates were locked down for a "count" — a brief, temporary tally of the population. In fact, they were still locked down as of Saturday afternoon — going on 48 hours. And despite numerous corrections officers corroborating the lack of heat in certain areas throughout the week (and the week before), the warden continued to deny any problems. On our tour that afternoon we saw many of the same problems Ms. von Domum had seen the night before: frantic, scared people locked in pairs in tiny, unlit cells. Some cells had heat; others did not. One cell registered 50 degrees on a portable thermometer. The next day, on the heels of the press attention and the vigorous prodding of Chairman Nadler and Representative Velazquez, the power was restored. In the wake of the debacle, at the request of Chairman Nadler and Representative Velazquez, the Office of the Inspector General of the Department of Justice (IG) investigated the incident. The IG Report confirmed and even amplified many of the problems. But its ultimate recommendations fell well short of real accountability. 3 EFTA00100183 Let's start with the problems it confirmed and amplified. The power problems had nothing to do with Con Edison. There were longstanding facilities management and building maintenance problems, and those problems were the cause of the crisis. There were in fact serious heat problems — problems that pre-dated the electrical fire and were exacerbated by MDC employees' mistakes. During the crisis, inmates were being locked down for extended periods of time. The majority were not given extra blankets or long sleeved clothing. Medical care was compromised. The provision of food was seriously impacted. There was no contingency plan for legal or family visitation. There was no plan for people who require electricity for medical equipment such as CPAPs. There was a serious lack of transparency and communication with the courts, attorneys, media, and the families of those incarcerated. Unfortunately, the IG Report failed to discuss MDC officials' lies. The institution lied in its press release saying Con Edison was to blame. Warden Quay lied about there being no heat problems. He lied about inmates not being locked down. He lied repeatedly about the severity of the situation and its impact on medical care and safety. And predictably, there has been no real accountability. Warden Quay was promoted. He now overseas multiple federal prisons in Pennsylvania. I say predictably because this lack of accountability is consistent with many years of IG reports finding severe mismanagement at the MDC. Earlier reports have detailed serious problems with the MDC's management of solitary confinement, the treatment of sentenced women housed in the East Building, and separately, multiple instances of serious sexual assaults of men and women by corrections officers. Many of the problems identified in those reports (and many others) remain. Suicide at the MCC The other pretrial federal jail in my home district that has gained notoriety recently is the MCC in downtown Manhattan. Media attention has focused on the death of Jeffrey Epstein whose high profile case and suicide at the MCC brought scrutiny to the management of the institution. I do not have any personal knowledge regarding the circumstances of Mr. Epstein's death, and I therefore cannot comment on what failings at the institution led to it. But I can say with confidence that a variety of problems, similar to those at the MDC, plague the institution. Both institutions are chronically short-staffed, or so officials tell us when legal or social visitation is cancelled or when we wait for hours to be able to visit with clients. Both institutions have extremely limited educational or vocational programming. Corrections officers at both facilities have committed egregious sexual assaults against inmates. And in both, medical care is abysmal. In addition to those problems, there is the matter of the physical space. The MCC is a cramped, vertical building with the only "outdoor" recreation located on the roof of the building in a space covered by thick fencing that barely allows for a view of the sky. The unit at the MCC where Epstein was housed, "9 South," keeps people in small, virtually 4 EFTA00100184 windowless cells for 23 hours a day. The MCC was built in the 1970s with a capacity for roughly half of the number of people now held there. And it was initially built without rooms for attorney visitation even though it is a pretrial detention facility. The limited number of attorney visitation rooms now create expensive and aggravating delays. Here in New York City, the local jail at Rikers Island gets deserved attention for its deplorable conditions, yet in their own way, the federal pretrial facilities can be worse. I have often had clients who were initially held on state charges at Rikers and then brought to the MCC or MDC to face federal charges. Because of the