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S. HRG. 113–873 

OVERSIGHT OF THE BUREAU OF PRISONS 

AND COST-EFFECTIVE STRATEGIES 

FOR REDUCING RECIDIVISM 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 6, 2013 

Serial No. J–113–34 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

November 6, 2013, 10:03 A.M. 

STATEMENTS OF COMMITTEE MEMBERS

Page 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 6 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 4 

Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii ............................ 7 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3 

prepared statement .......................................................................................... 102 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 5 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 1 

prepared statement .......................................................................................... 104 

WITNESSES 

Witness List ............................................................................................................. 39 

DeLisi, Matt, Ph.D., Professor and Coordinator, Criminal Justice Studies, 

Iowa State University, Ames, Iowa .................................................................... 21 

prepared statement .......................................................................................... 84 

La Vigne, Nancy G., Ph.D., Director, Justice Policy Center, The Urban 

Institute, Washington, DC .................................................................................. 28 

prepared statement .......................................................................................... 69 

Samuels, Charles E., Jr., Director, Federal Bureau of Prisons, Washington, 

DC .......................................................................................................................... 7 

prepared statement .......................................................................................... 40 

Sedgwick, Jeffrey, Ph.D., Managing Partner and Co-Founder, Keswick 

Advisors, Richmond, Virginia .............................................................................. 30 

prepared statement .......................................................................................... 95 

Tilley, Hon. John, Chair, House Judiciary Committee, Kentucky House of 

Representatives, Hopkinsville, Kentucky ........................................................... 26 

prepared statement .......................................................................................... 53 

Wetzel, John E., Secretary, Pennsylvania Department of Corrections, 

Harrisburg, Pennsylvania ................................................................................... 24 

prepared statement .......................................................................................... 49 

QUESTIONS 

Questions submitted to Matt DeLisi, Ph.D., by Senator Grassley ...................... 111 

Questions submitted to Nancy G. La Vigne, Ph.D., by: 

Senator Blumenthal ......................................................................................... 108 

Senator Grassley .............................................................................................. 112 

Senator Whitehouse ......................................................................................... 123 

Questions submitted to Charles E. Samuels, Jr., by: 

Joint questions submitted by Senators Blumenthal and Leahy ................... 116 

Senator Franken ............................................................................................... 109 

Senator Grassley .............................................................................................. 113 

Follow-up questions submitted by Senator Leahy ......................................... 119 

Senator Sessions ............................................................................................... 122 

Questions submitted to Jeffrey Sedgwick, Ph.D., by Senator Grassley .............. 114 

Questions submitted to Hon. John Tilley by Senator Whitehouse ...................... 124 

Questions submitted to John E. Wetzel by: 

Senator Grassley .............................................................................................. 115 

Senator Whitehouse ......................................................................................... 125 
Page

IV 

ANSWERS 

Responses of Matt DeLisi, Ph.D., to questions submitted by Senator Grassley 126 

Responses of Nancy G. La Vigne, Ph.D., to questions submitted by: 

Senator Blumenthal ......................................................................................... 132 

Senator Grassley .............................................................................................. 134 

Senator Whitehouse ......................................................................................... 128 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Charles E. Samuels, Jr.] 

Responses of Jeffrey Sedgwick, Ph.D., to questions submitted by Senator 

Grassley ................................................................................................................ 136 

Responses of Hon. John Tilley to questions submitted by Senator Whitehouse 142 

Responses of John E. Wetzel to questions submitted by: 

Senator Grassley .............................................................................................. 141 

Senator Whitehouse ......................................................................................... 140 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU), Washington, DC, statement ............... 158 

Arthur Liman Public Interest Program, Yale Law School, New Haven, 

Connecticut, statement ........................................................................................ 145 

Families Against Mandatory Minimums (FAMM), Washington, DC, 

statement .............................................................................................................. 178 

National Disability Rights Network (NDRN), Washington, DC, statement ....... 155 

Tierney, John, The New York Times, ‘‘For Lesser Crimes, Rethinking Life 

Behind Bars,’’ December 11, 2012, article ......................................................... 182 

Wall, A.T., ‘‘Rhode Island Halts Growth in the Inmate Population While 

Increasing Public Safety,’’ article ........................................................................ 173 
(1) 

OVERSIGHT OF THE BUREAU OF PRISONS 

AND COST-EFFECTIVE STRATEGIES 

FOR REDUCING RECIDIVISM 

WEDNESDAY, NOVEMBER 6, 2013 

UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Sheldon 

Whitehouse, presiding. 

Present: Senators Whitehouse, Leahy, Durbin, Klobuchar, 

Blumenthal, Hirono, Grassley, Sessions, and Lee. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

A U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. The hearing will come to order. I am very 

grateful that the Chairman of the Judiciary Committee has joined 

us, Chairman Leahy, as well as Senator Durbin of Illinois and Senator Blumenthal of Connecticut. I am sure others will join us. Senator Grassley will be joining us very shortly, but he has important 

business in the Finance Committee right down the hall, so he will 

be along as soon as he has cleared that. 

Welcome, everybody. Today’s hearing is ‘‘Oversight of the Bureau 

of Prisons and Cost-Effective Strategies for Reducing Recidivism.’’ 

We will be exercising our legislative responsibility to conduct oversight of the Bureau of Prisons, but perhaps more importantly, we 

will be exploring with Director Charles Samuels and with the second panel of witnesses what can be done to improve our Federal 

corrections system so that we better protect the public while reducing costs. This is an area that has attracted broad and bipartisan 

interest within our Committee, and I think there is real reason for 

optimism about being able to legislate effectively in this area. 

Continued growth in Federal spending on prisons and detention 

poses a significant threat to all other Federal law enforcement activities. During the last fiscal year, the costs of detaining Federal 

inmates ate up more than 30 percent of the Justice Department’s 

budget. Since 2000, costs associated with Federal prisons and detention have doubled. If nothing is done, these costs will continue 

to consume an ever larger share of the Department’s budget, 

squeezing out other activities. 

While spending on Federal prisons has continued to grow, the 

system nevertheless remains dangerously over capacity. The inmate-to-staff ratio in our Federal prisons has increased significantly over the past decade, and each year we ask the men and 

women who guard our prisons—who walk the toughest beat in the 
2 

State, as we say in Rhode Island—to do more with less. If we let 

these trends continue, we will be putting these brave men and 

women at serious and unnecessary risk. 

Fortunately, States across the country have shown that it is possible to rein in corrections costs while improving public safety and 

reducing recidivism. 

My home State of Rhode Island enjoys the leadership of A.T. 

Wall, the Director of our Department of Corrections and the dean 

of corrections directors around the country. With his leadership, we 

enacted a package of reforms that increased recidivism reduction 

programming, focused greater attention on high-risk offenders, and 

expanded investments in successful community reentry. As a result 

of these reforms, our State’s prison population declined for the first 

time in years. 

Other States have had similar successes. Today we will hear 

from witnesses from Pennsylvania and Kentucky who helped lead 

their States in enacting and implementing significant reforms of 

their corrections systems that cut costs while better protecting the 

public. 

These examples—and others from around the country—show 

that it is time for the Federal Government to learn from these 

States. 

As a former State and Federal prosecutor, I recognize that there 

are no easy solutions to this problem. Inmates in our Federal prisons are there because they have committed serious offenses and because the law enforcement officers across their country did their 

jobs in seeing that they were arrested and prosecuted. And we 

must never try to save money at the expense of public safety. 

But what the States have shown us is that it is possible to cut 

prison costs while making the public safer—if we are willing to be 

guided by what works. 

To achieve this goal, we must be willing to look at all aspects of 

our sentencing and corrections system: 

We should be willing to reevaluate mandatory minimum sentences, an area in which Chairman Leahy and Senator Paul and 

Senator Durbin and Senator Lee have begun important work together. 

We should be willing to explore whether the Federal Sentencing 

Guidelines are still working effectively nearly 30 years after they 

were first enacted. 

We should ask whether we are doing enough to provide drug and 

alcohol treatment for those inmates who need it and whether we 

are collecting accurate information about substance abuse and addiction from the pre-sentence report right through the criminal justice process. 

We should ask whether there is more to be done to prepare inmates for reentering their communities and more to help the communities with their reentry. In Rhode Island, under the leadership 

of Director Wall, we passed reforms that allowed inmates to earn 

credit toward their sentences if they were willing to participate in 

programs that meaningfully reduced their criminal risk factors. 

And finally, we should ask if we can do a better job of supervising ex-offenders after they are released. Many States, led by 

Senator Hirono’s home State of Hawaii’s example, the HOPE pro-
3 

gram, have implemented parole systems that impose ‘‘swift and 

certain’’ sanctions for violations of the terms of supervision, with 

very promising results so far. So from the pre-sentence report 

through post-release supervision, there is room for improvement. 

Let me conclude with one point that I think is not debatable, and 

that is that doing nothing about this problem is no longer an option. If we do nothing, we are choosing to let the corrections budget 

take away from the FBI’s ability to disrupt terrorist groups. If we 

do nothing, we are allowing the cost of corrections to prevent us 

from stopping the next generation of cyber threats. We would be 

choosing to spend less enforcing the Violence Against Women Act. 

We would be choosing to give less to our partners in State and local 

law enforcement agencies. 

Those are not choices my colleagues wish to make. Those are not 

smart choices. So I look forward to hearing from Director Samuels 

and today’s other witnesses and to working with the Members of 

this Committee to address this critical issue. 

I now recognize our Chairman, Patrick Leahy. Thank you, sir. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you, and thank you, Chairman 

Whitehouse. I will be brief. I will put my full statement in the 

record because I agree so much with what Senator Whitehouse has 

just said. 

This is the second hearing this fall in which we have turned our 

attention to the unsustainable growth in the Federal prison population, with a 700-percent increase, I believe, in the last 30 years. 

And that means the Bureau of Prisons’ budget takes more and 

more of the resources from the Department of Justice. We are losing prosecutors. We are losing agents necessary to investigate and 

charge crimes. We are cutting support for critical work with our 

local and State law enforcement. 

I think the main drivers of this prison growth are front-end sentencing laws that were enacted by us in Congress, like the proliferation of mandatory minimum sentences. I am hoping that 

many, including the people who voted for those, are looking at it 

now in retrospect and realize it was a bad mistake. And I am committed to addressing sentencing reform this year, and I am pleased 

by the fact that both Republicans and Democrats are joining in 

that effort. It is a problem that Congress created, but it is also a 

problem that Congress can fix, and it is high time we do so. And 

I think public safety demands that we do so. 

We can also do such things as change the calculation on good 

time credit to the 54 days a year which Congress intended instead 

of the 47 days that BOP actually credits. That is a change that I 

included in the Second Chance Reauthorization Act, and I believe, 

Senator Whitehouse, you are going to be doing that in some of your 

legislation. 

I want to find out what is being done on programs to reduce recidivism. I know it is an interest shared by Members of this Committee—Senators Whitehouse, Senator Cornyn, and others. More 

than 90 percent of Federal inmates are going to be released at 
4 

some time back to our communities. What chance do they have to 

make it in the community when they are released? 

Last, and one of the main reasons I also wanted to be here, is, 

Director Samuels, just to say publicly to you, I want to thank you 

for the prompt attention to concerns that I have raised and Senator 

Blumenthal and others have raised regarding the proposed closing 

of the only secure facility for female inmates in the Northeast. I 

understand you have taken those concerns to heart, and I want to 

thank you for that. I know that people in my State of Vermont 

thank you, and Senator Blumenthal, who has raised this question, 

certainly will. 

So I will put my full statement in the record. As I told Senator 

Whitehouse, I am supposed to be at another hearing, but thank 

you for doing this. It is a subject we have to talk about—and, Director Samuels, thank you for your service. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you very much, Chairman Leahy. 

I now turn to our distinguished Ranking Member, Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. I always welcome the opportunity to have 

oversight of the Justice Department. It is a very important function 

of this Committee, and the Bureau of Prisons, of course, is a large 

component of the Department’s budget. And, of course, the Bureau’s work is very, very important. 

We all know with the budget deficits we have that the Federal 

Government spends too much money, so it is nice to have this administration find some places to save money. But the Bureau of 

Prisons is one of the few places where they are trying to do that. 

We should be very careful about any action we take in changing 

sentencing laws, whether based on cost or other concerns. It is 

hard to think of another example of a more successful domestic policy accomplishment over the past 30 years than the reduction of 

crime rates that we have had. This policy was achieved through 

multiple policy changes: policing techniques, prison construction, 

longer sentences, and many others that I will not name. 

Crime rates are now at their lowest level in 50 years. Many people have earned the right to be proud of these results. At the same 

time, we must remember that these were hard-won gains, and I am 

concerned that we are hearing many of the same kind of voices 

that headed us toward greater crime starting back in the 1960s. 

For instance, we hear that prisoners should have their sentences 

retroactively reduced. We heard that mandatory minimum sentences should be eliminated, that we should no longer have truth 

in sentencing, that fewer drug prosecutions should be pursued, that 

all of these proposals would save money and not raise crime. Obviously I am skeptical. Reducing prison sentences will bring prisoners out in the streets sooner. The deterrent effect of imprisonment would be reduced. Many so-called nonviolent drug offenders 

happen to have violent records. Some of these released offenders 

will commit additional crimes. Somehow cost analyses of the Bu-
5 

reau of Prisons do not include costs to victims, including injuries, 

economic losses, psychological and emotional harms. 

One organization represented here today notes that most prison 

costs are fixed, and the real costs of adding or subtracting an inmate is closer to $10,000 than the $25,000 figure that is often used. 

That changes the calculus as well. The cries for increased judicial 

discretion are actually—cover language for leniency, and too many 

judges are already too lenient. They can do serious damage. 

I note here the Second Circuit’s unanimous ruling last week that 

a district judge had violated judicial ethics in her zeal to issue rulings against successful crime reduction practices that led to increased imprisonment. Rather than contemplate her rebuke for 

multiple actions and changing course away from the apparent bias, 

I regret that this district judge quickly issued a press release statement contending that she had done nothing wrong. 

Of course, we welcome State officials who will testify today. We 

can always consider what States are doing, but State and Federal 

offenders often have committed different kinds of crimes. What 

works in one context may not work in the other. We also need to 

proceed with caution because as States are letting more prisoners 

out earlier, crime rates are rising. 

It is too early to fully establish the causes of this increase in 

crime, but the Bureau of Justice Statistics just announced that 

property and violent crime rates rose significantly in 2012. The violent crime rate rose from 22.6 victimizations per 1,000 in 2011 to 

26.1 in 2012. The rate of property crimes rose 10 percent in 1 year. 

Funds are not unlimited. I would be willing to examine some balanced mix of sentencing reforms. It is well worth considering releasing very sick prisoners or prisoners of such advanced age or 

other situations as to be assessed as a very low risk to commit new 

crimes. But leniency for the sake of leniency is ill advised. It is an 

especially bad idea as crime rates are rising, as we see in the last 

couple years. 

I look forward to today’s hearing. Thank you. 

Senator WHITEHOUSE. Thank you, Senator Grassley. 

Senator Durbin, would you like to make an opening statement? 

Senator Sessions. 

OPENING STATEMENT OF HON. JEFF SESSIONS, 

A U.S. SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Chairman, thank you, and this is an important subject. Mr. Samuels and I have talked before. I believe in 

terms of cost we spend too much per prisoner in the Federal system. It is more than 2 times what the average States are probably 

spending on their prisons, number one. 

Number two, we have had an increase in violent crime rates, and 

my sense is with the budget difficulties the last 3 or 4 years, States 

where maybe 90 percent of the prisoners are confronted by the 

criminal justice system are softening their punishments, and the 

Federal Government sort of sets the standard and leads sometimes 

in those issues. 

Senator Durbin and I did work together on legislation to ease 

some of the sentences for crack and other penalties, really, so I 

think we took a step in the right direction. But Senator Grassley 
6 

is correct. We have seen a substantial increase in crime, 15 percent 

violent crime last year, and the fact is that long-term sustained reduction in crime in America from the consistent violent times of the 

1970s when I was a young prosecutor to half that today. The murder rate is half what it was. A lot of that is driven by the fact that 

there are not that many people who commit murders. Not that 

many people commit rapes. And the more of those who are in jail, 

the fewer murders and rapes you are going to have. That is just 

fact. And people do not need to go back to the time when we do 

not think realistically about the value of prison in terms of reducing crime. 

And with regard to recidivism, Mr. Chairman, I think some programs work better than others, but anybody that knows anything 

about the criminal justice system over a long period of time knows 

there is no cure, no plan yet ever devised, but someone always has 

something they say will change the course of criminal history, but 

it has not happened yet, and we have tried thousands of different 

programs. 

So we have got to be modest achievement in reducing recidivism; 

10, 15 percent is worthy of us giving great consideration to. But 

these ideas and promotions that we are going to have 50 percent 

or 60 percent reduction in crime, you are going to have to prove 

it to me, because I have been watching this for over 30 years, and 

it is not happening in any program I have seen. If it would, I am 

for it. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. I appreciate it, Senator Sessions. 

Senator Klobuchar, do you care to make an opening statement? 

Senator KLOBUCHAR. No. I am actually looking very forward to 

hearing our witness, so thank you. 

Senator WHITEHOUSE. Senator Lee. Senator Blumenthal. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, 

A U.S. SENATOR FROM THE STATE OF CONNECTICUT 

Senator BLUMENTHAL. Just to thank you, Mr. Chairman, for having this hearing, and to respond briefly to the remarks made by the 

Senator from Alabama. Between the two of us, I think perhaps we 

have close to 70 years in the justice system, and I want to agree 

with him that in an ideal world we would, first of all, have no 

crime; but, second, treat criminals without regard to the dollar 

cost. But there are very severe dollar costs to incarceration. In fact, 

the cost of incarcerating an individual is now in excess of what it 

costs to send a young person to college in many universities across 

the country, and I would just point out that many States are taking very innovative and important steps toward reducing their prison populations in part because of wiser incarceration policies. And 

I hope we can explore some of those policies with the Bureau of 

Prisons here so that we keep dangerous people in prison, the ones 

who are likely to recommit serious and harmful crimes, physically 

dangerous people, and at the same time work to rehabilitate them. 

And I am going to be focused on the recent decision of the Federal 

correctional institution at Danbury, which unfortunately a number 

of us had to stop, which would have resulted in transfers of women 

prisoners away from their families, which in my view is bad prison 
7 

policy. No matter how long people are kept in prison, they should 

be nearer to their children, especially if they are mothers of those 

children, and nearer to their families. And I am glad that we were 

able to prevail with the help of the Attorney General in changing 

that decision. I want to thank the Director of the Bureau of Prisons 

for his wisdom in doing so, and I look forward to asking him questions about other prisons and other prisoners and what can be done 

to keep them nearer to their persons, whether they are women or 

men. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you. 

Senator Hirono, do you care to make an opening statement? 

OPENING STATEMENT OF HON. MAZIE HIRONO, 

A U.S. SENATOR FROM THE STATE OF HAWAII 

Senator HIRONO. Very briefly, Mr. Chairman. Prison overcrowding is a huge issue at both the Federal and State level, so 

thank you for this hearing. And I will be very interested in hearing 

from our witnesses what we can do regarding the front end that 

has to do with sentencing and at the back end, because the recidivism is another major issue, so front-end and back-end issues relating to prison overcrowding. 

Thank you. 

Senator WHITEHOUSE. Thank you. 

Mr. Samuels, would you stand to be sworn? Do you affirm that 

the testimony you are about to give before this Committee will be 

the truth, the whole truth, and nothing but the truth, so help you 

God? 

Mr. SAMUELS. I do. 

Senator WHITEHOUSE. Thank you and welcome. 

Charles E. Samuels, Jr., is our Director of the Federal Bureau 

of Prisons, a position he has held since December 2011. As Director, he is responsible for the oversight and management of all Federal Bureau of Prisons institutions and for the safety and security 

of thousands of inmates under the agency’s jurisdiction. Prior to his 

appointment, he served as the Assistant Director of the Correctional Programs Division, where he oversaw all inmate management and program functions, including intelligence and counterterrorism initiatives, case management, community corrections, mental health, and religious services. Director Samuels began his career at the Bureau of Prisons as a corrections officer in 1988. We 

are pleased to have him. 

Please proceed, Director Samuels. 

STATEMENT OF CHARLES E. SAMUELS, JR., DIRECTOR, 

FEDERAL BUREAU OF PRISONS, WASHINGTON, DC 

Mr. SAMUELS. Good morning, Chairman Whitehouse, Ranking 

Member Grassley, and Members of the Committee. I am pleased to 

appear before you today to discuss the Federal Bureau of Prisons. 

I cannot begin without acknowledging that this past February, 

the Bureau suffered tragic losses with the murders of two of our 

staff. Officer Eric Williams, from the United States Penitentiary in 

Canaan, Pennsylvania, was stabbed to death by an inmate while 

working in a housing unit. Lieutenant Osvaldo Albarati was shot 
8 

and killed while driving home from the Metropolitan Detention 

Center in Guaynabo, Puerto Rico. We will always honor the memories of these two law enforcement officers, and their loss underscores the dangers the Bureau staff face on a daily basis. 

I know we all share a commitment to our Nation’s criminal justice system. We are proud of the role we play in supporting the Department of Justice public safety efforts. But we understand that 

incarceration is only one aspect of the overall mission. I am sure 

you share my concerns about the increasing costs associated with 

operating the Nation’s largest correctional system. Those costs 

make up one-quarter of the DOJ budget. We are optimistic the Attorney General’s ‘‘Smart on Crime’’ initiative will reduce the Federal population in the years ahead. 

I know that several of you have bills that have the potential to 

possibly impact the Bureau’s population and crowding through sentencing reform and sentence credit incentives. I appreciate your 

work and your interest in this important topic, and I look forward 

to working with you going forward. 

The Bureau of Prisons is responsible for the incarceration of over 

219,000 inmates. Our prisons are crowded, averaging 36 percent 

more inmates than they were designed to house. We are most concerned about the 52 percent crowding at higher security facilities 

and 45 percent crowding at medium security facilities. I am grateful for the support Congress recently provided to activate new facilities in Berlin, New Hampshire; Hazelton, West Virginia; Yazoo 

City, Mississippi; and Aliceville, Alabama. When fully activated, 

these facilities will assist with reducing overall crowding rates by 

about 4 percent. 

I know you have expressed a great deal of interest in the mission 

change at FCI Danbury. This change will decrease crowding from 

48 percent to 23 percent in low-security female facilities and from 

38 percent to 36 percent in low-security male facilities, while also 

bringing many women and men closer to their homes. 

Reentry is a critical part of public safety. Our approach in the 

Bureau of Prisons is that reentry begins on the first day of incarceration. Preparation for release includes treatment, education, job 

skills training, and more that takes place throughout an inmate’s 

term. 

Over the past 20 years, there has been a significant evolution 

and expansion of our inmate reentry program. Several of our most 

significant programs are proven to reduce recidivism. Federal Prison Industries, or FPI, is one of our most important programs. FPI 

participants are 24 percent less likely to recidivate than non-participating inmates. We were recently given new authorities to seek 

repatriated work and to pursue potential projects under the Prison 

Industries Enhancement Certification Program for FPI, and we are 

working diligently to maximize these opportunities. 

We currently have more than 450 inmates working on repatriation projects. We agree with many experts that inmates must be 

triaged to assess risk and to determine appropriate programming 

to reduce such risk. 

High-risk offenders are our first priority for treatment as they 

pose the greatest public safety risk when released from our custody. The safety of staff, inmates, and the public are our highest 
9 

priorities. I have made several recent changes to Bureau operations 

that will help us enhance safety and security. Let me highlight 

some recent advantages. 

We expanded the availability of pepper spray for our staff to use 

in emergency situations at all high-security prisons, detention centers, and jails. We have developed plans to add an additional correctional officer to each high-security housing unit during evening 

and weekend shifts using our existing resources. We have made 

significant advances in reviewing and reducing our use of restrictive housing, and we are expanding residential drug abuse programming. 

The mission of the Bureau of Prisons is challenging, but maintaining high levels of security and ensuring inmates are actively 

participating in evidence-based reentry programs, we serve and 

protect society. 

Chairman Whitehouse, this concludes my formal statement. I 

thank the Members of the Committee for your continued support, 

and I would be happy to answer any questions. 

[The prepared statement of Mr. Samuels appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you, Director Samuels. You said in 

your testimony that reentry should begin the first day, reentry 

planning should begin the first day. What further steps, in addition 

to what you are already undertaking, do you think would be most 

helpful for this Committee to consider? 

Mr. SAMUELS. Mr. Chairman, I think the next steps for the Committee to consider, as I have stated in written testimony and in my 

oral statement, we are doing everything possible when inmates 

enter our system to begin the reentry process, and it is not just 

something that should start from the initial onset and stop. It 

needs to continue throughout their entire term of incarceration. 

Since 1980, our population has exploded. In 1980, we had approximately 26,400 inmates in our care, 10,000 staff to manage 

that population, and only 41 institutions at that time. As of to date, 

as I have indicated, our population is at 219,000. We have approximately 38,000 staff. That is an increase of 830 percent just with 

the inmate population alone. 

Safety and security is very, very important to manage a correctional facility. We are utilizing staff who have been hired to provide 

programming, in some cases, to provide security, because security 

is paramount to ensure that you have an environment where you 

can provide the appropriate programming. And we are on a path 

of unsustainability, and it is a significant issue that I think everyone needs to be concerned about, because the men and women who 

work for the Bureau of Prisons, who are dedicated law enforcement 

officers, are putting their lives on the line every single day. 

We believe that reentry is very, very important because it is a 

significant part of our mission. Our mission is not just to warehouse individuals, but to ensure that we are providing them everything necessary when ultimately they are released. Ninety-five percent of the inmates in our care will at some point in time be released back to communities. 

Reentry is also important because for us to manage these individuals, we have to ensure that we are actively ensuring that they 
10 

are engaged in programs within the institution, and this is accomplished by our reentry efforts. 

I can report that, despite all the challenges we have faced over 

the last 30 years, we are at a point where 80 percent of the inmates who are released from the Bureau of Prisons do not 

recidivate within 3 years. And I give credit to the staff who are 

working under these difficult situations and at the same time ensuring that we are maintaining safe, secure facilities for the American public. 

So if any consideration could be given, I think it is looking at the 

growth that we have no control over. As you all are aware, the Bureau of Prisons, we do not control the number of inmates who enter 

the system. We have no control over their sentence limit. But what 

we do have a duty and an obligation to do is to ensure that for 

those individuals who are ultimately released do not return to prison, because on average about 45,000 inmates are released back into 

the communities. And with the recidivism issues and concerns, I 

tell our staff day in and day out that it is up to us to do what we 

can control and it is making sure we provide effective programs so 

they do not return. 

Senator WHITEHOUSE. Is one of them the Residential Drug Abuse 

Program? The Residential Drug Abuse Program, do you—tell me a 

little bit about that and how effective you believe that is and how 

it fits into the improvement of non-recidivism upon reentry? 

Mr. SAMUELS. Yes. The Residential Drug Abuse Program is modeled after our cognitive behavioral therapy model that research has 

shown, with experts looking at this, that it does reduce recidivism 

as well as relapse. And so within the Bureau we have been very, 

very successful with RDAP. 

We have taken it a step further. We have used the cognitive behavioral therapy model to place programs throughout the Bureau 

for other segments of our population. I will give you an example. 

We have a challenge program that also uses CBT for high-security 

inmates. We have a BRAVE program that we use for young male 

inmates. We have a Resolve program that is very beneficial for female offenders who have experienced traumatic incidents within 

their life. We have the sex offender treatment program, which is 

also very successful. And for chronically mentally ill inmates, we 

have a Step-Down program, we have a Stages program that we utilize for individuals who are suffering from paranoid issues, and 

overall we believe that this is very important. We have to continue 

to do it. But the challenge is with the resources and focusing on 

high-risk need offenders, and we have to ensure that that is where 

we are putting the focus for the efforts that we have put in place. 

Senator WHITEHOUSE. Thank you, Director. 

Senator Grassley. 

Senator GRASSLEY. Thank you, Mr. Samuels, for being here, and 

thank you, Mr. Chairman. We have testimony before us that 25 

percent of the Federal prisoners are foreign citizens. Anyone who 

is concerned about reducing prison costs should make lowering that 

number a priority. What can your agency do, the Bureau do more 

effectively to use the International Prisoner Transfer Program to 

make more of the foreign citizens serve their sentences in their 

home countries rather than at U.S. taxpayer expense? 
11 

Mr. SAMUELS. Thank you, Senator Grassley, for this question. As 

you stated, 25 percent of our population comprises non-U.S. citizens. That number equates to 55,000 criminal aliens in our population. And we have a Treaty Transfer Program that we are actively using, and there is room to ensure that we are increasing the 

numbers as far as the participants for the program. We are reaching out throughout the Bureau to ensure that our staff are explaining this program in its entirety to the inmates who would benefit 

from being removed from within the Bureau of Prisons and given 

an opportunity to serve their time through the agreements that we 

have with the international community where the agreements are 

in place. And that would, in effect, as you have stated, give us 

some cost reductions within our population. 

Senator GRASSLEY. One way to reduce prison crowding is to build 

more prisons. Congress has authorized building four additional 

Federal prisons. At the same time the Federal Government bought 

a State prison in Thompson, Illinois, and is spending additional 

money to renovate it. I would like to know the current status of 

Thompson Prison and what is the amount of the money being spent 

on it. And then, last, so it is really a three-part question: Is the 

spending on Thompson slowing down the opening of the four additional prisons that have been authorized and their status? 

Mr. SAMUELS. Okay. The current four facilities that we have that 

are in the activation process, the purchase of the Thompson facility 

has not in any way impeded our progress in moving forward to activate the facilities that you make reference to. We have the New 

Hampshire facility as well as the facility at Aliceville, Alabama. We 

have hired the staff, which we are continuing to hire, and we are 

also gradually moving forward to build the population for the institutions. 

The facilities that are still pending for full activation, which we 

have the facility at Hazelton, West Virginia, and the penitentiary 

in Yazoo City, and at this point we are trying to hire, and hopefully, depending on funding that will potentially hopefully be provided in Fiscal Year 2014, we would be put in a situation to determine how soon we can move inmates into the facility for activation. 

For the Thompson facility, I can assure you there has always 

been great need within the Bureau of Prisons for this type of facility. We have not in the Bureau of Prisons brought on any type of 

high-security ADX beds similar to what we have in ADX Colorado 

since 1994. If you looked at our population in 1994 compared to 

where we are today, these beds are premium. We have had to do 

our best with limited resources to prioritize the inmates that we 

place at the ADX. So I am looking forward to being able to fully 

activate the Thompson facility because, as I mentioned, at the 

high-security level, with crowding within the Bureau of Prisons, we 

are facing significant challenges that are ultimately putting our 

staff at risk, putting the inmates at risk, and the community at 

risk. So we desperately need those beds. 

Senator GRASSLEY. Can you submit a figure that is being spent 

on Thompson Prison in writing? 

Mr. SAMUELS. Yes, sir. 

Senator GRASSLEY. Thank you. 
12 

[The information referred to appears as a submission for the 

record.] 

Senator GRASSLEY. My last question. Twenty-five percent of the 

Federal prisoners are gang Members. Prisoners can more easily 

maintain their ties to crime if they are gang Members. That can 

make prisons more dangerous and make it harder for inmates to 

avoid committing new crimes when they are released. 

What specifically does your agency do to reduce gang Membership in prisons? And is Membership so high because prisoners who 

did not previously belong to gangs join them after they are in prison? 

Mr. SAMUELS. Thank you. Within the Bureau of Prisons, which, 

as you have acknowledged, we do have a significant number of 

gang Members, many of these individuals long before entering the 

prison system have gang affiliation, and this is one of the reasons 

why the unsustainability for safety and security within our facilities with the large numbers that we are dealing with, we have had 

to put innovative strategies in place to target these individuals. 

We are able to manage and maintain control by using the number of prisons that we have to spread out influence. The Bureau 

of Prisons for well over 30 years has used a risk assessment tool, 

and with this assessment tool, we look at criminogenic factors, 

which being a gang member would fall within static, which is a factor where you cannot change it. And we have dynamic factors that 

we also weigh in because gang Membership, misconduct, criminal 

history, these are good predictors of institution misconduct as well 

as recidivism. 

So by targeting and looking at these individuals’ history, and 

particularly those who have gang affiliation, we are doing everything that we can to get these individuals involved in evidencebased programs to ensure that we are trying to at least explore 

with them alternatives with their criminal thinking to put them on 

the right path to move away from any belief that they need to belong to a gang, especially within the correctional environment, because it is our responsibility to protect these individuals, and they 

should not believe for a moment that they should join a gang for 

any type of safety. And that is why command and control within 

the prison system is very important to defuse those types of issues. 

Senator WHITEHOUSE. Senator Durbin. 

Senator GRASSLEY. Mr. Chairman, I have to go down to Finance, 

and I will come back for the second round. 

Senator WHITEHOUSE. Very well. 

Senator GRASSLEY. Thank you. 

Senator DURBIN. Thank you, Mr. Chairman. Before he leaves, I 

want to thank Senator Grassley for his shared interest in the 

Thompson Federal Prison. We both realize that this is going to create good-paying jobs for people living in his home State of Iowa and 

my home State of Illinois, and, as you said, is going to lessen the 

overcrowding and provide critical beds that are necessary for the 

protection of the men and women of your Bureau who work so 

hard. And I thank Senator Grassley for those questions. I thought 

that he took away some of my thunder here on that Thompson 

Prison. 
13 

Director Samuels, it has been a little over a year, maybe a year 

and a few months, since we had a hearing that you attended in 

this room relative to solitary confinement segregation and the impact it has on people serving time in prison. We had many witnesses before us, including a man who had spent more than 10 

years on death row in isolation in Texas. He came to testify before 

us. I will never forget his testimony as long as I live. It was heartbreaking, and it reflected the fact that many of the people in segregation in an isolation situation 23 hours a day in a cell, 1 hour 

by themselves outside, ultimately many of them will come out of 

that prison, and the question is: What is left of them after they 

have gone through that life experience? 

We had testimony at that hearing from the Director of Corrections from the State of Mississippi, and he talked about an assessment Mississippi had done after suicides in these circumstances in 

which they concluded they were wasting money with more and 

more isolation and segregation. And Mississippi, the Director of 

Corrections there, really was a leader in saying we are going to 

change this. We can save money, we can keep everyone safe in a 

prison, and we can avoid these terrible outcomes, the mental degradation of people who are faced with isolation and segregation. 

I asked you at the time whether you believe that putting people 

in segregation or separate facilities had any ultimate impact on 

their mental health, and you demurred, as we say in law school, 

from answering. I would have said yes, clearly yes, but you demurred. But to your credit, you said, ‘‘I will look at this situation 

for the Federal Bureau of Prisons.’’ 

So now I would like to ask you two things. What have you done 

in over a year? And, number two, what can we look forward to? Is 

there a way for us to save money, not degrade the mental condition 

of those who are put in isolation, and still protect the men and 

women who serve in the Bureau of Prisons? 

Mr. SAMUELS. Thank you, Senator Durbin, and I do want to commend you on taking the lead on this very, very important issue. 

When I attended the hearing in June 2012, it was a very significant issue for the Bureau, and I would also say for this Nation, because I have had many conversations with my peers in the field of 

corrections, directors and secretaries, relative to this issue. 

Since the hearing at the time, there were well over 13,500 individuals in some form of restrictive housing within the Bureau of 

Prisons, and I can report today that the number is now approximately 9,300-plus. So we have had a significant reduction in that 

area. And what we have done throughout this agency is put a focus 

on the issues relative to restrictive housing. I have had many conversations with the senior leaders within this agency, specifically 

the wardens who are responsible for the day-to-day operations of 

our prisons, and stressed the fact that we have to be just as aggressive getting individuals out when we put them in restrictive housing, and realizing that we only use it when absolutely necessary, 

which for the men and women, to include the inmates in our institutions, we always must keep the focus on safety and security. 

We have some very dangerous inmates in our system, as I know 

you are aware, and we have to ensure that we are protecting everyone in the correctional environment. But at the same time, we have 
14 

a duty and an obligation, as you have mentioned, to ensure that 

when we are placing individuals in restrictive housing, that we are 

maintaining the highest level of quality care relative to their physical as well as mental health. 

Senator DURBIN. I am sorry to interrupt you, but I only have a 

few seconds left, and I would like to ask a question, a pointed question on a different topic. We spend somewhere between $1.5 million 

a year to $2 million for each and every inmate being held at Guantanamo, $1.5 million plus a year. What is the maximum amount 

per inmate cost at, say, Florence, Colorado, our highest-security 

Federal prison? 

Mr. SAMUELS. Per inmate? 

Senator DURBIN. Per inmate, annual cost. 

Mr. SAMUELS. For the complex, it would be equal to approximately $75 per day, and it varies from facility, but if we look at 

it specifically for the—— 

Senator DURBIN. And that is the highest-level maximum security 

prison in the Bureau of Prisons system? 

Mr. SAMUELS. Yes, sir. 

Senator DURBIN. Has anyone ever escaped from there? 

Mr. SAMUELS. No, sir. 

Senator DURBIN. Thank you very much, Director. 

Senator WHITEHOUSE. Senator Sessions. 

Senator SESSIONS. What is the average cost per inmate in the 

Federal penitentiary? 

Mr. SAMUELS. The average annual cost, $29,000 a year. 

Senator SESSIONS. Alabama would be less than half of that, 

which is a low-cost State, but a lot of other States are much less. 

And I think we invest a lot of money because the Federal Government wants to have the highest and best prison system and benefit 

the prisoners the most we can. But I do think we have to look at 

that cost figure. Other States are just not costing that much. 

With regard to the 25 percent that are foreign born that are in 

prison, those do not include the people being detained in immigration institutions for deportation. These are individuals who have 

been tried by a Federal judge for some sort of crime like drugs or 

assaults of that kind. Is that correct? 

Mr. SAMUELS. Yes, sir. We have more than 100,000 individuals 

in our custody who have been sentenced for drugs, which 77,000 

are U.S. citizens and 23,000 criminal aliens. 

Senator SESSIONS. I noticed in your numbers I have here that the 

prison population went up about 2,000 between 2012 and 2013. At 

least that was the projected increase. That would be about a 1-percent increase, which is below the population increase. So at this 

point, we are not seeing a surge of prisoners above the normal population increase in the country, are we? 

Mr. SAMUELS. Senator Sessions, I am glad that you raised this 

point. For Fiscal Year 2013, we had a net gain of 611 inmates, and 

although the number appears to be small compared to recent years 

where we have been averaging 6,000-plus inmates, you have to realize that at the same time we processed within the Bureau of Prisons well over 70,000 inmates, which these are individuals who 

have to go through screening for physical and mental health and 

everything else that it takes to manage that large-scale number of 
15 

inmates going into our system. And when you look at the overall 

trend, even for a 10-year period, we have had a 40-percent increase. So the 611 continues to demonstrate that we are having 

more and more inmates, and we are not planning at this point to 

build any new prisons. So 600—— 

Senator SESSIONS. When you say more and more, it is a net 600 

increase, though, right? 

Mr. SAMUELS. The net is 611, and even with that number, you 

are still looking at a third of a prison. So we have to take those 

611, and we are put in a situation right now throughout this country where we are triple-bunking. 

Senator SESSIONS. I just would say to my colleagues I think there 

is a decline in Federal and State incarceration rates from the time 

1981 when I was made United States Attorney. In the early 1980s, 

this Congress, Senator Kennedy and Senators Thurmond, Leahy, 

Biden, Grassley, Hatch did the mandatory sentencing, eliminated 

parole, had the mandatory sentencing provisions, and it was a revolution in prison and in prosecution. I saw it before and after. 

States began to follow mandatory sentences. We have seen a decline in murder rates by one-half. People in the 1970s were constantly fearful of their homes being burglarized, being assaulted, 

their cars broken into, all kinds. And you just have seen this rather 

substantial improvement. 

So all I would say to our colleagues is there is no doubt in my 

mind that moving from a revolving door where people would come 

in and they would be given probation and then they would be released on bail for the second, third, and fourth offense and tried 

another year later, and given probation again, too often this was 

driving the crime rate. 

So we achieved a lot, and that is why I was willing to support 

and work with Senator Durbin to maybe reduce some of the mandatory sentences, because I think we can be smarter about it. I do 

not have any doubt we can be smarter about it. But it would be 

naive and a big error if we were to think we can just walk away 

from incarcerating dangerous people. You are worried for your 

guards. You are talking about gangs and your guards. A lot of the 

people are just dangerous, and we have just got to be real careful 

about that. 

And I think we need to watch the cost. The Federal prison system cannot be the greatest system, most expensive in the whole 

world—which it is. We just cannot—we have got to look for ways 

to reduce cost, and we have got to be cautious about adopting the 

belief that there has been some new recidivism program that is 

going to solve the recidivism rate. If we can reduce it even a little 

bit, I am willing to support a good program. But a lot of the programs just have never produced the results we would want them 

to have. The recidivism rate today is not a lot different than it was 

in 1980, I do not think. And so we are spending a lot more on it, 

trying to make it better, and we had a very successful achievement 

there. 

Finally, you and I have talked at Prison Industries. There is no 

doubt in my mind that people who work in prison prefer it. Prisoners who have work programs are safer, are they not, Mr. Samuels? 
16 

Mr. SAMUELS. Yes, sir. 

Senator SESSIONS. I think the data shows that clearly. And they 

probably have a little better recidivist rate. I do not know. 

Mr. SAMUELS. They do. 

Senator SESSIONS. But we have got to have a breakthrough. 

More people in prison need to be working. The American people understand this. There have been a lot of attempts, some of them not 

very smart, to help prisoners work. But I really believe all of us 

need to look for a way to have more productive work in prisons. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Sessions. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thanks for holding this hearing. I appreciated Senator Sessions’ 

comments about the smart sentencing, and as a former prosecutor, 

I know how we need to keep dangerous offenders behind bars. My 

State has one of the lowest incarceration rates in the country, but 

we also have one of the lowest crime rates. And part of that is 

triaging these cases and making sure there is some response to 

low-level offenses, escalating responses. But the length of it can be 

the matter of dispute, and I think that is part of what we are talking about here. 

I came through this, looking at our State, which sometimes people joke we are not just the Land of 10,000 Lakes. We are the Land 

of 10,000 Treatment Centers. But our focus on going after addiction 

and some of these things I think has made a difference in the handling of these cases, and in particular drug courts. Drug cases 

made up about a third of our caseload in the Hennepin County Attorney’s Office, which had a population in Hennepin County of over 

1 million people, Minneapolis, 45 suburbs, 400 employees. And we 

really focused a lot on drug courts. 

Now, I made some changes when I got in there. I think Senator 

Sessions would have liked some of them. I took some of the cases 

out that had guns with them, some of the more violent cases, because I did not think they belonged there. And I think it actually 

strengthened the drug court and the use of the drug courts. 

You know the stats, Director. Three out of every four people who 

graduate from these programs are not arrested again. Seventy-five 

percent success rate compared to 30 percent in the traditional system. Saving taxpayers dollars, an average of $6,000 per person. 

And I asked Attorney General Holder at our last DOJ oversight 

hearing about expanding the use of drug courts at the Federal 

level, and so that is what I wanted to start with, with you, how 

you see this could work and how we could more effectively lower 

costs, better rehabilitate offenders, and then also reduce our crime 

rates like we have seen in our State. 

Mr. SAMUELS. Thank you, Senator. I do agree with the drug 

treatment programs. They do work. We see a lot of benefit just 

from the behavior that we are quick to witness with the inmates 

who participate in the programs. Internally within the Bureau, we 

have the Residential Drug Abuse Program as well as the non-residential, and we also offer drug education in all of our institutions. 

As far as a policy issue relative to drug courts, I am not the expert for those types of discussions, and I definitely know that with-
17 

in the Department there are many individuals who are more appropriate to have those discussions on policy issues for the Department that could eventually benefit any reductions, you know, with 

our population on the front end as well as the back end. 

Senator KLOBUCHAR. But you do see it as a way, with now the 

advent of some Federal drugs courts, of reducing some of the numbers in the prison? 

Mr. SAMUELS. I believe the evidence shows that that is very possible. 

Senator KLOBUCHAR. Now, you mentioned the Residential Drug 

Abuse Program and how that has proven effective in reducing recidivism and decreasing institutional misconduct. How many inmates are enrolled in the program? What kind of return on investment do we get? 

Mr. SAMUELS. For inmates who participate in the Residential 

Drug Abuse Program, for every dollar we invest, there is a $2.60 

savings. And the total number of individuals we have participating 

in residential drug abuse program treatment right now is 16,000 

inmates. And we would like to see that number increase, which we, 

again, as I have stated, know that it is very productive. So our 

overall plan is to increase the number of programs we have so we 

can have the maximum number of inmates participating. 

Senator KLOBUCHAR. What is your view on awarding inmates 

good time credits for participating in the intensive recidivism reduction programs or increasing the number of opportunities for inmates to earn these credits through education or vocational programs? 

Mr. SAMUELS. The Department as well as the administration 

have continued to support these legislative proposals. I definitely 

concur and believe that they are important. When you look at the 

additional 7 days of good conduct time that can be added to an inmate’s credit for time off their sentence—because right now they 

are receiving 47 days—it is very beneficial to the safety and security of the facility, and it is not where an inmate would be rewarded something for not having good behavior, and it helps us. 

For the inmates, we believe we can ultimately get a large number of inmates to participate in evidence-based programs to receive 

up to 60 days off of their term by participating in more than 180 

days within a calendar year, the programs that you mentioned. We 

believe it is beneficial, and it definitely ultimately helps with public 

safety, because the majority of these inmates are going to be released, and being exposed to these cognitive behavioral therapy 

programs only enhances safety. 

Senator KLOBUCHAR. Just one last question. In your testimony 

you acknowledge the tragic deaths of two Federal Bureau of Prisons employees, Officer Eric Williams and Lieutenant Osvaldo 

Albarati, and I know all of us extend our sympathy to their families. What do you think can be done to improve safety for prison 

staff while on or off duty? 

Mr. SAMUELS. What we need to do to improve safety of our staff, 

it comes down to a resource issue. We are doing more with less, 

and the staff are very proud to take on the mission because this 

is why they have elected to serve this country by working in corrections. But when you are dealing with large numbers on any given 
18 

day throughout this country, we have one officer working in our 

housing units providing oversight for 150-plus inmates. We have 

recreation specialists who are doing their best to ensure that inmates are actively involved with recreational activities, and you 

can have in excess of 500 inmates being supervised by one person. 

So we are doing everything that we can to put the resources 

where they need to be, but you can only imagine if there is any 

type of disturbance within the institutions and you only have a 

small number of staff to respond, the staff are putting their lives 

on the line every single day. And this is why the programs are very 

important, and we believe it is, you know, up to us to do what we 

can with the limited resources in the capacity that we have to 

maximize the situation, to put us in the best possible situation to 

effectively manage our prisons. 

Senator KLOBUCHAR. Thank you very much. 

Senator WHITEHOUSE. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman, and thank you, Mr. 

Samuels, for joining us today. 

As I have expressed many times on previous occasions, in my 

view the Federal Government has been for decades enacting and 

subsequently enforcing far too much substantive criminal law. As 

a result of that, our Federal prison system is overcrowded, and it 

is extremely costly. 

As we have heard today, the Bureau of Prisons consumes a very 

significant share of the overall budget of the U.S. Department of 

Justice, using resources that might otherwise be used more effectively in other areas to enhance public safety in the United States. 

Although long mandatory minimum sentences for drug offenses 

do not tell the whole story of the increasing overcrowded Federal 

prison population, I think they do share a very significant part of 

the problem of overcrowding, and I think we have to look very 

closely at our current scheme of mandatory minimum sentences as 

a result. And I think we have to do that to see whether incremental changes can safely and effectively be made to these sentences to reduce the Federal prison population and to reduce costs 

while at the same time preserving, if not enhancing, public safety 

in America. 

The legislation that I have cosponsored with Senator Durbin, the 

Smarter Sentencing Act, S. 1410, would decrease mandatory minimum sentences for certain categories of drug offenders. So my first 

question for you, Mr. Samuels, is whether this type of legislation, 

should it succeed, as it is widely expected to do if it were passed, 

in helping to decrease the Federal prison population over the next 

few years, over the decade or so following its enactment, what 

would that do for you? What would that do for the Bureau of Prisons as far as making it easier for you to do your job if we succeeded 

in reducing the overcrowding problem? 

Mr. SAMUELS. Thank you, Senator Lee, and I would start by saying that I agree that reform needs to take place. The specifics of 

the various bills that are being considered is something that, again, 

needs to be considered by the appropriate individuals within the 

Department relative to policy issues. 

To your question, what would it do to help the Bureau of Prisons, 

any reduction within our population that ensures that there is no 
19 

threat to public safety obviously helps us effectively run our institutions. And we are not dealing with the competitive issues within 

the people when you are trying to do as much as you can to stretch 

resources within the environment, because the increase within the 

population, which research shows that when you continue to add 

more and more inmates, the propensity for violence increases, and 

this puts our staff and the inmates, to include the surrounding 

communities where our institutions are located, at risk. 

Senator LEE. Two of your biggest concerns I would have to imagine would be, one, prison safety, safety within the prison, safety of 

the prisoners themselves and of your personnel; and also the effectiveness of your programs to minimize recidivism. I would imagine 

that reducing the overcrowding problem would then have a positive 

effect on your ability to manage both of those concerns. 

Mr. SAMUELS. Yes, sir. 

Senator LEE. Good. What programs do you have in place currently to ensure that those released from prison, including those 

who might be released earlier than they would otherwise be as a 

result of changes like these, what programs do you have in place 

to make sure that they do not present a threat to public safety once 

they are released? 

Mr. SAMUELS. As I mentioned earlier, we have numerous cognitive behavioral therapy programs that we have modeled after 

RDAP because of the research showing that these types of programs are very effective. And we are constantly encouraging inmates to participate in these programs, and we are very successful 

on many occasions in doing so. But I would share with the Subcommittee here to date that we really need to have some type of 

incentive to get more of these inmates involved in the programs, 

and this is why I continue to support, and I believe that the sentencing credits that could be provided, similar to what we have 

with RDAP—I mean, many of the individuals know that when they 

participate in RDAP they can get up to a year off their sentence. 

But at the same time, they are being exposed to the program and 

they receive the benefit, which ultimately helps them with their 

transition from prison back into the community. And if we can 

have an incentive to entice the other inmates within the population 

who do not have a substance use disorder, then it increases the 

number of inmates who can be exposed, which over a period of 

time, when the majority of these individuals are going to be released, this will help public safety. 

Senator LEE. Okay. So—— 

Senator WHITEHOUSE. Senator Hirono. 

Senator LEE. Thank you. 

Senator HIRONO. Thank you, Mr. Chairman. 

You mentioned that the average cost to incarcerate a person in 

our system is about $29,000 or almost $30,000. Is there a difference 

in average cost in a women’s prison facility? 

Mr. SAMUELS. For the female facilities, it depends on the number, the mission, but typically the average is going to be the same. 

Senator HIRONO. Typically? 

Mr. SAMUELS. Yes. 
20 

Senator HIRONO. Do the women in these facilities have the same 

access to the kinds of programs that are available to men in the 

male facilities? 

Mr. SAMUELS. Yes. 

Senator HIRONO. There is a growing number of women in our 

prison population, so you cited some data in your testimony. Does 

your data reflect differences in recidivism for men and women? 

And, also, do you have evidence-based programs that work better 

for men versus women in terms of success and reintegrating into 

society? I think you talked about one program that is specifically 

for women, Resolve, but—— 

Mr. SAMUELS. The Resolve program. 

Senator HIRONO. But can you share with me if you do that kind 

of data collection that distinguishes men and women and how they 

are treated and what is successful? 

Mr. SAMUELS. For the programs that we operate, I mean, we are 

following typically one model throughout the Bureau. Now, we 

have not collected any specific data to distinguish between female 

inmates versus male inmates to identify whether one particular 

program does not work better based on male or female. 

Senator HIRONO. Why is that? 

Mr. SAMUELS. Why is that? 

Senator HIRONO. Yes. Why do you not have that kind of data? 

Do you think that there are no differences? Or you just have not 

done it? 

Mr. SAMUELS. I would say for this discussion that there are no 

differences. But we do not have specific programs specifically targeted for the female inmate population, which this would be consistent with all of corrections, not just within the Federal system. 

But I would definitely take your question back to have discussions 

internally with the Bureau to include with my colleagues if there 

is something that is being done or if you are aware of something 

specifically for the female inmate population relative to the CBT 

programs that we provide. 

Senator HIRONO. Well, my understanding is that as a general 

proposition, women are in prison for drug crimes and not violent 

crimes. So that is a very different profile than dangerous felons in 

our prison system. So I would ask that you take into consideration 

those kinds of factors as well as—I think that there may be some 

programs that will better enable women to reintegrate when they 

are released than would work for men. And I believe that there are 

some States who recognize those kinds of factors and plan their 

programs in a way that reflects that kind of understanding. I think 

it is very important because, as more and more women, who tend 

to still be the caregivers for their families, are incarcerated, that 

has a lot of ramifications to their families, their children, reentry, 

all of that. 

Mr. SAMUELS. And, Senator, I have recently put together a warden’s advisory group specifically for the female inmate population 

to look at what we have done historically and to focus on the types 

of concerns that you are raising to make sure that if there are any 

best practices or things that we should consider, that we are moving in a direction to ensure that there is a balance on both sides 
21 

so the female inmates within our care are receiving appropriate attention and care relative to the issues that you have raised. 

Senator HIRONO. Because my impression is generally that there 

have been fewer programs for women in our prison system, both in 

the State level and Federal level, and I understand that your responsibility is on the Federal side. 

Thank you very much. 

Senator WHITEHOUSE. Thank you, Senator Hirono. 

Thank you very much, Director Samuels. We appreciate you 

being here today, and we appreciate the support for our joint legislative-executive efforts going forward that the Bureau of Prisons is 

going to continue to show. We will obviously continue to call on you 

for information and on your staff for expertise, and we look forward 

to that relationship as we proceed. 

You are excused from the Committee. We thank you for your testimony, and I will call up the second panel. 

Senator WHITEHOUSE. I welcome our panel. 

Professor DeLisi is from Iowa. The Ranking Member represents 

Iowa, and the Ranking Member has asked that Professor DeLisi 

testify first so that he has a chance to hear his constituent’s testimony before he has to return to his work within the Finance Committee. So, without objection, we will go out of the usual order and 

begin with Professor DeLisi. But let me first ask all the witnesses 

to please stand and be sworn. Do you affirm that the testimony you 

are about to give before the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Professor DELISI. I do. 

Mr. WETZEL. I do. 

Mr. TILLEY. I do. 

Ms. LA VIGNE. I do. 

Mr. SEDGWICK. I do. 

Senator WHITEHOUSE. Thank you, and please be seated. 

Professor DeLisi is a professor and coordinator of criminal justice 

studies with the Center for the Study of Violence at Iowa State 

University. He is the editor-in-chief of the Journal of Criminal Justice and the author of nearly 250 scholarly articles. He has received 

the Fellow Award from the Academy of Criminal Justice Sciences 

and is a member of the American Association for the Advancement 

of Science and the Association for Psychological Science. And would 

you like to make any further recognition of Professor DeLisi or welcome? 

Senator GRASSLEY. I guess you have said it all, but I do say welcome to you. Thank you very much. 

Senator WHITEHOUSE. Very well. Professor DeLisi, please proceed, and then we will go to Director Wetzel and down the line. 

STATEMENT OF MATT DeLISI, PH.D., PROFESSOR AND 

COORDINATOR, CRIMINAL JUSTICE STUDIES, IOWA STATE 

UNIVERSITY, AMES, IOWA 

Professor DELISI. Thank you very much for this opportunity. 

Although reducing the costs of BOP is important, the policy recommendations significantly neglect the antisociality of criminal offenders and the likely recidivism that would result from a largescale release of BOP inmates. The majority of this testimony at-
22 

tests to the antisociality and behavioral risks denoted by the modal 

Federal prisoner, with quantitative estimates of additional crimes 

that could result from the policy recommendations. 

The report promulgates the notion that drug offenders are somewhat innocuous and that their antisocial behavior is limited to 

drug sales and drug use. In fact, criminal offenders, all criminal offenders, tend to be very versatile in their offending behaviors. 

Thus, a person sentenced for drug crimes is also likely to have 

property crimes, violent crimes, public order crimes, nuisance 

crimes, traffic violations, and assorted violations of the criminal 

justice system. Thus, any discussion of drug offenders should also 

be understood that they are next week very likely to be property 

offenders and potentially violent offenders. 

Moreover, recent research using a variety of samples has indicated that drug use is one of the prime drivers of overall criminal 

activity. Meta-analytic research indicates that drug offenders offend at rates approximately 3 to 4 times that of offenders who do 

not have drug problems. And overall their behavioral repertoires 

extend far beyond drug offending. 

Regarding the safety valves for judicial discretion, current law 

permits judges to waive mandatory minimum sentencing for a person sentenced for drug offenses with little to no criminal history. 

Thus, the extant policy is adequate to avoid unnecessary confinement of low-risk offenders. The suggestion to apply the safety valve 

to all offenders—including those with extensive criminal histories— 

is not advised. The entire criminal career paradigm demonstrates 

tremendous continuity in antisocial behavior from childhood to adolescence to adulthood. 

As the Director indicated in panel one, 25 percent of BOP inmates are gang Members, and gang Membership is one of the most 

robust predictors of offending, misconduct while in confinement, 

and recidivism. 

In this way, prison is an important interruption of their criminal 

careers, but, unfortunately, the preponderance of offenders will 

continue to commit offenses upon release. 

Releasing these types of offenders could likely produce more 

crime. Research has shown that a one-prisoner reduction in the 

prison population is associated with a 15 Part I Index crime increase per year. To put this into perspective, releasing 1 percent of 

the current BOP population would result in approximately 32,850 

additional crimes. An independent study by other researchers arrived at the estimate that a one-prisoner reduction increases crime 

by 17 offenses per year. Thus, to use the same example, releasing 

1 percent of the current BOP population would result in 37,230 additional offenses. 

The Safety Valve 1 recommendation in the Urban Institute proposal to release 2,000 offenders based on these prior estimate 

would produce a range of 30,000 to 34,000 new index crimes per 

year. 

In terms of Safety Valve Recommendation 2, the proposal recommends the creation to apply, quoting the report, ‘‘beyond drug 

offenders with minimal criminal histories to drug offenders with 

more extensive criminal histories, some weapons offenders, armed 

career criminals, sex abuse offenders, child pornography offenders, 
23 

and identity theft offenders.’’ The release of these offenders with 

extensive criminal histories could be potentially disastrous to public safety. 

Regarding the expanded Incentivize Programming estimates, 

using, again, the same data, the proposal to potentially release 

36,000 inmates over the next 10 years would produce an estimated 

540,000 to 612,000 new Index crimes. 

The Recommendation 2, to release 12,000 offenders in 1 year, 

would produce 180,000 to 204,000 new Index crimes. 

And proposal number 3 to transfer 34,000 inmates to home confinement could potentially over the next 10 years increase crime by 

510,000 to 578,000 offenses. 

To wrap things up, the report contains no mention of the various 

antisocial conditions relating to criminal propensity of Federal offenders. For instance, the prevalence of psychopathy in correctional 

populations is about 25 fold higher than its prevalence in the general population. Psychopathy is one of the most pernicious and stable antisocial conditions and one of the most robust predictors of 

recidivism. Thus, any proposed BOP releases would include (depending on the size of the recommendation) the release of hundreds 

to thousands of clinically psychopathic offenders. 

Another important criminological construct is sexual sadism, the 

prevalence of which is much higher in correctional populations 

than in the general public. Even after decades of confinement, offenders who are sexually sadistic pose significant risks to the community as exemplified by current Federal death row inmate Alfonso Rodriguez, Jr., who was sentenced to death in 2003 after 

serving approximately a quarter century for prior predatory criminal convictions. 

It is also important to note that these antisocial conditions are 

not limited to homicide offenders and sex offenders, but are found 

in offenders convicted of other crimes, including drug-based offenses. 

Senator WHITEHOUSE. Professor DeLisi, we are trying to keep 

our testimony to 5 minutes per witness. If you could sum up. 

Professor DELISI. A final point, and I have some questions that 

are in the testimony if they are asked later—— 

Senator WHITEHOUSE. The testimony will be in the record. 

Professor DELISI. Chairman Leahy indicated that the BOP problem is one that Congress created, but I would also add that the corollary benefit of that legislation was the reduction of crime by the 

increased use of confinement. 

[The prepared statement of Professor DeLisi appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you very much, Professor. 

Let me now introduce John Wetzel. He is, I would call him, the 

Director of Corrections for the State of Pennsylvania, but the nomenclature is different in Pennsylvania. He is the Secretary of the 

Pennsylvania Department of Corrections. He oversees all administrative functions relating to the Pennsylvania Department of Corrections operations, budgeting, personnel, and training. He began 

his corrections career in 1989 as an officer at Pennsylvania’s Lebanon County Correctional Facility. He has served as a correctional 

officer, treatment counselor, supervisor of treatment services, train-
24 

ee academy director, and as warden of the Franklin County Jail. 

He is a member of the American Correctional Association and the 

American Jail Association and a past president of the Pennsylvania 

County Corrections Association, and for the record, had very nice 

things to say about A.T. Wall when we said hello at the beginning. 

Secretary Wetzel, please proceed. 

STATEMENT OF JOHN E. WETZEL, SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, HARRISBURG, 

PENNSYLVANIA 

Mr. WETZEL. Thank you very much, and thanks for this opportunity to talk about Pennsylvania and the experience we have had 

in addressing many of the same problems you all face in the Federal system. 

Specifically, when Governor Tom Corbett was elected, Governor 

Corbett was the Attorney General, and before that he was a Federal prosecutor. So he has a very unique perspective, and he has 

had really a firsthand view of the corrections system. And what he 

saw over the 24 years before we took over was an average growth 

in the Pennsylvania Department of Corrections of 1,500 inmates a 

month. So when we took over nearly 3 years ago, we had 51,000 

inmates, and that was a consistent growth over both Republican 

and Democratic administrations. And the one charge that he gave 

me when we took over the Department of Corrections was not to 

willy nilly reduce population, not to willy nilly reduce spending, although both of those things were a priority. The main priority was 

to improve outcomes and really improve our corrections system and 

take the perspective that we need to get a better return on our investment for what we are spending in corrections. 

How did we do that? The first thing we did is we applied for and 

received a grant to go through the justice reinvestment process, 

and we partnered with the Council of State Governments and went 

through a process that quite specifically was data driven. And Governor Corbett is a hard sell and takes a perspective of many of the 

folks on the panel in that we are very concerned, the bottom line 

for us is always going to be crime rate and public safety. And so 

the process had to be data driven. 

So we gathered data through this process, and the most important part of this process is that it was a process that was 

participatory and had all Members and all stakeholders as part of 

the group that looked at the policy options. 

So we gathered the data. We looked at what the population drivers were, and then we identified policy options looking nationally 

and internationally at policy options that seemed to work for other 

jurisdictions. Then we built consensus, and this is the key part of 

this process where we had, you know, the ACLU and the conservative think tank sitting there having a discussion and coming to 

agreements on how we can get better outcomes. And some of the 

focus really needs to be on what the root cause of the crime is. 

So it is very easy in this field to paint with broad brushes and 

say, well, we do not want to open the back door and let a bunch 

of people run out because that is going to have a negative effect 

on public safety. We all agree with that. 
25 

But what we also all agree with is what we want out of our 

criminal justice system is that when someone becomes criminally 

involved, when they come out the back end of our system, what we 

want them to be is less likely to become criminally involved again. 

We can all agree with that. And the reality is there is enough research out there that tells us that when we make good decisions 

from the front end of the system as far as who needs to be incarcerated, who we can deal with in other manners, and more specifically 

what the root causes of the crime is. So violent offenders, murderers, rapists are different, and we cannot paint with the same 

brush as someone who the root cause of their crime is addiction. 

So it does not matter how long we lock an addict up. If we do 

not address the addiction, they are going to come out and they are 

not going to be less likely to commit another crime. So we took that 

approach. We got consensus on policy options that were legislative, 

and in 6 months from the first meeting until the legislation was 

passed, that passed unanimously in both the House and the Senate, which was pretty miraculous itself in Pennsylvania, we came 

up with policy options. And what those policy options resulted in 

is that under our 21⁄2 years we have averaged a decline of 70 inmates a year out of 51,000. Not a huge decline, but when you look 

at consistent 1,500 inmate growth a year, we have eliminated that. 

We have been able to close a couple prisons, and we have been able 

to, more importantly, get more people into programming. And that 

has really been the key. 

So our policy options start at the front end, identify groups 

who—a small group of offenders who were not appropriate to ever 

come to a State prison. Then we looked at funding risk-based sentencing, so the Sentencing Commission in Pennsylvania is building 

a sentencing tool so the judge has risk information, not just a presentence investigation but risk. What is the risk of future offense 

for this offender? And that factored into the sentencing. 

Then we looked with the Department of Corrections at areas we 

just were not doing good. So waiting lists for programs, how can 

we better deliver programs? And part of that was making sure we 

are only putting people in programs who need the programs, so 

making sure we are assessing. 

Then the back end of our system we put a lot of focus on. Our community corrections system, we spent $110 million. When we 

measured it by recidivism, we saw that 95 percent of those programs were not effective. So we restructured those programs. We 

looked at who we put in it. And, more importantly, we decided to 

put a performance measure on the contracts. So the contractors are 

paid based on their ability to impact recidivism. This process was 

a good process, and at the same time, our crime rate went down. 

We have less people coming in, more people getting out, and the 

crime rate in Pennsylvania continues to go down. 

Thank you. 

[The prepared statement of Mr. Wetzel appears as a submission 

for the record.] 

Senator WHITEHOUSE. That is a terrific story, Secretary. Thank 

you very much. 

Our next witness is Representative John Tilley, who represents 

the 8th District of Kentucky in the Kentucky General Assembly. 
26 

He has served in the Kentucky General Assembly since January 

2007, and he is the Chair of the House Judiciary Committee, where 

he has been the Chair since 2009. In that role, he worked with 

other State leaders to form a bipartisan, multi-branch task force 

with the goal of enhancing public safety, controlling corrections 

costs, and decreasing recidivism. Representative Tilley is currently 

the vice chair of the National Conference of State Legislatures’ 

Committee on Justice and the Judiciary. Representative Tilley was 

a prosecutor prior to joining the legislature, serving for nearly 6 

years as Christian County’s assistant county attorney, and we are 

delighted that he is here today. 

Thank you, Chairman. Please proceed. 

STATEMENT OF HON. JOHN TILLEY, CHAIR, HOUSE JUDICIARY 

COMMITTEE, KENTUCKY HOUSE OF REPRESENTATIVES, 

HOPKINSVILLE, KENTUCKY 

Mr. TILLEY. Thank you, Mr. Chairman. Thank you, Members, as 

well. We do have a similar story to Pennsylvania’s with a couple 

of curves on that. I can say with great confidence as well as a 

former prosecutor, Members, that we can have it all in one sense. 

We can have better public safety at less cost with less crime and 

less recidivism, as you heard from the secretary as well. And we 

can be smart on crime or remaining tough on criminals, which is 

a concern of this Committee. And we have done that in Kentucky, 

and that has been an honor to tell you about it, but I will tell you 

it was no honor when the Pew Charitable Trust in their Public 

Safety Performance Project made us the poster child for prison 

growth in about 2008. They released a report called ‘‘One in 100,’’ 

which stood for the proposition that 1 in 100 adults in this country 

were behind bars. In Kentucky, that rate was 1 in 92. 

Just as an aside, there were 1 in 31 adults under some form of 

correctional control. That is astoundingly high. I think it should be 

to all of us. 

In Kentucky, for the decade ending in 2010, our prison growth 

rate was almost quadruple the national average. We were at 45 

percent, and the rest of the country was hovering around 13 percent, which is also to me an unsustainable figure. 

And so to put that even in greater context, let me tell you that 

we comprise about 4.5 percent to 5 percent of the world’s population, but we house about 25 percent of the world’s prisoners. So 

Kentucky was truly the epicenter for prison growth in this country. 

So all that begs the question. Did all that translate, all that 

record spending and record incarceration translate into better public safety? Did it translate to less crime, less recidivism, things that 

we measure our performance on? And we can tell you in Kentucky 

that it did not, as many States found as well. All that spending, 

well over a 200-percent increase in the previous 20 years amounted 

to very little. Recidivism remained well above the national average. 

Our crime rate had always been relatively flat. As you have heard, 

the crime rate has been dropping for some time, but we only enjoyed about a third of that national crime rate drop. We were about 

6 percent over the previous decade of our study. The rest of the 

country was about 19 percent. 
27 

And so we have remained flat as well, and I will tell you that 

our sister State to the south of us, Tennessee, we share the most 

border, their crime rate, again, we were one of the safer States in 

the country in the top ten, and they now remain one of the more 

high crime States, maybe number one, and their prison growth is 

exploding, is my understanding. 

In response, we formed a multi-branch, bipartisan task force, a 

very small task force with seven Members. I was proud to co-chair 

that. We received support from the business community, from the 

retail federations. The Kentucky Chamber of Commerce has taken 

a national leadership role in this. We received support from all 

manner of stakeholders in this effort. And what we found was this 

on that task force: that our prison growth rate was being driven 

not by crime; it was being driven by the number of arrests and 

court cases, by drug offenses, by rising incarceration rates for technical parole violators, and low-level offenders were again driving 

this population. In Kentucky, they were far more likely to go to 

prison than any other State. We found that to be a 57 percent to 

41 percent number there. They were far more likely to go to prison 

at that rate. 

The results, some recommendations, some very comprehensive 

reform called House Bill 463. I remind you again, in a very bipartisan way, Mr. Chairman. It passed 96–1 in the House and 38–0 

in the Senate. The goals, again, better public safety, less cost, less 

recidivism, getting smarter on crime. How did we do that? I do not 

have a lot of time to tell you about, about a minute and 42 seconds 

I see before me. Generally, let me tell you—and I know I want to 

stick to my time. Focus our most expensive prison beds on the most 

serious offenders. Fine alternatives for our low-risk, non-violent 

drug offenders, which we have done. And use those things, use 

those savings to expand treatment opportunities and supervision 

opportunities for a number of our low-level offenders who were, 

again, driving that population. 

More specifically, we have strengthened probation and parole 

and pre-trial. We have seen astounding results from pre-trial alone 

with not having to arrest and detain as many low-level 

misdemeanants. We are actually seeing less offenses committed 

while on release so that has increased our public safety rate. We 

are seeing them show up to court at a greater rate, even though 

they are not being housed in county jails. Counties are saving millions and are happy with us on that note. 

And I will tell you we have modernized our drug code, which has 

been a focus today, obviously, from a number of voices. We have 

had presumptive probation for simple possession. We have deferred 

prosecution which is a possibility, which must be prosecutor approved for low-level drug offenses. We distinguish between trafficking and peddling, an important distinction I think to make. We 

had not previously in Kentucky done that. 

Again, these are prosecutor-driven things, and I will tell you that 

not one felony has been reclassified to a misdemeanor in our negotiations in trying to come up with a commonsense way to approach 

this. 

Again, we reinvest these savings, which have been in the millions, to increase drug treatment. I will get to how much more we 
28 

have to that in just a minute. And I tell you, in my last few seconds, let me tell you we have achieved, I think, remarkable results, 

and I will fast forward to those. We now have fewer prisoners at 

lower cost. At one benchmark, just a few months ago, we were at 

3,500 less out of a total of roughly now we are around 20,000 hovering. We had been at 22. We were supposed to be at 24. And just 

as the secretary said, we are now well below that average and 

about 3,500 fewer. We have less recidivism. For the first time in 

a decade, we are well below the national average. We have dropped 

5 percentage points. And we have a 500-percent increase in drug 

abuse capacity, drug treatment capacity available to DOC. 

Chairman, Members of the Committee, I look forward to your 

questions, and we know we have a lot of hard work in front of us, 

but we have had tremendous results in Kentucky, and we invite 

you to learn more. 

[The prepared statement of Mr. Tilley appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you very much, Chairman Tilley. I 

appreciate your being here, and it is a remarkable success story. 

Our next witness is Nancy G. La Vigne. She is the director of the 

Justice Policy Center at the Urban Institute where she oversees a 

portfolio of research projects relating to crime, justice, and public 

safety. Prior to joining the Urban Institute, Dr. La Vigne was the 

founding director of the Crime Mapping Research Center at the 

National Institute of Justice in the U.S. Department of Justice. She 

has written on a variety of subjects, including criminal justice evaluation, prisoner reentry, crime prevention, and the spatial analysis 

of crime and criminal behavior. 

Doctor, welcome. 

STATEMENT OF NANCY G. La VIGNE, PH.D., DIRECTOR, 

JUSTICE POLICY CENTER, THE URBAN INSTITUTE, 

WASHINGTON, DC 

Ms. La Vigne. Thank you, Mr. Chairman. It is a pleasure to be 

here. I represent the Urban Institute. We are a nonprofit, nonpartisan research organization. We do not engage in advocacy. 

Rather, our mission is to bring facts and data and evaluative research to bear on pressing topics like the one we are here to discuss today. It is in that spirit that about a year ago we set out to 

chronicle the drivers of the Federal prison population and its 

growth over time and to project the impact of various policies that 

were on the table to reverse that growth—much in the way that 

we heard in the models of the States in Pennsylvania and Kentucky, a similar just reinvestment model of identifying drivers of 

growth. 

We also looked at the degree of overcrowding. Members of this 

Committee have already documented that. The overcrowding is tremendous. It is at great risk to the safety of both staff and inmates. 

But, importantly, from where we sit in the research we have done 

looking at the impact of programs designed to prevent recidivism, 

the crowding in the Federal system creates tremendous challenges 

for delivering programs and treatment that is so necessary to support the successful reintegration of Federal offenders when they 

exit prison. 
29 

And what we know from our own research and research that we 

have conducted through the development of the What Works in Reentry Clearinghouse, which is a systematic review of only the most 

rigorous research out there on various types of prisoner reentry 

programs, and what we have learned is that there are programs 

that work. There are many programs that work across a whole host 

of types of reentry interventions, from substance abuse treatment 

to employment, education programs, vocational programs, mental 

health treatment, programs to support family visitation. In each 

one of those categories, we have identified one if not several of 

impactful programs that rigorous research says works. 

Indeed, even within the Federal Bureau of Prisons, the RDAP 

program has been rigorously researched and found to be effective 

as has Prison Industries. So there is a lot of opportunities to provide programming and help support public safety, but those are 

limited by the crowded prison environment in the Federal system 

as well as limited resources with which to dedicate to offer such 

programs. 

There are many solutions on the table. Those solutions were not 

developed by the Urban Institute. They were developed by various 

congressional staffers in partnership with the Members, and include legislative proposals that are sponsored by Members of this 

Committee. What we set out to do was to analyze how these different proposals would yield impact on both the prison population 

and on cost. 

When we looked at those projections, we were very conservative 

in our estimates. We were conservative in two ways: 

One, we were fiscally conservative. We chose to use the marginal 

cost of prison rather than the average cost. I can explain more 

about the importance of that later. But we thought it was best to 

be conservative, so some of our estimates are actually lower than 

others who were trying to project the impact of these various policies. 

Similarly, and importantly, our estimates were conservative with 

regard to how we perceived them being enacted on the ground, and 

we firmly believe that judges and the BOP will exercise extreme 

caution in discerning who should benefit from these programs. And 

as you know, most of these policies look at risk levels, something 

that was critical in the work that States have done. Risk assessments are very important in determining who really needs to be in 

prison and who could be subject to early release policies. But for 

that reason, also our estimates may be lower in terms of potential 

cost savings than you might hear from other people. 

At any rate, you know from our report that we assess a whole 

host of different types of policy changes. We know that reducing 

mandatory minimums and giving judges discretion to deviate from 

mandatory minimums could save literally billions of dollars. We 

know that earned time credits for program participation can not 

only relieve crowding in the short run, but it also provides incentives for inmates to take part in programs that are in the interest 

of public safety. 

We have heard examples from the States and not just those represented here, but we know of others—Texas, North Carolina, New 

York—that have engaged in sweeping reforms and have averted 
30 

growth or even reduced their populations without any detrimental 

impact to their crime rates. 

So I think this is a moment of tremendous opportunity, and I 

thank you for your leadership on it. 

[The prepared statement of Ms. La Vigne appears as a submission for the record.] 

Senator WHITEHOUSE. Well, we certainly hope it is the moment 

of tremendous opportunity, and I want to thank you and the Urban 

Institute for the effort and the professionalism that they brought 

into that report. 

And we will conclude now with Dr. Jeffrey Sedgwick, managing 

partner and co-founder of Keswick Advisors in Richmond, Virginia. 

He previously served as Assistant Attorney General for the Office 

of Justice Programs in the U.S. Department of Justice, where he 

oversaw activities relating to initiatives such as Project Safe Neighborhoods, Project Safe Childhood, and the Prisoner Reentry Initiative. Prior to his Justice Department service, Dr. Sedgwick taught 

for 30 years at the University of Massachusetts, Amherst, and he 

is welcome here today. 

Please proceed, Professor. 

STATEMENT OF JEFFREY SEDGWICK, PH.D., MANAGING PARTNER AND CO-FOUNDER, KESWICK ADVISORS, RICHMOND, 

VIRGINIA 

Mr. SEDGWICK. Thank you, Chairman Whitehouse. 

In its draft report, ‘‘Stemming the Tide: Strategies to Reduce the 

Growth and Cut the Cost of the Federal Prison System,’’ the Urban 

Institute observes that, ‘‘The Federal prison population has escalated from under 25,000 inmates in 1980 to over 219,000 today.’’ 

And it observes that, ‘‘This growth has come at great expense to 

taxpayers and other important fiscal priorities.’’ I could not agree 

more with this report on the problems of fiscal austerity confronting public safety budgets; however, I believe we need to be 

very careful not to oversimplify the tradeoffs in public safety that 

we need to consider in order to make good decisions and, as a result, may offer cost shifting instead of true cost savings. 

A more comprehensive view of the problem we face would cast 

the issue somewhat differently: we need to reduce not the costs of 

incarceration (or, indeed, the criminal justice system) but, rather, 

the total social costs of crime including not only expenditures on 

public safety, but also the costs of victimization, tangible and intangible, to the public. As we seek to do this, the allocation of funds 

among components of the criminal justice system should be guided 

by their demonstrated effectiveness in reducing crime not their absolute or relative size compared to other components of the criminal justice system. 

It is all too tempting in the current environment to look to the 

correctional system, both State and Federal, as sort of a piggy bank 

or a source of savings in a period of austerity. For example, early 

last year, CBS aired a segment on its weekly news program ‘‘Sunday Morning,’’ entitled, ‘‘The Cost of a Nation of Incarceration.’’ 

The unmistakable implication of the program was that the United 

States incarcerates too many at too high a cost. But just how large 

and costly is the prison population? According to the U.S. Bureau 
31 

of Justice Statistics, 1,598,780 adults were incarcerated in U.S. 

Federal and State prisons and county jails at year-end 2011—a 0.9- 

percent decrease over 2010 and the second consecutive annual decrease. Indeed, the imprisonment rate has declined consistently 

since 2007 when there were 506 persons imprisoned per 100,000 

U.S. residents. The rate in 2011 was comparable to the rate last 

observed in 2005, which was 492 persons per 100,000 population. 

Given that population, in a recent Vera Institute calculated aver- age per inmate cost of incarceration at $31,286, we could estimate 

the total cost of incarceration nationwide in 2011 as $50.2 billion— 

surely a large sum. But is it either disproportionate in relative 

terms or too large in absolute terms? 

In order to understand that, we would have to bring into the cal- culation: What did we get in return for that $50.2 billion? Well, as 

some have testified previously and noted, and some of the Members 

of the Committee have noted, according to the FBI Uniform Crime 

Report, between 1960 and 1992, the number of violent crimes in 

the United States increased nearly sevenfold, from approximately 

288,000 to more than 1.9 million, and the violent crime rate increased nearly fivefold from 160.9 to 757.7 per 100,000 population. 

But then rather abruptly the crime rate began to decrease, and it 

decreased for nearly a decade and then plateaued until 2 years ago, 

when it started to tick up. 

Scholars who have looked at this decline and tried to give a reason for it or determine a reason for it—and I would cite Franklin 

Zimring as the best source on this—has noted that incarceration 

and the increase in incarceration in the United States played a 

very large role in this particular decline. In other words, what we 

got for our $50.2 billion investment was a decrease in crime, but 

value is underestimated because it does not include psychic costs 

of about $180 billion per year. So I leave it to you to judge whether 

a $50 billion investment that gets you a $180 billion return is a 

good idea or not. 

Now, this is not meant to suggest that nothing can be done to 

deal with the current fiscal problems afflicting the criminal justice 

system broadly and the Federal prison system in particular but, 

rather, to counsel caution in dealing with sweeping claims of cheap, 

readily available, and highly effective alternatives to Federal incarceration. Rather, we need to do four things. 

First, we need to understand characteristics of the Federal prison 

system, and they are quite different from the State prison systems. 

Second, we need to critically evaluate the effectiveness of interventions meant to reduce recidivism. 

Third, we need to make use of the voluminous literature on predicting criminality and also identifying markers of its onset and 

persistence. 

And finally, we need to hold tenaciously to the commitment by 

our actions to reduce the total social costs of crime and eschew the 

practice of merely getting those costs off our books by shifting them 

to others. 