conditions, many have asked me if it's possible to return to Rikers. Several years ago, the U.S. Attorney's Office for the Southern District of New York sued the local New York-run Rikers Island over jail conditions, but the office has never done anything about the MCC, the federal facility where the U.S. Attorney's Office itself sends people. Indeed, when legal action is taken against the MCC or MDC, it is the U.S. Attorney's Office that represents the institutions. There are legal, administrative, and cultural barriers to U.S. Attorney's Offices playing the same role with respect to federal jails as they play with state and local facilities. For that reason, Congress should explore other avenues for providing outside accountability for places like the MCC and MDC that have thus far proved entirely resistant to change. The First Step Act Shortly before the fire at the MDC, Congress passed and the President signed the FSA. The FSA gives the DOJ, and the BOP specifically, significant additional authority and responsibility to help prisoners succeed in their communities upon release and thereby reduce recidivism. But it can only succeed if the DOJ and BOP faithfully implement the will of Congress. A Lath ofProgramming To meet the twin goals of improved public safety and reduced levels of incarceration, the FSA relies heavily on the BOP offering substantially increased programming and productive activities for incarcerated individuals. To date, the BOP has failed to provide adequate programming to meet current needs, much less the increased demand that will be required to make the FSA a success. The true extent of the deficit is not known because the BOP has not been transparent about the number of programs offered, the capacity of these programs, and the length of the waitlists for these programs. The BOP has failed to respond to requests from Congress for this information, and provides even less information to the public. What we do know indicates the BOP is not providing enough individuals with sufficient quality programming. Available data shows waitlists to participate in the BOP programs are long: 25,000 people are currently waiting to be placed in prison work 5 EFTA00100185 programs,' at least 15,000 are waiting for education and vocational training,2 and at least 5,000 are awaiting drug abuse treatment.3 And, assuming the sample used to develop the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) is representative, DOJ data indicates almost half (49%) of individuals serving federal sentences of incarceration complete no programs; that a vast majority have no technical/vocational courses (82%) or federal industry employment (92%) and well over half (57%) have not had drug treatment while incarcerated despite indication of need.'' Access to quality programs also varies from one institution to another.5 This is unfortunate because programs such as Federal Prison Industries (also known by its trade name, UNICOR) has been proven to reduce recidivism by 24%.6 Participants in FPI are also 14% more likely than similarly situated individuals who did not participate to be employed after release for prison.7 ' See BOP: UNICOR, Federal Bureau of Prisons, https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp (estimating the participation rate at 8%). 2 See Oversight of the Federal Bureau of Prisons Before the H. Subcomm. on Crime, Terrorism, Homeland Stain? and Investigations of the H. Comm. on the Judiciafy, 115th Cong. 20 (2018) (BOP Director Inch). 3 See Dep't of Justice, Bureau of Prisons, Drug Abuse Treatment Program, 81 Fed. Reg. 24484, 24488 (Apr. 26, 2016) ("over 5,000 inmates waiting to enter treatment"); Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives: Final Recommendations of the Colson Task Force on Federal Corrections 36 (Jan. 2016) Cat the end of FY 2014, more than 12,300 people systemwide were awaiting drug abuse treatment"). Substantial waitlists also exist for mental health programs and trauma therapy programs for female inmates. See Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Use of Restrictive Housingfor Inmates with Mental Illness 51 (2017); Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Management of Its Female Inmate Population, 19-22 (2018). ° See Office of the Attorney General, U.S. Dep't of Just The First Step Ad y.2018: Risk and Needs Assessment System 47, tb1.1 (2019) (DOJ Report). s See, e.g., BOP, Directory of National Programs, https://www.bop.gov/inmates/custody_and_care/docs/20170913_Directory_of National_Progra msl.pdf; Office of the Inspector General, U.S. Dep't of Just, Review of the Federal Bureau of Prisons' Release Preparation Program i (2016) (finding that the BOP "leaves each BOP institution to determine its own [Release Preparation Program (RPP)] curriculum, which has led to widely inconsistent curricula, content, and quality among RPP courses"). See FPI and Vocational Training Works: Post-Release