[The prepared statement of Mr. Sedgwick appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you very much, Dr. Sedgwick. I appreciate you all being here. 
32 

Let me start with Secretary Wetzel. You are an observer from 

the outside of the Federal Bureau of Prisons. Corrections is your 

lifelong profession. You have been very successful in Pennsylvania, 

and you are showing not only bipartisanship but unanimity and 

then success in the reform effort. 

What would you take out of Pennsylvania’s experience and apply 

as lessons that would be helpful for the Federal Bureau of Prisons? 

Are there critical differences that we need to acknowledge? What 

are they? Are there similarities? Where are they? What have been 

your successes that you think will apply most readily to your Federal colleagues? 

Mr. WETZEL. I think from a process standpoint we were able to 

have people check their ‘‘R’’ or ‘‘D’’ at the door and become part of 

the process, and we set a goal and acknowledged a goal and put 

all the partisan stuff aside. So I think that is first and foremost. 

Understand that we all wanted the same thing. We all want good 

outcomes. 

And then I think really understanding the dynamics of the population. Certainly the Federal population is, arguably, different than 

a State population, but I think it is very important to really accurately identify and then build consensus at what group we are comfortable dealing with in another manner. 

And then specifically, as we start splitting these different groups 

out, then look at how we are likely to get the best outcome. And, 

you know, you are not going to bat a thousand on this, but where 

are we likely to get the best outcome? The one thing that across 

the board we had consensus on is that we were not pleased with 

the outcomes we were getting from our current approach. So business as usual was not going to work, and it was not acceptable. 

And we came to that consensus early on, that nobody could make 

the argument that we were happy with the return on the investment we were getting for corrections. 

By the same token, we certainly did not want to open up the 

back door and have an increase in crime because we are trying to 

do what is expedient. That was not the approach at all. But, you 

know, I think if your focus is on how we are likely to reduce crime 

and not necessarily focus on the dollars—we did not necessarily 

focus on the dollars. We focused on how we were going to get better 

outcomes, and a by-product of that is a reduction in population. 

And it was more of a natural by-product than the goal is to—and 

I think if you take that approach and not say our goal is to reduce 

spending by X amount but our goal is to get better outcomes and 

identify folks who we can deal with in another manner that will 

be more effective and less costly, that is really—and if you keep 

that as the focus, I think that is the best way to move forward. 

Senator WHITEHOUSE. When you are talking about identifying 

folks, what are the sorts of categories you are looking at? Is it age, 

gender, drug history, level of incarceration, length of term? What 

are some of the groups that you picked out of the general population to try to improve the focus? And how did you define those? 

Mr. WETZEL. Yes, and we did talk about violent versus non-violent because, as many people pointed out, you know, by the time 

someone came to the Pennsylvania Department of Corrections, they 

had an average of eight arrests. And nobody gets locked up for jay-
33 

walking in Harrisburg, Pennsylvania. Okay? So that is not why 

they are there. So we did not put the focus on that, but we put the 

focus on actuarial risk, and let us look at, again, actuarial risk 

tools that allow us to predict future crime and future recidivism, 

and to try to make to the extent possible good individual decisions 

and give judges the tools that they have all the information to 

make those individual decisions. 

Senator WHITEHOUSE. So you were dialing it all the way back 

into the pre-sentence report for judges? 

Mr. WETZEL. Yes, well, you know, in Pennsylvania we have an 

inconsistent level of pre-sentence reports, and under the Rendell 

administration in 2008, they passed this risk-based sentencing tool 

that was supposed to be developed by the Sentencing Commission. 

However, it was not funded. And through our initiative, we were 

able to fund that so we can give judges actuarial information at 

sentencing and allow them to make better decisions on real information. 

Senator WHITEHOUSE. Where did you get the actuarial information? 

Mr. WETZEL. Well, we had the information, and the Sentencing 

Commission is the group who is charged to take that information 

and develop a tool specifically for Pennsylvania—— 

Senator WHITEHOUSE. You were pulling information out of the 

tracking information on your own inmates, essentially. 

Mr. WETZEL. Yes, we have a bunch of different sources of information: the Sentencing Commission, the courts, the different criminal justice agencies. Pull all those together, get the information, develop a tool, test it, pilot it, and norm it for our population, then 

roll it out across the State. 

Senator WHITEHOUSE. Got it. Okay, thanks. 

Mr. WETZEL. Thank you. 

Senator WHITEHOUSE. Chairman Tilley, same question to you. 

Can you pick out of what Kentucky has done any particularly successful elements that you would commend to us as areas of focus? 

Mr. TILLEY. I think there are a number of measures on the front 

and back end that work and are translatable to the Federal system. And, again, mind you, I am not expert on the Federal Bureau 

of Prisons—— 

Senator WHITEHOUSE. Understood. 

Mr. TILLEY. But to me we are talking about folks who are—— 

Senator WHITEHOUSE. You are expert on what you did in Kentucky. 

Mr. TILLEY. Well, I appreciate that. Some would say maybe. I 

would tell you that it seems to me, though, that being a former 

prosecutor, I saw a number of Federal cases proceeding and moving 

along to conviction, and it seems that we actually are doing more 

of the same kind of work that one might imagine. So I would say 

focusing on reentry and recidivism, first, let us go to the back end. 

We have what is called mandatory reentry supervision, and for 

those who do not achieve parole, we are releasing them into a very 

controlled environment 6 months prior to the expiration of their 

sentence, so that, as studies indicate, we can focus on that all-important 6 months, because, again, as experts tell us and as has 

been validated through science, if you catch that offender in the 
34 

first 6 months of reentry, you can hopefully achieve a more successful reentry and then lower recidivism, which is the goal, and that 

is significant. 

The public demands that—again, as has been said today, it is 

roughly the same in Kentucky, about 95 percent of all our offenders 

are going to come back to a community, and in that community I 

think taxpayers and constituents deserve our best effort of making 

sure that offender does not re-offend. And so that is important and 

I think very translatable. 

There are a number of things we can do and are doing beyond 

just that. Another example, Chairman, would be intermediate and 

graduated sanctions for technical parole violators. Rather than 

sending them back—we found that we were sending them back for 

longer than their original sentence, and that was not serving anyone. What we found now, similar to what they are doing in Hawaii, 

in the Senator’s home district, and Judge Steven Alm there, what 

he is doing is remarkable. We are mimicking that in Kentucky. 

Senator WHITEHOUSE. Steve Alm and I were U.S. Attorneys together back in the day, so I am familiar with his work. 

Mr. TILLEY. I Googled that, sir. 

[Laughter.] 

Mr. TILLEY. Yes, and I have been with Steven. 

Senator WHITEHOUSE. So your experience has been the same, 

that making parole violation responses swifter, more certain, more 

immediate, even if less impactful in terms of how long they take 

out of the probationer’s life, you get a better result from a 

quicker—you can have a smaller reaction if it is quicker and more 

certain to probation violations. 

Mr. TILLEY. Absolutely. At the State level, we were backing up 

on multiple violations, and there was this waiting period before the 

offender knew whether or not parole was going to—you know, they 

were going to be revoked and sent back to prison, and so it was 

very ineffective. And now we are seeing results that are being proven effective, and hopefully we can mimic the success they have had 

in Hawaii. 

I will add one thing on the front end, the remarkable success and 

really unexpected success we have had with low-level offenders, in 

particular misdemeanants that were filling our county jails. And, 

again, I still think it is translatable because we are using science, 

we are using risk assessment, as has been mentioned here today, 

to figure out who presents the most risk and who can be released 

prior to adjudication, or who needs to stay in potentially. And in 

doing so—— 

Senator WHITEHOUSE. How do you develop those assessment 

tools? 

Mr. TILLEY. There is a tool called the LSCMI, and, again, it is 

something that is developed and used and chosen not by the legislature—that would be a mistake to have us choose that science, I 

think, but the court system has chosen it, and our pre-trial system—in Kentucky we have, like DC, one of the only unified, maybe 

the only true unified pre-trial system in the country, which means 

it is State run, State driven, so we can do that. And what we have 

seen is an increased public safety rate. They are committing fewer 

offenses on release. They are showing up to court at a greater rate. 
35 

And we are actually saving our counties, who pay for this, prior to 

adjudication pay for incarceration, saving them millions. And I 

think that is also translatable as so many offenders await trial. 

And it also preserves the presumption of innocence until proven 

guilty, and I think that is important, unless there is an overriding 

reason that a judge may see in his or her discretion, which that 

is in our bill, to detain an offender. And that is important as well. 

Senator WHITEHOUSE. Obviously as a State representative and as 

the Chairman of your State’s House Judiciary Committee, you have 

responsibilities to a wide array of stakeholders and constituents 

and parts of your community. I can remember going around Rhode 

Island with Director Wall with a map that showed where people 

went when they left the ACI, adult correctional institution, and 

went back into the community. And I think we did it by zip code, 

and there were some zip codes where reentry had virtually no impact—I mean virtually nobody returned to those communities—and 

there were other communities that were really receiving an avalanche of people coming out of the prison system. 

And so when you talk about reentry, did you consider not just 

reentry from the individual offender’s point of view and trying to 

make them more successful at reentry and to reduce their recidivism, but also what it means to the surrounding community, particularly the ones that are very, very heavily impacted by high returns from the prison population? 

Mr. TILLEY. Absolutely. In fact, we talked a lot about what has 

been referred to as ‘‘community supervision.’’ You know, ‘‘community corrections’’ does not play quite as well to the ear, but ‘‘community supervision’’ in the sense that you want to direct that offender closer to their community and help them reintegrate, because as we found, when you modify behavior in one setting, for 

instance, the prison, and they return to their home, they immediately maybe return to that behavior without, you know, certain 

controls and certain behavior modification strategies in place. 

And so, yes, we did focus on that, and we do have that kind of 

community supervision in place in our bill. It runs all through our 

bill. And what we are trying to do is redirect some of the savings, 

again, to those communities so that we are not having to find new 

dollars to pay for this increase in community supervision. But it is 

clearly less expensive, and we can monitor in so many ways. With 

our reentry supervision, you know, we have several minimum conditions. We have over ten of those minimum conditions. And with 

technology we can monitor in so many ways. And it is much less 

expensive and more effective than what it costs in Kentucky, which 

is roughly $21,700 per year to incarcerate a State inmate. And so 

we are not that far off from the number that has been thrown out 

here today. 

And so when you have this substantial savings and a decrease 

in recidivism and this successful reentry, I think your communities 

begin to buy in as well, and I know mine has. 

Senator WHITEHOUSE. I forgot to ask Secretary Wetzel, what is 

your experience of the effects of overcrowding in Pennsylvania’s 

prisons, the ones that you supervise and manage? 

Mr. WETZEL. We are at about 109 percent of capacity. I think 

that the challenge really becomes the decisions on the ground, the 
36 

decisions with who you put in a cell together. So I think I am 

guessing that if you looked at the numbers as we became more and 

more crowded, I am not sure that the overall number of 

misconducts would skyrocket, but I would guess that the severity 

and some of the in-cell violence would—because at the same time 

as crowding occurred, we got better at our practices. We got more 

technology, more cameras. But those in-cell decisions, and then I 

think the second area that really gets impacted by crowding would 

be segregation. And historically, without crowding you rarely double segregation cells when, you know—we are like Motel 6. The 

light is always on. So you have got to find someplace to put somebody. So sometimes you make some decisions in putting people together that you would rather not have to make as a specific result 

of crowding. 

Senator WHITEHOUSE. But it is your experience as a practitioner 

that, other things being equal, higher overcrowding will have a 

tendency to increase violence and risk within the population? 

Mr. WETZEL. Absolutely, especially if the staffing does not increase at the same scope as the inmates. 

Senator WHITEHOUSE. So at a minimum, it would require additional costs. 

Mr. WETZEL. Correct. 

Senator WHITEHOUSE. Dr. La Vigne, any suggestions for us that 

you would highlight in your report that you think would have particular effect for the Bureau of Prisons? 

Ms. LA VIGNE. Well, as I already stated, the proposals in our report are not the Urban Institute’s proposals, so what we set out to 

do is to project the impact of these various proposals on populations and costs. 

Senator WHITEHOUSE. Which ones would you highlight for us for 

the Federal Bureau of Prisons? 

Ms. LA VIGNE. I will highlight any number of them that you are 

interested in. The ones represented in the Smarter Sentencing Act, 

for example, reduces mandatory minimums in three ways. It cuts 

the mandatory minimums for certain types of drug offenders virtually in half, and that alone we predict could reduce overcrowding 

by 20 percent in 10 years’ time and save over $2 billion. It also reduces mandatory minimums by extending the safety valve to 

Criminal History 2 categories. So that gives more judicial discretion to deviate from mandatory minimums. 

But as I referenced in my formal statement, there is a lot of restrictions to our projections. We do not assume that this means 

that everybody with a criminal history Category 2 is going to be 

subject to reduced sentences. There is a lot of judicial discretion involved, and our own assumptions assume that a lot of offenders 

will not be subject to that because of their risk levels and their 

criminal history. 

Regardless, we find that that alone would reduce overcrowding by 46 percent in 10 years. It would save $544 million. And then 

there is also the Fair Sentencing Act crack retroactivity, which 

would also save a tremendous volume to the tune of $229 million. 

And even that reflects a conservative estimate on our part. We actually assume that 10 percent of those who could be subject to the 

crack retroactivity in the Fair Sentencing Act proposal would not 
37 

because they pose too high a risk to society based on their in-prison 

behavior. 

Senator WHITEHOUSE. Thank you very much. 

Dr. Sedgwick, as I understand your testimony, if I could restate 

it in a single sentence, it would be that you are warning us against 

either sweeping or overbroad measures that might create a public 

safety cost outside the prison system that more than offsets any 

savings within the prison system. But you accept that if this is 

done in the smart way and in the right way, there is, in fact, opportunity here to both improve public safety and lower corrections 

costs. 

Mr. SEDGWICK. I think you summarized it beautifully. One of the 

bugaboos that I have is that we very often talk about these complex issues and treat offenders either as generic, like they are all 

the same, or we treat them as dichotomous. We will say, well, there 

are the violent ones and the non-violent ones. And if you know the 

research on, for example, career criminals and criminal histories 

and specialization, one of the things that you realize is, yes, there 

is a subset of the offender population that are purely property offenders and never commit a violent offense. But among violent offenders they have a mix of property offenses and violent offenses 

in their history, as Professor DeLisi mentioned, and so you cannot 

just look at what is the offense that this particular offender is in 

for and make a judgment about their particular risk. We need to 

be much more granular and much more careful about this. 

Senator WHITEHOUSE. Let me ask Representative Tilley and Secretary Wetzel, are you comfortable that the assessment tools that 

you have used in Kentucky and Pennsylvania meet that standard 

and are sensitive to Dr. Sedgwick’s concerns? 

Mr. WETZEL. Yes. 

Senator WHITEHOUSE. So it is doable. 

Mr. TILLEY. I would concur. 

Senator WHITEHOUSE. Okay. Very good. 

I will ask unanimous consent, which I will achieve since I am the 

last one here—— 

[Laughter.] 

Senator WHITEHOUSE [continuing]. That two articles be added to 

the record. One is a New York Times article or opinion piece, ‘‘For 

lesser crimes, rethinking life behind bars,’’ by John Tierney. The 

other is ‘‘Rhode Island halts growth in the inmate population while 

increasing public safety,’’ by our corrections director, A.T. Wall. 

[The articles appear as submissions for the record.] 

Senator WHITEHOUSE. The record of this hearing will remain 

open for one additional week for any further questions or testimony 

that anybody wishes to offer. 

Let me once again thank each of the witnesses for coming and 

lending your expertise, and in the case of Chairman Tilley and Secretary Wetzel, your very long and well-earned personal experience 

in this area. I think that what you have done politically to make 

these changes happen in your home States is very impressive. I am 

sorry you missed by one in getting unanimity the way Pennsylvania did, but I got to tell you, unanimity by all but one vote is 

pretty darn impressive. So obviously a lot of careful work went into 

the kind of product that can both be unanimous and impactful. You 
38 

can do unanimous all day long if you end up with no results. But 

doing something that really makes a change and getting the kind 

of political support at home that makes it unanimous in the legislature is a very significant achievement. So I am delighted that you 

both had the opportunity and the ability to come here today, and 

I thank you very much for being here. I thank all the witnesses. 

Everyone’s testimony was extremely helpful. To the Urban Institute, we look forward to continuing to work with you, and thank 

you for the report. 

And, with that, we are adjourned. 

[Whereupon, at 12:04 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 
(39) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
40 

ilqnn1ment of Ju11tite 

STATEMENT OF 

CHARLES E. SAMUELS, JR. 

DIRECTOR 

FEDERAL BUREAU OF PRISONS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 

U.S. SENATE 

FOR A HEARING ON THE 

OVERSIGHT OF THE FEDERAL BUREAU OF PRISONS 

PRESENTED ON 

NOVEMBER 6, 2013 

Statement of Charles E. Samuels, .Jr. 

Director of the Federal Bureau of Prisons 

Before the U.S. Senate Committee on the Judiciary 

For a Hearing on the Oversight of the Federal Bureau of Prisons 
41 

Good morning, Chairmen Leahy and, Whitehouse, Ranking Members Grassley and 

Graham, and Members of Committee. I am pleased to appear before you today to discuss the 

operations, achievements, and challenges of the Federal Bureau of Prisons (Bureau). While I 

was appointed Director in December 2011, I have been with the Bureau for nearly 25 years, 

having started as a correctional officer and then holding many positions including Warden and 

Assistant Director. 

I cannot begin without acknowledging that this past February the Bureau suffered tragic 

losses with the murders of two of our staff. On February 251

h, Officer Eric Williams, a 

Correctional Officer at the United States Penitentiary in Canaan, Pennsylvania, was working in a 

housing unit when he was stabbed to death by an inmate. The death of Officer Williams reminds 

all of us that our work on behalf of the American people is dangerous. Every day when our staff 

walk into our institutions they willingly put their lives on the line to protect society, one another, 

and inmates in their care. On February 261

\ Lieutenant Osvaldo Albarati was shot and killed 

while driving home from the Metropolitan Detention Center in Guaynabo, Puerto Rico. This 

incident is still under investigation. We will always honor the memories of Officer Williams and 

Lt. Albarati, and their losses further underscore the challenges the dedicated men and women 

working for the Bureau face daily. While there are many facets to our operations, the foundation 

for it all is the safe, secure, and orderly operation of institutions, and each and every staff 

member in the Bureau is critical to this mission. 

The mission of the Bureau is two-fold: to protect society by confining offenders in 

prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately 

secure, and to ensure that inmates are actively participating in reentry programming that will 

assist them in becoming law-abiding citizens when they return to our communities. I am deeply 

committed to both parts of the mission. Yet continuing increases in the inmate population pose 

ongoing challenges for our agency. As the nation's largest correctional agency, the Bureau is 

responsible for the incarceration of over 219,000 inmates. System-wide, the Bureau is operating 

at 36 percent over rated capacity and crowding is of special concern at higher security facilities, 

with 51 percent crowding at high security facilities and 45 percent at medium security facilities. 

We are grateful for the support Congress recently provided to activate new facilities in Berlin, 

New Hampshire; Hazelton, West Virginia; Yazoo, Mississippi; and Aliceville, Alabama. When 

fully activated, these facilities will assist us somewhat with reducing crowding for our inmates; 

however, even with these institutions coming online, decreasing our crowding remains a critical 

challenge. 

The safety of staff is always a top priority, and we use all available resources to secure 

our institutions. We continue to take a variety of steps to mitigate the effects of crowding in our 

facilities, and are confident the policy changes the Attorney General recently announced to 

recalibrate America's federal criminal justice system will provide us even more assistance. 

These changes, part of the Department of Justice's (Department) "Smart on Crime" initiative, 

will help ensure that federal resources are used more efficiently by focusing on top law 

enforcement priorities. 
42 

The large majority of federal inmates, (177,000 of219,000) are housed in facilities 

operated by the Bureau, which have a total rated capacity of just under 130,000 beds. The 

remaining approximately 42,000 inmates are housed in privately operated prisons and residential 

reentry centers. Most federal inmates (50 percent) are serving sentences for drug trafficking 

offenses. The remainder of the population includes inmates convicted of weapons offenses (15 

percent), immigration offenses (11 percent), violent offenses (5 percent), fraud and other 

property offenses (7 percent), and sex offenses (1 0 percent). The average sentence length for 

inmates in BOP custody is 9 'lz years. Approximately 26 percent of the federal inmate 

population is comprised of non-U.S. citizens. 

It is particularly challenging to manage the 46 percent of the federal prisoner population 

housed at higher security levels, and crowding is of special concern at these facilities. For 

example, at the medium security level approximately 75 percent of the inmates have a history of 

violence, 41 percent have been sanctioned for violating prison rules, and half of the inmates in 

this population have sentences in excess of 8 years. At the high security level, more than 42 

percent of the inmates arc weapons offenders or robbers, almost 10 percent have been convicted 

of murder, aggravated assault, or kidnapping, and half of the inmates in this population have 

sentences in excess of 10 years. Moreover, 71 percent of high security inmates have been 

sanctioned for violating prison rules, and more than 90 percent of high security inmates have a 

history of violence. One out of every four inmates at high security institutions is affiliated with a 

gang. 

There is a much higher incidence of serious assaults by inmates on staff at medium and 

high security institutions than at the lower security level facilities. In FY 2012, 85 percent of 

serious assaults against staff occurred at medium and high security institutions. Incidents at high 

security facilities made up 63 percent of serious assaults on staft~ and 22 percent occurred at 

medium security facilities. Fewer assaults occur at low and minimum security institutions that 

house inmates who are less prone to violence. 

In 2011, the Bureau published a rigorous analysis of the effects of crowding and staffing 

on inmate rates ofviolence. 1 Data was used from all security levels of BOP facilities for male 

inmates for the period July 1996 through December 2004. We accounted for a variety of factors 

kno\Vn to influence the rate of violence and, in this way, were able to isolate and review the 

impact that crowding and the inmate-to-staff ratio had on serious assaults. This study found the 

rate of serious inmate assaults was associated with increases in both the rate of crowding at an 

institution (the number of inmates relative to the institution's rated capacity) and inmate-to-staff 

ratios. The analysis revealed that an increase of one inmate in an institution's inmate-tocustodystaff ratio increases the prison's annual serious assault rate by approximately 4.5 per 

5,000 inmates. This sound empirical research underscores that there is a direct relationship 

between crowding, staffing, and institution safety. 

1 The Effects of Crowding and Staffing Levels in Federal Prisons On Inmate Violence and Administrative Remedies 

Granted. Federal Bureau of Prisons Office of Research and Evaluation. July 20, 2011. 

2 
43 

system, and housing them in space not originally designed for inmate housing, such as television 

rooms, open bays, and program space. To mitigate risks associated with crowding, we have 

made changes to our strategies for classification and designation, intelligence gathering, gang 

management, use of preemptive !ockdowns, and controlled movement. We review available and 

emerging technologies to look for ways to address crowding in our facilities. However, the 

challenges remain as the inmate population continues to increase. 

The Inmate Reentry Strategy 

As I stated earlier in my testimony, I am committed to both parts of the Bureau's mission 

security and reentry. The Attorney General has also made clear his strong commitment to 

reentry as a critical component of public safety. For 30 years, the Bureau has assessed offenders' 

risk of institution misconduct, which is highly correlated with recidivism, and we thoroughly 

review the underlying causes of criminal behavior including substance abuse, education, and 

mental health. Understanding the underlying causes of criminal behavior has allowed us to make 

great strides in enhancing our treatment efforts to ensure offenders are prepared to succeed. 

Significant advances have been made in research related to effective reentry programs. 

Most experts agree with the concept of identifying factors that put inmates at risk of failing to 

successfully reintegrate into society, and they also agree with several general principles 

regarding how best to lower such risks. It is critical that offenders are triaged based on risk of 

failure prior to formulating a treatment plan. Offenders who are more likely to successfully 

reenter society do not require intensive programming, though the Bureau will provide them any 

services we identify, as needed, to ease their transition and occupy their time in prison-for 

example, resume preparation/job search, securing identification, applying for benefits. High risk 

offenders, on the other hand. require a more thorough assessment to identify their individual risk 

factors and progran1ming needs. They must be our first priority for appropriate treatment. 

As a direct result of these advances, we are now modifying our reentry model to ensure 

that we provide effective, evidence based, cost-efficient treatment plans for each imnate. By 

developing an understanding of each inmate's strengths, weaknesses, and programming goals, 

staff can work holistically to increase the likelihood of each inmate making a successful 

transition back to the community. We will continue to evaluate newly designated inmates with 

our validated classification tool to determine inmate risk for misconduct and appropriate security 

level placement, and will re-assess inmates over time to determine any changes in risk that 

warrant a decrease (or increase) in security level. We will also continue our comprehensive 

evaluation of inmate programming needs and are enhancing the tools we use to construct an 

appropriate treatment plan, and better track progress over time. 

Inmate Reentry Programming 

Each year, over 45,000 federal inmates return to our communities, a number that will 

continue to increase as the inmate population grows. Most need job skills, vocational training, 

3 
44 

management, parenting skills, and linkage to community resources for continuity of care if they 

are to successfully reenter society. 

In the Bureau, reentry begins on the first day of incarceration and continues throughout an 

inmate's time with us. As such, federal prisons offer a variety of programs to assist inmates in 

returning to our communities as law-abiding citizens, including work, education, vocational 

training, substance abuse treatment, observance of faith and religion, psychological services and 

counseling, release preparation, and other programs that impart essential life skills. We also 

provide other structured activities designed to teach inmates productive ways to use their time. 

Many of our programs have been demonstrated to reduce recidivism (i.e., Federal Prison 

Industries (FPI). Education, Occupational/Vocational Training, and Residential Drug Abuse 

Treatment Program (RDAP)). Specifically, empirical research has shown that inmates who 

participate in the FPI program are 24 percent less likely to recidivate than similar 

nonparticipating inmates; inmates who participate in vocational or occupational training are 33 

percent less likely to recidivate. Inmates who participate in education progran1s are 16 percent 

less likely to recidivate; and inmates who complete RDAP are 16 percent less likely to 

recidivate, and 15 percent less likely to have a relapse in their substance use disorder use within 

3 years after release. Also, research indicates inmates who participate in work programs and 

vocational training are less likely to engage in institutional misconduct, thereby enhancing the 

safety of staff and other inmates. 

The Washington State Institute for Public Policy has also conducted several evaluations 

of the costs and benefits of a variety of correctional skills-building programs. The Institute 

examined program costs; the benefit of reducing recidivism by lowering costs for arrest, 

conviction, incarceration, and supervision; and the benefit of avoiding crime victimization. Their 

work is based on validated evaluations of crime prevention programs, including the 

Bureau's assessment of our industrial work and vocational training programs (the Post Release 

Employment Project study) and our evaluation ofRDAP (the TRIAD study). The benefit is the 

dollar value of total estimated criminal justice system and victim costs avoided by reducing 

recidivism, and the cost is the funding required to operate the correctional program. The 

benefitto-cost ratio of residential substance use disorder treatment is as much as $3.38 for each 

dollar invested in the program; for adult basic education, the benefit is as much as $19.00; for 

correctional industries, the benefit is as much as $4.97; and for vocational training, the benefit is 

as much as $13.01. This body of research clearly indicates these irunate programs result in 

significant cost savings through reduced recidivism, and their expansion is important to public 

safety.2 

Based on these proven-etiective programs, we have implemented additional programs for 

the inmate population. These include Challenge for high security inmates, Resolve for females 

2 Aos. Steve, Phipps. P., Barnoski. R. and Lieb, R. (2001) The Comparative Costs and Benefits of Programs to 

Reduce Crime. Washington State Institute for Public Policy, as updated April 2012, 

http://www.wsipp.wa.gov/pub.asp"docid~OJ-05-120 1. 

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45 

cognitivcly-impaired offenders, Sex Offtmder Treatment, and STAGES for inmates with Axis II 

disorders. 

But we have also experienced programming challenges, most notably with respect to FPI, 

one of the Bureau's most important correctional programs proven to substantially reduce 

recidivism. FPI provides imnates the opportunity to gain marketable work skills and a general 

work ethic-- both of which can lead to viable, sustained employment upon release. This is 

particularly notewmihy for reentry given the barriers to post-release employment many offenders 

face. It also keeps inmates productively occupied; inmates who participate in FPI are 

substantially less likely to engage in misconduct. At present, FPI reaches only 8 percent of the 

inmate population housed in Bureau facilities; this is a significant decrease from previous years. 

For example, in 1988, FPI employed 33 percent of the inmate population. This decrease is 

primarily attributable to various provisions in Department of Defense authorization bills and 

appropriations bills that have weakened FPI's standing in the Federal procurement process by 

requiring FPI to compete for the work of Federal agencies in many instances where it was 

previously treated as a mandatory source of supply. 

We are grateful for the additional authorities Congress provided in the FY2012 

appropriation to provide opportunities to expand FPI programming, and are working on the new 

programs. FPI has moved expeditiously to secure new business opportunities that are currently 

or would have otherwise been manufactured outside of the United States. FPI's Board of 

Directors has approved 17 pilot proposals to date. In addition to the approved pilots, more than 

17 potential opportunities are being evaluated for Board approval. FPI is continuing to actively 

seek new business opportunities and is focusing on business development and to address the 

unique challenges of operating the FPI program. 

Recent Innovations and Achievements 

The safety of staff, imnates, and the public are our highest priorities. I have undertaken 

several recent changes to Bureau operations that I believe will help us enhance safety and 

security. 

In May 2012, the Bureau began an evaluation to assess the effectiveness of oleoresin 

capsicum (pepper) spray for use in emergency situations. The assessment involves designated 

staff being authorized to carry pepper spray for use in situations where there is a serious threat to 

the safety of staff, inmates, or others. All staff authorized to carry pepper spray underwent an 

initial four-hour training, and subsequently underwent quarterly re-familiarization training. 

Preliminary results of the assessment suggested that pepper spray was improving safety, and this 

year I decided to expand the evaluation to all high security prisons and to our detention centers 

and jails. I am confident that the outcome of the assessment will support the use of this tool to 

assist our staff in maintaining institution safety and security. 

I have implemented a plan to increase our Correctional Officer complement at high 

security institutions. The Bureau operates using a "Correctional Worker first" philosophy. This 

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46 

assist with security. Institution staff are visible on the compound, assist with inmate cell and pat 

searches, and respond to emergencies. As you can imagine, this philosophy is important at all 

institutions. but most critical at the high security institutions. During evenings and weekends 

when high security inmates are moving about the compound, however, the institution is staffed 

primarily by Correctional Officers. Therefore, using existing resources, we are adding an 

additional Correctional Officer to each high security housing unit during these shifts. 

Next, we are in the midst of making significant changes to our Special Housing Unit 

(SHU) policies and procedures. These changes will allow us to improve the efficiency of our 

SHU operations without compromising safety. Specifically, in the past year we have decreased 

the number of imnates housed in SHU by 25 percent, primarily by focusing on alternative 

management strategies and alternative sanctions for inmates. Emphasis has been placed on 

timelier processing of disciplinary reports, thereby reducing the amount of time inmates spend in 

administrative segregation awaiting sanctions. We have also created a new automated system 

that allows us to better track imnates housed in SHU, and Bureau leadership now receive a 

quarterly report that monitors SHU trends nationwide. We monitor average disciplinary sanction 

time given by disciplinary hearing officers to ensure relative parity among sanctions nationwide. 

I have focused significant resources on the mental health of inmates who arc placed in SHU s to 

ensure we are doing everything we can to work with these inmates. The National Institute of 

Corrections recently awarded a cooperative agreement for independent consultants to conduct a 

comprehensive review of our restrictive housing operations and to provide recommendations for 

best practices. We look forward to the outcome of the evaluation as a source of even greater 

improvements to our operations. 

We are moving forward to expand RDAP programming throughout the agency. As noted 

earlier in my testimony, RDAP has been proven effective at reducing recidivism and relapse, 

while also decreasing institution misconduct. For non-violent offenders, successful completion 

of RDAP, to include transitional treatment while in a Residential Reentry Center (halfway 

house), includes an early release incentive of up to one year off the term of incarceration. Thus, 

RDAP not only helps retum inmates to their communities as law-abiding citizens, but also helps 

somewhat with institution crowding. However, due to limited capacity, inmates completing 

RDAP who are eligible for a 12 month sentence reduction are currently receiving an average of 

9.9 months. With the addition of new programs in FYs 13 and 14, we will bring our total to 89 

programs, and the increased drug treatment capacity will move us closer to reaching our goal of 

providing a 12 month sentence reduction to all eligible inmates. 

Finally, in late April we made changes to our Compassionate Release program (Title 18 

U.S.C. § 3582(c)). This program allows the Bureau to petition the court for a reduction in 

sentence for inmates facing extraordinary and compelling circumstances. We expanded the 

medical criteria tor inmates seeking release, and this summer the Attorney General announced 

additional revisions to the criteria to include other categories of inmates such as elderly inmates 

and certain inmates who are the only possible caregiver for dependents. For these cases, the 

Bureau would generally consider inmates who did not commit violent crimes and have serwd a 

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an inmate's sentence. 

Initiatives Moving Forward 

There is more good news on the horizon. The Attorney General recently announced the 

Department's "Smart on Crime" initiative. This initiative, based upon a comprehensive review 

of the criminal justice system, has yielded a number of areas for reform. Two provisions in 

particular should have a direct, positive impact upon the Bureau's population while still deterring 

crime and protecting the public. I noted above the Attorney General's recent announcement 

about changes to Compassionate Release. These changes will provide for, upon order by the 

sentencing judge, the release of some non-violent offenders, although we estimate the impact 

will be modest. The Department is also urging prosecutors in appropriate circumstances 

involving non-violent offenses to consider alternatives to incarceration, such as drug courts, 

other specialty courts, or other diversion programs. The Department also modified its charging 

policies so that certain low-level, non-violent drug offenders who have no ties to large-scale 

organizations, gangs, or cartels will be charged with offenses for which the accompanying 

sentences arc appropriate to their individual conduct rather than excessive prison terms more 

appropriate for violent criminals or drug kingpins. These initiatives will help stem the tide of 

offenders entering the Bureau and lead to lower average sentences, where appropriate, and thus 

should decrease our population somewhat over the long tern1. 

The Administration has also supported two legislative proposals that would have a direct 

impact on the Bureau's crowding through incentivizing positive institution behavior and 

effective reentry programming. Both initiatives were included in 112'11 Congress' Second 

Chance Reauthorization Act, and we are hopeful the 113'11 Congress will consider them as well. 

The first expands inmate Good Conduct Time (GCT) to provide inmates up to the full 54 days 

per year stated in statute, rather than the current net maximum of 4 7 days per year. It does so by 

awarding GCT based upon the sentence imposed rather than the time served (Title 18 U.S.C. § 

3624(b)). This provision would not only provide some crowding relief and cost-savings, but also 

aids prison and public safety by providing a strong incentive for inmates to maintain good 

conduct. 

The second proposal would provide inmates with an incentive to earn sentence credits 

annually for successfully participating in programs that are effective at reducing recidivism. 

This initiative is modeled in part on the sentence reduction incentive already in statute for 

RDAP, and caps the total amount of sentence credits earned from all sources at one-third of an 

inmate's total sentence. This provision, too, would assist with controlling crowding, costs, and 

enhancing public safety. Tncentivizing reentry programming encourages more inmates at all 

security levels to participate and build skills. This keeps prisons safer and helps released 

offenders return to our communities as law-abiding citizens. 

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Chainnen Leahy and Whitehouse, this concludes my fonnal statement. Again, I thank 

you, Mr. Grass ley and Mr. Graham, and Members of the Committee for your continued support. 

As I have indicated in my testimony, the Bureau faces a number of challenges. For many years 

now, we have stretched resources, streamlined operations, and constrained costs to operate as 

efticiently and effectively as possible. I look forward to working with you and the Committee on 

meaningful reform to enhance offender reentry while reducing our overburdened prisons, and 

would be happy to answer any questions. 

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Statement by 

John E. Wetzel 

Secretary 

Pennsylvania Department of Corrections 

Hearing on the Oversight of the Bureau of Prisons & CostEffective Strategies for Reducing Recidivism 

November 6, 2013 

U.S. Senate Committee on the Judiciary 

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Chairman Whitehouse, Ranking Member Grassley, and Members of the committee, I am 

pleased to be with you today to discuss lessons we've learned in the Commonwealth of 

Pennsylvania to increase public safety and contain the costs of corrections. 

The Problem 

In the 24 years before Governor Corbett was elected, Pennsylvania's prison population 

grew by an average of 1500 inmates each year. Between 2000 and 2011, Pennsylvania's 

spending on corrections increased 76 percent, from $1.1 billion to $1.9 billion, while the 

number of people in prison increased 40 percent, from 36,602 to 51,312 people. 

Pennsylvania was locking up record numbers of people, costing taxpayers billions. 

The Governor and policymakers began asking, "What is the return on our investment?" Of 

the people who got out of prison in FY2009, over 65% were either arrested or 

reincarcerated within three years. 1 State leaders agreed; the Commonwealth of 

Pennsylvania deserved better and decided to take action. 

Since Governor Corbett took office, the population has started to decline for the first time in 

decades and the state has enacted a comprehensive, statewide effort to reduce recidivism. 

Justice Reinvestment Process 

In response to the growing strain of corrections costs on the state's budget and the 

negative impact of budget cuts on local law enforcement, in 2011, Governor Corbett, Chief 

Justice Ronald Castille, and legislative leaders asked the CSG Justice Center to conduct a 

detailed analysis of Pennsylvania's criminal justice system and develop a comprehensive 

policy framework to cut crime and reduce recidivism, both at a lower cost to Pennsylvania 

taxpayers. The Pennsylvania Commission on Crime and Delinquency established a 

bipartisan, inter-branch working group to oversee the data analysis and policy 

development provided by the CSG Justice Center, which identified three significant 

challenges. 

Based on discussions with the Working Group and input from stakeholders across the 

criminal justice system, CSG Justice Center staff crafted a data-driven set of policy options 

that form a comprehensive public safety plan that reduces the costs of corrections and 

parole system and reinvests savings in law enforcement strategies that deter crime, datadriven strategies that reduce recidivism, and services for crime victims. 

Key Findings 

First, a third of individuals sentenced to prison had less than one year remaining to serve 

on their minimum sentences, leaving little time for them to participate in treatment 

programs in prison and making it challenging for the Parole Board to review their cases in 

a timely manner. The number of prison admissions with such short sentences has more 

than doubled, increasing 138 percent between 2000 and 2011, from 1,641 to 3,903 people. 

1 Bell, N., Bucklen, K., et al. (2013). Pennsylvania Department of Corrections Recidivism Report 2013. 

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Second, because everyone in prison must be considered for parole after reaching his or her 

minimum sentence, the rising number of admissions had resulted in a growing backlog of 

cases for review. For example, 70 percent of the parole reviews that should have taken 

place each month were delayed due to inefficiencies that likely could have been avoided 

with greater coordination between agencies. In addition, despite having been approved for 

parole, thousands of people remained in prison because of delays in identifying housing 

plans, completing required programs, or paying fees and fines. 

Third, community-based residential programs funded by the state at over $100 million 

each year to reduce recidivism were not being used to target individuals on parole who 

could benefit the most As a result, thousands of parolees continued to fail to complete their 

supervision in the community and were returned to prison at a huge cost, despite the 

state's significant investment in residential programs. At the same time, district attorneys, 

victim advocates, and others raised public safety concerns over the significant number of 

people who were being released to these programs even though they had not served their 

minimum prison sentences. 

Policy Framework 

After the working group reached consensus on a policy framework addressing these 

challenges, state lawmakers, including Representative Glen Grell (R-Cumberland), 

Representative Thomas Caltagirone (D-Berks), and Senator Daylin Leach (D-Delaware), 

incorporated the policies into HB 135 and SB 100, which supplemented a number of other 

criminal justice policy reforms authored by Senator Stewart Greenleaf (R- Bucks). 

By FY 2017, the framework is projected to generate up to $253 million in cost savings and 

increase public safety through six key changes to policy and practice: 

• Reduce by 30 percent the number of people admitted to prison for very short sentences 

by 2017 by enabling counties to volunteer to house these individuals at lower cost to 

the state than would have been paid to incarcerate them in state prison. 

• Require people convicted of the two lowest-level misdemeanor offense categories to 

serve a local sanction rather than sentencing them to prison. 

• Address inefficiencies in the current corrections and parole systems by increasing by 20 

percent the number of parole cases reviewed each month by 2015. 

• Hold people on parole more accountable for violations of conditions of supervision with 

community-based, shorter, and more cost-effective sanctions. 

• Prioritize costly intensive residential programming for a target population that will 

benefit the most. 

• Prohibit the early release of people from prison to these residential programs. 

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House Bill135 established a formula that requires a portion of these cost savings to be 

reinvested in public safety improvements over the next six years. For example, under the 

law, a portion of the savings must be reinvested in data-driven law enforcement strategies, 

strengthening county probation and parole departments, and improving victim 

notification. 