Employment Project (PREP) at http://www.bop.gov/resources/pdfs/prep_summary_05012012.pdf; see also Federal Bureau of Prisons, UNICOR: Preparing Inmatesfor Successful Reentg through Job Training, http://www.bop.gov/inmates/custody_and_care/unicor.jsp. 7See Federal Bureau of Prisons, UNICOR: Preparing Inmatesfor Successful Reentry through Job Training, http://www.bop.gov/inmates/custody_and_care/unicor.jsp. 6 EFTA00100186 The BOP has a long history of not providing sufficient programs. Moving forward, because the recidivism reduction efforts of the FSA are meaningless without adequate programming, our primary concern is whether the BOP will provide a broad range of programs, and sufficient program capacity, to comply with the FSA requirement that the BOP "provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration." The BOP's past performance, with long waitlists, and inconsistent access and quality across institutions, makes it difficult to have confidence that the BOP will meet its statutory obligations in this regard. The Risk and Needs Assessment System Also critical to the success of the FSA is a risk and needs assessment system that is transparent, fair, and unbiased. Early signs indicate that the system will not meet any of those criteria. The FSA required the DOJ to develop a risk and needs assessment system that, among other things, would determine "the recidivism risk of each prisoner" and "the type and amount of evidence-based recidivism reduction programming for each."9 The system, through its impact on the ability of incarcerated people to earn early release credits, will directly govern how much time people serve in prison. This makes it a high-stakes tool, and testing for accuracy and bias is crucial. Indeed, Congress understood the stakes and called for transparency throughout the FSA, including a mandate that the risk and needs assessment system be "developed and released publicly."1° Congress also repeatedly required that the system be monitored for bias." On July 19, the DOJ issued a report announcing the initial development of PATTERN. The DOJ Report on PATTERN provides very little information about its development. This is 8First Step Act of 2018 (FSA), Pub. L 115-391, Title I, § 102(a) (Dec. 21, 2018) (codified at 18 U.S.C. § 3621(h)(6). FSA at, Title I, § 101(a) (codified at 18 U.S.C. § 3632(a)). " See, e.g, FSA at Title I, § 103 (requiring the Comptroller General to conduct an audit of the use of the risk and needs assessment system every two years, which must include an analysis of "[t]he rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates."); FSA at Tide I, § 107© (requiring the Independent Review Committee to submit to Congress a report addressing the demographic percentages of inmates ineligible to receive and apply time credits, including by age, race, and sex); FSA at Tide VI, § 610(a)(26) (requiring the Director of the Bureau of Justice Statistics to annually submit to Congress statistics on "Mlle breakdown of prisoners classified at each risk level by demographic characteristics, including age, sex, race, and the length of the sentence imposed."). 7 EFTA00100187 extremely troubling because the development of PATTERN, as with all risk assessment tools, necessarily relies on both empirical research and moral choices.12 Based on the limited information provided in the DOJ Report, we have concerns, and even more questions, in both areas. Additional information is needed to assess many important issues including: PATTERN's accuracy; its scoring mechanisms; its fairness across age, gender, race and ethnicity; whether it will exacerbate racial disparity in the federal prison population; its impact on privacy interests; and whether it is consistent with the congressional mandate to "ensure" that "all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceradon."13 Transparency in the methods for developing, validating and bias testing PATTERN is vital. Full transparency is a primary way (along with accountability and auditability) to create and justify confidence by stakeholders and the public. Indeed, across risk assessments in criminal justice, the secrecy that permeates black box instruments causes significant concerns about how reasonable they are in practice. Full transparency requires the DOJ to release the same dataset used by Grant Duwe, Ph.D., and Zachary Hamilton, Ph.D., to create PATTERN.14 This is consistent not only with the transparency directives in the FSA,l5 but also with the advice of leading organizations such as the National Center for State Courts, which recommends that independent evaluators determine whether their independent "research findings support or contradict conclusions drawn by the instrument developers."" For a fuller listing of the information that must be known and why, I am attaching as Exhibit A the Federal Defenders' letter to the NIJ. 12 Michael Tonry, Legal and Ethical Issues in the Prediction of Recidivism, 26 FED. SENT'G REP. 167, 167 (2014). " 18 U.S.C. § 3632(a)(5)(A). 14 See DOJ Report at 42-43. 15 See supra notes 10& 11. 16 Pamela M. Casey et al., National Centerfor State Courts, Offender Risk dr Needs Assessment Instruments: .4 Primer.* Courts 19 (2014) (stressing that third party audits are valued because "it is always helpful to know whether existing research descriptions about the reliability, validity, and fairness of a tool have been replicated by others." Any "decisions based on a [risk and needs] tool which grossly misclassifies the risk levels of offenders may not simply fail to improve outcomes; they may actually do harm to the offender." As a result, "[i]nstrument validation is not only important to ensure that decision making is informed by data, but to establish stakeholder confidence."); see also Nathan James, CONG. RESEARCH SERV., Risk and Needs Assessment in the Federal Prison System 11 (July 10, 2018) (Congressional Research Service report concerning risk assessment in the federal prison system positively citing the recommendation of the Council of State Governments that independent third parties should be permitted to validate the tool to assess accuracy by race and gender). 8 EFTA00100188 The importance of transparency is heightened by some of the initial known aspects of the system. For instance, the DOJ's definition of the central measured outcome in the risk assessment: recidivism. The definition the DOJ chose is unduly broad, sweeping in revocations for minor technical violations such as failure to timely report a change of residence, or failing to timely notify the probation officer of being questioned by police." This broad definition of "recidivism" is inconsistent with the goals of the FSA to successfully reintegrate individuals in their communities and protect the public. Another choice that signals the need for vigilance and concern is the decision to release a risk assessment tool that has a racially disparate impact, particularly on black males. According to DOJ data, white males are far more likely than black males to fall in the minimum and low risk categories, 57% versus 27% respectively.18 We are concerned the BOP has not, and will not, take appropriate steps to ameliorate this disparity. Relatedly, we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.19 Until then, the BOP appears to be relying on its current "needs assessment" that was criticized by the Office of the Inspector General back in 201620 Management of FSA Timelines and Requirements We are also concerned that the BOP will not implement other components of the FSA within the required timeframes, unnecessarily delaying access to programs that reduce recidivism, and incentives for participating in them. No information has been provided on whether the risk assessment tool has been finalized following public comment and is now ready to be used (or is already being used) by properly trained BOP employees to complete the initial intake for each incarcerated individual by January 15, 2020. No information has been provided regarding whether training is progressing such that BOP staff will be capable of completing that initial intake. While the DOJ indicated it would take four months to develop advanced training, it is not clear whether development efforts have begun.21 No information has been provided on whether the BOP has started assessing newly-committed " See, e.g., USSGS5D1.3(c)(4), (c)(5), (c)(9). DOJ Report at 62, tbl. 8. DOJ Report at 64, 78. 20 Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prisons' Release Preparation Program 14 (2016) ("the BOP's current method [of assessing risk and needs], which relies heavily on staff discretion to identify and tailor RPP programming efforts to inmate needs, may not be as effective or efficient as the more systematic tools that many state correctional systems use'). 21 DOJ Report at 86. 9 EFTA00100189 inmates. And critically, no information has been provided on how soon after the commencement of a sentence, individuals can expect to start participating in programming. Time and again, the BOP has proven unable to meet even basic standards in the management and care of the federal inmate population. Indeed, virtually every time the BOP has been scrutinized—from managing its compassionate release program, to preparing individuals for reentry22 —the agency has proven itself unable to effectively allocate its resources, collect data, and provide baseline care for the individuals in its keep. Closing Residential Reentry Centers Under the FSA, people who complete certain programs in custody will soon begin earning credits that, in theory, they can exchange for greater prelease time in community corrections, including the possibility of additional time at Residential Reentry Centers (RRCs). But if reentry capacity decreases instead of expands, these credits may be worthless. Sadly, because of the BOP's recent