SB 100 was approved by unanimous votes in the House and Senate before being signed into 

law by Governor Corbett on july 5, 2012. HB 135, also approved unanimously in the 

General Assembly, was signed into law on October 25, 2012. 

Implementation 

Since SB 100 was enacted last summer, the Department of Corrections in collaboration 

with the Board of Probation and Parole has been focused on shifting the Commonwealth's 

$100M investment in community corrections, changing the program mix to include nonresidential services and improve quality. Our goal is to shift our investment to a suite of 

programs that are less costly, more effective, and serve more people. To do this, we've had 

to design and release new bids for services, new quality assurance processes, new data 

systems, and new data monitoring and accountability strategies. 

Through all of these changes, our focus has been building a data-driven system. Until you 

analyze what is currently funded and the outcomes you are getting for that investment, you 

can't know what would be a smarter investment. 

And the stakes are high and the work is hard, but the pay off is great. In Pennsylvania, we 

can save approximately $44.7 million annually by reducing our 1-year reincarceration rate 

by 10 percentage points. 

Thank you for the opportunity to testify before the committee today, your support of the 

justice reinvestment approach in Pennsylvania, and your interest in learning from states 

like Pennsylvania as you look to improve the outcomes in the federal system. 

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Representative John Tilley 

Chairman, Kentucky House Judiciary Committee 

November 6, 2013 

Committee on the Judiciary 

United States Senate 

Criminal Justice Reform: A Culture Change 

Justice Reinvestment and HB 463 

Kentucky had the fastest growing prison population in the U.S. in the 10-year 

period before 2009, with an increase of 45%, compared to an increase nationally of 

13%. Kentucky's corrections spending increased 214% from 1990-2010. Greater 

spending on prisons did not translate into a better return for public safety or for 

recidivism. Despite a 214% increase in corrections spending between FY 1990 

($140 million) and FY 2010 ($440 million), the state's recidivism rate was still 

high and remained above the levels from the late 1990s. In addition, while the 

state's crime rate declined 6 percent between 2000 and 2010, that drop was only 

one-third the size of the 19 percent drop nationwide. 

In 2010 the General Assembly created a bipartisan, multi-branch task force called 

the Task Force on the Penal Code and Controlled Substances Act to study the data, 

find the causes for the increases, and make recommended changes that would 

maintain public safety. The task force found: 

.. Increasing numbers of arrests and court cases, even though the crime 

rate remained the same as in 1974 

.. Rising incarceration rates for technical parole violators 
54 

~ Sentencing of low-level offenders inKY: far more likely than those in 

other states to be sentenced to prison, especially drug offenders 

In 2011, The GA passed HB 463, The Public Safety & Offender Accountability 

Act, the first criminal justice overhaul in over 30 years. Its goals were to enhance 

public safety and improve the return on our investment in the criminal justice 

system. The reforms are largely based on the idea of Justice Reinvestment in which 

the savings achieved in incarceration costs and recidivism can be reinvested in 

alternatives to incarceration and reentry programs that are proven to work, such as 

drug treatment, community supervision, and other programs that improve 

outcomes for those reentering society. Instead of devoting resources to lock up 

nonviolent, low-risk drug offenders for long periods, it makes more sense to use 

those resources to provide effective treatment options that allow people to address 

their substance abuse problems and become productive citizens. 

A review of the changes created by the new law, HB 463, shows that Kentucky is 

seeing measurable benefits and providing a model for other states that want to get 

smart on crime. 

The bill's provisions focused on improving recidivism rates and increasing the 

and successful reentry of incarcerated adults into the community, which in 

tum, will have a positive impact on public safety and corrections spending. 

The bill's provisions require the use of scientifically validated risk and needs 

assessments to help determine a person's risks ofreoffending and the risk factors 

that need to be addressed to reduce the likelihood of future criminal behavior. 

These reforms place an emphasis on improving outcomes through alternatives to 

incarceration, such as supervision and treatment, tailored to address the needs of 

each individual. 

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The risk and needs assessments are used throughout the criminal justice system. 

First, a defendant is assessed at the pretrial phase when a judge is making decisions 

about bail and pretrial release. The assessment rates the defendant according to his 

or her likelihood to reoffend while on pretrial release and the likelihood of 

reappearing for court. Low-risk defendants are generally required to be released, 

and as the risk increases, judges have more discretion regarding release decisions. 

Risk and needs assessments are also used in the presentence investigation. The 

judge must use the results of the assessment to consider the I ikely impact of a 

sentence on future behavior. The Department of Corrections also uses risk and 

needs assessments throughout the period of incarceration to provide programs and 

treatment tailored to address the needs of each inmate. The Parole Board also uses 

another version of an assessment during its decision-making process. Assessments 

are also used during probation and parole to customize supervision and treatment 

throughout a person's supervision. DOC has conducted over 62,000 risk and needs 

assessments since July, 2010. 

The programs that are used to address those risks and needs are required to be 

evidence-based programs that are proven to be effective. Of the programs used by 

DOC, 94% are now evidence-based programs. 

Reentry and recidivism reduction provisions 

Mandatory Reentry Supervision (MRS). Studies show the first 6 months after 

release from incarceration are the most crucial in determining whether an 

exoffender's reentry into society will be successful. During this period, making 

resources available to these individuals based on their individual needs will 

drastically reduce their likelihood to reoffend. HB 463 requires six months of 

mandatory reentry supervision (MRS) in the community for those who did not 

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receive parole to help ensure their success. The provisions require DOC to release 

eligible inmates from custody 6 months before their minimum expiration date and 

place them under the supervision of the Division of Probation and Parole. MRS 

provides the coordination of resources for housing, employment, treatment and 

other programs for the released individuals and provides monitoring for their 

compliance with the conditions of their release. These individuals would otherwise 

serve out their entire sentences and be released into Kentucky communities 

without supervision or resources for reentry assistance within the community, 

creating a greater risk they will reoffend. 

• Since Jan. 1, 2012, over 6300 offenders have participated in MRS. This has 

resulted in a savings of over $21 million. The current return rate for the 

offenders is 20.7%. 

• The effective date for MRS was delayed until January 2012 to give the DOC 

time to build the staff and resources ofthe Division of Probation and Parole, 

which is responsible for supervising those on MRS, and train employees on 

the risk and needs assessment tool. 

• The Department of Corrections committed resources to increase the number 

of probation and parole officers to handle the increased number of 

supervisees. The department hired 73 additional probation and parole 

officers as well as 22 Probation and Parole Investigators, and the average 

caseload is currently 81.65 per officer, down from 93.8 in June 2011. 

• HB 463 requires the DOC to report to the legislature after Feb. 1, 2015 to 

determine the efficacy of MRS. 

Post-incarceration supervision. A separate provision in HB 463 requires certain 

classes of inmates to be subject to one year of post-incarceration supervision upon 

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57 

the expiration of their sentences: those convicted of a capital offense or a Class A 

felony, inmates with maximum- or close-security classification, or those who 

would not otherwise be eligible for parole by statute. Post-incarceration 

supervision will provide serious offenders the same reentry resources and 

supervision as MRS. This provisions applies to offenders convicted after the 

effective date of the legislation. 

Changes in the controlled substances laws. 

The following changes to the controlled substances statutes will result in millions 

of dollars of savings which HB 463 requires to be used to expand treatment 

programs. 

Presumptive probation for simple possession of drugs. HB 463 established 

presumptive probation for simple possession of drugs and a minor trafficking 

offense. The new provision also requires pretrial release on unsecured bond or a 

person's own recognizance for an offense for which a conviction may result in 

presumptive probation. There are exceptions if the person is found to be a danger 

to others or a flight risk. 

Deferred Prosecution program for first and second offenders of felony 

possession of controlled substances. Recognizing that possession offenses often 

stem from addiction and result in felony records, further diminishing the addicted 

person's chance for a successful recovery and economic future, HB 463 

implemented the new concept of deferred prosecution. Deferred prosecution has 

been statutorily recognized as the preferred alternative for first offense felony 

possession cases. The elements of deferred prosecution (DP) are as follows: 

• Prosecutor has to agree and set conditions 

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58 

• Maximum length of participation is two years 

• Defendant does not enter a guilty plea 

• If defendant's request for DP is denied, prosecutors are required to state on 

the record "substantial and compelling reasons why the defendant cannot be 

safely and effectively supervised in the community, is not amenable to 

community-based treatment, or poses a significant risk to public safety." 

• Upon successful completion, charges are dismissed and records are 

sealed, except for purposes of detennining future eligibility for DP 

• Options if person violates terms ofDP: may continue program, change 

terms, or remove the defendant from the program and proceed with regular 

prosecution 

• Currently, defendants given deferred prosecution are monitored by either 

Drug Court or Pretrial Services. Supervision strategies for the DP program 

are similar to those for monitored conditional release supervision. 

Distinguishing between trafficking and peddling. Before the implementation of 

HB 463, a person was guilty of certain trafficking offenses based on the type of 

controlled substance, regardless of the amount involved. Trafficking a small 

oneuse amount of a substance carried the same penalty as trafficking large 

quantities of the same substance. In order to distinguish between a true drug 

trafficker and a peddler who is selling to support his or her own habit, HB 463 

takes into account the amount trafficked by designating new quantities for each 

type of controlled substance, which acts as a threshold amount for the larger 

trafficking penalty. Trafficking in higher quantities of controlled substances results 

in larger penalties than trafficking in smaller amounts. The designated amounts 

may be accumulated by law enforcement over a 90-day period to show a larger 

amount trafficked. 

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(Possession offenses were not modified by quantities in HB 463.) 

Reinvesting savings from changes in controlled substances laws into drug 

treatment. HB 463 requires DOC to calculate the fiscal savings resulting from 

changes to controlled substances laws. Fiscal savings are required to be used solely 

for expanding and enhancing evidence-based SAP treatment programs. 0 Since the 

implementation ofHB 463, there has been a significant increase of Substance 

Abuse Program (SAP) slots (slots is used instead of beds, to note that some of the 

additional programs are community-based treatment and not residential programs.) 

• At the end of2007, there were 1430 prison and jail treatment beds. As of 

September 2013, there are 5987 total SAP slots, including 3987 inpatient 

treatment beds located in jails, prisons, and the community, and 2000 

treatment slots through contracts with Community Health Treatment Centers 

and other community programs. 

• Another potential benefit to the alternative sentencing for drug offenders is 

that fewer low-level offenders are in Drug Court. This has created more 

spaces in Drug Court to be available to higher-risk drug offenders. 

Allowing parolees to complete programming in the community. Another 

problem area within the parole system was when the parole board ordered parole 

for an inmate contingent upon completion of a program, the inmate would often be 

forced to be placed in a waiting list for the program within a correctional 

institution. This created a large backlog (over 2700 inmates) for the programs 

within the institutions. Under HB 463, the Department of Corrections was 

authorized to determine an appropriate residential or nonresidential placement for 

qualified parolees who are required to complete an intervention program as a 

condition of release. The Department of Corrections may release a parolee from a 

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60 

DOC facility to a residential intervention program or to appropriate community 

housing in order to complete a nonresidential intervention program. 

Expanding community-based transitional housing options and GPS 

monitoring. The Department of Corrections is authorized to continue to expand 

the use of transitional housing or GPS monitoring to facilitate reentry for inmates 

eligible for conditional release. The bill's provisions authorize the DOC to place an 

inmate on home incarceration or conditional release while using a monitoring 

device within 9 months remaining on an inmate's sentence (this was increased 

from 6 months). 

DOC to supervise probationers and parolees according to evidence-based 

practices. 

Requiring state funding to be used for programs and practices that are 

evidence-based. The Department of Corrections is required to demonstrate that 

state-funded intervention programs provided by the department for inmates, 

probationers, and parolees have been evaluated for effectiveness in reducing 

recidivism or that similar programs have research demonstrating such 

effectiveness. 

Reducing Supervision Caseloads So Officers Can Focus on High-Risk 

Offenders 

Requiring the use of administrative caseloads. One of the primary tenets of 

justice reinvestment is to utilize resources more efficiently by focusing higher 

levels of supervision on higher risk offenders. In order to do this, policies must be 

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61 

implemented to supervise lower risk offenders more efficiently. Under HB 463, the 

Department of Corrections is required to establish administrative policy for the 

supervision of low-risk offenders through administrative case loads. Administrative 

supervision will include monitoring offenders to ensure that they have not engaged 

in new criminal activity and are fulfilling financial obligations to the court. 

Offenders on administrative supervision who fail to meet financial obligations can 

be placed on a higher level of supervision at the discretion of the Department of 

Corrections. Those who engage in criminal activity can be prosecuted, can be 

revoked, or can be placed on a higher level of supervision. 

Offenders on higher levels of supervision who, upon reassessment demonstrate a 

reduction in dynamic risk factors and who achieve the goals established on their 

supervision plans can be placed on administrative supervision at the discretion of 

the Department of Corrections. Ifthe supervised person who has his or her 

conditions or level of community supervision modified is a probationer, the 

provisions require notice to the court of the modification. 

Authorizing earned-time credits for parolees. The Department of Corrections is 

required to extend earned-time credit to parolees in the community using criteria 

similar to those that currently apply to inmates. 

Authorizing intermediate/graduated sanctions for technical violations of 

parole. In an effort to reduce the number of technical parole violators (persons 

who violate the terms and conditions of their parole rather than commit a new 

offense) who are returning to prison, HB 463 implemented a system of graduated 

sanctions for violations of conditions of community supervision. The Department 

of Corrections is authorized to respond administratively to technical parole 

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62 

violations not warranting revocation (for example, a missed appointment with 

probation and parole officer, missing curfew, etc.). Penalties are deterimined 

according to a sanctions grid established through administrative policy. Graduated 

sanctions were also permitted for use with probationers with the consent of the 

judge who granted probation. 

Other provisions of HB 463 are already showing great success. Arrests for minor 

offenses are down, and the pretrial release of defendants has increased by 5%. 

Meanwhile, the public safety rate, which is the percentage of defendants who do 

not commit an offense while on pretrial release, increased from 90% to 92%. The 

rate at which they reappear on their court date has also increased. These pretrial 

changes have resulted in savings to the counties of approximately $25 million in 

jail costs. 

Since August 2012, our state inmate population has decreased from 22,503 to 

20,011 as of September 5, 2013. That is a decrease of over 2200 inmates, or almost 

10%. This reduction led to the decision not to renew the final private prison 

contract in KY. As of October 1, 2013, the entire state felon population will be 

housed in state facilities, community service centers, or local jails. 

Over the next 10 years, Kentucky's reforms are estimated to reduce the prison 

population by 3,000 to 4,000 inmates and bring a gross savings of 

approximately $422 million in corrections spending. The goal is to achieve these 

reductions while maintaining public safety and preserving state resources so we 

can dedicate expensive prison beds for serious offenders. 

One thing is clear. We cannot continue to incarcerate our way out of any problem. 

We have tried that, and it does not work. Had the General Assembly not acted to 

control the constantly expanding prison population, we would have been forced to 

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increase the state's spending on corrections by at least an additional $161 million 

by 2020 to cover the predicted growth. 

We are confident, however, that the refonns were based on sound policymaking 

and will continue to make positive changes for Kentucky's future. 

2012 and 2013 Legislation affecting reentry 

HB 1 and HB 217: Pain Management Facilities, KASPER, etc. 

"Pain Management Facilities" must be owned by a physician holding an 

active Kentucky medical license. 

Pain Management Facilities must accept private health insurance as an 

allowable form of payment. 

CHFS and KBML share enforcement authority. 

Kentucky State Police, Office of the Attorney General, CHFS, and 

Licensing Boards to share reports of improper prescribing 

Commonwealth's and County Attorneys to report indictments of a 

medical professional for a felony drug offense to the Attorney General 

within 3 days 

Licensing Boards are required to issue regulations to protect patients, 

including: 

1. Mandatory prescribing and dispensing standards adopted by the medical 

community itself; 

2. Limitations on "in office" dispensing (to combat Florida style "pill 

mills"); 

3. Emergency license suspension procedures when public health is 

endangered; 

11 
64 

4. Commencement of complaint investigation within 7 days, production of a 

charging decision within 120 days; 

5. No licensing of practitioners convicted of drug felonies; 

6. Mirroring of sanctions imposed by other states; 

7. Mandatory repmiing of criminal or disciplinary actions by medical 

professionals; 

8. Participation in the National Practitioner Data Bank; 

9. Continuing medical education on addiction and pain management. 

Addiction and pain specialists required to consult with licensing boards. 

Boards to accept unsworn complaints. 

Doctors and nurses must check KASPER prior to prescribing 

Schedule II or III drugs as well as conduct a physical exam and discuss the 

risk of drug tolerance. Exceptions are made for emergency services 

CHFS may contract for the design, upgrade or operation of KASPER. 

Commonwealth's and County Attorneys authorized to request KASPER 

reports. 

Medical professionals may direct employees to access KASPER 

Medical professionals may access KASPER reports showing their own 

prescribing practices. 

Medicaid Services to monitor and report improper prescribing practices. 

Practitioners protected in good faith use of KASPER. 

Medical professionals may place KASPER reports in patient's records. 

Real Time Reporting funding requests authorized. 

Error correction to be permitted. 

CHFS to "proactively" use KASPER data. 

CHFS, Licensing Boards, and ODCP to generate public Trend Reports. 

CHFS 

12 
65 

Hospitals may request KASPER reports on employees. 

13 
66 

D 

CHFS may join other states in sharing prescription data. 

Coroners to test for drugs and report; Name and address of decedent not 

reported. 

ODCP and the State Medical Examiner shall publish findings relating to 

drug overdoses for a more accurate count of the deaths caused b 

prescription drug abuse. Personal identifYing information will be kept 

confidential. 

Governor shall select Licensing Board members to ensure broad range of 

knowledge and talent. 

Pharmacies discovering robbery or theft must report. 

Model Interstate Compact on Prescription Monitoring Programs is 

adopted. 

Legislative oversight is provided for. A House Bill 1 Implementation 

Oversight Committee monitored the roll out of HB 1 provisions and 

agency regulations during 2012. 

SB 78: Non-felony expungement clarification 

This Senate bill was amended to add HB 57 (Rep. Yonts), which clarifies 

the effect of traffic tickets on non-felony expungement requests and 

requires that a certificate of eligibility completed by the State Police and 

the Administrative Office of the Courts be submitted with all 

expungement petitions. 

Current and future reentry initiatives 

In 2012, pursuant to HB 54, the General Assembly gave the Criminal 

Justice Council the responsibility for oversight of the continued 

14 
67 

D 

implementation of the HB 463 provisions. The Council has met twice 

since August 2012 to continue to monitor the progress being made. 

The General Assembly will continue to find ways to address challenges 

facing those who are being released from prison and seeking to reenter 

society as productive citizens. Of particular concern are gaps in housing, 

employment and treatment services. 

Housing. We need to find ways, thorough tax credits or otherwise, to 

incentivize housing for ex-offenders to increase the availability of 

affordable housing. Having a place to live is a very basic necessity and is 

the foundation upon which everything else necessary for a successful 

reentry is built. Without housing, it is difficult to hold a job and provide 

for your family. Seeking treatment and other services essential for 

successful reentry becomes secondary without proper housing. 

Employment. We are looking for ways to remove barriers to employment 

for ex-felons. We can start by determining what modifications can be 

made in statutes that prohibit convicted felons from obtaining 

occupational and professional licenses in many fields. For example, 

convicted felons lose or are restricted from receiving a license for 

cosmetology, waste site operator, chiropractic care, emergency medical 

technician, paramedic, and motorcycle safety instructor. Currently there 

is no requirement that a felony conviction have a nexus to the professional 

or occupational license being sought. There is also no statutory time 

limitation that would bar consideration of an old felony when a person 

seeks an occupational license. These are common sense changes that 

would make it easier for people to reenter society and to support 

themselves and their families. 

15 
68 

0 

We also need to give serious consideration to authorizing felony 

expungement in certain circumstances. A felony conviction has been 

appropriately termed an "economic death sentence." 

Treatment. The General Assembly will continue to work with DOC to find 

ways to increase the availability of programs in local jails and community 

agencies. We need to find ways to increase funding for these programs so 

that those in rural areas can also receive the services they need to have a 

successful reentry. 

One area that has not been explored fully is how to deal with mental 

health issues in our society. We need to find ways to address these needs 

both in terms of reentry and in terms of preventing someone from ever 

entering the criminal justice system. 

DOC, in partnership with reentry councils across the state, have 

implemented Family Engagement Sessions to work with offender families 

to prepare them for loved ones entering the criminal justice system and for 

those nearing release from the criminal justice system. The feedback has 

been tremendous and families know feel empowered in the knowledge of 

how the processes work. Family relationships are a key factor in the 

success of an offender's reentry process. 

DOC has pledged to continue monitoring recidivism rates to see if 

program participation is working and to make improvements if necessary. 

16 
69 

Statement of 

Nancy G. La Vignc, Ph.D. 

Director, Justice Policy Center, Urban Institute 

before the 

Committee on Judiciary 

United States Senate 

Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism 

Wednesday, November 6, 2013 

The views expressed are those of the author and should not be attributed to the Urban Institute, its 

trustees, or its fundcrs. 

Good afternoon, Mr. Chaim1an, members of the Committee. It is an honor to appear before you 

to testify about the challenges and opportunities associated with the federal corrections system. I 

am the director of the Justice Policy Center at the Urban Institute. We represent over three dozen 

researchers studying a wide array of crime and justice issues. For 20 years we have managed the 

Federal Justice Statistics Resource Center on behalf of the federal government, cleaning, coding, 

and analyzing data from a wide array of federal criminal justice agencies including the Bureau of 

Prisons (BOP), the Administrative Office of the Courts, and the United States Sentencing 

Commission (USSC). Our portfolio of research includes evaluations of promising programs, 

reviews of the literature of"what works" in reducing recidivism, and expertise in cost-benefit 

analysis. We are also the assessment partner on the Justice Reinvestment Initiative, a federally 
70 

funded program that reduces costs associated with state prison systems while enhancing public 

safety. This expertise has made us uniquely situated to study the drivers of the federal corrections 

population, identify policies that can avert future growth. and project the impact of those policies 

in tenns of population reductions and cost savings. 

That work, funded by the Public Welfare Foundation and the Open Society Foundations, is 

embodied in our newly released report, Stemming the Tide: Strategies to Reduce the Growth and 

Cut the Cost of the Federal Prison System1 The report chronicles the rampant increase in the 

size and cost of the federal prison system and reviews 20 policy options designed to reduce the 

prison population without jeopardizing public safety. Many of those options reflect legislative 

proposals introduced by you and your colleagues. Our overarching conclusion is that it will 

require changes to both sentencing and release policies to reduce the federal prison population to 

levels that are within their rated design capacity. Doing so can save billions of dollars that could 

be dedicated to other important justice priorities, including programming and treatment to help 

federal prisoners lead law abiding lives upon their release. 

Over the past several decades, the federal prison population has experienced an almost tenfold 

increase in its population since 1980; its current population exceeds 219,000,2 with projections of 

continued growth for the foreseeable future. This continuous growth has substantial costs. With 

each passing year, the federal goverrunent has had to allocate more resources to the federal 

prison system at the expense of other critical public safety priorities. Since Fiscal Year (FY) 

2000, the rate of growth in the BOP budget is almost twice the rate of growth of the rest of the 

US Department of Justice (DOJ). 3 

A wide array of actors. including members of this Committee, other Members of Congress, the 

Attorney GeneraL other administration officials, bipartisan policy advocates, and researchers, 

have concluded that this grO\vth and its associated costs are unsustainable. The basis for this 

conclusion varies: 

Fiscal impact. Resources spent on the BOP eclipse other budget priorities. 

Overcrowding risks. Overcrowded facilities can jeopardize the safety of inmates and 

staff and limit opportunities for effective programming that can reduce recidivism. 

Fairness and equity concerns. High levels of incarceration may have disproportionate 

effects on certain subpopulations and communities. 

Inefficient resource allocation. Current research and recent evidence-based policy 

changes implemented in states raise questions about the cost-effectiveness of existing 

federal sentencing and corrections policies. 

1 Samuels, LaVigne, and Taxy (20 13). 

2 BOP (2013b). 

'US DOJ, Summary ~(Budget Authority by Appropriation. Budget summaries for fiscal years 2000 13. See, tor 

example. http://www.justice.gov/archivc/jmd/2k-summary/2kbudget.pdf (2000); and 

http://www .justice. gov /j md/20 13 summary /pdf/budget -authority-appropriation. pdf (20 13 ). 

2 
71 

The high costs of maintaining a growing prisoner population have contributed to the increases in 

the BOP budget relative to the rest of the DOJ: in FY 2000, BOP took up less than 20 percent of 

the DOJ budget, but we project that by FY 2020, it will consume more than 30 percent. In these 

fiscally lean times, funding the expanding BOP population crowds out other priorities, including 

funding for federal investigators and federal prosecutors and support for state and local 

govemments4 

BOP facilities are currently operating at between 35 and 40 percent above their rated capacity, 

with 51 percent crowding at high-security facilities and 47 percent at medium-security facilities 

in FY 2012. 5 The capacity of BOP facilities in 2012 was 128,359, but BOP-operated facilities 

housed 177,556 inmates in 2012. 6 Since FY 2000, the inmate-to-staff ratio has increased from 

about four-to-one to a projected five-to-one in FY 2014. 

Barring any meaninglul changes in policy and practice, this untenable status quo will be the 

norm for the coming decade: the BOP projects that, through 2020, federal prisons will be 

overcrowded by at least 33 percent, with the population exceeding system capacity by at least 

50,000 people each year. 6 The BOP anticipates adding over 25,000 beds by 2020, but most of 

these projects have not yet been approved and would not substantially reduce overcrowding (see 

figure 1 ). 7 i\s illustrated in figure 1, the federal prison population would need to decline by over 

50,000 inmates to be operating prisons within their rated capacity. 

Figure 1: BOP Projected Overcrowding Compared with Current Capacity and New Beds 

250,000 

4 Hearing on Federal Sentencing Options after Booker: Current State of Federal Sentencing (2012) (statement of 

Matthew Axelrod, Associate Deputy Attorney General). 5 US DOJ (2013); Hearing on the Oversight of the Federal Bureau of Prisons Subcommittee on Crime, Terrorism, 

Homeland Security. and Investigations (2013) [hereinafter BOP 2014 Budget Heuring] (statement of Charles E. 

Samuels, Jr., Director, Federal Bureau of Prisons). 

http://docs.housc.gov/meetings/JUIJU08/20 13091911 0 1318/HH RG-113-J U08-W state-SamuelsC-20 !309!9.pdf. 6 

US DOJ (20 13). This represents the prison populations and capacity for 2012. The population ebbs and flows 

throughout the year as prisoners are released and new offenders are admitted. As of September 2013, overcrowding 

had dropped to 36 percent in BOP facilities. but was expected to climb again. 6 GAO (2012). 

7 See GAO (2012) table 7, based on BOP's 2020 Capacity Plan, January 2012. These projections assume that 17,500 

new beds will be constructed and staffed starting in FY 2016-these new facilities will require increases in 

appropriations to the BOP that have not yet received congressional approval. 

3 
72 

200,000 

150,000 

100,000 

50,000 

2013 2014 2015 2016 2017 2018 2019 2020 

Source: GAO (2012). 

Beyond the fiscal problems associated with maintaining such a large federal prison population, 

overcrowding threatens the safety of inmates and prison staff and undem1ines the ability to 

provide effective programming8 

Overcrowding is most concentrated in high-security facilities, where over 90 percent of 

inmates have a history of violence. Overcrowding is currently above 50 percent in 

highsecurity facilities9 

The BOP has found that high inmate-to-corrections officer ratios are correlated with 

increases in the incidence of serious assault. 10 In February 2013, a BOP ofticerwas killed 

for the tirst time in tive years, while working alone in a unit housing 130 inmates. 11 

Provision of programming and treatment designed to reduce recidivism is restricted due 

to lack of space. inadequate staff, and long vvaiting lists for educational, treatment, 

vocationaL and other reentry programming." 

Health and safety hazards increase from over-used equipment. such as toilets. showers, 

and food service equipment. 13 

Given the dellimental effect of this continued grov.th on prison conditions, inmate and staff 

safety, and the ability to provide recidivism-reducing programming and treatment. it is critical 

that options be explored that avert future expansion of this already bloated system. 

8 GAO (2012). 

9 US DOJ (2013). 

10 BOP (2005). 

11 Kalinowski and Halpin (20 13). 

12 GAO (2012). 

13 GAO (20 12). 

4 
73 

\\ ;1,L "~. \ ::1 :\ ;\-]Sl:1 

A large and growing body of evidence indicates that programs to prepare inmates for 

employment, address substance addiction, and maintain and enhance family relationships are 

critical to reducing the likelihood of recidivism following their release. Much of this evidence is 

embodied in the What Works in Reentry Clearinghouse,14 developed by the Urban Institute in 

partnership with the Council of State Governments' Justice Center as part of the Second Chance 

Act's National Reentry Resource Center. 15 For example, the Clearinghouse found positive 

effects for many substance abuse treatment programs, including the BOP's Residential Drug 

Abuse Program, 16 Connecticut's substance abuse treatment tier programs, 17 and Minnesota's 

chemical dependency treatment program. 18 Several prison industries programs were found to be 

effective, including the federal prison system's UN! COR program, 19 as were work release 

programs in Florida20 and Washington21 and a number of educational and vocational programs, 

particularly postsecondary and adult basic education. 

Importantly, studies of in-prison visitation found that inmates who receive visits from family 

members while incarcerated have reduced rates of recidivism compared to those who do not, 

even when statistically controlling for other differences between these groupsY This finding is 

consistent with the Urban Institute's reentry studies, which have found that families are an 

important positive influence in the reentry process, with higher levels offamily support linked to 

higher employment rates and reduced recidivism following release 23 and that in-prison contact 

with family members is predictive of the strength of family relationships following release. 25 

It is important to note that many of the prison programs found to be effective in reducing 

reoffending and substance abuse are also cost-effective. Welsh's review of cost-benefit analyses 

of reentry programs24 found that 12 of 14 evaluations of reentry programs resulted in positive 

benefit-cost ratios, and a comprehensive review conducted by Aos yielded similar findings. 25 In 

an Urban Institute evaluation of the Maryland Reentry Partnership Initiative/6 we found that the 

effort returned three dollars in benefits for every dollar in new costs. Another Urban study27 

found that jail reentry programming is cost-beneficial if the programming results in at least a 2 

percent reduction in recidivism. 

14 http://whatworks.csgjusticecenter.org. 

15 http://csgjusticecenter.org/nrrc. 

16 Pelissier et al. (2002). 17 Daley et al. (2004). 18 Duwe (20 !0). 

19 Saylor and Gaes ( 1992). 10 Berk (2007). 

" Drake (2007). 

" Bales and Mears (2008); Derkzen, Gobeil, and Gileno (2009). 

13 LaVigne. Visher, and Castro (2004); LaVigne, Shollenberger, and Debus (2009). " 

Naser and LaVigne (2006). 14 Welsh (2004). 

"Aos (2006). 

1

6 Roman et al. (2007). 

" Roman and Chalfin (2006). 

5 
74 

These findings make a strong case for the federal prison system to expand programming to serve 

all the prisoners who can benefit from it, especially given that federal treatment and prison 

industries programs feature prominently among the most effective reentry programs that have 

been rigorously evaluated. Doing so, however, requires a reduction in the prison population to 

relieve overcrowding and the shifting of resources saved from population reduction toward 

program and treatment delivery. States across the country have done exactly that, offering 

examples and lessons learned that the federal system could benefit from following. 

The federal experience in prison growth has largely been mirrored in the states, but while the 

federal prison has continued to grow, in the past decade states have engaged in extensive 

bipartisan reform etiorts, many of which have reduced overcrowding and saved taxpayers money 

without sacrificing public safety. The experiences of the states can be instructive; as illustrated in 

Figure 2, the state incarceration rate has remained largely constant for the past decade while the 

federal incarceration rate has grown by over a third. 

Figure 2: Trends in State and Federal Incarceration Rates 

c 

0 ·g 

:; 

a. 

0 

c. 

... 

"' c. 

~ 

a: "' 

700 

600 

500 

400 

3Qg 0 

0 

2dfi 

100 

0 

1980 1985 1990 1995 

Year 

2000 

State 

-Fed*IO 

2005 2010 

Source: Bureau of Justice Statistics, Office of Justice Programs, US Department of Justice. 

While state prison systems differ significantly from the federal system, many drivers of prison 

population growth remain the same. For example, some of the growth in state systems was 

driven by increases in truth-in-sentencing requirements, often requiring an 85 percent threshold 

for violent offenders and some lower threshold for nonviolent offenders. The Violent Offender 

Incarceration and Truth-in-Sentencing Incentive (VOI/TIS) Grant Program, authorized by the 

Violent Crime Control and Law Enforcement Act of 1994, further incentivized states to adopt 

truth in sentencing with funding to build or expand prisons and jails.28 Faced with high prison 

28 Sabol et al. (2002); Ditton and Wilson (1999). 

6 
75 

populations and shrinking budgets, however, many states recently revised their truthinsentencing provisions to allow for earlier release. Mississippi, for example, passed a law 

significantly reducing the TIS threshold from 85 percent to 25 percent for many offenders; this 

policy both reduced the prison population and saved the state money, without compromising 

public safcty.29 These states have recognized that certainty, as a crucial attribute in the 

sentencing process (especially for victims and victims' advocates,)30 is not compromised by 

lowering time served thresholds as long as the change is well publicized. Given that with very 

few exceptions federal inmates must serve over 87 percent of their sentence, these policy 

changes are quite instructive. 

Similarly, legislators in states across the country have expanded early release programs for 

offenders who comply with prison regulations and programming requirements. At least 31 states 

o!Ter inmates the opportunity to earn sentence-reduction credits through participation in 

education, vocational training, substance abuse treatment and rehabilitation, and work programs; 

education and work programs are the most common.31 These programs vary by programmatic 

requirements, extent of the credit, and eligibility. Many states factor inmates' compliance with 

prison rules and regulations into earned time credit calculations32 

Studies show that early release resulting from earned and/or good time credits can be a 

costcffective method for reducing prison populations at minimal risk to public safety. A review 

of early release programs and public safety measures found no significant differences between 

the recidivism rates of inmates released early and those who served their full sentences. 33 These 

programs have also been found to produce significant cost savings.34 States' experiences can 

guide efforts to expand and strengthen BOP's early release progran1s. 

:::' rnwth 

The federal system has its own unique drivers of growth that need to be addressed as well. More 

than 90 percent of BOP inmates are sentenced offenders, mostly for federal crimes.35 The 

number and composition of offenders committed to federal prison result from the investigations 

pursued by law enforcement, cases accepted and charged by prosecutors, the dispositions of 

those cases, the proportion of convicted offenders that receive a term of imprisonment, and the 

imposed sentence. 

The BOP does not play a role in these decisions: the combination of the volume of admissions 

and sentence length drives the inmate population. The length of stay is largely determined by the 

sentence imposed (informed by the relevant statutory penalties and federal sentencing 

29 Justice Policy Institute (2011): Gray (2011). 30 Stith and Koh ( 1993). 

Lawrence (2009). Some states also offer additional opportunities for earning earned time credits, such as 

participation in "special programs." disaster relief or conservation efforts. or by conducting extraordinary 

meritorious service in prison. 

'

2 Lawrence (2009) . 

.1.1 Guzman. Krisberg. and Tsukida (2008). 

34 Drake, Bamoski. and Aos (2009). 35 BOP also houses sentenced DC felony offenders (since 1997) and some pretrial or pre-sentencing offenders for 

the US Marshals Service and for Immigration and Customs Enforcement. See BOP (2013a). 

7 
76 

guidelines)36 and any subsequent sentence reductions that release inmates early. Currently few 

options for early release exist and most federal offenders sentenced to prison serve at least 87.5 

percent of their tem1s of imprisonment.37 

The length of sentences-particularly for drug offenders, many of whom are subject to 

mandatory minimum sentences-is an important determinant of the size of the prison population 

and driver of population growth. Our 2012 study of the gro'.'.th in the BOP population from 1998 

to 2010 confim1ed that time served in prison for drug otTenses was the largest determinant of 

population gro'.'.1h38 Changes in sentencing laws (particularly mandatory minimums) and 

practices, prison release policies, or both could directly decrease the time served and thereby 

moderate prison population gro'.'.1h. 

Given that the federal prison population is driven by the volume of admissions and sentence 

length, any attempt to address prison overcrowding and population gro'.'.th that relies exclusively 

on back-end policy options to shorten length of stay, while meaningful, would only yield a 

marginal impact. We find that a combination of both front- and back-end policies will be 

necessary to reduce population growth in both the short and long term. Fortunately, a bipartisan 

coalition of lawmakers -including many members of this Committee-have taken up the 

mantle ofleadership in crafting innovative and effectual legislation that will go a long way in 

stemming the tide of federal prison population growth. We have analyzed the projected impact of 

these legislative proposals along with other possible policy changes in our Stemming the Tide 

report. 

In our report, we generate cost and population estimates for over a dozen policy options to 

reduce the federal prison population. Our estimates generally employ BOP data on federally 

sentenced offenders only (thus excluding pretrial, DC, state, or other miscellaneous offenders) as 

of the end of Fiscal Year 2011 (September 30, 2011). Elsewhere, we rely on published summary 

information in the FY 2012 USSC Sourcebook, 2011 USSC Mandatory Minimum Report, and 

other USSC, GAO, and BOP annual or special reports. We are also indebted to the many 

criminal justice policy experts who provided input and feedback on our interpretations of 

proposed policies and methodology. 

When making assumptions regarding program eligibility or impact, we err on the conservative 

side. For example, our cost estimates for dollars saved are based on the average marginal cost of 

imprisoning one ilm1ate for one year-these do not take into account the savings that could 

accrue from averted prison construction or prison closures, including wholesale staffing changes 

or other structural changes to the BOP cost structure. We also assume that ban·ing any new 

36 Recent legislative and policy changes to this domain may have the combined effect of reducing sentence length: 

for example, the shift from mandatory to advisory sentencing guidelines and enactment of the Fair Sentencing Act 

could moderate sentence lengths. 

There are limited opportunities for some offenders to have their sentences reduced below 87.5 percent, based on 

prison participation in residential drug treatment programming and, in rare cases. compassionate release. 

38 Mallik-Kane, Parthasarathy, and Adams (2012). 

8 
77 

prison construction or policy changes, overcrowding will continue to rise to 55 percent in BOP 

facilities within I 0 years. 

The extent of our assumptions varied depending on the type of change proposed, For existing 

proposals, such as proposed legislation, the population estimates are based on our interpretation 

of the proposed change and our best understanding or assumptions about how it will work in 

practice. In cases for which a proposal rests on the exercise of judicial or prosecutorial 

discretion, it is difficult to discern the accuracy of the assumptions. In addition, the projected 

impact of these policy options is not necessarily additive, as some share of offenders or inmates 

may be eligible for multiple policies, diminishing their benefits to some degree. 

Because the biggest driver of federal prison growth has been the number of drug offenders 

getting lengthy sentences, our projections conclude that the most direct way to reduce the prison 

population is to address drug offenses. Before the Sentencing Reform Act of 1984 and 

mandatory minimums for drugs, a quarter of all federal drug offenders were tined or sentenced to 

probation, not prison. Today 95 percent are sentenced to a term ofincarceration.39 The average 

time served before 1984 was 38.5 months, almost half of what it is now. 40 

One legislative proposal, S. 1410 The Smarter Sentencing Act of2013, combines three policies 

targeted at reducing prison population and spending growth associated with drug offenders 

subject to mandatory minimum sentences. We examine these separately. Reducing mandatory 

minimum penalties for certain nonviolent drug offenses has support from policymakers on both 

sides of the aisle who view these penalties as unfair, ineffective, and an unwelcome intrusion on 

judicial discretion and state-level drug enforcement. Every year, 15,000 offenders are charged 

with offenses carrying these minimums, so lowering the mandatory sentences would greatly 

reduce overcrowding and costs. In 10 years, reducing mandatory minimums by half would save 

$2.5 billion and reduce prison crowding to 20 percent above capacity. This is the only policy 

option that would, on its own, eliminate prison overcrowding going forward. 

Another way to address sentence length is to provide more judicial discretion in departing below 

statutory mandatory minimum penalties. Judges are allowed to exempt an offender from a 

mandatory minimum sentence if he or she meets certain criteria. This option-the safety valveapplies only to drug offenders with minor or no criminal history. That same discretion could be 

expanded to include drug offenders with slightly greater criminal histories who pose little threat 

to public safety. Expanding the safety valve to Criminal History II offenders would save $544 

million over 10 years. 