practices, that is exactly what is happening. My colleague, Lisa Hay, the Federal Defender for the District of Oregon, has detailed this problem in a letter to the Director of the BOP, Kathleen Sawyer. (Attached as Exhibit B). In the letter she explains that at least 20 reentry centers have closed or ceased accepting federal inmates since 2017, and more closures appear likely. This loss of bed space cripples efforts to enhance successful reentry of incarcerated citizens, undermines the criminal justice goal of rehabilitation, and consequently threatens community safety. Reentry centers can provide the opportunity, in a less structured setting than prison, for individuals to engage in needed treatment, find employment, and continue reconnecting with their family and community. Once lost, these precious resources are difficult to replace. The closing of RRCs is in keeping with a long history of the BOP failing to release people as early as the law provides. The Second Chance Act of 2007 doubled the amount of sentenced time that federal prisoners were eligible to spend in reentry centers from six months to up to one year. 18 U.S.C. § 3624(c). During this "prerelease time," the individual is not released from his or her federal sentence but is serving the sentence in an alternative n See, e.g., Office of the Inspector General, U.S. Dep't of Just., The Federal Bureau of Prisons' Compassionate Release Program 53 (2013) ("[W]e found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release. It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided."); Office of the Inspector General, U.S. Dep't of Just., Review of the Federal Bureau of Prism' Release Preparation Program i (2016) ("Significantly, we found that the BOP does not ensure that the [Release Preparation Programs (RPPs)] across its institutions are meeting inmate needs. Specifically, BOP policy does not provide a nationwide RPP curriculum, or even a centralized framework to guide curriculum development ... [Further,] the BOP does not have an objective and formal process to accurately identify and assess inmate needs or determine which RPP courses are relevant."). 10 EFTA00100190 setting. Defenders were encouraged by this Congressional recognition that our clients and their communities both benefited when reentering individuals were given more time, in a gradually less structured setting, to engage in treatment, employment counselling, parenting classes, and other programs designed to ensure the safety of the community and the success of the resident after incarceration. Despite this mandate from Congress, however, the BOP was slow to change, and the amount of prerelease time that individuals were awarded to spend in reentry centers remained low. In 2011 Defenders wrote to then Director Thomas Kane to express concern about this failure to implement the Second Chance Act.23 In 2012, the General Accountability Office issued a report that similarly noted the BOP's failure to adequately implement Congressional mandated alternative options to incarceration, including use of reentry centers.24 After the GAO report, the BOP did begin to utilize reentry centers more fully, awarding slightly greater prerelease time to individuals. But the amount of this prerelease time awarded by the BOP is again declining. According to the most recent report submitted by the BOP to the House and Senate Judiciary Committees, the average length of placement in reentry centers decreased by almost 20% from the first quarter measured (April — June 2017) to the last quarter (January-March 2018), resulting in almost a full month less of reentry time by the last quarter (an average of 119 days compared to 146 at the start of the year).Th Notably, even the high, four-month average represents significantly less time than the one year authorized by Congress. The BOP acknowledged in a 2017 memorandum that "due to fiscal constraints," the average length of stay was "likely to decline to about 120-125 days."26 Anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor's wall reading: 'We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says." Numerous reentry centers confirm that lengths of stay have declined significantly over the last few years. The BOP's formal or informal restrictions on prelease time harm individuals serving federal sentences by limiting their opportunity for structured reentry into the 23 Letter of FPD Thomas Hillier to Bureau of Prisons' Director Thomas Kane, dated November 16, 2011. (Exhibit B, Attachment A). 20 Government Accountability Office, Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison (Feb. 2012) available at https://www.gao.gov/products/GAO-12-320. 25Utilization of Community Corrections Facilities: Report to Congress (Apr. 2017- Mar. 2018). (Exhibit B, Attachment E). Memorandum of Acting Assistant Director, Hugh Hurwitz, Oct. 10, 2017. (Exhibit B, 26 Attachment C). 