A final option in The Smarter Sentencing Act that would alleviate prison overcrowding 

immediately, for which over 3,000 inmates would be eligible for immediate release, applies to 

the Fair Sentencing Act of 2010, which increased the quantity of crack cocaine needed to trigger 

a mandatory minimum sentence. But these statutory changes have only applied to cases going 

forward. Making these changes retroactive for inmates who judges confirm pose little risk to 

public safety would reduce sentences for many crack cocaine offenders; a previous retroactive 

39 USSC 2012 Sourcebook. 40 Bureau of Justice Statistics (1987). 

9 
78 

sentence change for crack offenders in BOP custody was shown in a methodologically rigorous 

study to have no adverse effects on public safety.41 

Another legislative proposal, S. 619 The Justice Safety Valve Act of20!3, would provide even 

greater authority to judges to depart below the statutory mandatory minimum penalty for 

offenders whose case-specific characteristics and criminal histories are inconsistent with a 

lengthy minimum sentence. This new safety valve could be applied to all offenders facing 

federal mandatory minimums, including drug offenders with more extensive criminal histories 

and offenders subject to mandatory minimum penalties for nondrug offenses. Expanding safety 

valve eligibility to any offender subject to a mandatory minimum sentence could save as much as 

$835 million in 10 years. Though it would take several years to realize an effect from this 

legislative change, it would stabilize overcrowding at approximately 40 percent for the 

remainder of the decade. 

Other legislative options provide early release or transfer to community corrections for those 

already in BOP custody, more immediately relieving dangerous overcrowding. These proposals 

marry research literature about what works at reducing recidivism and increasing public safety 

with the experiences of states in reducing their prison populations. 

Federal inmates can reduce their required length of stay for good conduct (except those with life 

sentences or with less than a year to serve) and participation in specific programming. Expanding 

such opportunities can free up bed space through the early release of those who participate in 

intensive programs proven to cut down on recidivism. Research indicates that in the states, the 

early release of inmates has no significant impact on recidivism rates.42 Based on our 

understanding of S. 1231 RS Second Chance Reauthorization Act of 2011, earned time for 

intensive, evidence-based program participation could save $45 million. Another option that 

would provide similar quantities of credits for both intensive, validated programming and less 

intensive programming or programming that has not been validated would save $224 million. 

Another option, proposed in H.R. 2656 The Public Safety Enhancement Act of 2013, is giving 

early release credits for a broader set of programs and productive activities and rewarding 

inmates based on their risk level. The goal here is to incentivize inmates to engage in conduct 

and activities that lower their risk levels during the course of incarceration. Low-risk inmates, for 

example, would earn more credits and would be released early to serve the remainder of their 

prison tenns on home confinement. This would help overcrowding, though mostly in lowsecurity 

prisons. (Under current contracting mechanisms, however, home confinement is more costly than 

prison: that might change as BOP renegotiates its contracts for a lower price. A more competitive 

rate of reimbursement for home confinement is roughly half that which BOP currently pays 

through its contractors.) Using competitive market rates for home confinement, transferring lowrisk prisoners can save up to $112 million; but, if BOP cannot renegotiate its contracts, it could 

lose almost $80 million. 

Our report also provides cost and population estimates for other policy changes at both the front 

and back ends. A policy that has been particularly effective at the state level is reducing the 

41 Hunt (20 II). 42 Guzman et a!. (2008). 

10 
79 

required truth-in-sentencing threshold of required time served before the inmate is eligible for 

release. Under TIS laws. inmates must serve their entire sentence, except what is subtracted for 

good conduct. Lowering the minimum amount of time served to 80, 75, or 70 percent could go a 

long way toward easing overcrowding without compromising the "certainty and severity of 

punishment" TIS laws were designed to guarantee. Reducing the required minimum of time 

served from 87.5 to 75 percent for those inmates that exhibit exemplary behavior while in BOP 

custody would save over $1 billion in 10 years; reducing the minimum to 70 percent would save 

over $1.5 billion and prevent any grovvth in overcrowding over the next I 0 years. 

Policy changes reducing the number of drug offenders sentenced to terms of incarceration would 

have an immediate impact on both population and cost. This can be done by only accepting 

certain types of drug cases, diverting cases to states, and reducing drug prosecutions. Another 

approach is reducing drug sentences either by instructing prosecutors to modify charging 

practices to reduce mandatory minimum sentences (as the Attomey General has recently done43) 

or by amending statutory penalties. Cutting the number of drug offenders entering BOP by just 

I 0 percent would save $644 million over 10 years. 

Other policies target inmates already in BOP custody. Two additional earned time policies 

include expanding upon those already in place. Federal inmates can get up to 12 months off their 

sentences for successfully completing the Residential Drug Abuse Program, but most receive 

much less than that. Giving graduates the full 12 months of credit would save money and 

encourage inmates to participate in a program proven to decrease post-release drug use and 

rearrest ratcs 44 

Similarly, current inmates could receive the full good conduct credit they eam. Federal law 

allows imnates up to 54 days of good conduct credit, but because of the way the BOP calculates 

time off, inmates actually receive up to 47 days off. This change alone, which would require a 

statutory change, would lead to 4,000 releases and save over $40 million in the first year alonc. 45 

Federal prisons already have early release programs for terminally ill inmates and the elderly, but 

few eligible inmates are offered this option. These inmates are good candidates for early release 

because they are less likely to reoffend46 and their medical care is costly.47 BOP could greatly 

expand the eligibility criteria for elderly imnates who have served a vast majority of their 

sentences: changing their discharge status could actually save the BOP money. The BOP is 

already expanding and refom1ing compassionate release for sick and elderly inmates: doubling 

the number of inmates released early through this program would yield even more savings. 

Finally, the federal prison system could increase the number of transfers of foreign national 

inmates to their home countries. About a quarter of the federal prison population is not US 

citizens, but less than 1 percent of foreign nationals are transferred through the Intemational 

43 Holder (2013a, 2013b). 44 Pelissier et al. (2000). 45 US DOJ (2013). 

46 See, for example, USSC (2004) and Chiu (20 I 0). 47 Chiu (2010). 

11 
80 

Prisoner Transfer Program.48 Together, expanding elderly and compassionate release and 

doubling international transfers could save almost $15 million. 

The BOP population has increased almost tenfold since 1980. If current trends persist, spending 

on prisons will continue to squeeze taxpayers for billions of dollars annually and eclipse other 

spending priorities, such as federal investigators and prosecutors. 

Federal prisons are also currently operating over one third over capacity, and the BOP projects 

that the population and overcrowding will continue to grow over the coming years. This means 

that even fewer inmates will have access to reentry programming designed to reduce recidivism 

and that prison facilities will become even more dangerous for prisoners and correctional officers 

alike. The current status quo is untenable, and it is anticipated to get even worse. 

BOP has limited discretion and authority in reducing its burgeoning population, and even if its 

authorities increase, most of the savings from back-end options are limited. Most options for 

reducing the population would require statutory changes or changes in policies by investigators, 

prosecutors, judges, and probation officers; it is heartening that so many Members of Congress 

have advanced cross-cutting and i1movative proposals to address this problem. 

Our previous research has shovm that lengthy drug sentences have been the biggest driver of 

growth in the federal prison population, and our report confirms that the most direct and effectual 

methods of decreasing the prison population target drug offenders specifically. Indeed, the only 

policy change that would on its own eliminate overcrowding altogether is reducing certain drug 

mandatory minimums. Other promising front-end changes include changing truth-in-sentencing 

requirements, reducing the number of oJTenders entering the federal prison system for drug 

offenses, and providing judges more discretion in departing below mandatory minimums. 

At the same time, back-end changes targeting inmates already in BOP facilities could 

immediately reduce overcrowding and save money. Options such as granting the statutory 

changes of the Fair Sentencing Act retroactively to nonviolent inmates deemed at little risk to 

public safety, changing the formula by which good time credits are calculated for inmates 

already in BOP custody, bringing RDAP to scale, and providing some type of expanded 

programming credit would help reduce overcrowding while not harming public safety. BOP is 

already reviewing and expanding its existing authorities, which will generate further savings. 

Aggressive action is needed to stem the tide of prison population growth: I hope that our report 

illuminates the drivers of federal prison population growth and potential solutions that go beyond 

stemming the tide of growth toward actually reducing the prison population over the coming 

decade. One of our key findings is that in order to alleviate dangerous conditions immediately 

and continue to slow growth, a combination of front- and back-end policies will be necessary. 

Many states have done so and are already reaping the benefits of cost savings at no risk to public 

safety. 

48 0IG(20ll). 

12 
81 

Thank you for the opportunity to testify today. I would be pleased to answer any questions you 

may have. 

Aos, Steve. 2006. ''Evidence-Based Public Policy Options to Reduce Future Prison Construction, 

Criminal Justice Costs, and Crime Rates." Olympia: Washington State Institute for Public Policy. 

http://www.wsipp.wa.gov/rptfiles/06-1 0-120 l.pdf. 

Bales, William D., and Daniel P. Mears. 2008. "Inmate Social Ties and the Transition to Society: Does 

Visitation Reduce Recidivism?" Journal of Research in Crime & Delinquency 45(3): 287-321. 

Berk, Jill ian. 2007. Does work release work? Unpublished manuscript. Providence, Rl: Brown University. 

BJS (US Bureau ofJustice Statistics). 1987. "Federal Offenses and Offenders: Sentencing and Time 

Served." Washington, DC: US Department of Justice. 

https://www .ncjrs.gov/pdfliles 1/Digitization/1 01 043NCJRS.pdf. 

BOP (Federal Bureau of Prisons). 2005. "The Effects of Changing Crowding and Staffing Levels in 

Federal Prisons on Inmate Violence Rates." Washington, DC: BOP. 

2013a. ''Quick Facts about the Bureau of Prisons." Accessed September 23. 

http://www.bop.gov/about/facts.jsp. 

---. 2013b. '·Weekly Population Report." Accessed September 19. 

http://-www.bop.gov/locations/weekly _report.jsp. 

Chiu, Tina. 2010. ·'It's About Time: Aging Prisoners, Increasing Costs, and Geriatric Release.'' New 

York: Vera Institute of Justice. 

Daley, M., C.T. Love, D.S. Shepard, C. B. Petersen, K.L. White, and F.B. Hall. 2004. "Cost-Effectiveness 

of Connecticut's In-Prison Substance Abuse Treatment.'' Journal of Offender Rehabilitation 39(3): 69-

92. 

Derkzen, D., R. Gobeil, and J. Gilcno. 2009. '·Visitation and Post-Release Outcome Among 

FedcrallyScntenced Offenders'' Ottawa: Correctional Service Canada. 

Ditton, Paula M .. and Doris James Wilson. 1999. Truth in Sentencing in State Prisons. Washington, DC: 

US Department of Justice. 

Drake. Elizabeth. 2007. ·'Does Participation in Washington's Work Release Facilities Reduce 

Recidivism?" Olympia: Washington State Institute for Public Policy. 

Drake, Elizabeth, Robert Bamoski, and Steve Aos. 2009. "Increased Earned Release trom Prison: Impacts 

of a 2003 Law on Recidivism and Crime Costs." Revised. Olympia: Washington State Institute for 

Public Policy. http://www.wsipp.wa.gov/pub.asp?docid=09-04-1201. 

Duwe, Grant. 2010. '·Prison-Based Chemical Dependency Treatment in Minnesota: An Outcome 

Evaluation.'' Journal of Experimental Criminology 6(1 ): 57-81. 

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82 

GAO (US Government Accountability Office). 2012. "Bureau of Prisons: Growing Inmate Crowding 

Negatively Affects Inmates, Staff, and Infrastructure." GA0-12-743. Washington, DC: GAO. 

http://www.gao.gov /assets/6501648123 .pdf. 

Gray. Steven. 2011. "Why Mississippi Is Reversing Its Prison Policy." Time, June 10, 

http://content.time.com/time/nation/article/0,8599,2077089-l ,OO.html. 

Guzman, Carolina, Barry Krisberg, and Chris Tsukida. 2008. "Accelerated Release: A Literature 

Review." Focus. Oakland, CA: National Council on Crime and Delinquency. 

http://www.nccdglobal.org/sites/default!filcs/publication_pdf/focus-literature-review.pdf. 

Holder, Eric. 20 13a. "Deprutment Policy on Charging Mandatory Minimum Sentences and Recidivist 

Enhancements in Certain Drug Cases.'' Memorandum to the US Attorneys and Assistant Attorney 

General for the Criminal Division. Washington, DC: US Department of Justice. 

http://www. popehat.com/wp-content/up I oads/2 0 13/08/ho lder-mandatory-drug-minimums-memo. pdf 

20 13b. "Retroactive Application of Department Policy on Charging Mandatory Minimum 

Sentences and Recidivist Enhancements in Certain Drug Cases." Memorandum to the US Attorneys 

and Assistant Attorney General for the Criminal Division. Washington, DC: US Department of 

Justice. http://famm.org/wp-content/uploads/20 13/09/DOJ-Retro-MM-Policy-9.19.13.pdf. 

Hunt, Kim Steven. 2011. ''Recidivism among Offenders with Sentence Modifications Made Pursuant to 

Retroactive Application of2007 Crack Cocaine Amendment." Memorandum to Chair Saris, 

Commissioners. and Judith Sheon. Washington, DC: US Sentencing Commission. 

Justice Policy Institute. 2011. "Due South: Mississippi: Rolling Back 'Truth-in-Sentencing' Laws:· 

Washington, DC: Justice Policy Institute. 

http://www.justicepolicy .org/uploads/justicepolicy/documents/due _south_-_ mississippi. pdf. 

Kalinowski, Bob, and James Halpin. 2013. "Corrections OiTicer Killed at Federal Prison in Wayne 

County.'' Scranton Times-Tribune, February 27. http:/ithetimes-tribune.com/news/correctionsofficerkilled-at-federal-prison-in-wayne-county-1.145071 0. 

LaVigne, Nancy G., Visher, Christine A. and Jennifer Castro. 2004. "Chicago Prisoners' Experiences 

Returning Home." Washington, DC: The Urban Institute. 

http://www.urban.org/publications/311115.html. 

LaVigne, Nancy G., Tracey L. Shollenberger, and Sara Debus. 2009. "One Year Out: The Experiences of 

Male Returning Prisoners in Houston, Texas." Washington, DC: The Urban Institute. 

http://www.urban.org/publications/4119ll.html. 

Lawrence, Alison. 2009. "Cutting Corrections Costs: Earned Time Policies for State Prisoners." 

Washington, DC: National Conference of State Legislatures. 

http://www.ncsl .org/documcnts/cj/carned _time_ report. pdf. 

Mallik-Kane, Kamala, Barbara Parthasarathy, and William Adams. 2012. "Examining Growth in the 

Federal Prison Population, 1998 to 2010." Washington, DC: US Department of Justice. 

https:/ /www.ncjrs.gov/pdffiles 1/bjs/grants/239785. pdf. 

Naser, Rebecca L., and Nancy G. LaVigne. 2006. "Family Support in the Prisoner Reentry Process: 

Expectations and Realities." Journal of Offender Rehabilitation43(1): 93-106. 

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83 

OIG (US Department of Justice, Office of the Inspector General). 2011. ''The Department of Justice's 

Intemational Prisoner Transfer Program." Washington, DC: US Department of Justice. 

http://www.justice.gov/oig/reports/20 11/e 1202.pdf. 

Pelissier, Bcmadette, Sue Wallace. J.A. O'Neil, Gerry Gaes, Scott D. Camp, William Rhodes, and 

William Saylor. 2002. ''Federal Prison Residential Drug Treatment Reduces Substance Usc and 

Arrests after Release." American Journal of Drug and Alcohol Abuse 27(2): 315-37. 

Pelissier, Bernadette, William Rhodes, William Saylor, Gerry Gacs, Scott D. Camp, Suzy D. Vanyur, and 

Sue Wallace. 2000. "TRlAD Drug Treatment Evaluation Project Final Report of Three-Year 

Outcomes: Part 1." Washington, DC: Federal Bureau of Prisons. 

http://www.bop.gov/news/PDFs/TRIAD/TRIAD _pref.pdf. 

Roman, John, and Aaron Chalfin. 2006. "Does It Pay to Invest in Jail Reentry Programs?" Washington, 

DC: The Urban Institute. http://www .urban.org/projects/reentryroundtable/upload/roman _ chalfin.pdf. 

Roman, John, Lisa Brooks, Erica Lagerson, Aaron Chalfin, and Bogdon Tereshchenko. 2007. Impact and 

Cost-Benefit Ana~vsis of the Maryland Reent1y Partnership Initiative. Washington, DC: The Urban 

Institute. http://www.urban.org/UploadedPDF /31 I 42 I _Maryland_ Reentry.pdf. 

Sabol, William J .. Katherine Rosich, Kamala Mallik-Kane, David P. Kirk, and Glenn Dubin. 2002. The 

Influences of Truth-in-Sentencing Reforms on Changes States· Sentencing Practices and Prison 

Populations. Washington, DC: The Urban Institute. 

Samuels, Julie, Nancy G. LaVigne, and Samuel Taxy. 2013. Stemming the Tide: Strategies to Reduce the 

Growth and Cut the Cost of the Federal Prison System. Washington, DC: The Urban Institute. 

http://www.urban.org/publications/412932.htm I. 

Saylor, William, and Gerry Gaes. 1992. "The Post-Release Employment Project: Prison Work Has 

Measurable Effects on Post-Release Success:· Federal Prisons Journal2(4): 33-36. 

Stith, Kate, and Steve Y. Koh. 1993. "Politics of Sentencing Rcfonn: The Legislative History of the 

Federal Sentencing Guidelines." Federal Scholarship Series 1273. New Haven, CT: Yale Law School. 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2276&conlext=fss _papers. 

US DOJ (Department of Justice). 2013. "FY 2014 Perfonnancc Budget Congressional Submission: 

Federal Prison System Salaries and Expenses.'' Washington, DC: US DOJ. 

http://www .justice. gov /j md/20 14j usti fication!pdtlbop-se-j ustification. pdf. 

USSC (US Sentencing Commission). 2004. "Measuring Recidivisim: The Criminal History Computation 

of the Federal Sentencing Guidelines." Washington, DC: USSC. 

---. 2011. Report/a the Congress: A1andatory Afinimum Penalties in the Federal Criminal Justice 

System. Washington. DC: USSC. 

---. 2013. 20I2 Sourcebook of Federal Sentencing Statistics. Washington, DC: USSC. 

Welsh, Brandon. 2004. "Monetary Costs and Benefits of Correctional Treatment Programs: Implications 

for Offender Reentry'' Federal Probation 68(2). 

http://www. ncjrs. gov I App/Pub I ications/abstract.aspx?ID=2 0 8065. 

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Testimony to the United States Senate Committee on the Judiciary Hearing "Oversight of the 

Bureau of Prisons and Cost-Effective Strategies for Reducing Recidivism'' 

Matt DeLisi, Ph.D. 

Iowa State University 

November 6, 2013 

lOam 

Room 226 Dirksen Senate Office Building 
85 

Overall Assessment: Although reducing the costs of the BOP is important, the policy 

recommendations significantly neglect the antisociality of criminal offenders, and the likely 

recidivism that would result from a large-scale release of BOP inmates. This testimony 

attests to the antisociality and behavioral risks denoted by the modal federal prisoner, with 

estimates of additional crimes that various policy recommendations could produce. These 

estimates are emphasized in bold. 

Responses to the Urban Institute's Stemming the Tide: Strategies to Reduce the Growth and Cut 

the Cost of the Federal Prison System 

1. Overcrowding. Despite the intuitive idea that crowding makes prisons more dangerous, 

crowding has little impact on inmate misconduct. Meta-analytic research (Franklin eta/., 2006) 

reported a very small effect size (r .025). Thus, while crowding is not viewed favorably, the 

notion that crowding inexorably increases inmate violence and misconduct is empirically not 

supported. Moreover, projections of operating capacity of prisons produce estimates that are 

often incorrect, and retorted by observed data. 

2. Drug Offenders. The report promulgates the notion that drug offenders are somewhat 

innocuous and that their antisocial behavior is limited to drug use/sales. In fact, criminal 

offenders are overwhelmingly versatile in their offending patterns, and their criminal histories 

contain violent, property, drug, nuisance/public-order, and traffic offenses and various indicators 

of noncompliance with the justice system, such as failure to appear violations, probation 

violations, parole violations, etc. (DeLisi, 2003). More recent research using a sample of habitual 

offenders found that juvenile drug use was the best predictor of chronic offending, extreme 

chronic offending (1 SD above mean career arrests), and arrest rate per year (DeLisi eta!., 

2013). Meta-analytic research (Bennett eta!., 2008) indicates that drug users offend at levels 3-4 

times greater than persons not convicted of drug crimes. Thus, although BOP inmates could be 

sentenced for drug-oriented offenses, their antisocial behavioral repertoire extends beyond drug 

use or sales. 

3. Reduction of Crack Cocaine Sentences. The report cites a USSC memo, not empirical 

research from a refereed journal regarding the recidivism outcomes of released crack offenders. 

Metaanalytic research indicates that crack users have the highest recidivism scores (Bennett et 

a!., 2008). Such a policy also counters research which has shown that sentencing enhancements 

increase the deterrent and incapacitative effects of prison (Kessler & Levitt, 1998). Moreover, 

enhanced penalties for crack cocaine were based on criminogenic effects associated with crack 

use/trafficking and collateral social problems (Fryer et al., 2005), not race/ethnicity as is 

sometimes asserted. However, reduced crack sentences are likely to disproportionately burden 

the African American community since crime is overwhelmingly intraracial. 

4. Safety Valve for Judicial Discretion. Current law permits judges to waive mandatory 

minimum sentencing for drug offenders with little to no criminal history, thus the extant policy is 

adequate to avoid unnecessary confinement of lowest risk offenders, The suggestion to apply the 

safety valve to all offenders-including those with extensive criminal histories-is not advised, 

2 
86 

The entire criminal career research paradigm has shown tremendous continuity in antisocial 

behavior among those with extensive arrest and convictions histories (DeLisi & Piquero, 2011; 

Moffitt, 1993). Prison is an important interruption of their criminal careers, but the 

preponderance of offenders continue to commit crime upon release. 

Releasing these types of offenders would likely produce more crime. For instance, research has 

shown that a one-prisoner reduction in the prison population is associated with a 15 Part I Index 

offense increase per year (Levitt, 1996). To put this in perspective, releasing I% ofthe current 

BOP population would result in approximately 32,850 additional murders rapes, robberies, 

aggravated assaults, burglaries, thefts, auto thefts, and incidents of arson. 

Similarly, Marvell and Moody (1994) pooled 19 years of state prisoner data and found that 17 

Index crimes are averted each year per additional prisoner. To put this in perspective, releasing 

1% of the current BOP population would result in approximately 37,230 additional murders, 

rapes, robberies, aggravated assaults, burglaries, thefts, auto thefts, and incidents of arson. That 

independent research teams produced such similar estimates oflndex offenses prevented per year 

lends confidence to their findings. 

Safety Valve 1: The Urban Institute proposal to release 2000 offenders under new criminal 

history category II guidelines would produce an estimated 30,000 to 34,000 new Index 

crimes per year, 

Safety Valve 2: The Urban Institute proposal recommends the creation of new safety valve 

procedures to "extend judicial discretion in reducing mandatory minimum sentences beyond drug 

offenders with minimal criminal histories to drug offenders with more extensive criminal 

histories, some weapons offenders. armed career criminals, sex abuse offenders, child 

pornography offenders, and identity theft offenders'' (20 13, p. 23, italics added). The release of 

offenders with extensive antisocial histories would be potentially disastrous to public safety. 

To illustrate, Figures 1-3 demonstrate the sheer criminal offending differences between 

"average" criminal offenders-who in this sample were nonetheless relatively chronic offenders, 

and career criminals (similar to those who are sentenced under habitual offender statutes). DeLisi 

et al. (2011) calculated differences in magnitude of offending between career offenders and other 

offenders for various age ranges (likely to be the age of offenders released from BOP per the 

proposal). The arrest differentials are: ages 32-38 (8.4), ages 39-45 (14.6), ages 46-52 (18.1), and 

ages 53-59 (14.2). Over the life-course, these differences are large. 

Figure 1 shows observed arrest differentials by offender type across seven age ranges. Figure 2 

shows observed arrest activity for murder across seven age ranges. Figure 3 shows observed 

arrest activity for robbery across seven age ranges. 

The salient conclusion from these data is that offenders with extensive criminal histories, which 

would include weapons offenders, armed career criminals, sex abuse offenders, child 

pornography offenders, and identity theft offenders, among others, continue to offend at 

3 
87 

alanningly high rates even at relatively advanced ages which in the criminal justice domain is 

beyond age 35. 

Another critical point is that unlike the Urban Institute's projected data, which are 

inherently prone to error, these arrest data are based on observed offending patterns. 

Figure 1: Observed Arrest Differences (Non Career/Career Criminals) 

20 

15 

10 

0 

- Ages8-17 

Ages 25-31 

Ages 39-45 

Ages 53-59 

Ages 18-24 

Ages 32-38 

- Ages46-52 

Figure 2: Observed Arrest Differences for Murder (Non Career/Career Criminals) 

4 
88 

0 

18-24 

32-38 

46-52 

Figure 3: Observed Arrest Differences for Robbery (Non Career/Career Criminals) 

0 

3 

Sources: DeLisi et al., 2011 

5 
89 

5. BOP Cost Reductions. Although meta-analytic research indicates that private prisons are 

no more cost-effective than state/federal prisons (Pratt & Maahs, 1999), prisoners released from 

private prisons are similar in terms of recidivism outcomes for released offenders (Bales et a!., 

2005). Thus, transferring inmates to private prisons would reduce BOP expenditures without 

commensurate public-safety risks. 

6. Foreign Nationals in the BOP. The report indicates that 25% of BOP inmates are not 

USNationals, and that less than 1% of foreign prisoners are transferred to their home nation 

through the International Prisoner Transfer Program. With the exception of prisoners with 

known terrorism connections, it is unacceptable for the BOP to house so many criminal foreign 

nationals. The transfer of these inmates (criminals, not terrorists) to their home nation should be 

exponentially increased. The report indicates that conditions in the treaty with Mexico have 

precluded the transfer of many of these inmates-if addressed, this mechanism could reduce the 

BOP population dramatically. More importantly from a crime control perspective, only 3% 

of prisoner transfers were rearrested in the United States according to the Urban Institute 

report. 

7. Expansion of Earned and Good Conduct Credit. Prisoners should not receive 

sentencereduction credits for simply abstaining from misconduct and other forms of 

noncompliance. To do so is tantamount to rewarding prisoners for not continuing to commit 

crime behind bars. The early-release of a single offender can have disastrous consequences. The 

most illustrative example is the parole of Texas inmate Kenneth McDuff in 1989. McDuff had 

been sentenced to death in 1966 for three murders, but later had his sentence commuted as a 

result of Furman v. Georgia ( 1972). His ultimate parole release was based on the same logic of 

the Urban Institute's report (good conduct credits, lengthy amount of time served, advanced 

offender age, etc.). After release, McDuff continued to offend, and was ultimately sentenced to 

death again for five new homicides, and was executed in 1999. 

Determinations of good conduct credit also relate to participation in various educational, work, 

and treatment programs. It is important to note that the effectiveness of treatment programs 

has been inflated by methodologies that were unable to control for baseline differences in 

criminal propensity. For example, a recent study (Kim & Clark, 2013) found that treatment 

effects are likely overestimated by 50% or more due to selection problems in the samples. This 

means that the putative crime-reduction eiTects of prison programming-and the potential for use 

for early release-are rife with error (see Figure 4). 

Expand and Incentivizc Programming 1: The Urban Institute proposal to potentially 

release 36,000 inmates over the next 10 years would produce an estimated 540,000 to 

612,000 new Index crimes. 

Expand and Incentivize Programming 2: The Urban Institute proposal to release 12,000 

offenders in 1 year would produce an estimated 180,000 to 204,000 new Index crimes. 

6 
90 

Expand and Incentivize Programming 3: The Urban Institute proposal to transfer 34,000 

inmates to home confinement over the next 10 years release would produce an estimated 

510,000 to 578,000 new Index crimes. 

Figure 4: Error in Prison Treatment Effects as a Function of Propensity Score Matching 

Distribution of Bias 

Var3 

I 

" Betore M.:.tching 

Aftec M.:~tching 

-100 0 100 200 300 

Standardized '?o bias across covariates 

Source: Kim & Clark, 20 13 

Finally survey research has shown that nearly 60% of prisoners themselves feel that 

rehabilitation comes from within and is not the result of programming efforts of prisons 

(Kolstad, 1996). Unfortunately, prison is most effective at producing desistance from crime. 

8. Early Release for Special Populations (Elderly) 

The data provided on page 34 about the dearth of offenders eligible under the Second Chance 

Act of 2007 provides evidence that counters the widely-held notion that prisons are packed with 

elderly prisoners. These policies also intimate that elderly offenders arc low-risk merely because 

of their age. For instance, an 85-year old Iowa sex offender was recently charged with sexually 

abusing a 95-year old victim in a nursing home setting. The offender has a decades-long criminal 

history involving sex offenses against children 

7 
91 

(http://www.iowasexoffender.com/registrant/681 Oi), thus the instant offense against an adult 

females reinforces the notion that offenders are versatile as described in point 2. 

Other Concerns 

I. The Urban Institute relies on media sources that do not substantiate claims made in the 

report. For example, Mississippi's reduction from truth in sentencing from 85% to 25% was 

touted as not compromising public safety. but no data are reported to substantiate it. Moreover, 

the report indicates that victim and victim advocates' perspectives were not compromised by 

such a policy. it is unclear how this could be true. 

2. Does the Urban Institute have any data about the livelihood and prosperity of persons 

released by the reduction of crack sentences in terms of rearrest, reconviction, and reconfinement? Also, compared to members of the community population, ex-prisoners have 

significantly lower educational attainment, significantly lower incomes and wealth, significantly 

lower social support, significantly higher psychiatric comorbidity. significantly greater substance 

abuse problems. worse victimization experiences, and are more likely to utilize public assistance. 

What are the associated costs with these forms of governmental assistance that would offset 

reduced BOP costs? 

3. The report contains no mention of the various antisocial conditions relating to criminal 

propensity of federal prisoners. For instance, the prevalence of psychopathy in correctional 

populations is at least 25fold higher than its prevalence in the general public. Psychopathy is 

one of the most pernicious and stable antisocial conditions, and among the strongest predictors 

of serious recidivism (Hare, 1996; Hare & Neumann, 2008). Thus, proposed BOP releases would 

include (depending on the size of the policy recommendation) hundreds to thousands of 

clinically psychopathic offenders. 

Another important criminological construct is sexual sadism, the prevalence of which is also 

dramatically higher in correctional samples than the general public. Even after decades of 

confinement, offenders who are sexually sadistic pose significant risks to the community as 

exemplified by current federal death row inmate Alfonso Rodriguez Jr., who was condemned for 

the murder of Dru Sjodin in 2003. What screening mechanisms are in place that measure these 

constructs? 

It is important to note that psychopathy and sexual sadism are not exclusive to prisoners 

convicted of homicide and sexual offenses. but are also found in offenders convicted of other 

crimes, including drug-based offenses. 

Questions for the Committee to Consider 

1. What is the crime-saving value of prison? 

The greatly expanded use of incarceration since 1980 is among the best explanations for the 

dramatic declines in crime from its peak in 1993 to 2011 (Levitt, 2004). There is compelling 

8 
92 

evidence that prison is the only sanction that reduces criminal offending because of 

incapacitation. A recent large-scale analysis of over I 00,000 offenders from seven birth cohorts 

(MacLeod eta/., 2012) found that the offending behavior of criminals is assumed to remain the 

same throughout their active careers, and only is reduced when offenders cease offending after 

repeated confinement. Declines in offending reflect the proportion that have ceased offending, 

and do not reflect intrinsic reductions in the predilection toward oiiending. Put another way. 

prison wears down offenders to the point where they ultimately desist.fi·om crime-they do not 

necessarily transform their antisocial mindset. 

Although the BOP population continues to grow, the much larger state prisoner population has 

declined for three consecutive years (Glaze & Parks, 20 12). According to the National Crime 

Victimization Survey (NCVS), the violent crime and property crime rates have increased for two 

consecutive years. Although quantitative study has not been published (the results from the 

NCVS were released October 24, 20 13), these unusual trends of declining prison usage and 

increasing crime support the notion that prison reduces crime (primarily by incapacitation). 

Prison and crime are reciprocally related, such that greater use of imprisonment is associated 

with less crime. 

2. What arc the costs of career criminals to society? 

Estimates of the victimization, lost productivity, and criminal justice system costs of one career 

criminal exceed $1 million (Cohen, 1998; DeLisi & Gatling, 2003) and the individual costs of 

one murderer have been estimated at $24 million (DeLisi et al., 201 0). To put this into 

perspective, the release of just 100 career offenders from BOP custody would potentially 

produce $100,000,000 in fiscal costs in addition to the incalculable human toll of criminal 

victimization. 

3. Prisons and Punishment Rationales 

BOP inmates were sentenced for a combination of reasons, including retribution, incapacitation, 

deterrence, and rehabilitation. The incapacitative effects of prison cannot be overemphasized 

because they preclude offender access to the general public and thus neutralize offending 

opportunity. Although criminologists and policy makers quibble about the relative deterrent 

value of prison, careful quantitative estimates indicate that 15 to 17 serious crimes are averted 

per prisoner, and these estimates withstood strenuous peer review. 

4. The Rights and Efficacy for Crime Victims Should Not Be Ignored 

The proposed policies provide zero efficacy for crime victims, and would only exacerbate the 

notion that criminal justice policies favor fiscal exigencies over the pain and suffering of the 

victims of crime. Moreover, since criminal offending and victimization are constrained by social 

interaction patterns (and thus crime is mostly intraclass and intraracial), more disadvantaged 

communities would bear the brunt of the widespread release of BOP inmates. 

References 

9 
93 

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Bennett, T., Holloway, K., & Farrington, D. (2008). The statistical association between drug 

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crack cocaine (No. wll318). National Bureau of Economic Research. 

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Hare. R. D. ( 1996). Psychopathy a clinical construct whose time has come. Criminal Jus/ice and 

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10 
94 

Levitt, S.D. (2004). Understanding why crime fell in the 1990s: Four factors that explain the 

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11 
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Thoughts on "Cost Effective Strategies for Reducing Recidivism" 

By 

Jeffrey Leigh Sedgwick, Ph.D. 

Managing Partner & Co-founder 

Kes\vick Advisors, LLC 

5 November 2013 

In its draft report Stemming the Tide.· Strategies to Reduce the Growth and Cut the Cost of the Federal Prison 

System, the Urban Institute observes that "The federal prison population has escalated from under 25,000 inmates in 1980 to 

over 219,000 today. This growth has come at great expense to taxpayers and other important fiscal priorities. " 1 I cou!dn 't 

agree more with this report on the problems of fiscal austerity confronting public safety budgets; however, I believe this 

statement oversimplifies the tradcoffs in public safety that we need to consider in order to make good decisions and. as a 

result, may offer cost-shifting instead of true cost-savings. 

A more comprehensive view of the problem would cast the issue somewhat differently: we need to reduce not the 

costs of incarceration (or, indeed, the criminal justice system) but rather the total social costs of crime including not only 

expenditures on public safety, but also the costs of victimization, tangible and intangible, to the public. As we seck to do this, 

the allocation of funds among components of the criminal justice system should be guided by their demonstrated 

effectiveness in reducing crime not their absolute or relative size compared to other components of the criminal justice 

system. 

It is all too tempting to look first to the correctional system, both state and federal, as a source of savings in a period 

of austerity. Early last year, CBS aired a segment on its \Veekly ne\VS program, Sunday Morning, entitled, The Cost of a 

,Nation of!ncarceration (April22. 2012). The unmistakable implication was that the United States incarcerates too many at 

too high a cost. But just how large and costly is the prison population? According to the U.S. Bureau of Justice Statistics 

1 Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost oft he Federal Prison System. (Washington, DC: The 

Urban Institute, 2013), p.l. 
96 

(BJS). 1,598,780 adults were incarcerated in U.S. federal and state prisons and county jails at year-end 2011 - a 0.9% 

decrease over 2010 and the second consecutive annual decrease. 2 (Indeed. the imprisonment rate has declined consistently 

since 2007 when there \>v·ere 506 persons imprisoned per 100,000 U.S. residents. The rate in 2011 was comparable to the rate 

last observed in 2005 (492 per 100,000).') A recent report of the Vera Institute calculated the average per inmate cost of 

incarcera.tion for a sample of forty States: $31 ,286:1 Hence, one could estimate the total cost of incarceration nationwide in 

2011 as $50.2 billion. This is surely a significant sum, but is it either disproportionate in relative tenns or too large in 

absolute terms? 

Another way to look at correctional spending in context is to examine per capita state and local government 

expenditures on criminal justice. Examining figures from 2007 (the most recent figures in the 2012 Sta!istical Abstrac! of the 

United States), total per capita state and local government expenditures on criminal justice were $633 per resident of the 

United States. Of that total, $279 per resident \vas spent on police protection, $\29 on courts, prosecution and public 

defenders, and $225 on corrections (including prisons, jails, probation and parole). 5 \\lhether $633 per resident is too great a 

public expenditure, and whether $225 per resident for corrections is a disproportionate share of the total, cannot be 

detem1ined from these numbers alone. Rather, we \\'Ould need to know the benefit of these expendin1res both in sum and 

relative to one another. Fortunately, we have recent experience to illuminate this question. 

According to the FBI"s Uniform Crime Report, between 1960 and 1992, the number of violent crimes in the United 

States increased nearly sevenfold, from approximately 288,000 to more than 1.9 million, and the violent crime rate increased 

nearly fivefold from 160.9 to 757.7 per 100.000 population. But then crime trends abruptly reversed and began a decade long 

decline. Again according to FBI Un{form Crime Report data, the rate of all seven index offenses (homicide, rape, robbery. 

aggravated assault, burglary, larceny and auto theft) declined significantly over the 1990s, with the aggregate declines 

ranging from 23% to 44%. 

If we look at ,Vational Crime J'ielimi:::ation Survey (NCVS) data for the same period, the crime declines estimated 

2 Department of Justice. Prisoners in 2011. (Washington. DC: Bureau of Justice Statistics. 2012), Appendix Table 2. 

'lbid .. p 6. 

4 Christian Henrichsen and Ruth Delaney. The Price of Prisons: What 1ncarceralion Costs Taxpayers. (New York: Vera 

Institute of Justice, 2012), 9 . 

. ~ Department of Commerce. Statistical A bstrac! of the United States, 2012. (Washington. DC: Census Bureau, 20 12). p. 216. 
97 

from the household survey arc equal to or greater than the FBI/police statistlcs in all six crime categories (the NCVS does not 

measure homicide), v.dth the survey showing much larger declines in larceny, assault and rape. The victim survey not only 

confirms the trends found in the police data, but also moves the larceny and assault declines much closer to the average 

declines for the other index crimes than do the police statistics. The violent victimization rate in the United States has fhllcn 

67% since its peak in 1994 and in 201 0 equaled the lowest rate measured in the thirty~six year history of the NCVS. 

The distinguished criminologist Franklin Zimring has characterized this sustained and broadly based crime decrease 

during the 1990s as the most important sociological and socioeconomic development of the second half of the twentieth 

century. This a remarkable statement about a time period that included three assassinations. the Civil Rights revolution, the 

Great Society, the Vietnam War and the anti-war movement, the feminist movement and the end of the Cold War to mention 

just a few. Equally important is who benefitted from what has been called, "The Great American Crime Decline.'' 

If we examine the trends in homicide, we find that the benefits of lower crime rates have been spread widely across 

the social and demographic categories of the American nation. With the exception of children under the age of 14, the 

homicide rate decline was remarkably similar for all age groups, ranging between 36 and 44%. In tenns of gender, the 

homicide decrease for men \vas 42%, one-third more than for \vomcn. Among races, the homicide decrease for nonwhites 

was 46%, again one-third more than for whites. These data suggest that the benefits of the crime decline of the I990s were 

concentrated in those groups with the highest exposure to crime- urban minority males. Indeed. Zimring eloquently notes 

that "[t]hc crime decline was the only public benetit of the 1990s whereby the poor and disadvantaged received more direct 

benefits than those \Vith wealth. Because violent crime is a tax of which the poor pay much more. general crime declines also 

benefit the poor, as likely victims, most intensely.''6 

But what explains the decline? Broadly speaking, the most commonly researched variables affecting crime rates arc 

the economy, demography and criminal justice policies. Among the last, the most obvious candidate for explaining the crime 

decline in the 1990s is incarceration; this is because no other change in the operation and output of the American criminal 

justice system in the generation after 1970 begins to approach the scale of the expansion of incarceration. After small and 

trendless variation for several decades. the rate of imprisonment in the United States expanded after 1973 more than 

6 Zimring. p. vi. 
98 

threefold. However, estimates of how much of the crime decline of the 1990s can be attributed to increased incarceration 

vary widely, from 10%7 to 27%8 of the overall decline. 

Before dismissing this contribution as insignificant we should heed one ofZimring's lessons from the 1990s: "The 

crime decline of the 1990s was a classic example of multiple causation, with none of the contributing causes playing a 

dominant role.''9 Such a conclusion is eminently sensible v.·hen we consider that the economy and demography also play 

significant roles in explaining crime rates. But what if we consider just alternative criminal justice policies such as 

prevention and intervention programs? 