11 EFTA00100191 community. The limits also harm reentry centers because the declining lengths of stay mean that facilities are not operating at full capacity. Many reentry centers increased capacity with the encouragement of the BOP and now find they are in difficult fiscal straits as individuals spend more time in prison and less time in reentry centers. Conclusion If past predicts future, there is good reason to question whether the BOP will comply with either the spirit or the letter of the FSA and take the steps Congress envisioned to reduce recidivism, improve public safety, and reduce unnecessary incarceration. I began my testimony with the story of last year's crisis at the MDC because I think it is sadly indicative of the lack of accountability throughout the BOP. The stakes for successful implementation of the FSA are high. As Congress recognized, the overwhelming majority of people in prison will get out and become our neighbors again. If they are treated with harshness, neglect, violence, and inhumanity in prison, they are much more likely to respond in kind when they get out. Robust programming, use of a fair and unbiased system to award early release credits, and thoughtful planning for reentry are key to the FSA's success. It will not happen without vigorous oversight I thank this Committee for recognizing that and holding this hearing. 12 EFTA00100192 EXHIBIT A EFTA00100193 Federal Public & Community Defenders 52 Duane Street, 10th floor New York, NY 1007 Legislative Committee Tel: (212) 417-8738 Co-Chairs David Patton Executive Director Federal Defenders of New York Jon Sands Federal Defender District of Arizona September 13, 2019 David B. Muhlhausen, Ph.D. Director National Institute of Justice Office of Justice Programs Department of Justice 810 Th Street NW Washington, DC 20531 Re: DOJ First Step Act Listening Session on PATTERN Dear Dr. Muhlhausen: Thank you for inviting comment from the Federal Public and Community Defenders regarding the Department of Justice's (DOJ) development of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) as part of its obligations under the First Step Act (FSA). The Federal Public and Community Defenders represent the vast majority of defendants in 91 of the 94 federal judicial districts nationwide, and we welcome the opportunity to provide our views. PATTERN will directly affect how much time many of our clients spend in prison. This makes it a high-stakes tool, and means testing for accuracy and bias is crucial. Indeed, Congress understood the stakes and called for transparency throughout the FSA, including a mandate that the risk and needs assessment system be "developed and released publicly."' Congress also repeatedly required that the system be monitored for bias.' The limited information released by the DOJ in its July 19, 2019 I First Step Act of 2018 (FSA), Pub. L. 115-391, Tide I, § 101(a) (Dec. 21, 2018) (codified at 18 U.S.C. § 3632(a)). 2 See, e.g., FSA at Tide I, § 103 (requiring the Comptroller General to conduct an audit of the use of the risk and needs assessment system every two years, which must include an analysis of "[t]he rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates."); FSA at Title I, § 107(g) (requiring the Independent Review Committee to submit to Congress a report addressing the demographic percentages of inmates ineligible to receive and apply time credits, including by age, race, and sex); FSA at Tide VI, § 610(a)(26) (requiring the Director of the Bureau of Justice Statistics to annually submit to Congress statistics on "[t]he breakdown of EFTA00100194 Federal Public & Conumuuty Defenders 52 Duane Street, 104 Floor New York, NY 1007 Legislative Committee Tel (212) 417-8738 report (DOJ Report) confirms the need to assess PATTERN for accuracy and bias. For example, reported data indicates PATTTERN will have a racially disparate impact, particularly on black males. As illustrated in the charts below, based on the DOJ Report, white males are far more likely than black males to fall in the minimum and low risk categories.' Racial Disparities in Eligibility for Full Earned Release Incentives White Males Black Males 27% Il 57% • Minimum/Low • Minisnum/Loot • Medium/High • Medium/High This matters because these are the categories that are eligible for higher rates of earned time credits and eligibility for supervised release and prerelease custody.' The DOJ Report fails to provide the level of transparency required for meaningful evaluation of PATTERN. Below, we detail much of the additional information needed to fully assess PATTERN for accuracy and bias. We look forward to providing additional thoughts after the DOJ has released this information and hope our comment here is only the beginning of an ongoing dialogue with the DOJ regarding PATTERN. I. RISK ASSESSMENT PATTERN is a risk assessment tool "designed to predict the likelihood of general and violent recidivism for all BOP inmates!' It places "individuals into four categories: high, medium, low or prisoners classified at each risk level by demographic characteristics, including age, sex, race, and the length of the sentence imposed."). 3 See U.S. Dep't of Just., The First Step Art of2018: Rick and Needs Assessment Sytem 62, tbl. 8 (2019) (DOJ Report) (reporting 57% of white males in the developmental sample fall in the minimum and low risk categories while only 27% of black males fall in those same categories). 'See FSA at Title I § 101(a) (codified at 18 U.S.C. § 3632(d)(4)(A), providing more earned time credits for some individuals in the lowest two risk categories); Title I § 102(6)(1)(13) (codified at 18 U.S.C. § 3624(g)(1), restricting eligibility to transfer to supervised release or prerelease custody to individuals in the minimum or low risk categories, absent warden approval under specified circumstances). 5 DOJ Report at 43. 2 EFTA00100195  52 Duane Street, 10'h Floor Federal Public & Community Defenders New link, NY 1007 Legislative Committee Tel: (212) 417-8738 minimum?'" These risk categories determine the number of credits an individual may earn by participating in programs and productive activities, and also eligibility to attribute those credits toward supervised release or prerelease custody.' In other words, the risk categories will directly affect how much time many individuals spend in prison. The development of PATTERN, as with all risk assessment tools, necessarily relies on both empirical research and moral choices.' Based on the DOJ Report, we have concerns, but even more questions, in both areas. Additional information is needed to assess many important issues including: PATTERN's accuracy; its scoring mechanisms; its fairness across age, gender, race and ethnicity; how much it will exacerbate racial disparity in the federal prison population; its impact on privacy interests; and whether it is consistent with the congressional mandate to "ensure" that "all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceration."' A. Transparency & Accountability: Development, Validation and Bias Testing Transparency in the methods for developing, validating and bias testing PATTERN is vital. Full transparency is a primary way (along with accountability and auditability) to create and justify confidence by stakeholders and the public. Indeed, across risk assessments in criminal justice, the secrecy that permeates black box instruments causes significant concerns about how reasonable they are in practice. 1. Dataset Full transparency requires DOJ to release the same dataset used by Grant Duwe, Ph.D., and Zachary Hamilton, Ph.D., to create PATTERN.10 This is consistent not only with the transparency directives in the FSA," but also with the advice of leading organizations such as the National Center for State Courts which recommends that independent evaluators determine whether their independent "research findings support or contradict conclusions drawn by the instrument developers.)912 • DOJ Report at 50. 7 See supra note 4. See Michael Tonry, Legal and Ethical Issues in the Prediction of Recidivism, 26 FED. SENTT; REP. 167, 167 (2014). • FSA at Tide I § 101(a) (codified at 18 U.S.C. § 3632(a)(5)(A)). See DOJ Report at 42-43. "See supra notes 1 &2. 'Pamela M. Casey et al., National Center* Slate Courts, °fender Risk a' Needs Assessment Instruments: .4 Primer* Courts 19 (2014) (stressing that third party audits are valued because "it is always helpful to know whether existing research descriptions about the reliability, validity, and fairness of a tool have been replicated by others." Any "decisions based on a [risk and needs] tool which grossly 3 EFTA00100196  52 Duane Street, 1(1,K Floor Federal Public & Community Defenders New York, NY 1007 Legislative Committee Tel: (212) 417-8738 • Access to the full dataset would permit independent researchers to assess validity and algorithmic fairness using a variety of measures and calculations." • Despite recognizing the existence of multiple measures and calculations concerning validity," the DOJ Report focused mostly on the Area Under the Curve (AUC). The AUC, however, has limited utility as a measure of relative risk.15 Further, when tools are assessed using multiple measures of predictive validity (e.g., correlations, calibration metrics, Somers' D), results for the same tools vary.14 • Access to the dataset would allow interested parties to complete 2 x 2 contingency tables (number of false negatives, false positives, true negatives, true positives) for general and violent recidivism at each cutoff (minimum to low; low to medium; medium to high) by age, gender and race/ethnicity groupings. These contingency tables would provide important information on the degree to which the categorizations created by the cut-points capture true positives and true negatives (in addition to the associated recidivism rates that the DOJ Report included)." • The dataset would allow inde