Zimring explicitly dismisses correctional or crime prevention programs from having played any plausible role: "'Nor 

were there any indications that correctional or crime prevention programs had national level impact on crime." 10 In a telling 

portion of his book, Zimring discusses Robert Martinson"s 1974 Public Interest article entitled, "What Works? Questions 

and Answers about Prison Reform."" Martinson had concluded that ··with few isolated exceptions, the rehabilitative effects 

that have been reported so far have had no appreciable effect on recidivism.'' 111 ~ Zimring then quotes Francis Allen's 

reflection on Martinson's conclusion: ··there was, in fact, little new about the skepticism expressed in the Martinson study of 

the rehabilitative capabilities of correctional programs or the existence of validated knowledge relevant to the avoidance of 

criminal recidivism. At least since World War Il expressions of such skepticism have abounded in penological literature, as 

have criticisms of COJTectional entrepreneurs whose claims of significant reformative achievements were unsupported by 

scientific demonstration. 

To summarize the lessons from the crime decline of the 1990s (w·hich has continued, though at a much slower rate, 

up until 20 10). one would fairly say that, among the criminal justice policies proffered as causes, the case for effectiveness is 

stronger for incarceration than for crime prevention or intervention programs. And yet there are those who still earnestly 

advocate a redistribution ofcrimlnaljustice funds from incarceration to its alternatives. 

7 William Spelman. '"The Limited Importance of Prison Expansion,'' in The Crime Drop in America. ed. Alfred Blumstein 

and Joel Wallman (New York: Cambridge University Press, 2000), pp. 97-129. 8 John l Donohue III and Peter Siegelman, ''Allocating Resources Among Prisons and Social Programs in the Battle Against 

Crime," Journal of Legal Studies 27 (January 1998): 1-43. 

9 Zimring, p. 197. 10 Ibid., p. 69. 

'' Robert Martinson. "W1mt Works" Questions and Answers About Prison Refom1:' The Public Interest (Spring 1974), p. 12 

u Frands Allen, The Decline oft he Rehabilitative Ideal. (New Haven: Yale University Press, 1981) p.57. 
99 

But there arc risks to such an agenda that should be carefully weighed before acting. Consider the following wellknown statistics: according to U.S. Department of Justice surveys and studies, over 60% of prison inmates had been 

incarcerated previously 14 ; and a 2002 Department of Justice study of 272, Ill inmates released from prison in 1994 found 

that they had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges 

within 3 years of rc!ease. 15 This is an average of 17.9 charges each. The same study fOund that 67.5% of inmates released 

were rearrested for a new offense, almost exclusively a felony or serious misdemeanor. within three years of their release. 

These data suggest that the criminal justice system is hardly incarcerating trivial or non-serious offenders and that the threat 

of recidivism is quite real. And since most crime in the United States is intra-communal, it should also be pointed out that 

declining to incarcerate or prematurely releasing individuals with a demonstrated propensity to commit crimes unless 

incapacitated imposes costs on already distressed inner city, minority communities. thereby adding to their disadvantage. 

What is the magnitude of those costs? Estimates vary widely because of the difficulty of placing a value on 

intangibles such as victims· lost quality of life, general tear. lost use of community spaces, and psychological effects. Added 

to these are more easily measured tangible victim costs such as lost property, lost productivity and medical treatment. A 

1996 research preview from the National Institute of Justice used data from 1 987 to 1990 and estimated the tangible costs of 

crime to victims at $1 05 billion annually and the annual intangible costs to victims at another $345 billion for a total cost of 

$450 billion annually. 15 The approximately 40% reduction in crime rates achieved during the decade of the 1990s was thus 

worth about $180 billion annually in saved victim costs, tangible and intangible; and this is a significant underestimate since 

it does not capture the increased quality of life. reduced fear, greater usc of community spaces, and reduced psychological 

effects on non-victims. 

All of this is meant to suggest not that nothing can be done to deal with the current fiscal problems afflicting the 

criminal justice system broadly and the federal prison system in particular, but rather to counsel caution when dealing with 

S\Veeping claims of cheap, readily available, and highly effective alternatives to federal incarceration. First, we need to 

understand the unique characteristics of the federal prison population. Second, we need to critically evaluate the 

effectiveness of interventions meant to reduce recidivism. Third. we need to make use of the voluminous literature on 

14 Department of Justice, Survey of State Prison Inmates, I 991. (Washington, DC: Bureau of Justice Statistics, 1993) II. 15 Department of Justice, Recidivism of Prisoners Released in 1994. (Washington, DC: Bureau of Justice Statistics, 2002) l. 15 

Department of Justice, The Extent and Costs of Crime Victimi:::ation: A New Look. (Washington, DC: National Institute of 

Justice, 1996), p. 2. 
100 

predicting criminality. And finally, we need to hold tenaciously to the commitment by our actions to reduce the total social 

costs of crime and eschev .. · the practice of merely getting those costs off our books by shifting them to others. 

On the first point, it is noteworthy that while total prison populations in the United States have declined for two 

straight years, the number of sentenced prisoners under the jurisdiction of the Federal Bureau of Prisons in 20 II increased by 

6,651 inmates (up 3.1 %) from 2010 and the average annual increase between 2000 and 20 ll is 3.3%. 16 Not only is the federal 

prison population growing while the state prison and local jail populations are declining, but the mix of offenders in these 

respective populations is quite different. 

Among sentenced state prisoners. an estimated 53% were sentenced for violent offenses in 2010, the year for which 

the most recent data on offense are available. 17 Eighteen percent of state prisoners were serving sentences for property 

offenses. and 17% were serving sentences for drug crimes. Among sentenced tederal prisoners, 48% were held for drug 

crimes, while only 8~·0 were held for violent offenses. 18 Fewer inmates served time in federal prison for violent and drug 

crimes in 2011 than in 2010. while 35% of sentenced prisoners were imprisoned for public~order offenses. An estimated 

II% of inmates in federal prison were sentenced for immigration offenses, \~v·hich represented one of the fastest growing 

segments of the federal prison population. Between 20 I 0 and 20 l 1, the number of inmates sentenced to more than a year ln 

federal prison for immigration crimes increased 9.4% These figures caution against estimating recidivism effects for early 

release federal prisoners based on comparisons to state and local prisoners. They also suggest that more attention be paid to 

the incentives that induce federal law enforcement officials to arrest, convict and incarcerate a very different population than 

do their state and local colleagues 

On the matter of the effectiveness of rehabilitation/intervention programs, there has been considerable skepticism of 

such programs in the research community for the last forty years. Even among scholars most committed to rehabilitation and 

treatment programs, there is widespread recognition that the range of possible improvement in recidivism rates is on the order 

of 10% and that most of the currently utilized programs in this country are ineffective. 19 But while evidence for effective 

treatment and rehabilitation is modest, there is a much larger literature on career criminals and criminal careers that underpins 

16 Department of Justice. Prisoners in 2011. (Washington, DC: Bureau of Justice Statistics. 20 12). Table 1. 17 Ibid., Table 9. 

18 Ibid., Table II. 

19 Francis T. Cullen and Cheryl Lero Johnson, "Rehabilitation and Treatment Programs," in Crime and Public Policy, ed. 

James Q. Wilson and Joan Petcrsi1ia (New York: Oxford University Press, 2011), pp. 293-344. 
101 

efforts to classify offenders and predict which are most likely to recidivate. Again this literature, while voluminous, is 

fraught with difficulties including the prevalence of false positives. Y ct, it at least explicitly addresses the problem of 

shifting incarceration costs onto the general community and individual victims. 

In conclusion. we have had demonstrable success in reducing crlme rates significantly in the United States. Based 

on that experience, we have evidence to judge what contributed to that success and how much. And we know who the 

primary beneficiaries of that success were. As we face the present challenges of fiscal austerity, we ought not ignore those 

hard~leamed lessons. The aggregate size of the criminal justice budget, and its allocation among the component parts of the 

criminal justice system, should be constantly monitored and reassessed. But that assessment should be done wisely and 

judiciously by the lamp of experience. 
102 

Statement of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committee, 

Hearing on "Oversight of the Bureau of Prisons & Cost-Effective 

Strategies for Reducing Recidivism" 

November 6, 2013 

This is the second hearing this fall in which the Judiciary Committee turns its attention to the 

unsustainable growth in the federal prison population. In the last 30 years, the Bureau of Prisons 

has seen a 700 percent increase in its population, which now accounts for a full quarter of the 

Justice Department's operating budget. 

This dramatic increase in the prison population threatens public safety and critical funding for 

victim services. As BOP's budget diverts more and more resources from the basic law 

enforcement functions of the Department of Justice, we are losing the prosecutors and agents 

necessary to investigate and charge the crimes that threaten our communities. We are cutting 

support for the critical work of our state and local law enforcement partners and the victim 

services providers that help rebuild lives. And we arc placing the men and women who work 

and live in our prison facilities at ever greater risk. It is urgent that we act to reverse these trends. 

Overcrowding in the high security facilities which house some of the most dangerous inmates in 

the Federal system is at 55 percent. That level of crowding is unacceptable and its risks are real, 

as evidenced by the tragic murder of Correctional Officer Eric Williams at USP Canaan in 

Pennsylvania earlier this year. Our hearts go out to his family and it is time we take action. 

As we discussed at the Committee's hearing in September, the main drivers of prison grow1h are 

front-end sentencing laws enacted by Congress, like the proliferation of mandatory minimum 

sentences that send more and more people to prison for longer and longer periods of time, often 

completely devoid of evidence suggesting they are necessary or appropriate. I am committed to 

addressing sentencing reform this year- as I know other Senators are from both sides of the aisle. 

It is a problem that Congress created and it is time that we fix it. Public safety demands it. 

But it is also true that there are important steps that can be taken to reduce the prison population 

already in custody. For example, the first and easiest thing we could do is to clarify how good 

time credit is calculated to ensure that prisoners may earn the 54 days a year for appropriate 

behavior that Congress intended, rather than the 4 7 days BOP actually credits them. This was a 

change I included in the Second Chance Reauthorization Act of2011 and a reform I understand 

Senator Whitehouse will champion in a bill he plans to introduce soon. This very modest change 

would save BOP tens of millions of dollars a year, a savings that we can reinvest in our law 

enforcement efforts. 

We must also look at reducing recidivism. More than 90 percent of Federal inmates will be 

released from prison at some point and return to our communities. Public safety demands that we 

do all we can to ensure that when they are released they are prepared to become productive 

members of society. That is why I have led efforts to reauthorize the Second Chance Act and 

other initiatives to improve reentry. I look forward to hearing what efforts are underway at the 

1 
103 

Bureau to improve evidence-based programing to reduce recidivism. I know this is an interest 

shared by many members of this Committee, including Senators Whitehouse and Cornyn. 

There are also several existing programs that the Bureau of Prisons could make better use of to 

reduce overcrowding, including fully utilizing the residential drug abuse program. This program 

is an important component of BOPs efforts to reduce recidivism. According to a recent GAO 

report, less than 19 percent of the inmates who successfully completed the program in 2009 to 

20 II received the full 12-month reduction in sentence the law allows. Instead they received an 

average 8-month reduction. costing BOP over $100 million in unnecessary expenses over that 

time. Additionally, the GAO found that the BOP did not fully utilize its authority under the 

Second Chance Act to allow inmates to serve the last 12 months of their sentence in pre-release 

community corrections. Instead, inmates serve an average ofless than 4 months in community 

corrections; again, costing the Bureau significant unnecessary expense. 

In addition to these pressing budget and public safety questions, I look forward to hearing from 

the director on ofher critical issues, including steps the Bureau is taking to reduce its use of 

solitary confinement, how BOP conducts oversight of conditions in its contract detention 

facilities or private prisons, the status of BOPs compliance with the Prison Rape Elimination Act 

regulations, and efforts by the Bureau to reduce interstate phone rates in response to the new rule 

issued by the FCC. 

Lastly, I want to commend Director Samuels and his staff for their prompt attention to concerns I 

raised along wifh other Senators, including Senator Blumenthal, regarding the proposed closing 

of the only secure facility for female inmates in the Northeast. We were very pleased to learn 

earlier this week that the Bureau took our concerns to heart and have drafted an alternative plan 

that will allow those prisoners from the Northeast to remain closer to their families. There is no 

question that maintaining family ties is a critical element in easing reentry to the community and 

I applaud the Bureau's efforts in this instance. I also want to note the Bureau's establishment of a 

working group to look at the specific needs of incarcerated women. For far too long, the specific 

needs of women inmates have been simply an afterthought within the larger prison system. I look 

forward to hearing about the Bureau's efforts to meet the unique needs of this population in our 

prison system. 

I look forward to hearing from Director Samuels today about steps we here in Congress can take 

to address these and other important issues in the area of prison management and recidivism 

reduction. I ask that my full statement be placed in the record. 

##### 

2 
104 

Senator Sheldon Whitehouse 

Hearing on "Oversight of the Bureau of Prisons & Cost-Effective 

Strategies for Reducing Recidivism" 

As Prepared for Delivery 

Welcome to today's hearing entitled "Oversight ofthe Bureau of Prisons 

& Cost-Effective Strategies for Reducing Recidivism." 

Today, this Committee will be exercising its responsibility to conduct 

oversight of the Bureau of Prisons. I welcome Director Charles Samuels 

and look forward to his testimony. In addition, we will be exploring 

how we can improve our federal corrections system so that we better 

protect the public while reducing costs. 

Continued growth in federal spending on prisons and detention poses a 

significant threat to all other federal law enforcement activities. During 

the last fiscal year, the costs of detaining federal inmates represented 

more than 30% of the Justice Department's budget. Since 2000, costs 

associated with federal prisons and detention have doubled. If nothing is 

done, these costs will continue to consume an ever-larger share of the 

Department's budget. The result is fewer resources for all other federal 

law enforcement needs and less federal funding for state and local law 

enforcement agencies. 

Furthermore, while spending on federal prisons has continued to grow, 

the system remains dangerously over capacity. The inmate-to-staff ratio 

in our federal prisons has increased significantly over the past decade, 

and each year we ask the men and women who guard our prisons to do 

more with less. If we let these trends continue, we will be putting these 

brave men and women at serious and unnecessary risk. 
105 

Fortunately, states across the country have shown that it is possible to 

rein in corrections costs while improving public safety and reducing 

recidivism. 

In my home state of Rhode Island, where we are fortunate to benefit 

from the leadership of A.T. Wall, the Director of our Department of 

Corrections and dean of corrections directors nationwide, we enacted a 

package of reforms that increased recidivism reduction programming, 

focused greater attention on high-risk offenders, and expanded 

investments in successful reentry. As a result of these reforms, our 

state's prison population declined for the first time in years. 

Other states have had similar successes. Today we will hear from 

witnesses from Pennsylvania and Kentucky who helped lead their states 

in enacting and implementing significant reforms of their corrections 

systems that cut costs while better protecting the public. 

These examples - and others from across the country- show that it is 

time for the federal government to learn from the states. 

As a former state and federal prosecutor, I recognize that there are no 

easy solutions to this problem. Inmates in our federal prisons are there 

because they committed serious offenses, and because the law 

enforcement officers across their country did their jobs in seeing that 

they were arrested and prosecuted. And we must never try to save 

money at the expense of public safety. 

But what the states have shown us is that it is possible to cut prison costs 

while making the public safer if we are willing to be guided not by 

ideology, but by what works. 

To achieve this goal, we must be willing to look at all aspects of our 

sentencing and corrections system: 

2 
106 

We should be willing to reevaluate mandatory minimum sentences. 

Two important pieces of legislation have been introduced in this area by 

Chairman Leahy and Senator Paul, and Senator Durbin and Senator Lee. 

These Senators have already shown that it is possible to work together 

on this issue in a bipartisan way, and I hope their work becomes a model 

for this Committee's efforts going forward. 

We should be willing to explore whether the federal sentencing 

guidelines are still working effectively nearly 30 years after they were 

first enacted. 

We should ask whether we are doing enough to provide drug and alcohol 

treatment for those inmates who need it. And we should ask whether we 

are collecting accurate information - in the Presentence Report and 

throughout the criminal justice process about substance abuse and 

addiction among inmates. 

We should ask whether there is more that can be done to prepare inmates 

for reentering their communities, and to reduce the risk that they will 

commit more offenses when they are released. In Rhode Island, under 

the leadership of Director Wall, we passed reforms that allowed inmates 

to earn credit toward their sentences if they were willing to meaningfully 

participate in programs that reduced their criminal risk factors. 

And finally, we should ask ifwe can do a better job of supervising 

exoffenders after they are released. Many states, led by the example of 

Hawaii's HOPE program, have implemented parole systems that impose 

"swift and certain" sanctions for violations of the terms of supervision, 

with promising results so far. 

As this Committee considers possible reforms, these are just some of the 

areas that I believe we must address. 

3 
107 

But let me be clear about one thing: Doing nothing about this problem is 

no longer an option. If we do nothing, we are choosing to give less to 

the FBI to disrupt terrorist groups. We are choosing to spend less 

stopping the next generation of cyber threats. We are choosing to spend 

less enforcing the Violence Against Women Act. We are choosing to 

give less to our partners in state and local law enforcement agencies. I 

know none of my colleagues wish to make those choices. That is why I 

look forward to hearing from Director Samuels and today's other 

witnesses and to working with the members of this Committee to 

address this critical issue. 

4 
108 

OVERSIGHT OF THE BUREAU OF PRISONS & COST-EFFECTIVE 

STRATEGIES FOR REDUCING RECIDIVISM 

Senator Blumenthal Questions for the Record 

FOR MS. LA VIGNE 

ON ADDITIONAL COST SAVINGS: 

It seems to me that when you enact sentencing reform you reduce prison overcrowding. When 

you reduce prison overcrowding you make it easier for BOP to give inmates individualized 

attention, to keep inmates near their families, and to provide inmates with programming that 

has been proven to reduce recidivism. And finally, when BOP can do these things, you have 

fewer people in prison. 

1. In your opinion, could this be an additional source of cost savings that would result from 

sentencing reform, over and on top ofthe savings discussed in your report? 

ON DATA: 

I have been surprised in my work on this issue by how hard it is to find good data on sentencing 

and incarceration. The sentencing commission does an absolutely impressive job of providing 

good data, but when you look for data on incarceration patterns it is much harder to find. 

1. As a researcher, do you believe the federal government could do a better job of 

providing high-quality data on this issue? 

2. How could they do better? 

1 
109 

Senate Judiciary Committee Hearing 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Questions for the Record Submitted by Senator AI Franken for Charles Samuels 

Question 1: My staff recently met with Bureau of Prisons (BOP) employees who said that they 

were concerned about the effects that sequestration cuts are having on their staffing levels and on 

their safety. My understanding is that medium security facilities and low security facilities 

especially have been affected by sequestration cuts. What arc you doing to make sure that BOP 

employees' safety is protected in the face of the sequestration cuts? 

Question 2: BOP's website states the following with respect to its policy of placing inmates 

reasonably closely to their homes: 

The Bureau attempts to designate inmates to facilities 

commensurate with their security and program needs within a 500-

mile radius of their release residence. If an inmate is placed at an 

institution that is more than 500 miles from his/her release 

residence, generally, it is due to specific security, programming, or 

population concerns. The same criteria apply when making 

decisions for both initial designation and re-designation for transfer 

to a new facility. 

Prominent juvenile justice advocates have informed my office that in fact there are young adults 

(i.e., inmates who are 25 years old or younger) who have been assigned to institutions that are 

more than 500 miles away from their homes. 

How do you respond to theis? If true, please explain why BOP has placed these young adults so 

far from their homes and why BOP believes that the benefits of such placements outweigh the 

costs of placing young adults far from their homes? 

Question 3: A recently published report by Human Rights Watch and the American Civil 

Liberties Union explains that solitary confinement of young adults can have very negative 

consequences. For instance, the report states: 

Experts assert that young people are psychologically unable to 

handle solitary confinement with the resilience of an adult. And, 

because they are still developing, traumatic experiences like 

solitary confinement may have a profound effect on their chance to 

rehabilitate and grow. Solitary confinement can exacerbate, or 

make more likely, short and long-tern1 mental health problems. 

The most common deprivation that accompanies solitary 

confinement, denial of physical exercise, is physically harmful to 

adolescents' health and well-being. 
110 

The report recommends that BOP modify its contracts with juvenile justice facilities to prohibit 

the solitary confinement of youth. What is BOP's position with respect to the passage quoted 

above and with respect to the report's recommendation? 

Question 4: In Miller v. Alabama, the Supreme Court held that mandatory life imprisonment 

without parole constitutes cruel and unusual punishment when it is applied to juveniles. The 

Court noted that juveniles have greater prospects for reform than do adults, in part because their 

brains arc still developing. Given juveniles' and young adults' special potential for 

rehabilitation, docs BOP provide any special programming tailored to this population? If so, 

please provide descriptions of such programming. 

Question 5: I recently visited a prison in Minnesota and talked to the employees there about the 

intersection between mental health care and the criminal justice system. Some of the employees 

told me that they benefited from crisis intervention training (CIT), which helped them to defuse 

otherwise potentially violent situations. What role docs CIT play in the federal prison system? 

2 
111 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Senator Grassley's Questions for Prof. DeLisi 

I. Does any scientifically rigorous evidence support the conclusion that prison overcrowding 

and budgetary constraints can be alleviated, without causing any harmful effect on public 

safety, through reducing sentences, placing inmates in successful anti-recidivism programs, 

and ordering the early release of inmates? 

2. The Judiciary Committee is set to consider three prison reform bills: S. 619, the Justice 

Safety Valve Act of2013, S. 1410, the Smarter Sentencing Act of2013, and S. 1675, the 

Recidivism Reduction and Public Safety Act of2013. 

In your opinion, will the proposals in these pieces oflegislation alleviate overcrowding in 

federal prisons without causing harm to or atiecting public safety? 
112 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Questions from Senator Grassley for Ms. La Vigne 

1. Your testimony and the Urban Institute report heavily advocate for decreasing the prison 

population by "reducing drug prosecutions." The report states that "[c]utting the number 

of drug offenders entering BOP by just 10 percent would save $644 million over 10 

years." 

Does this analysis of cost savings for not prosecuting drug dealers take into account the 

cost to potential victims and society of the crimes these drug dealers would continue to 

commit if they were not prosecuted, as well as the violence associated with drug 

trafficking? 

2. You also advocate cost savings from reducing the percentage ofthc sentences that 

federal prisoners must serve. Does your cost analysis of this change take into account the 

crimes that would be committed as a result of the early release of thousands of violent 

offenders against potential victims and society? 
113 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Senator Grassley's Questions for Director Samuels 

I. In your testimony, you answered questions regarding efforts to convert the former state 

prison in Thomson, Illinois to federal use. How much money is currently being expended on 

the Thomson prison? 

2. You testified that following the February 2013 death of a BOP officer in the line of duty, you 

permitted guards in high security prisons, as well as guards in jails and detention centers to 

carry pepper spray. Why are you unwilling to establish a permanent policy that all prison 

guards can carry pepper spray? 

3. Is it possible for BOP, when assigning prisoners, to take greater account of the location of the 

inmate's family? 

4. In your testimony, you indicated that the BOP can do a better job ofinfonning inmates of the 

International Prisoner Transfer Program. What is BOP's current process for notifying and 

explaining the treaty transfer program to foreign national inmates, and what efforts is BOP 

making to encourage those inmates to utilize the program? 

5. A December 2011, report from the Department of Justice Inspector General on the 

International Prisoner Transfer Program found that in fiscal year 2010 slightly less than 1 

percent of foreign national inmates were transferred to their home countries. The report 

stated that BOP and the International Prisoner Transfer Unit (IPTU) rejected 97 percent of 

transfer requests from foreign national inmates. 

For what reasons did BOP and IPTU reject these requests? In addition, what restraints curtail 

the efforts of BOP to successfully reduce the number of foreign national inmates in the 

federal prison population? 
114 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Questions from Senator Grassley for Dr. Sedgwick 

1. In your \Hittcn testimony.) ou cal1 attention to the unique characteristics of the federal 

prison population. Can you offer any insight into '' hy federal prisoners differ so 

significantly fi·om state and local prisoners'' 

'1 You also recommend caution about the claims to eftecti,·cness of rehabilitation. 

prc,ention and intcncntion programs. Can )OU elaborate on this tor the Committee'' 

\\'hat is the current state of eYidence on such programs? 

-'· We understand that California is engaged in a sweeping refixm of its prison. jail and 

community corrections programs that has reduced prison populations signiticantly. Can 

you comment on these ref<xms and \\hat impact they haw had on public satCty m 

Calil(lrnia'? 

-L Of the \arious strategies for cutting the federal prison population analyzed by the\ irban 

Institute.\\ hich seem to you to be most promising and why'? 

5. Can you give examples of strategies for reducing prison population states hm c tried that 

hm e succeeded in reducing both inmate populations and rccidi\ ism'? 

6. Does any scientifically rigorous evidence support the conclusion that prison overcrowding 

and budgetary constraints can be alleviated, without causing any hannful effect on public 

safety, through reducing sentences, placing inmates in successful anti-recidivism programs, 

and ordering the early release of irnnates? 

7. The Judiciary Committee is set to consider three prison reform bills: S. 619, the Justice 

Safety Valve Act of2013, S. 1410, the Smarter Sentencing Act of2013. and S. 1675, the 

Recidivism Reduction and Public Safety Act of2013. 

In your opinion, will the proposals in these pieces oflegislation alleviate overcrowding in 

federal prisons without causing hann to or affecting public safety? 
115 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Senator Grassley's Questions for Secretary Wetzel 

1. You testified that Pennsylvania decided to prohibit the early release of prisoners to 

residential programs. What occurred in Pennsylvania because of early prisoner release that 

led the state to abolish it? 
116 

"Oversight of the Bureau of Prisons & Cost-Effecth·e Strategies for Reducing Recidivism" 

November 6, 2013 

Joint Questions For the Record For Director Samuels 

From Senator Blumenthal and Senator Leahy 

QUESTION FOR DIR. SAMUELS- DANBURY 

We want to thank you and your staff for your efforts to respond to the concerns we raised, along 

with other Senators from the Northeast, about the proposed closure of the Danbury women's 

prison, which would have left no "secure'' prison facility for women in the Northeast We know 

that the Bureau has many competing interests it must address, but we worry that the role of 

women prisoners is often neglected due to their small numbers. We understand BOP has a new 

plan that is a dramatic improvement, and we want to quickly discuss that plan. 

L First, let's talk about the period-we understand this will be roughly 18 months from 

now-after BOP has had time to make some changes to the Danbury facility. Our 

understanding is that, barring an unanticipated change in circumstances, there will be a 

low security bed at Danbury for every female U.S. citizen from the northeast who needs 

to be housed in a low security facility. Is that correct? 

2. Your staff mentioned that efforts are being made to move the current Residential Drug 

Abuse Treatment Program available to inmates at the Danbury facility to the new secure 

female facility. Can you confirm that the RDAP program will be available to the female 

inmates being transferred to the new converted camp facility as a result ofFCI Danbury's 

mission change? When do you estimate that program will be back on-line in the 

converted camp facility? 

3. Will you work with us to ensure that the women who are transferred from Danbury to 

Brooklyn will have access-to the extent possible-to the same programming they have 

had at Danbury? 

4. Our understanding is that Danbury will continue to have the level of programming for 

female inmates that inmates enjoyed at Danbury before BOP made the decision to change 

the institution's mission. Is that correct? 

5. In a meeting with our staff, your staff represented that beds that were not filled with U.S. 

citizen women from NY, NJ and New England will be filled with non-U.S. Citizen 

inmates with geographic or familial ties to the Northeast What steps is BOP taking to 

make sure this plan is implemented? 

6. We understand that BOP is considering a standing committee to review treatment of 

women prisoners across the board. Can you tell us more about that? 

L A memo you distributed to all federal inmates on June 19 encouraged inmates to stay 

connected with their families and encouraged inmates to have visits with their children 

because "there is no substitute for seeing your children, looking them in the eye, and 

letting them know you care about them." Consistent with this memo, what actions is 

BOP taking to prioritize keeping women within physical reach of their children and 

families? Are there specific efforts being taken to help keep inmates within a reasonable 

traveling distance of their children and families? 

7. How is this policy being applied to non-U.S. Citizen women with U.S. Citizen children? 
117 

QUESTION FOR DIR. SAMUELS- PROCESS FOR CHANGING A FACILITY'S 

MISSION 

There is obviously a lot of information at your disposal when evaluating ways to reduce costs 

and maximize existing resources. This past summer the Bureau of Prisons came to the 

conclusion that transitioning FCI Danbury from a female institution into a male institution was 

the correct way to move forward. As you know, many of us in the Senate were disappointed with 

the conclusion BOP initially reached on Danbury, and we didn't have a lot of confidence in the 

process by which BOP reached it. 

1. Has BOP learned anything from this experience that can give the members of this 

Committee confidence in BOP's decision-making going forward? 

QUESTION FOR DIR. SAMUELS- EFFECT OF IMMIGRATION STATUS OF 

INMATE 

As we understand it, one of the factors you try to take into account when placing U.S citizens in 

a facility is where the citizen calls home. This allows inmates to remain connected to their 

families, benefitting them, their fiunilies, and ultimately society. However, our understanding is 

that you do not consider where non-citizens call home. 

I. Does this apply even when non-citizens have U.S. citizen children? 

2. Does the designation "non-citizen" include legal permanent residents, and if so, do you 

believe it should? 

3. Are there any cases where you consider a non-citizen's home when deciding where they 

should be incarcerated? 

4. It concerns us that BOP makes no effort to help the families of non-citizens stay close to 

their incarcerated loved ones. 

We would like to follow up with you to see if there are ways this policy could be changed. 

QUESTION FOR DIR. SAMUELS- INMATES LEAVING EARLY 

One of the success stories that came out of the Danbury analysis was the Bureau's application of 

the Second Chance Act and reforms regarding the use of community corrections and home 

confinement. Our understanding is that you did a case by case analysis to see if some inmates 

could be transferred to halfway houses or to minimum security camps. 

1. In your opinion, were you able to let some women transfer without compromising public 

safety? 

2. Is it possible that these women will be better able to integrate back into society, given 

that they can now get about the business of learning how to live outside prison walls? 

3. How many women were you able to transfer to a halfway house or minimum security 

camp as a result of this analysis? 

4. What percentage of inmates is this? 

5. Vilhat plans are there to apply this type of review to other facilities? 

6. Could this kind of analysis be a national model? 

2 
118 

QUESTION FOR DIR. SAMUELS- SENTENCING REFORM & COSTEFFECTIVENESS 

In your testimony, you discussed BOP's efforts to help ensure that inmates reenter society 

smoothly, with the goal of reducing recidivism. 

I. In your opinion, does keeping inmates near their families help to reduce recidivism? 

2. Would it be easier for you to keep inmates near their families if your prisons were less 

overcrowded? 

3. Would sentencing reform lead to your prisons being less overcrowded? 

3 
119 

Follow-Up Questions for Charles E. Samuels, Jr., Director of the Bureau of Prisons 

From Chairman Patrick J. Leahy 

Sentencing reform 

Q: The evidence is clear that the growing rate of our prison population is simply unsustainable 

and that a failure to act is in itself a threat to public safety. Overcrowded prisons become nothing 

more than warehouses with a revolving door that siphon ever more resources away from critical 

law enforcement functions like hiring more prosecutors and FBI agents. We in Congress have 

two options: either continue to give more resources to BOP to build ever more prisons at the 

expense of other law enforcement and victim services, or find a way to safely reduce the prison 

population to a sustainable level. 

1. We know that nearly all prisoners arc eventually released and you note in your testimony 

that the current level of overcrowding in BOP facilities, which is more than 50% in highsecurity facilities, draws critical resources away from efforts to help prepare these 

iranates to become law abiding members of society. How would a reduction in the prison 

population help you to reduce recidivism rates and improve public safety? 

2. Can you describe for us what consequences overcrowding has on the day-to-day 

operation of the prison? What impact docs it have on officers and inmate safety? 

Q: You note in your testimony your support for the need to "recalibrate" America's criminal 

justice system with less focus on low-level, nonviolent drug offenders with no ties to large-scale 

criminal organizations. 

1. How would this shift in focus away from low-level drug ofTenders help BOP do its job? 

Prison Rape Elimination Act 

Q: With respect to the Prison Rape Elimination Act, or PREA, all penal institutions, both federal 

and state, are expected to adopt regulations designed to reduce the incident of prison sexual 

assault. The standards also call for audits to monitor the implementation of the PREA 

regulations, which I understand began at the federal level last month. 

1. Can you tell us the status of the audit and of BOP's compliance with the PREA 

regulations overall at this time? 

2. What is BOP's plan for reporting the auditors' findings to Congress? 

Q: A key element to successful reentry has been meaningful drug treatment, such as the 

Residential Drug Abuse Program. There have been reports that there are substantially more 

iranates who want to participate in this programming than BOP has the capacity to 

accommodate. As a result, although irunates could be earning up to 12 months of credit toward 
120 

their sentence for completion of the program- which would positively impact the overcrowding 

situation, while also providing needed treatment- the average length of time awarded is only 8 or 

9 months. 

1. Can you tell us how long inmates are waiting for this treatment, on average? What steps 

is BOP taking to ensure that more inmates receive the maximum amount of credit? 

Private Prisons 

Q: Privately operated, for-profit prisons have become a regular part of BOP's incarceration plan 

for many inmates. If BOP is contracting with private industry to engage in what is traditionally a 

state function, companies who run private prisons should be subject to the same degree of public 

accountability as a federal agency running the same prison. 

Currently, for-profit prisons--even those under BOP contract, housing BOP prisoners-are not 

subject to the same disclosure requirements under the Freedom of Information Act (FOIA) as 

BOP prisons. lt is extremely difficult for the public to obtain the information necessary to help 

ensure that the constitutional rights of those held in private facilities are upheld, and that their 

living conditions are humane. 

I. Are contract detention facilities required to operate their facilities in accordance with 

current BOP Program Statements? 

2. Over the past several years, there have been reports of significant mistreatment in BOP's 

CAR facilities. What steps have you taken to ensure that private prisons are held to the 

same standards of accountability as BOP run facilities? 

3. Please describe how BOP conducts oversight of prison conditions in contract detention 

facilities. 

4. Do oversight personnel review inmate grievances and interview inmates incarcerated at 

for-profit facilities? How much does BOP rely on records generated by private prison 

staff? 

5. What kinds of corrective action has BOP taken in response to repeated poor performance 

by a contract detention facility? Has a contract ever been canceled or not renewed for 

poor performancee> 

Communications Management Units 

Q: The BOP disclosed CMU policy for public comment years after they were opened. More than 

three years after the comments period closed, the rule still hasn't been finalized. 

1. What is the current status of the rule? 

2 
121 

2. I understand that there is a significant over-representation of Muslims in CMUs. What 

measures are being taken to ensure that Muslim and Arab men are not being singled out 

for CMU designation? 

3. Does the BOP provide advance notice and a hearing prior to CMU designation, 

procedures I understand are employed prior to other transfers? 

3 
122 

Senator Jeff Sessions 

Qnestions for the Record 

Director Charles Samuels 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

1. Please provide the number of criminal aliens in federal prison at the end of Fiscal Year 2013. 

2. How many criminal aliens in federal prison are subject to deportation or removal? 

3. Of the criminal aliens subject to deportation or removal. how many are deportable or removable because 

they do not have legal status to be in the United States (either by entering the country unlawfully or by 

overstaying his or her visa)? 
123 

Questions for the Record 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

Senator Sheldon Whitehouse 

Nancy G. La Vigne, Ph.D.: 

1) Prof. DeLisi testified that many of the proposals discussed in the Urban Institute's report 

would inevitably lead to more crimes, based on the assertion that the release of any single 

prisoner results in 15-J 7 new offenses. Is his methodology valid? Are his conclusions 

consistent with the evidence from states that have reformed their criminal justices 

systems? 

2) Prof. DeLisi testified that "the effectiveness of treatment programs has been inflated.'' 

Do you agree? Is there evidence that treatment programs are effective in reducing 

recidivism? 
124 

Questions for the Record 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

Senator Sheldon Whitehouse 

Representative John Tilley: 

I) The Committee heard testimony that pennitting the early release of prisoners or reducing 

sentences always leads to more crime. Based on your experience reforming the criminal 

justice system in Kentucky, do you agree? What happened to crime rates in your state 

after you passed your package of reforms? 

2) As you reformed your con·ections system, did you try to reinvest the savings you 

achieved in other law enforcement priorities? Have those efforts been successful~ 
125 

Questions for the Record 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

Senator Sheldon Whitehouse 

John E. Wetzel: 

1) The Committee heard testimony that permitting the early release of prisoners or reducing 

sentences always leads to more crime. Based on your experience refonning the criminal 

justice system in Pennsylvania, do you agree? What happened to crime rates in your state 

after you passed your package of refom1s? 

2) Do you believe that it is important to target recidivism-reduction programming toward 

high-risk inmates? How do you try to achieve this goal in Pennsylvania? 
126 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Senator Grassley's Questions for Prof. DeLisi 

I. Does any scientifically rigorous evidence support the conclusion that prison overcrowding 

and budgetary constraints can be alleviated, without causing any harmful effect on public 

safety, through reducing sentences, placing inmates in successful anti-recidivism programs, 

and ordering the early release of inmates? 

No scientifically rigorous study can demonstrate zero harmful effects on public safety. 

Although some programs show modestly significant effects for reducing recidivism, the 

release of prisoners always results in new criminal offending and thus reduced public safety 

compared to if those offenders remained in confinement. Consider the following studies. For 

example: 

• A careful quantitative study using state prisoner and UCR data from 1978-1990 and 

1991-2004 found that each additional prisoner prevents approximately 30 Part I 

felony offenses for the former period, and prevents 8 Part I felony offenses for the 

latter period. 1 Prior studies from my written testimony indicate that between 15-17 

Part I felony offenses are averted for each additional prisoner. Taken together, these 

estimates indicate substantial increases in crime resulting from prisoner releases. 

• In their influential study using nationally representative data, Langan and Levin 

tracked 272, Ill former inmates released from prisons in I 5 states in 1994. Within 

three years: 

o 67.5% were rearrested for a new felony or serious misdemeanor 

o 46.9% were reconvicted in state or federal court 

o 25.4% were resentenced to state or federal prison 

o Another 26.4% were back in prison for violations of parole 

o Offenders who would appear to have lower risk (based on conviction for a 

non-violent felony) have higher likelihood of re-arrest. 

o 66.7% of drug offenders are rearrested within three years. 2 

None of these data provide confidence that released prisoners are prone to desist 

from crime. 

• Observed crime trends <1re also revealing. A careful, large-scale quantitative study 

indicated that released prisoners are significantly responsible for all forms of crime 

measured by the FBI, and that formers prisoners are particularly responsible for the 

crimes of murder and robbery. 3 

• When the federal courts mandated prisoner releases in Philadelphia, the result was a 

large-scale increase in crime by the released prisoners. According to Justice Alito: 

1 Johnson. R .. & Raphael. S. (2012). How Much Crime Reduction Does the Marginal Prisoner 

Buy? Journal of'Law and Economics, 55(2). 275-310. 2 Langan, P. A., & Levin, D. J. (2002). Recidivism of prisoners released in 1994. Federal 

Sentencing Reporter, 15, 58-65. 3 Raphael. S., Stoll. M.A .. Duggan, M .. & Piehl, A.M. (2004). The Effect of Prison Releases on 

Regional Crime Rates [with Comments]. Brookings-Wharton Papers on Urban Aff'airs. 207-255. 

p. 241. 
127 

During anl8-month period, the Philadelphia police rearrested thousands of these 

prisoners for committing 9,732 new crimes. Those defendants were charged with 

79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 

thefts, not to mention thousands of drug offenses. 4 

• A recent article in the Wall Street Journal by legal scholar Heather Mac Donald 

indicated that California has experienced sharp increases in property crime overall, 

burglary, and auto theft as part of a federal injunction to release 40,000 prisoners 

within two years as a result of Brown v. Plata (20 11 ). 5 

• It is likely that the current crime increases (2012-20 13) are in part caused by 

reductions in the state prisoner population over the last three years-although this 

conclusion awaits definite study. 

2. The Judiciary Committee is set to consider three prison reform bills: S. 619, the Justice 

Safety Valve Act of2013, S. 1410, the Smarter Sentencing Act of2013, and S. 1675, the 

Recidivism Reduction and Public Safety Act of2013. 

In your opinion, will the proposals in these pieces of legislation alleviate overcrowding in 

federal prisons without causing harm to or affecting public safety? 

No, the proposed legislation would alleviate overcrowding in federal prisons, but it would also 

result in more crime and reduced public safety. A main reason is that the offenders who appear to 

be lowest risk based on their conviction offense have the greatest offending frequencies. Raphael 

recently estimated the following crime rates per 100,000 by offense type: 

Murder 5.63 

Rape 33.11 

Robbery 146.12 

Assault 309.54 

Burglary 747.22 

Larceny 2450.72 

Auto Theft 432.91 

Other Property 72 5.46 

Drugs 469.68 

Thus the very federal offenders most likely to receive early release have the greatest offending 

velocity. 6 And the more violent offenders, such as those convicted of murder, rape, armed 

robbery are also most likely to continue engaging in predatory offending. 

:Brown v. Plata, 563 U.S._ (2011), p. 14 Alito dissent. 

' See, http://online.wsj.com/news/articles/SB I 0001424052702304 799404579153812943219656; 

Brown v. Plata, 563 U.S. (2011). 6 Raphael, S. (20 II). Incarceration and prisoner reentry in the United States. The ANNALS of the 

American Academy of Political and Social Science. 635(1 ), 192-215. 
128 

RESPONSES OF NANCY G. LA VIGNE, PH.D., 

TO QUESTIONS SUBMITTED BY SENATOR WHITEHOUSE
129 

in capacitative effect of incarceration may be accelerating. vii Plainly, the marginal prisoner today 

is exponentially less threatening to public safety than the marginal prisoner at the time of 

Levitt's study. 

Using the numbers from the Levitt study also ignores the reality on the ground. In recent years, 

29 states have reduced their incarceration rate, and all but three have also seen the crime rate 

drop. viii If reducing the number of prisoners increased crime to such a dramatic degree-at over 

a dozen per person as Delisi purports-then there would have been an explosion of crime 

rather than a continued drop. 

One limitation of the levitt article that the author points out himself is that at the time of its 

publication, there was still little known about effective programming to prevent offenses or 

recidivism. Such programs are "preferable to long-term incarceration from both a cost-benefit 

and humanitarian perspective" (p. 348). Since then, the literature about what works in 

prevention and reentry has expanded. Efforts such as Urban Institute's What Works in Reentry 

Clearinghouse have shown that there are many programs and policies that are proven to 

reduce recidivism. These program evaluations conform to a high standard of methodological 

rigor, and many randomized controlled trials have shown substantial recidivism reductions. 

Subsequent econometric research at the state level, published in the same journal as the Levitt 

paper, has found that providing the incentive of earlier release to prisoners for participating in 

such programming or good conduct is cost-beneficial from many perspectives. The incentive of 

early release encourages more inmates to participate in programming, and the rehabilitative 

effect of programming is much stronger than the incapacitative effect of prison. ix That is, 

building upon Levitt's own prediction, high-quality programming not only saves money, but also 

is a much more effective way to reduce crime. 

Taking these changes into consideration, Levitt himself has recently argued that the calculus of 

incarceration has changed, telling the New York Times, "We know that harsher punishments 

lead to less crime, but we also know that the millionth prisoner we lock up is a lot less 

dangerous to society than the first guy we lock up ... I think we should be shrinking the prison 

population by at least one-third [emphasis added]."x 

The literature on how much time served is sufficient to protect the public is therefore at best 

mixed, and our methodology is especially conservative for not incorporating the recidivism 

reduction benefits of programming into a more explicit cost-benefit analysis. 

2 
130 

2. Prof DeLisi testified that "'the effectiveness of treatment programs has been inflated.'" Do 

you agree? Is there evidence that treatment programs are effective in reducing recidivism? 

Perhaps what Delisi perceives as inflated is the so-called "evidence" of program effectiveness 

that is the result of poorly designed studies that lack the methodological rigor to assert 

causation in a manner that would withstand academic scrutiny. However, a large and growing 

body of strong research evidence indicates that programs that prepare inmates for 

employment, address substance addiction, and maintain and enhance family relationships are 

critical to reducing the likelihood of recidivism following their release. Much of this evidence is 

embodied in the What Works in Reentry Clearinghouse,,; developed by Urban Institute in 

partnership with the Council of State Governments' Justice Center as part of the Second Chance 

Act's National Reentry Resource Center.,;; Our methodology is stringent, examining only studies 

that conform to the highest standards of methodological rigor-including many randomized 

controlled trials, the "gold standard" of evaluation methods. While we are in the process of 

populating the Clearinghouse and have hundreds more studies still to review, to date we have 

found positive effects for many substance abuse treatment programs, including BOP's 

Residential Drug Abuse Program,';;; Connecticut's substance abuse treatment tier programs,xiv 

and Minnesota's chemical dependency treatment program.'v Several prison industries 

programs were found to be effective, including the federal prison system's UNICOR program, xvi 

work release programs in Florida'vii and Washington, 'viii and a number of educational and 

vocational programs, particularly postsecondary and adult basic education. 

Importantly, studies of in-prison visitation found that inmates who receive visits from family 

members while incarcerated have reduced rates of recidivism compared to those who do not, 

even when statistically controlling for other differences between these groups.';' This finding is 

consistent with Urban Institute's reentry studies, which have found that families are an 

important positive influence in the reentry process {with higher levels offamily support linked 

to higher employment rates and reduced recidivism following release)" and that in-prison 

contact with family members is predictive of the strength of family relationships following 

release."; 

'Levitt. Steven. 1996. ·The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding 

Litigation:· The Quarterly Journal of Economics 111(2): 319-351. 

"Samuels. Julie. Nancy LaVigne. and Samuel Taxy. 2013. '"Stemming the Tide: Strategies to Reduce the Growth 

and Cut the Cost ofthe Federal Prison System."" Washington. DC: Urban Institute. 

http:/\\\\\\ .urban.or£>.. 'puh!ications/4! 2932.html . 

"'Levitt ( 1996): LaVigne. Nancy. 2013. ""Statement of Nancy G. LaVigne, Ph.D. Director. Justice Policy Center. 

Urban Institute before the Committee on Judiciary United States Senate." Oversight of the Bureau ~f Prisons & 

Cost-Effective Strategies/or Reducing Recidivism. 

"La Vignc (2013). 

'Samuels. LaVigne, and Taxy (2013). 

,., Johnson, Rucker and Steven Raphael. 2012. ·'How Much Crime Reduction Does the Marginal Prisoner Buy?"" 

Journal of Law and Economics 55(2): 275-310. 

3 
131 

"' Liedka, Raymond, Anne Piehl. and Burt Usecm. 2006. ·'The Crime-Control Effect of Incarceration: Does Scale 

Matter?'' Criminology and Public Policy 5(2): 245-276. 

"" Laudano. Jennifer. 2013. "U.S. Prison Count Continues to Drop.'' Pew Public Safety Performance Project. 

lll4;1_:_zl\' \' \\ . PC\l.::i_l<J.tcs.on:~Jncws-r5,2Q111 ·press-rei ca\c~/ us-prison-count ::-CPnt in ucs-to-drop-85 899-1-5 7-1-96. 

"Kuziemko. Ilyana. 2013. "How Should Inmates be Released from Prison'' An Assessment of Parole versus FixedSentence Regimes." The Quarterly Journal of Economics 128(1): 371-424. 

x ll!!n:/, ''" \\ .n' timcs:..~\)nv'20 12 1 12_j1 \cicnccimanJailw\·-prison-gmenccs-fJcc-QrO\\ in£!-

skepticism.htm!?pa!lcwanteJ=2& r'"" 1 &lw.Q;. 

xt http://\~'hatworks.csgjusticcccnter.org. 

:..n http://csgjusticccenter.org/nrrc. 

""Pelissier. Bernadette, William Rhodes. William Saylor. Gerry Gaes, Scott D. Camp, Suzy D. Vanyur. and Sue 

Wallace. 2000. '·TRIAD Drug Treatment Evaluation Project Final Report of Three-Year 

Outcomes: Part 1:· Washington. DC: Federal Bureau of Prisons. 

http://vvww.bop.gov/news/PDFs/TRIADrrRIAD _pref.pdt: 

'" Daley. Marilyn. Craig T. Low. DonaldS. Shepard. Cheryl B. Petersen. Karen L. White. and Frank B. Hall. 2004. 

"Cost-Effectiveness of Connecticut's In-Prison Substance Abuse Treatment.'' .Journal of Offender Rehabilitation 

39(3 ): 69-92. 

"Duwe, Grant. 2010. "Prison-Based Chemical Dependency Treatment in Minnesota: An Outcome Evaluation." 

Journal qf Experimental Criminology 6( I): 57-8 I. 

"'Saylor. William, and Gerry Gaes. 1992. "The Post-Release Employment Project: Prison Work Has Measurable 

Effects on Post-Release Success." Federal Prisons Journal 2(4): 33-36. 

wu Berk, Jill ian. 2007 ... Does \Vork release work? .. Unpublished manuscript. Providence. Rl: Brown University. 

""'Drake, Elizabeth. 2007. "Does Participation in Washington's Work Release Facilities Reduce Recidivism?" 

Olympia: Washington State Institute ft>r Public Policy. 

'"Bales. William D .. and Daniel P. Mears. 2008. "Inmate Social Ties and the Transition to Society: Does Visitation 

Reduce Recidivism?" Journal of Research in Crime & Delinquency 45(3): 287-32 I. ; Derkzen. D. R. Gobeil, and J. 

Gileno. 2009. "Visitation and Post-Release Outcome among Federally-Sentenced OJfenders." Ottawa: Correctional 

Service Canada. 

La Vignc. Nancy G., Visher. Christine A. and Jennifer Castro. 2004. "Chicago Prisoners· Experiences Returning 

Home." Washington. DC: Urban Institute. http://wmv.urban.org/publications/31 I ll5.html.; LaVigne. Nancy G .. 

Tracey L. Shollenberger. and Sara Debus. 2009. "One Year Out: The Experiences of Male Returning Prisoners in 

Houston. Texas." Washington. DC: Urban Institute. 

http://www.urban.org/publications/41 I 9ll.html. 

"'Naser. Rebecca L.. and Nancy G. LaVigne. 2006. "Family Support in the Prisoner Reentry Process: Expectations 

and Realities." Journal ~f Offender Rehabilitation 43( l ): 93-106. 

4 
132 

RESPONSES OF NANCY G. LA VIGNE, PH.D., 

TO QUESTIONS SUBMITTED BY SENATOR BLUMENTHAL
133 

Yes, the federal government could do a better job of making more detailed data available to 

researchers and the general public. The US Sentencing Commission disseminates 

comprehensive data about offenders sentenced in the federal system. Data from BOP are 

available through the Bureau of Justice Statistics (BJS) Federal Justice Statistics Program and 

BOP provides an overview of the population on its website. But they could do better. 

2. How could they do better? 

Both agencies could be more transparent and disseminate more of the information they collect 

and analyze. They could also make these data publicly available in a timelier manner. BOP could 

do a better job of releasing information about its population, particularly for program 

participation. The BOP provides several annual reports to Congress with summary information, 

but these reports are not ordinarily made public. Moreover, datasets (with individual-level 

information) compiled for BJS do not include any information about program participation, 

except for inmates who receive Residential Drug Abuse Program credit. While BOP assesses 

inmates' risks on intake for classification purposes and at various times throughout their terms 

of incarceration, these data are not made public. The closest proxy for risk in publicly available 

data is the security of the facility in which inmates are incarcerated. 

Another area with inadequate information concerns inmates completing their prison terms in 

Residential Reentry Centers (halfway houses) or home confinement. It would be beneficial to 

learn more about programming, compliance or noncompliance with conditions of confinement, 

and information about inmates who are sent back to BOP facilities from these community 

placements because of technical violations or other reasons. There are also certain fields in the 

publicly available data that could be improved, such as information about resentencing of 

prisoners already in BOP custody. 

While the US Sentencing Commission regularly releases much of its data, it does not release its 

resentencing data set, which could help researchers better understand the final sentences 

served by inmates. Also, the prison impact assessments that the Sentencing Commission 

prepares for Congress are not made public and should be, in our assessment. 

'Welsh. Brandon. 2004. ··Monetary Costs and Benefits of Correctional Treatment Programs: Implications for 

Offender Reentry.·· Federal Probation 68(2). http:/1\\ ww.ncjrs.C.O\ /App,'Puhlications!ahstract.asn:\?lJ)=208065. 

"Roman. John. Lisa Brooks, Erica l.agerson, Aaron Chalfin. and Bogdan Tereshchenko. 2007. Impact and CostBenefit Analysis of the ,Vfm;1and Reentry Partnership Initiative. Washington. DC: Urban Institute. 

http:l/www.urban.org/Uploadcdl'DF/311421 Marvland Reentry.pdf 

!U Roman 1 John and Aaron Chaltln. 2006. ··Does It Pay to Invest in Jail Reentry Programs'.)" Washington. DC: Urhan 

Institute. http:/ /\\ww. urban.orglproj ectslreentry-roundtablelupload/roman chal tin. pdf. 

"Aos, Steve. 2006. Evidence-Based Public Policy Options to Reduce Fut;re Prison Construction. Criminal Justice 

Costs. and Crime Rates. Olympia, WA: Washington State Institute tor Public Policy. 

http://www.wsipp.wa.gov/rptliles/06-l 0-120l.pdf. 

2 
134 

RESPONSES OF NANCY G. LA VIGNE, PH.D., 

TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
135 

While we do not calculate "dynamic effects" from either increased or decreased recidivism for 

any of these policy options, there is convincing evidence that early release programs that 

reward inmates for participating in recidivism reduction programming or for good behavior 

while in BOP custody would not increase crime. While prison surely has an incapacitation 

effect,;; many such policies have already been piloted in the states; a review ofthese programs 

found no statistical difference in the crime rates of those who had been released early.';; 

Moreover, retrospective and prospective cost-benefit analyses have found that certain early 

release programs, when combined with treatment or programming, are cost-beneficial because 

they reduce recidivism.iv Similarly, a recent peer-reviewed econometric study found that on the 

margins, well-implemented early release programs decrease the risk of inmate misconduct, 

recidivism program non-completion, and post-release criminal activity. This decrease in risk is 

relative to policies that mandate all inmates serve a large majority of their sentences.vThe 

literature on how much time served is sufficient to protect the public is therefore at best mixed, 

and our methodology is especially conservative for not incorporating the recidivism reduction 

benefits of programming into a more explicit cost-benefit analysis. 

'Holder, Eric. 2013a. "Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar 

Association's House of Delegates." San Francisco, August 12. 

http://www.iustice.gov/iiQLQ.p~gches/2913/ag-'illeech-1}0812.html; Holder, Eric. 2013b. "Department 

Policy on Charging Mandatory Minimum Sentences and Recidviist Enhancements in Certain Drug Cases." 

Memorandum to the US Attorneys and Assistant Attorney General for the Criminal Division. Washington, DC: US 

Department of Justice; Holder, Eric. 2013c. "Retroactive Application of Department Policy on Charging Mandatory 

Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." Memorandum to the US Attorneys and 

Assistant Attorney General for the Criminal Division. Washington, DC: US Department of Justice . 

. , Levitt, Steven. 1996. "The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding 

Litigation." The Quarterly Journal of Economics 111(2): 319-351. 

"'Guzman, Carolina, Barry Krisberg, and Chris Tsukida. 2008. "Accelerated Release: A Literature Review." Focus, 

Oakland, CA: National Council on Crime and Delinquency. 

http:( /www.nccdglobal.org/sites/default/files/publication_pdf/focus-literature-review.pdf. 

"Lee, Stephanie, Steve Aos, Elizabeth Drake, Annie Pennucci, Marna Miller, and Laurie Anderson. 2012. "Return on 

Investment: Evidence-Based Options to Improve Statewide Outcomes April 2012 Update." Olympia, WA: 

Washington State Institute for Public Policy. 

'Kuziemko, llyana. 2013. "How Should Inmates be Released from Prison? An Assessment of Parole versus FixedSentence Regimes." The Quarterly Journal of Economics 128(1): 371--424. 
136 

l. ln writtL'n 

Questions from Senator Crassley for Dr. Sedg\\icl\. and Respon!les 

~ou call attenti\Hl to the 

federal pri~oner~ difll:r so 

crim-:. drul! 

discussil1ll':' among of gm crnmcnt 

m cr a particular case and ofrender. 

Can )UU 

ought C\aminc the inccntiH~s \.'rC:ltt::d and 

10 arrest com ict ;md incarcerate a \ er) 

set b) the .\nonH:~~ General and the Department 

population composition such a'> the current abrupt and 

public-orJer ofl(:nscs (e:-.pec-ia!!~ immigration crimes). \\C 

articulated by DOJ that induce tCdcr::1l b\\ cnforccment otlici::tls 

' YiJU abo recommend caution ::1bout the claims to effCcti,·eness of rehabilitation. prc\cntion and intenention 

prog.ram~. Ci.m ~ ou elabumtc on this for the CommiUct>'? What i" the cutT~m "!ate of e\ ide nee cm "uch pn)grams? 

addrc:-s to the 1\'.ationalln:::.titute t1f Conference. 

Co-Director tlfthc Stanf'(lrd Criminal Ju~tice 

li:-.ted on th(' fCdcral \\ehsitc ~\icknce-hascd antirecidivism. onl~ one,-· for 

them. \\C can't ~calc them up."~ 

h[lvc haJ on pu!,Jic 

California's Public S<Jfct~ Realignment (PSR) polic) 

attrition of' the e"\isting ptlpuh1ti0n '' hilc placing Ill.?\\ 

ofetll:ctivc treatment :1s an alternative 

tht:m. and if\',e can replica!(' 

ref(wm of its pri:.t)!l, iail and community corrections 

Can) ou commcm on these reforms and\\ hat impact 

tn rt•duce the prbnn populatinn 

nonserious. nonr.;c'\ual offCnckrs 

1 Francis T. Cullen and Cheryl Lero Johnson, "Rehabilitation and Treatment Programs;' in Crime and Public Po!;cy, ed. 

James Q. Wilson and Joan Petersilia (l'ew York: Oxford University Press, 2011), pp. 293-344. 2 A 

You Tube video of Professor Petersilia's entire speech was uploaded by DOJ and can be seen at 

!l!J.l;&:_~~uhe.c_Q_!!~1!1fh'!v -.~.LI~Jbf-\~h.G! D~ 
137 

juri:,diction kn incarceration in lora! jail bcilitic:-.. In malt':, r..:ku:-.l.:'d from \\ill bL" placed under a 

. po;,t-rdeJs~ communit~ supcni<>ion (PRCSl inqcad stak':::. parole s~s1cm. rhc stale 

additional funding to tht' 58 counties in to tka! \\ ith the incrca::oed cmrcctilmal popuL:llit~n and 

but each count) must Je\dop a plan for custod) and that bl.'-,t ;,cn·cs the needs of the 

J'hu:-.. it :-.hould be noted that the PSR polic) is rca!l) a c,,,,_,nmln" 

co:>Ls b: dramatit·all) increasing local jail co<;ts. Some. but not aiL f(lr 

increased count: aieL .'\nd :o..ome of these costs are ..;hiftcd onto the backs ofciti?cns in tht' f<.m11 ofn·duccd 

safet) and incrca~cd cu:;.ts of criminal \ ictimizmion. As Heather i'v1acDona!d has noted in "Ca!iflm1ia's 

t'n',nnLlll""""n ~i~htmarc:·: "the first full :eJr oft:rime data after realignment i~ not 

up O\t:r the national cnerage. The differences arc starhest 

the catcgor~ most aftCcted b) AB 109_ Natintwll). 

it \\(1:, up 7.6 pet-cent. 

Burglar) national!~ \\::iS dm\n 3.7 

murder ro;;;e national!: 

\\hilc Cali!(mlia '.<J\\ a 

butt he portents are. in 

-1-. Of the \arioth ~tratcgics for cutting the !Cderal pri:,on [Wpu!ation <tnal)7Cd b) the Urban lnstitute. \\hich seem to )OU 

to be most promi;;;ing and ''h)'? 

li;;;t 

:-.entencint deci:,ions. i:.. 

\\ ith Jight~r cfkcth e ~cnt\ .. 'llce::. j()r the -.ami..' crime'' hen 

A second choice \\OU!d be to increa':>.e the number \If intcrnJtional transfers\\ here tCasible I !O\\C\TL thi.:. panicular 

improbable: it constitutes offonn of cost shifting bct\\CCn our federal g:o\crnmcnt and 

a:-.sumcs the costs one of their 0\\11 citilcns fOr our l~ms. I find it 

to :1:-.:-.ume "uch costs J(w our i\ nwrc likel:-

uulcomc \\ill be or her 0\\ n juri:,diction \\here he or she \\ill prompt!:- be 

n.>!e<N .. 'd 

/\third choice \Wuld be 

he an ckmerlt of co:..t here depending. on \\hat juri:,diction t(H· 

tht' confinement. I he altracti\e part \)fthis option is that it e:-..plicit!: in\t)h'es in 

tkci.:.ion earl) reka-.e: if this risk as:-c~snKnt is done- \\elL then the impart on public sakt) c:m be minimixed as 

e'periencc JT\·cals the optimum le\e! ofri:J~ 1hc public is tolerate. This is a far beikr alternative than the 

optitl!lS mentioned in the :?0 13 Federal Pri<:,on Report none or,, hich <Kk!lLl\\ ledge risk 

otknders and treat all fcdcr<.ll prison inmates alih.c rcgardlcs'> hi:-tories and 

5. Can :-ou gi\t:: t''amples t~w reducing pristm population :;,tak<; ha\·e tried that ha\ e succeeded in reducing 

both inmate population:. and 

l1f Truth~in-Scntcncing guideline.'< the ConllllOll\\ealih 1)fVirginia has OJWrJtcd under a 

and C\·idence-c!rivt:n ! hc::,c guiddines \\ere informed b) the 

::md oh.iccthcs: lt) reduce the gap bct\\Ccn scntl'!lCl' prllnotmced in the cotntroom <Jnd the time 

actual!~ .:;crved b: a com icted klon in prison: to t?W">Un .. 'that\ ioknt criminab sene k•nger terms in 

the p8r.;t: to .:.aJ~l> redirc(t IO\\ -ri;;;h nom iolent JCions fhm1 prison to lc:;s co:;tly sancti\lns: and to in 

the ptrni~hmc-nt ~•foftt'nders Ull\\a!T<mtcd by the circum:-.tances of the offense or the detl:ndant's criminal 

2 Heather MacDonald, "California's Prison Litigation Nightmare," City Journal, Autumn 2013 vol. 33. No.4. Available 

online at bnn.;_/\\ \\\\ .citl:-iournal.or~ '20 13/23 4 california:Qrisons.htm! 
138 

been met? According hl the ~008 :\nnual Report. fir~t 

to ~er\e 90°n oft he incarceration tcnns b) the court (as compared to k's~ 

::-.~;;temL robbers 90°o (a.:. compared to lc~::. than one-third), larc~n) offenders s~;o{) 

;;;;:c!kr.:. marijuana) 89° o (compared tll ~0° o). 0\crall. those con\ ictcd of 

larcen; arc nll cstimat~~d to <.er\l~ IW k:-.s than R:' 0 o of their 

hmc been succc-;shd in 

But\\ hat ~1bout non-\ ioknt oflt.:nder~? Ba..;;cd on stud~ rqwl1'> receivl'd from the Commom\calth's 

\\hom n:nnmncndcd 

if the; ha\c no 

\ i~._)knt felon\ (~md in::-.tant o!Tcnse is not :-ale of one ounce or more ofo)cainc). arc e1i£ihll' 

ri:·.f.; ,l\SCssm~nt con~idcrati0n tOr altcrnati\e sanction. !n FY.2008. S I 0 o of eligible non-\ ioknt o!Tcndcrs~\\erc 

rccomm~:ndcd !'nr alrernati\c san~:tion by the risk ::J-:.:-.e~::-.nwnt instrument. 

t\\ o tn:nds 1 longer :,cntcnce::;. fnr \ iuknt offenders and a!tcrnath c sanctions for non-\ in lent 

oftht: (.'(HrlllWll\\ealth's prison popul~ltion to 

in June 1994. 69° n ofpris~..m inmate<. \\ere \'ioknt 

And that is 

in June 2007. 

As noted in the :nr1s ,!mwal R,'J!OI'l of the Common\\cahh's Criminal Sentencing C'ommi.<.sion. one of the goals of 

the \\as to target \ ioknt otTenders for k)ngcr terms of' incarceratilH1 in order to 

longer tOr\ iolcnt offenders. ~entencing reform ''as to 

repeat\ iolcnt the ~:ircuit courts t)fthc ComlllOll\\t:alth. ,\nd 

happened since impkn1entt1tion of the -;cntenc!ng guidelines. 

\'\{we than 28° o of\ io!cnt Dftl:nJers ~cntcnced in 1996 had m least ont.: prior violent h:lon)- L'OnYl~.:tions: h~ 200-l. thi~ 

had dropped to 2 . .J 0 r,_ a ckcrc::.bc of !..J-.:) 11 o. rhc ::oos, 1111wuf Report Giso thlk~ that the relative\) ~ho11 

the full of longer pri-;on sta) s Jlx' iolent ol!Cnders bet'll 

change in \ ioknt n:c!dl\ i~m fWtcd a bene is 

underestimated. 

One 0thcr aspect of the Comm,)H\\Ca!t!fs sentencing 

arc l\)0 long: the prP\ is ion for 

In lllt1~t c:a~e~. as ofk·nder::. 

ph~ ~ica[ condition make an 

m('di~:al s~ stem. As a result the 

rea~.:hing age 6.5 and ha\ ing 

at least ten of the sentence 

correction S) stem· s 

alkms inmates to pl'tition ror conditional relea:.e upon 

of the <.entence impoc-L'd or 60 and haYing "en cd 

the nwnber of inmates eligible for rl'leasc is current I; 

limited to tho.: UHllp~mJthc ot the <.cntcnclnll. \!..UJJclnK" thcnJscl\eS the is e'\.pccteU hl dm1bk in thclll"\t II:\\ :~ars and continue t\) ri.<:-t' at a fa:-.t pace as nwrc inmates sentenced under the- truth-in-sentencing. S).stem 

reach the nc...:e:-.:-.ar: ag~ and timc--:.~rVL'd thrc.<:-hokb. 

!n sum. the Common\\calth 

th\?rL'I0re incapacitating! violent 

t\1 public .':>etfet). 

6. DlK'~ rigorouc; \.'\ idcncc suppmi the conclusion th:lt prison ovcrcro\\ding and 

cau.<.ing an: !wrmful effect on public ::.afcty. through reducing sentences. 

in ~uccc:-.sful anti-rccidi\ ism programs. and ordering. the enrly rc!.;as(' of inmate:..'? 

cnn-;traints 

inmate-; 

and 

anS\\Cl"~ IL' qucstion:o. t\\O and fiH~ <JbO\c ma> be pertinent here. I \\Ouldjust add 10 those commenlS 

the t~1l!(m ing_ point: nothing strikes me a:-. more dcstructi\e to public S<ll'e!~ than S\\Ceping. acros-. 
139 

7. 

rhb quite 

offl?nder t) pes. I! abo 

l''a.mpk. Jn ()nender 

adopted to rl.'ducc prison 

career::.~ and k)ok at an e>Jfendcr" ~ 

u/ 

Committee i~ s.et 10 consider three- reform bilb: S. () 19. tht: Justice Safct) VaiYc Act of 2013. 

Scntencin~ Act of:OJ3. S. 1675. the Recidi\ism Reduction and Public SJk-ty Act of~01.3. 

in these pieces of legislation aile\ iate mercnmding in federal prisons without 

public :oalet)? 

piec~:s of kgb!Jtion. f \\PUld bt: more inclined to focus on st:ntencing guiddincs to 

guick!ines ::-till rdlcct the current state of crimina! justice that 1 ha\C refcrenct'd 

- In . 1 \\Otlld re.kct tht: l'rbJ.nln;.;titute's 

dra\\ in his 

We hzn-c a Teacl,: traveled d(m n the road of similar 

diH\.:rcnt sanctions Juc 10 judicial whim. \Ve l)Ught not repeat 

nut ensurt: thZJt ~cntencing guidelines ;.tre frequently reYiC\\Cd to 

en:::.urc th31 the) rellcct the most current rc::,earch 

of Pri:oons to 

transfers costs th)mthc Federal Burc~lU 

risk the) pose to their communitic~: 

of ·.'videncc-drh en rehal,ilitation programs. 

3 See. for example: Alex Piquero, David Farrington, and Alfred Blumstein, "The Criminal Career Paradigm,'' Crime and 

Justice, 30 (2003), pp. 359-506; Alfred Blumstein and Jacqueline Cohen. ''Characterizing Criminal Careers," S'cience, 237 

(1987). pp. 985-991; Alfred Blumstein, David Farrington, and Soumyo Moitra, ·'Delinquency Careers: Innocents, Desisters, 

and Persisters,'' Crime and Justice, 6 (1985). pp. 187-219; Alfred Blumstein, Jacqueline Cohen, Somnath Das and Soumyo 

D. Moitra, "Specialization and Seriousness During Adult Criminal Careers," Journal of Quantitative Criminolog:y, 4 

(December 1988). pp. 303-345; and John H. Laub and Robert.!. Sampson, ··understanding Desistance from Crime." Crime 

and Justice, 28 (200 I), pp. 1-69. 
140 

Questions for the Record 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

Senator Sheldon Whitehouse 

John E. Wetzel: 

I) The Committee heard testimony that permitting the early release of prisoners or reducing 

sentences always leads to more crime. Based on your experience reforming the criminal 

justice system in Pennsylvania, do you agree? 

A: No. It's about who and when you release the person while using science to make the 

decisions instead of painting with a broad brush. It is critical to make good decisions 

with good outcomes while still reducing population costs. 

What happened to crime rates in your state after you passed your package of reforms? 

A: We don't anticipate a negative impact because reforms improved criminal justice 

policy and expect improved outcomes as a result. Our reforms are focused on improving 

identified problems in the system and a logical consequence was that we f1attened out the 

population growth. The focus is improving criminal justice practices and policies. 

2) Do you believe that it is important to target recidivism-reduction programming toward 

high-risk imnates? 

A: Absolutely. The research is very clear that high risk offenders benefit from intensive 

programing. It has the opposite effect on low risk offenders and increases their potential 

criminality. Furthermore, from a resource standpoint, providing programming to low risk 

offenders has a negative effect on them. From a financial standpoint spending money on 

those who do not benefit from it is a waste of resources. Targeted evidenced based 

programming to the proper offender reduces crime. 

How do you try to achieve this goal in Pennsylvania? 

A: Good evidence based actuarial risk assessment at the front door and developing a 

continuum of treatment that meets the assessed needs of the offenders. Finally. 
141 

connecting offenders who have continuing program needs with programs on the outside 

through our reentry efforts to meet the remaining needs. 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Senator Grassley's Questions for Secretary Wetzel 

1. You testified that Pennsylvania decided to prohibit the early release of prisoners to residential 

programs. \\'hat occurred in Pennsylvania because of early prisoner release that led the state to 

abolish it? 

A: The pre lease was a program that targeted low risk offenders and put low risk offenders in 

a program designed for high risk offenders which increased their future criminality. It was a 

flawed concept. We created transition units in the prison to accomplish the same goal for the 

lower risk offenders but in a more research based manner and placed them in the residential 

program with technical parole violators. Our decision was based upon data. and again, focused 

on improving outcomes. 
142 

Responses to: Questions for the Record 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

November 6, 2013 

Senator Sheldon Whitehouse 

Representative John Tilley: 

I) The Committee heard testimony that permitting the early release of prisoners or reducing 

sentences always leads to more crime. Based on your experience reforming the criminal 

justice system in Kentucky, do you agree? What happened to crime rates in your state 

after you passed your package of reforms? 

The crime rates in Kentucky do not support the theory that the early release of prisoners or the 

reduction of sentences necessarily creates an increase in crime rates. Since the enactment of the 

reforms in our state, with the exception of property crimes, all crime rates have ultimately 

decreased. We are experiencing positive results because our state implemented smart-on-crime 

policies to decrease recidivism. 

One example of a successful reform that is helping to keep recidivism do'>'<TI is mandatory reentry 

supervision, or MRS. Studies show that the first 6 months after release from incarceration are the 

most critical in determining whether a person will successfully reenter society. In order to help 

offenders successfully transition into society, the legislation requires the Department of 

Corrections to implement MRS tor eligible inmates who are not granted discretionary parole. 

These inmates are released six months prior to the completion of their sentences and are 

supervised by parole officers until their sentence expires. While on MRS, o!Jenders are provided 

with resources to help find housing, employment, treatment and other programs. Without 

mandatorv reentry supervision, these offenders would serve out their sentences within the 

corrections system and would be released into our communities without supervision and without 

transitional services. MRS provides an opportunity to address the problems faced by those trying 

to reenter society after incarceration and reduce their rate ofreofJending. As of September 2013, 

5,105 inmates have been released to MRS. The current recidivism rate for those on MRS is Jess 

than 20%, which is much lower than the recidivism rate for other offenders who do not receive 

this supervision. 

Another reform enacted in our state is post-incarceration supervision, although it is still too new 

for us to confidently quantify its results. This provision requires certain serious offenders who 

are convicted after the effective date of the legislation to be subject to one year of additional 

supervision in the community upon the expiration of their sentences. Post-incarceration 

supervision will provide serious offenders the same reentry resources and supervision as MRS 

without jeopardizing public safety. 

Mandatory reentry supervision and post incarceration supervision can only be successful if the 

appropriate tools are used to identify what each individual needs to successfully reenter society. 

First, our refonns require the use of risks and needs assessment tools within the criminal justice 
143 

system. These tools are evidence-based and validated, and they allow officials to make better 

decisions regarding supervision levels and to address the specific risks and needs of each 

individual within the system. Second, our legislation requires that state funding be used for 

programs and practices that are also evidence-based. The Department of Corrections is required 

to demonstrate that state-funded intervention programs provided by the department have been 

evaluated for effectiveness in reducing recidivism. 

Reduction in sentences was not a major focus of our criminal justice reforms, but we did 

implement sentence reductions in our controlled substances statutes. The new provisions 

maintained possession in the first degree as a low-level felony but reduced the maximum 

sentence from 5 years to 3 years. A component of the controlled substances reforms requires the 

Department of Corrections to calculate the tiscal savings resulting from changes to the controlled 

substances laws, and we specified that the savings from those changes are to be used solely for 

expanding and enhancing evidence-based treatment programs. 

The refonns passed in our state in 2011 have already shown progress. As the refonns continue, 

treatment options expand, and our responses become more specific to each individual's needs, it 

is our hope that positive results continue to become more apparent. These refonns show that 

public safety can be maintained through simple, common-sense revisions within the criminal 

justice system. 

2) As you reformed your corrections system, did you try to reinvest the savings you achieved 

in other law enforcement priorities? Have those efforts been successful? 

Our refonns emphasized substance abuse treatment as Kentucky has experienced a rise in drug 

abuse problems in the past decade that effect all aspects of our communities from schools to 

economic development as well as all aspects of the criminal justice system. We increased 

substance abuse treatment slots available to the Department of Corrections from 1,500 in 2007 to 

almost 6,000 today. Because a vast majority of crimes in Kentucky are rooted in addiction, this 

focus on dmg treatment reduces and prevents recidivism. In fact, our reforms have reduced our 

prison population, which has allowed the Department of Corrections the flexibility it needed to 

implement innovative solutions to administrative problems encountered within our corrections 

system. 

For several years prior to the passage ofHB 463, the Kentucky State Police (KSP) had been 

assessing options for the relocation of their training academy, a facility used to process new 

cadet classes through basic training, as well as providing refresher training for current troopers 

and visiting personnel from other law enforcement agencies. The old academy faced severe 

constraints due to age, location, and physical space, and KSP's budget significantly limited their 

ability to acquire land for any new academy buildings. The passage ofHB 463 gave Kentucky's 

Justice & Public Safety Cabinet confidence that it could rely future planning on a decrease in the 

state imnate population, allowing that agency to close a state prison and transfer its grounds and 

physical plant to the KSP for conversion into a new training academy. 
144 

The Department of Corrections and the Administrative Office of the Courts (AOC) are 

partncring together through a grant to implement "SMART,"' or "Supervision, Monitoring, 

Accountability, Responsibility and Treatment." The program is based on the HOPE ModeL 

Currently six Kentucky jurisdictions are involved with the objectives of: 

Identifying probationers at high risk of violating their terms of supervision, 

specifically in relation to substance use; 

Responding swiftly and certainly to violations, using brief jail stays as primary 

sanctions; 

Targeting treatment resources to offenders who are unable to comply with their 

probation conditions after an initial sanction and who need treatment; and 

Reducing violation behavior and new crimes, thereby reducing revocations to prison. 

FY13 total awards $946,524 

FY14 total awards $947,364 

Above are the amounts awarded for community corrections grants in the past two years. In 

FY13, this money was allocated to the 6 SMART pilot programs. The majority of the FYI4 

awards also went towards the continuation of the SMART programs. Because this program is in 

its infancy, we are still in the early phases of evaluating the success of the grant programs. We 

hope to be able to empower local govcrrunents to address individual needs, as well as share best 

practices from the use of these grant funds over time. 

Our reforms have also increased the number of Probation and Parole officers. As a result of a $3 

million allocation from the 20 I 0 General Assembly, 54 staff positions were added to the Division 

of Probation and Parole. In addition, the new legislation directly resulted in the creation of 36 new 

staff positions for the Division. Additional resources are expected to be allocated to the Division 

of Probation and Parole for personnel and infrastructure needs including expanding the Division's 

fleet inventory and offices statewide in preparation for these expanded services. 
145 

United States Senate, Committee on the Judiciary, Hearing on the Oversight of the Bureau 

of Prisons & Cost-Effective Strategies for Reducing Recidivism, held on November 6, 2013 

Statement for tbe Record 

Submitted by the Arthur Lim an Public Interest Program at Yale Law School' 

November 13, 2013 

The Arthur Lim an Public Interest Program 1 at Yale Law School appreciates the 

opportunity to submit this statement in connection with the Senate Judiciary Committee's 

November 6. 2013 hearing, Oversight of the Bureau of Prisons & Cost-Effective Strategiesfor 

Reducing Recidivism. We applaud the Committee for putting on its agenda questions about 

efforts by the Federal Bureau of Prisons (BOP) to implement cost-effective strategies to reduce 

recidivism. 

This statement first discusses how, upon learning about the BOP's proposal to limit 

placement opportunities for women in the Northeast, the Liman Program began efforts to map 

where facilities for federal prisoners were and to identify the roles that gender and jurisdictions 

of sentencing play when considering options for placements of incarcerated individuals. Second, 

we provide a brief overview of research demonstrating that incarcerated individuals who have 

opportunities for education and who can maintain ties with their families and communities are 

more successful while in prison and upon release. 

As we explain, these studies make plain that where individuals arc incarcerated has an 

impact on access to programs and to other resources that contribute to lowering recidivism rates. 

Further. for those prisoners who are parents. opportunities for children to visit are especially 

important, given that children of prisoners face special challenges. Because more women than 

men took care of young children prior to incarceration and because women have fewer 

placement options in the federal system. women disproportionately suffer the burdens of distance 

from children. Third, we outline the efforts. recently undertaken by the federal government, to 

try to lower the costs that incarceration imposes on children of prisoners. 

Fourth, we detail what can be learned from public information about where men and 

women are currently incarcerated in the federal system and about the judicial districts in which 

they were sentenced. As the data and appendices below illuminate, the decisions to locate 

federal prisons in certain parts of the country result in placing many inmates at great distances 

from the districts in which they were sentenced and to which they may well be released. 

Moreover, given the few placement options provided for women. that subset of the population is 

often at a greater distance from families and from ready access to volunteer programs than are 

men. 

Fifth, we discuss approaches available to the BOP to fulfill the goals it recognizes-to 

·'place each inmate in an institution that is reasonably close to the anticipated release area"' and 

' A full version of this statement, including endnotes, maps, and appendices, can be found at: 

http://\\ ""·law.\ ale.eduidocumenls/pdfil.iman/Senatc .ludiciarv Committee BOP 0\ersiuht 

!learing Liman Statement for the Record Nov 12 2013.pdf ''ebsile.pdf. Institutional 

affiliation provided for identification purposes only. 
146 

then to help that person move toward release and reentry. From the publicly available data, 

implementation of those goals often appears to fall short of these aims. Given that distance 

makes visiting difficult and, for families with limited incomes, in many instances impossible, the 

BOP could effectuate a cost-effective strategy to lower recidivism by reviewing each inmate's 

eligibility for reclassification, treatment programs, education, and for Second Chance Act release 

to a residential reentry center (RRC or halfway house). After identifying individuals eligible for 

these opportunities, the BOP could provide these programs and alternatives or find facilities for 

inmates closer to their families. Our suggestions build on the model used when discussion of 

FCI Danbury came to the fore. As we understand it. once concerns were raised about the 

decision to move so many women away from the Northeast, the BOP undertook an 

individualized review and determined that dozens of women housed at Danbury were eligible for 

alternative placements. 

Institutionalizing a process of individualized reviews for both women and men in the 

federal prison system would help to keep individuals as close to their home communities as 

possible and facilitate their successful reintegration upon release. Doing so would comport with 

the BOP's own goals of supporting prisoners who are parents and of helping all prisoners to 

move towards reentry, and this approach would also fulfill the directives of both Congress and 

the Executive branch. 

I. The Proposed Closure of FCI Danbury as a Facility for Women Prompted the 

Lim an Program to Undertake a Study of Federal Offenders' Proximity to Home 

Over the last several months, the Liman Program has been exploring the impact of the 

distances federal prisoners are placed from their homes and families on their likelihood of 

successfully re-entering their communities upon release. The Liman Program has learned about 

this issue by undertaking a study, Prison Visitation Policies: A Fifty State Survey, which 

provided the tirst comprehensive comparison of prison visiting policies in all of the states and 

the BOP.3 A second Liman Program study, Administrative Segregation, Degrees of Isolation 

and Incarceration: A National Overview of Policies, surveyed state and federal policies on the 

use of administrative segregation, the degrees of isolation imposed on inmates in segregation. 

and those inmates' eligibility for visits." A third study, which is currently underway, aims to 

map placement opportunities for women and men within the federal system and to compare the 

distances bet\veen prisoners' residences and their sites of incarceration. 

We began to gather the data reported here in response to the BOP's announcement in the 

summer of2013 that it planned to transform its only facility in the Northeast for women-FCI 

Danbury, Connecticut-into a low-security facility for men. At the time of the announcement. 

FCI Danbury housed some 1,100 women. while the satellite camp adjacent to the main facility 

was designed to hold about 150 women (under the plan, the satellite camp would have remained 

a facility for women). According to data from the Sentencing Commission, about 10 percent of 

the women sentenced (to ten11s of incarceration or otherwise) in the federal courts each year 

come from the Northeast. Transforming Danbury into a facility for men would have meant that 

female prisoners from the Northeast, and those sentenced in the future. would have almost no 

opportunity to be incarcerated close to home. 

2 
147 

We learned recently that. in response to concerns raised by numerous Senators from the 

Northeast region, eleven chief judges of federal district courts in the Northeast (see Appendix I), 

the National Association of Women Judges (NA WJ) (see Appendix 2), the American Bar 

Association, the Osborne Association, and many others, the BOP modified its plans and has 

committed itself to making bed-space available at Danbury for women who are citizens and who 

are sentenced in or come from the Northeast5 

Much more needs to be done, Our research suggests that, although the BOP has a policy 

of aiming to keep inmates ''reasonably close'' to the communities to which they will be released, 

the BOP defines "reasonably close" as any location within 500 miles of a prisoner's community." 

That distance is challenging and for low-income families, such distances may preclude all 

possibilities of vistiting, Moreover, many male and female prisoners across the country are 

incarcerated even farther than 500 miles from home, 

II. Inmates Who Have Programming Opportunities and Visitors Do Better While in 

Prison and Are Less Likely to Recidivate 

Several studies conclude that prisoners who participate in educational programs and/or 

receive visits while incarcerated function better in prison7 and have a better chance of staying out 

once they are released, 8 The explanations for these findings may be straightforward: a large 

literature suggests that ""social connections that are maintained during the period of incarceration 

can be an important resource in helping released prisoners achieve positive post-release 

outcomes,"9 and that inmates who are connected to their families, friends, places of worship, and 

communities arc better able to readjust to life outside prison. 

Where inmates are incarcerated affects, among other things, what programs will be 

available to them, the likelihood that they will interact with volunteers from the surrounding 

community, 10 and their ability to receive visits, A study released by the RAND Corporation in 

2013 offers a "meta-analysis" of data on correctional education and concludes that taking 

educational courses while incarcerated reduces an individual's risk of recidivism by 13 percent" 

Further, while many programs can be and should be available to both women and men, some 

programming also needs to address the disparate social circumstances of prisoners of different 

genders, For example, many more female prisoners report having been victims of physical and 

sexual abuse, and men and women may take on different parental responsibilities, 12 

Indeed, research has demonstrated the importance of maintaining parent-child 

relationships and the particular relevance of parenting to women in prison. As of 2008, the 

United States imprisoned more than 810,000 parents; children under the age of 18 whose parents 

were incarcerated numbered more than L7 million." During the last few decades, the number of 

children with a mother in prison has more than doubled, 14 and mothers entering prisons were far 

more likely than fathers to have lived with their children in single-parent households, 15 

Prison terms make it very difficult to maintain family ties, which is essential both to 

ensuring successful family reunification and to avoiding termination of parental rights under the 

federal Adoption and Safe Families Act (ASFA), That statute imposes limelines under which 

state authorities begin to terminate parental rights; under ASF A. unless they are in the care of 

relatives, children who spend a period of fifteen out of twenty-two months in foster care can 

$~nate JudlcJan Comm1ttee BOP 01ers•ght Heurmr: L:m;m S1~!emcnl f"' the Rewrd ;-,;ol !3 21'13 f1n:il 3 
148 

become the subject of such proceedings. 16 Data also establish that children of female inmates 

have a five times greater probability of being in foster care than children of male inmates. 17 

Thus, incarceration of parents increases the risk that children may lose legal ties with their 

parents, and children of incarcerated women are especially at risk. Studies also detail that 

children of prisoners often have behavioral and emotional problems, experience difficulties at 

school, and become involved in the juvenile and criminal justice systems.' 

Programs tor visitors, and for children in particular. may mitigate some of these 

problems. 19 Because parents' relationships with young children depend more on physical 

expressions of affection and less on written communication than relationships between adults, 

contact visits arc especially important. For example, in one study, Zoann K. Snyder, Teresa A. 

Carlo, and Megan M. Coats Mullins discussed the salutary effects of a mother-child visitation 

program on the reported and observed wellbeing of incarcerated mothers, on mother-child 

relationships, and on mothers' perceptions oftheir children's welfare."' 

Despite these findings, available information about the geography of federal prisons 

demonstrates that children have difficulty visiting their incarcerated parents, and that the 

obstacles to visitation are particularly acute for children of women prisoners. Some years ago, a 

study found that mothers in the federal prison system were incarcerated an average of 160 miles 

further from family than their male counterparts." More recently, in an October 2010 report 

entitled Mothers Behind Bars, the National Women's Law Center concluded: 

[Tlhe number of women incarcerated in the Federal Bureau of Prisons (BOP) 

system increased from I ,400 to over 9,000 between 1980 and 1998. There were 

13,746 women in Federal BOP custody as of June 2009, according to the most 

recent data available. Approximately 56% of these women have children. 

Because there arc only twenty-eight federal facilities for women. most women are 

too far from their families to receive regular visits."' 

Indeed, Karen Casey-Acevedo and Tim Bakken found that the majority (61 %) of mothers 

incarcerated in the maximum-security state prison that they studied had not received any visits 

from their children, and that ""perhaps the most significant determinant of whether an inmate 

receives visits is the distance between her home county and the prison to which she is 

committed.'''3 This study also emphasized the importance of contact visits with children. 

III. The Bureau of Prisons, Department of Justice, and the White House Have All 

Launched New Efforts to Enable Better Opportunities for Family Contact for 

Prisoners 

In 2013, the Department of Justice (DOJ), with White House support, launched what it 

terms an ""aggressive campaign" to mitigate the harms that incarceration of parents imposes on 

children.24 As the DOJ website explains: ""Research shows that maintaining contact and healthy 

relationships in spite of the barriers represented by prison walls is not only possible but 

beneficial, for both the children and their parents. We owe these children the opportunity to 

remain connected to their mothers and fathers."25 

4 
149 

In June of 2013, the White House recognized twelve Champions of Change For The 

Children Of Incarcerated Parents, At the event, Deputy Attorney General James 1\1. Cole 

remarked: 

[A]ddressing these children's needs requires a coordinated effort of multiple 

government agencies and social service entities to implement collaborative 

approaches. This Administration is committed to providing support to children of 

incarcerated parents and their caregivers. Through an interagency working group 

led by the White House, agencies across the Administration have been taking a 

hard look at the issues these children, their caregivers and their parents confront 

and how we can provide more support.26 

In August of 2013, the White House continued its efforts by hosting a conference to help 

social scientists, lawyers. and judges learn how to ·'reduce the collateral costs [of incarceration] 

to children."27 The conference, "'Parental Incarceration in the United States: Bringing Together 

Research and Policy to Reduce Collateral Costs to Children," was jointly sponsored by the 

American Bar Foundation and the National Science Foundation and was held in the White House 

Executive Office Building on August 20, 2013. Participants reviewed the latest research 

findings and began to develop recommendations for policymaking bodies. Emily Bever Nichols 

of the University of Virginia noted that "policy and programming should focus on expanding 

school-based services and drop-out prevention for youth with household member 

incarceration.""28 Myrna Raeder, Professor of Law at Southwestern Law School. urged that 

''judges should be better trained concerning the impact of parental incarceration on children to 

take better advantage of their discretion in sentencing, particularly when the defendant has 

committed a nonviolent crime and has sole or primary parenting responsibility.""29 She argued 

that to sustain parent-child contact, "judges should have the power to take distance from home 

into account in sentencing, as well as the power to decide where a prisoner should be houscd.'"30 

The Justice Department has also directed the BOP to support "programs to enhance 

family relationships, improve inmate parenting skills, and redesign visitation policies in its 

system."'31 On June 19, 2013, BOP Director Charles Samuels sent a memo to every inmate 

incarcerated in the federal system in which he encouraged them to visit with their children; he 

explained that •'there is no substitute for seeing your children, looking them in the eye, and 

letting them know you care about them."32 

IV. The Distribution of Women and Men in the Six Federal Bureau of Prisons Regions 

Our question is how these goals fit with what is known about the placement of prisoners, 

their distances from family. and the rules and regulations for visiting. As noted above, the BOP 

aims to put inmates within ·'reasonable" proximity to the areas of their "anticipated release,"33 

albeit defining "reasonably close" as distances that can make visiting, programming, and release 

plans difficult to achieve. Specifically, BOP Program Statement 5100.08, which was issued in 

2006, provides in part: 

The Bureau of Prisons attempts to place each inmate in an institution that is 

reasonably close to the anticipated release area. Ordinarily, placement within 500 

Se11a1e Jud•c•ar~ lcmrmt1~e BOf' 01 eNghl He;uing LHr.an Stalement for the Record'\"' 1} ~1113 fin~) 
150 

miles of the release area is to be considered reasonable, regardless of whether 

there may be an institution closer to the inmate's release area. 34 

Our research makes plain that thousands of federal prisoners are sent far from the jurisdictions in 

which they were sentenced. More research is needed to leam the percentage of women and men 

whose security classifications pennit them to be in less secure facilities and the relationship of 

anticipated release areas to placement. Further. data are needed on how the disciplinary transfer 

system works and where programs are available. Thus, the overview provided below offers just 

one facet of the research that needs to be done. The details underlying the summary that follows 

are provided in Appendices 4 and 5. 

As of August 24, 2013, the BOP incarcerated 218,864 prisoners. The vast majority 

(204,289 or 93.3 percent) of these prisoners were men. Women numbered 14,575 or 6.7 

percent. A small percentage of federal prisoners were pre-conviction, but most (190, 142) were 

post-conviction. Again, the vast majority of that post-conviction population-178.242 or 93.7 

percent-were men. A smaller number ( 11,900 or 6.3 percent) were women. 

The BOP divides its system into six Regions35 Public data permits analysis of the 

facilities and beds that are available for sentenced men and women in each of these six Regions. 

In addition to public information from the BOP,36 we also rely on data from the United States 

Sentencing Commission on how many men and women are sentenced in each judicial district in 

the federal system.37 Because the Sentencing Commission data include all sentences, whether to 

a tenn of incarceration or not, the numbers provided below do not differentiate among sentence 

types and include individuals who received non-incarcerativc sentences, as well as those who arc 

incarcerated in jails rather than prisons, 

As is detailed below, the federal prisons in the United States arc not distributed evenly 

across the country, nor are they placed in the same ratios to the districts in which people are 

sentenced. (Once again, more information is needed about the numbers sent to prison and where 

prisoners are placed in relationship to their homes.) For example: 

15 percent of the men and 9 percent of the women in the federal system were 

housed in the Northeast Region. Of the total prisoners who received federal 

sentences, 13 percent of the men and 13 percent of the women received their 

sentences in the Northeast. 

• I 9 percent of the men and 22 percent of the women in the federal system were 

housed in prisons in the Southeast Region. In that Region, the contrast 

between the district of sentencing and the location of federal prisons is clear. 

Ten percent of the men and 13 percent of the women sentenced in the federal 

system received their sentences in the Southeast. 

• 16 percent of the men and 17 percent of the women in the federal system were 

housed in the Mid-Atlantic Region, while 11 percent of the men and 13 

percent of the women in the federal system received their sentences in the 

Mid-Atlantic Region. 

Sc'l~!e Jud>c"'J) Comml\!ee BOP Q,er<:l;;h1 Heann~ Ltmnn Sta!cmen! fc>r the Record \Jm !3 211!3 final 6 
151 

12 percent of the men and 11 percent ofthe women in the federal system were 

housed in the North Central Region. In this region, the numbers of those 

sentenced comes closer to the numbers of those incarcerated. 12 percent of 

the men and 14 percent of the women in the federal system were sentenced in 

the North Central Region. 

24 percent of the men and 23 percent of the women in the federal system were 

housed in the South Central Region. Here again, the numbers are parallel; 28 

percent of the men and 26 percent of the women in the federal system were 

sentenced in the South Central region. 

13 percent of the men and 18 percent of the women in the federal system were 

housed in the Western Region. In the Western Region, the divergence 

between the districts where people are sentenced and the places they arc 

housed is substantial. 26 percent of the men and 22 percent of the women in 

the federal system were sentenced in the Western Region. 

Looking at the prison facilities and prison populations in each of the six regions in greater 

detail, the following picture emerges: 

Northeast Region: The BOP defines the "Northeast Region" to include ten 

states: Connecticut, Maine. Massachusetts, New Hampshire. New Jersey, New 

York, Ohio, Pennsylvania, Rhode Island, and Vermont. The Northeast Region 

has 28 facilities for men that house about 27,600 men. The Northeast has 2 

facilities for women-FCI Danbury and the camp--that together house about 

1,100 women (as of October 20 13). 

Note: The BOP includes Ohio in the Northeast region. Excluding Ohio, the 

Northeast has 25 facilities for men that house approximately 23,500 men, and 

2 facilities for women that house about 1, I 00 women. 

Southeast Region: The BOP defines the ·'Southeast Region" to include 

Puerto Rico and five states: Alabama, Florida, Georgia, Mississippi, and 

South Carolina. The Southeast Region has 30 facilities tor men that house 

about 34,800 men. The Southeast Region has 5 facilities for women that 

house about 2,600 women. 

Mid-Atlantic Region: The BOP defines the "Mid-Atlantic Region" to include 

Washington, D.C. and seven states: Delaware. Kentucky, Maryland, C\Jorth 

Carolina, Tennessee, Virginia, and West Virginia. The Mid-Atlantic Region 

has 32 facilities for men that house about 29,000 men. The Mid-Atlantic 

Region has 3 facilities for women that house approximately 2,000 women. In 

addition, the Mid-Atlantic Region contains FMC Lexington, in Kentucky, a 

medical facility that houses about I ,800 male and female prisoners. 

:'1/orth Central Region: The BOP defines the "North Central Region" to 

include twelve states: Colorado, Illinois, Indiana, Iowa, Kansas, Michigan, 

Sen~te JudJcJan Cornm•ttee 1:\0P Q,e~•ght Heanng b"''"' Sto.:ement for 1hc Record 'n' lJ 2ll] 3 final 7 
152 

Minnesota, Missouri, Nebraska, North Dakota, South Dakota. and Wisconsin. 

The North Central Region has 24 facilities for men that house about 

21,500 men. The North Central Region has 2 facilities for women that house 

about 1,300 women. 

South Central Region: The BOP defines the "South Central Region" to 

include five states: Arkansas, Louisiana, New Mexico, Oklahoma. and Texas. 

The South Central Region has 35 facilities for men that house about 

43,400 men. The South Central Region has 3 facilities for women that house 

about 2,800 women. 

Western Region: The BOP defines the '·Western Region" to include ten 

states: Alaska. Arizona, California. Idaho, Montana, Nevada, Oregon, Utah, 

Washington, and Wyoming. The Western Region has 22 facilities for men 

that house about 22,300 men. The Western Region has 4 facilities for women 

that house about 2,000 women. 

V. The Tools Available to Reduce Prison Populations and Recidivism: Second Chance 

Act, Individual Review, and Relocation Opportunities 

The BOP faces a serious challenge in the large and growing population of federal 

prisoners. For example, when responding to inquiries about the planned changes at Danbury. the 

BOP explained to a group of Senators that it needed to move female inmates out of the Northeast 

to address overcrowding in its facilities for both men and women.38 Yet neither using funds to 

transfer inmates (and in some instances exacerbating the challenges of distance) nor constructing 

more prisons is as cost-effective as identifying appropriate individuals to transfer to less secure 

settings. Indeed, the BOP has recognized that "female offenders are less likely to be violent or 

attempt escape,''39 which suggests that review of incarcerated women might identify many who 

could benefit from alternative placements. Thus. by exercising its authority under the Second 

Chance Act as well as other federal statutes and its own regulations. the BOP can reduce 

overcrowding, improve educational opportunities for inmates, and strengthen family 

relationships.'0 

In 2007. Congress enacted the Second Chance Act to "assist offenders reentering the 

community from incarceration to establish a se!f:sustaining and law-abiding life" and to "rebuild 

ties between offenders and their families."41 The concerns that animated this legislation support 

housing inmates as close as possible to sites of re-entry, which are often the districts in which 

they were sentenced. The BOP's "Release Preparation Program"-which provides inmates who 

have 30 months or less left to serve on their sentences with classes designed "to prepare [them] 

to re-enter the community successfully''--expressly contemplates partnerships with local 

businesses and service providers.'" Obtaining knowledge of and access to regional resources is 

facilitated when BOP staff are proximate to the anticipated release areas, just as developing 

release plans that include assurances of housing, support, and employment is made more difficult 

by distance. 

In addition. Congress requires the BOP to provide a residential drug abuse program 

(RDAP) for eligible inmates. This program can reduce inmates' sentences by up to 12 months 

8 
153 

after they successfully complete it.43 However, most inmates do not get the full reduction 

because, due to long waiting lists for the programs, prisoners typically have less than 12 months 

to serve by the time they are able to complete the program.<4 A recent report estimates that. if 

eligible inmates received the full 12-month reduction in their sentences, the BOP would save 

over $45 million each year in prison costs45 Opening up bed space would also enable some 

inmates who remain incarcerated to move closer to home. Moreover, RDAP is only available in 

half of the BOP's facilities.<6 yet the BOP estimates that as many as 40 percent of its inmates 

may qualify for the program47 Thus, one priority to achieve more effective cost-saving 

strategies should be to increase RDAP capacity. 

Another priority ought to be for the BOP to use its authority, under the Second Chance 

Act, to pre-release eligible inmates into home detention and residential reentry centers (RRCs) 

for as much as the final 12 months of their sentences. As we understand it, the BOP generally 

does not use that full twelve months. but instead offers inmates community corrections six 

months before the end of their sentence. Given the logistics involved in effectuating plans and 

transfers, inmates serve an average of just four months of their sentences in these prison 

alternatives.48 Again, a recent report estimates that, were the BOP to increase the months 

inmates spend in "home confinement" by three months, the BOP could save an additional $111.4 

million each year.49 

A third option for reducing the prison population is to revisit decisions made under the 

rubric of sentence reductions tor good behavior. known as Good Conduct Time (GCT). The 

BOP has chosen a method of calculation, which was upheld by the Supreme Court, that does not 

give inmates the full amount of GCT authorized by statute.50 By awarding the full credit when 

earned, a recent report estimates that the BOP would realize about $40 million in savings each 

year. 51 

In sum, we have learned about the great distances from home at which inmates arc 

routinely incarcerated and the particular challenges facing women in the federal prison system. 

We have identified several techniques currently available to reduce prison overcrowding, to 

bring some inmates closer to home, and to place others in drug treatment programs and 

residential reentry centers, thereby saving millions of taxpayer dollars. While the BOP cannot 

modifY mandatory minimum sentencing laws for drug offenders, who make up more than half of 

its prison population, 5

2 the BOP docs possess broad discretionary authority about where to place 

prisons and whether to reduce the time that prisoners spend in its custody. These measures 

would also help to make prisons safer and to buffer against the risk of recidivism. 

Thank you for consideration of this statement and the materials appended. 

Judith Resnik 

Arthur Liman Professor of Law 

Respectfully submitted, 

Hope Metcalf 

Liman Director 

Megan Quattlebaum 

Senior Liman Fellow 

Anna Arons (Class of2015) 

Sinead Hunt (Class of20 14) 

Katherine Culver (Class of2015) 

Emma Kaufman (Class of2015) 

Arthur Liman Public Interest Program, Yale Law School November 13. 2013 

Comm1ttee BOP 0' ers>gh\ Hea:rmg L•mon S!otement for 1he Record Nt>l l.l :ol3 fin:s.l 9 
154 

Locating Men and Women in the 

Federal Prison 

Sentencing Locations 

For Men and Women 

10 
155 

Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing 

Recidivism 

Testimony Submitted to the Senate Committee on Judiciary; United States Senate; 

Wednesday, November 6, 2013 at 10 a.m. 

The National Disability Rights Network (NDRN) would like to thank Senators Leahy and 

Grassley, and the Senate Committee on the judiciary, for focusing their attention on efforts 

to reduce recidivism and provide effective re-entry programs. NDRN is the national 

membership organization for the Protection and Advocacy (P&A) System, the nationwide 

network of congressionally mandated, legally based disability rights agencies. A P&A and 

CAP agency exists in every U.S. state and territory. P&A agencies have the authority to 

provide legal representation and other advocacy services, under all federal and state laws, 

to all people with disabilities. The P&A network is the largest provider of legally-based 

services for people with disabilities in the country. 

P&A's around the country represent people with disabilities in the criminal justice system 

to ensure that they receive appropriate individualized treatment, evidence-based 

programming, and re-entry support, three things that are key to preventing recidivism. 

P&As maintain a presence in all facilities that house people with disabilities, where they 

monitor, investigate and attempt to remedy adverse conditions, including prisons, jails and 

detention centers. The P&A's work in these settings often involves helping prisoners obtain 

accommodations so they are not prevented from equal participation in programming and 

received needed treatment. 

Recent P&A cases include Harold Cunningham and Center For Legal Advocacy, D.B.A. The 

Legal Center For People With Disabilities And Older People, Colorado's Protection And 

Advocacy System v. Federal Bureau Of Prisons, Civil Action No. 12-Cv-01570-Rpm, filed in a 

U.S. District Court in Colorado. This case involves the failure by the Bureau of Prisons (BOP) 

to provide treatment to prisoners with serious mental illness at the United States 

Penitentiary Administrative Maximum in Florence, Colorado ("Supermax") facility. The 

lack of mental health services places the inmates at greater risk of being unstable upon 

release, and increases the possibility that they will reoffend. Studies have shown that 

intensive case management upon reentry is more likely to prevent people with mental 
156 

illness from returning to prison.! The P&A network helps ensure that people with mental 

illness receive this treatment. 

We listened with great interest to the hearing testimony at the November 6 hearing, and 

were struck by how little of the discussion focused on the needs of individuals with 

disabilities, a large and increasing population in prisons and jails nationwide. Individuals 

with disabilities, including mental illness and cognitive disabilities, are prevalent in the 

federal system.z The programming needed to prevent a return to the prison system differs 

in some significant ways from other types of prisoners. 

We were pleased to hear Director of the Federal Bureau of Prisons, Charles Samuels 

testimony regarding the "Skills" and "Stages" programs, which address the needs of two 

subpopulations of prisoners with disabilities, prisoners with Axis II diagnoses of Borderline 

Personality Disorder and prisoners with major mental illness and cognitive impairments. 

However, participation in those programs appears low,3 and there are other sub 

populations that could benefit from specialized programming. As Director Samuels states 

in his written testimony,4 empirical research and testing have proven that BOP programs 

that prevent recidivism are effective. 

The vast majority of prisoners in the federal system will eventually be released, and 

withholding needed treatment from those with significant mental illness will neither 

prevent recidivism nor help to ensure public safety. Programming should be provided 

from the beginning of the period of confinement so that it has time to be fully effective by 

the time of re-entry. The corrections system must work with community-based service 

providers to ensure continuity of care as appropriate to ensure that the prisoner does not 

re-offend. 

The provision of mental health treatment not only makes sense from a policy perspective, it 

may also be a necessary element of medical treatment that the BOP must provide to 

inmates who require it.3 

We were pleased to hear the testimony of Director Samuels that the use of solitary 

confinement ("SHU") is being reduced and that the Bureau maintains the highest level of 

quality of care when someone is in isolation. Solitary confinement has a disproportionately 

negative impact on individuals with particular types of disabilities, including mental illness 

and cognitive disabilities. Despite this, people with mental illness and cognitive disabilities 

1 See, e.g., Yamatani, H., "Overview Report of Allegheny County Jail Collaborative Evaluation Findings," Center on Race and 

Social Problems, School of Social Work, University of Pittsburgh, retrieved 11/13/13 from< 

http:/ jwww.alleghenycounty.us(WorkArea(linkit.aspx?Linkldentifier=id<emiD=23760>. 

2 According to the GAO's recent study (United States Bureau of Prisons, "Timelier Reviews, Plan for Evaluations, and 

Updated Policies Could Improve Inmate Mental Health Services Oversight," july 2013, available at 

<http:/ (www.gao.gov (assets/660(655903.pdf>) male inmates with mental health issues in the Federal system alone 

totaled 150,452 on February 9, 2013. See ' 

According to the GAO report above (page 49) in 2012 only 17 federal prisoners nation-wide participated in the "Stages" 

program and 2 were on a waiting list. Other programs designed for this population include the "Challenges" "Step 

Down" and "Resolve" programs. These also appear to have insufficient space to meet the need. 4 Page 5. 3 See for example, Brown v. Plata, 131 S. Ct. 1910 [2011) 
157 

are disproportionately placed in solitary confinement.4 Researchers estimate that, on 

average, about thirty percent of the prisoners held in solitary confinement have a mental 

illness.5 Many people in solitary confinement are prisoners who have broken rules or 

created a nuisance for staff, not people who have engaged in violent activity. Other 

methods should be used successfully to ensure safety and order within the facility. 

NDRN and the P&A network are eager to work with the Senate judiciary Committee to 

explore strategies for the reduction of the use of solitary confinement and to encourage 

appropriate treatment of people with disabilities in the criminal and juvenile justice 

systems. As a nationwide network of agencies, NDRN and the P&As have numerous 

examples of the critical work that P&As have performed to advocate for people with 

disabilities and reduce recidivism. 

Contact: 

Patrick Wojahn, Public Policy Analyst 

(202) 408-9515, x102 

Patrickwojahn@ndrn.org 

4 Craig Haney, Mental Health Issues in Long· term Solitary and "Supermax" Confinement, 49 CRIME & DELINQUENCY 124, 127 

(2003) 

5 )ames Ridgeway, "Locking Down the Mentally Ill," Feb. 18, 2010, available at <lill!l;L/www.tlwcrir11eEllQLt,9rg/archiw 

lli_~;.kil_~down-the-mentally:-jJt>. 
158 

Written Statement of the American Civil Liberties Union 

Before the United States Senate Committee on the 

Judiciary's 

Hearing on 

Oversight of the Bureau of Prisons & Cost-Effective 

Strategies for Reducing Recidivism" 

Wednesday, November 6, 2013 10:00 

a.m. 

Submitted by the 

ACLU Washington Legislative Office 

ACLU National Prison Project 

For further information contact Jesselyn McCurdy, Senior Legislative Counsel at 

jmccurdvrii'dcaclu.org 
159 

The American Civil Liberties Union (ACLU) welcomes this opportunity to submit 

testimony to the Senate Committee on the Judiciary's for its hearing on Oversight of the Bureau 

<!/'Prisons & Cost-Eff'ective Strategies for Reducing Recidivism" and urges the Committee to take 

action to bring the Bureau of Prisons into conformity with accepted legal, public-safety, and 

human-rights standards. 

The ACLU is a nationwide, nonprofit, non-partisan organization with more than a half 

million members, countless additional activists and supporters, and 53 affiliates nationwide 

dedicated to the principles of liberty and equality embodied in our Constitution and our civil 

rights laws. Consistent with that mission, the ACLU established the National Prison Project in 

1972 to protect and promote the civil and constitutional rights of prisoners. Since its founding, 

the Project has challenged unconstitutional conditions of confinement and over-incarceration at 

the local, state and federal levels through public education, advocacy, and successful litigation. 

The Federal Bureau of Prisons (BOP) is the largest prison system in the country, comprising 

119 prisons and jails and managing the detention of about 219,000 people. 1 While most federal 

prisoners are housed in BOP-operated jails and prisons, BOP also contracts with private prisons, 

as well as state and local prisons and jails, to house a significant proportion of its prisoners and 

dctainees.2 Many of BOP's facilities are out of compliance with legal standards, as well as with 

widely acknowledged human-rights and public-safety guidelines for the treatment of prisoners and 

detainees. In particular, BOP should improve its policies on the use of solitary confinement; on 

contracts with private, for-profit prisons; on compliance with the Prison Rape Elimination Act 

(PREA) and with requirements for treating transgender and transitioning individuals; on the 

abusive practice of using Special Administrative Measures and Communication Management 

Units; and on the proposed relocation of approximately 1,000 women to a new facility in 

Aliceville, Alabama. The testimony that follows will first suggest a cost effective strategy for 

reducing recidivism and second recommend issues that the Committee should explore with the 

BOP in its oversight role with the agency. Cost Effective Strategies to Reduce Recidivism 

I. Congress Should Expand Time Credits for Good Behavior and 

RecidivismReducing Programs. 

Of the over 219,000 people are in federal prison almost half of them are serving time for 

drug-related crimes and the majority of those cases are non-violcnt.3 At the same time, BOP is 

operating at almost 40 percent over capacity and accounts for over 25 percent of the Department 

of Justice's (DOJ) budget.4 One approach to addressing BOP overcrowding while also helping 

individuals successfully reenter society after incarceration would be to expand the existing 

earned time5

credit that allows people to be released from federal prisons early based on their 

good behavior. The federal prison system's current method of calculating earned credit reduces a 
160 

prisoner's sentence to a maximum credit of 47 days per year- below the 54 days Congress 

intended. This decision results in um1ecessary increases in prison sentences at significant cost. 

Congress should enact legislation that would allow individuals to receive the full 54 day credit 

and earn good time credit for successful participation in recidivism-reducing programs, such as 

education or occupational programming. If Congress would clarify the statutory language and 

enable BOP to provide more recidivism-reducing programs, it could save an estimated $41 

million in the first year alone. 

Committee Oversight of the BOP 

II. BOP's Usc of Solitarv Confinement Is Excessive and Should Be Monitored a. The 

BOP's Use of Solitary Confinement 

Solitary confinement is an extreme form of punishment that should be reserved only as a 

measure of last resort. Prisoners housed in solitary confinement are typically held in a small 

cell-no bigger than a parking space-for 22 to 24 hours a day, with little to no human 

interaction aside from prison guards and the occasional healthcare provider or attorney. Many in 

the legal and medical fields criticize solitary confinement as both unconstitutional and inhumane. 

It is widely accepted that the practice exacerbates mental illness and undermines a prisoner's 

ability to successfully re-enter into society when his or her sentence is complete6 An estimated 

80,000 people are currently held in solitary confinement in prisons across the country. Many are 

nonviolent offenders, caught up in punitive disciplinary systems that sometimes send prisoners 

into solitary confinement for infractions such as "possession of contraband'' or talking back. 7 The 

United Nations Special Rapporteur on Torture has concluded that any period in solitary 

coniinement over 15 days amounts to torture. 8 Y ct many American prisoners can end up 

spending months or years in solitary coniinement. 

Over the last two decades, corrections systems across the country have increasingly relied 

on solitary confinement, even building entire "supermax"--super-maximum-security-facilitics, 

where prisoners arc held in conditions of extreme isolation, sometimes for years on end. In 

addition to posing humanitarian concerns, this massive increase in the use of solitary 

confinement has led many to question whether it is an effective use of public resources. 

Supcrmax prisons, for example, typically cost two or three times more to build and operate than 

traditional maximum-security prisons9 

BOP currently holds about seven percent of its population-more than 12,000 

prisoners-in solitary confinement. 10 About 435 of these people are incarcerated at ADX 

Florence, the federal supermax prison, in Colorado. 11 Thousands more are held in "Special 

Housing Units" (SHU) or "Special Management Units" (SMU) within other prisons. 12 Prisoners 

can be sent to these solitary confinement units for administrative reasons, as punishment for 

2 
161 

disciplinary rule violations, or as a result of gaug affiliations or activity. 13 That is to say, many 

prisoners held in solitary confinement are not particularly dangerous or even difficult to manage. 

Despite the humau and finaucial costs of solitary confinement, the number of federal prisoners in 

solitary confinement and other forms of segregated housing has grown nearly three times as fast 

as the federal prison population as a whole. 14 

b. The Need for Monitoring of BOP's Usc of Solitarv Confinement, and Its 

Effects 

Following a Senate hearing in summer 2012 on the overuse of solitary confinement in 

American prisons, BOP announced that it would arrange for a third-party audit of its use of 

solitary confinement. 15 In particular, BOP planned to review the fiscal and public-safety 

consequences of solitary confinement. 16 A BOP spokesman told reporters in February that the 

audit would begin "in the weeks ahead." 17 

In May, the U.S. Government Accountability Office (GAO) added to public calls for 

more information on BOP's use of solitary confinement when it published a detailed report based 

on extensive investigations of BOP's use of solitary eonfinement. 18 The report found that BOP 

does not adequately monitor its use of solitary confinement and other segregated housing. It also 

found that BOP should be evaluating the effects that solitary confinement has on people in BOP 

custody. GAO further reported that BOP has not conducted any research to determine how the 

practice impacts prisoners or whether it contributes to maintaining prison safety. 19 The report 

noted that BOP officials refused to acknowledge that long-term segregation can seriously harm 

prisoners-even though BOP's own policy recognizes the potential for damaging lasting 

effects.20 

Solitary confinement does not make prisons safer. Indeed, the corrections departments in 

several states have limited their use of solitary confinement with little or no adverse impact on 

prison mauagement and safety.21 Indeed, emerging research suggests that supermax prisons 

actually have a negative effect on public safety, because prisoners released from solitary 

confinement may be more likely to recidivate than those released from general population22 

c. BOP Can and Should Limit Its Use of Solitary Confinement 

U.S. Immigration and Customs Enforcement (ICE), which detains over 400,000 people 

aunually in facilities across the country, recently released a new directive regulating the use of 

solitary confinement in immigration detention.23 While not perfect, the new ICE directives 

represent a major step in curbing the inhumane and unnecessary use of solitary confinement. 

BOP should look to the ICE directives as au example of a policy designed to monitor and control 

the use of solitary confinement significantly more effectively than current BOP policies. 

3 
162 

If strictly enforced, ICE's new directive will create a robust monitoring regime that will 

enable the agency to oversee the use of solitary confinement across its sprawling network of 

approximately 250 immigration detention facilities 24 The new directive also takes important 

steps to impose substantive limits on the use of solitary. For example, it requires centralized 

review of all decisions to place detainees in solitary confinement for more than 14 days at a time, 

including an evaluation of whether any less-restrictive option could be used instead of solitary.25 

The directive requires heightened justifications to place vulnerable detainees-such as victims of 

sexual assault, people with medical or mental illnesses, and people at risk of suicide-in solitary 

confinement26 In addition, ICE now requires medically and mentally ill detainees to be removed 

from solitary if they are deteriorating. 27 It requires attorney notification in certain circumstances28 

and it requires regular reviews of all longer detentions in solitary.29 

In addition to examining ICE's new directive, BOP should look to states that have reformed 

their use of solitary confinement, as examples of how close monitoring and reduction of the use 

of solitary confinement can improve prison management and safety, and can bring BOP more in 

line with accepted human-rights standards.30 We urge the Committee to inquire as to BOP's 

plans in this area and to push the agency to move forward with refonns that have worked 

elsewhere. 

III. BOP's Contracts with Private Prisons Under the Criminal Alien Requirement 

Pose Human-Rights and Accountability Problems 

Private prisons depend on and profit from America"s high incarceration rates-more people 

in prison means, for these facilities, more business. In the past decade, BOP has become 

increasingly reliant on private prisons, and maintains 13 contracts, totaling a reported $5.1 

billion, with for-profit prison companies.31 This increase in privatization demands that the 

companies that run private prisons subject themselves to the same degree of public accountability 

as would a federal agency running the same prison. However, contract companies that run these 

facilities dedicate significant resources to lobbying against subjecting their BOP contract 

facilities to the same transparency requirements as BOP tacilities.32 

According to the Sentencing Project, 33,830 BOP prisoners were held in private facilities in 

2010 (a 67 percent increase from the nwnbcr of prisoners in 2002 ); by the end of2011, while 

overall numbers of state prisoners in private prisons decreased, the federal number continued to 

climb, to 38,546 (18 percent of the total BOP population).33 And the number of people in private 

facilities continues to grow. For fiscal year 2014, BOP requested funding to add 1,000 more 

beds in private tacilities.34 Of the private facilities holding BOP prisoners, 13 are private prisons 

operating under Criminal Alien Requirement (CAR) contracts with BOP. These CAR prisons are 

specifically dedicated to housing non-citizens in BOP custody. These people are at low custody 

4 
163 

levels, and many are serving sentences solely for unlawfully reentering the United States after 

having been previously deported.35 

For-profit prisons-even those under BOP contract, housing BOP prisoners-are not subject 

to the same disclosure requirements under the Freedom oflnformation Act (FOIA) as are BOP 

prisons. This is due to an executive branch interpretation of the statute, which established that 

most disclosure requirements that apply to federally-run prisons do not apply to private prisons 36 

As a result, it is extremely difficult for the public to obtain the information necessary to help 

ensure that the constitutional rights of those held in private facilities are respected, and that their 

living conditions are humane. BOP should be required to respond to FOIA requests regarding 

privately run CAR facilities as it is required to respond to FOIA requests regarding its own 

facilities. Furthermore, CAR facilities should be held to the same standards as BOP-run facilities. 

Over the past several years, there have been reports of poor treatment-with devastating 

consequences-in BOP's CAR facilities. In one such instance, in 2009, at the GEO 

Groupoperated Reeves County Detention Center in Pecos, West Texas, immigrant prisoners 

organized an uprising after a man with epilepsy died from a seizure while in solitary 

confinement. An ACLU lawsuit alleges that medical staff failed to provide the man anticonvulsant medication 90 times. His gums began to bleed and he suffered frequent seizures, but 

he was placed in segregation rather than treated. The lawsuit alleges that there was not even a 

nurse available on weekends. 37 And in 2012, immigrant prisoners at the Corrections Corporation 

of America (CCA)-operated Adams County Correctional Facility in Natchez, Mississippi, staged 

an uprising to demand better conditions of confinement. CCA staff then failed to quell the 

uprising, which resulted in 20 people being injured, one correctional officer being killed, and 

$1.3 million in property damage.38 Stories like these underscore the need for greater oversight 

and accountability of the conditions and policies at private, for-profit prisons within BOP's 

system- and the need for BOP to cancel contracts when the private prison companies fail to 

meet appropriate standards. 

IV. BOP Should Share Results of Audits of the Implementation of the Prison Rape 

Elimination Act 

The Prison Rape Elimination Act (PREA) passed unanimously through both houses of 

Congress and was signed into law in 2003. The Act charged the Department of Justice (DOJ) 

with gathering data on the incidence of prison rape,39 and created a commission to study the 

problem and recommend national standards to DOJ.40 After nine years of study and commentary 

by experts, the DOJ promulgated a comprehensive set of national standards implementing the 

Act in May 2012.41 The Federal government was immediately bound to implement the PREA 

regulations in federal prison facilities.42 

5 
164 

The PREA regulations include detailed requirements for the prevention, detection, and 

investigation of sexual abuse in both adult and juvenile correctional facilities, with specific 

guidance related to lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals. 

Testimony before Congress and National Prison Rape Elimination Commission (NPREC) 

highlighted the particular vulnerability ofLGBTI people to sexual victimization at the hands of 

facility staff and other inmates and the Department of Justice recognized "the particular 

vulnerabilities of inmates who are LGBTI or whose appearance or manner does not conform to 

traditional gender expectations.''43 This testimony led to the landmark inclusion of 

LGBT!spccific requirements for the prevention of sexual abuse. 

Some of the most important regulations for protecting this vulnerable population include 

guidelines for housing, searches, and the use of protective custody. BOP's implementation of 

PREA will set the tone for state and local agencies. It is essential that BOP take full and 

complete measures to comply with PREA's mandate to eliminate sexual assault across the 

agency. We hope the Committee will ask BOP for details about its compliance plans and 

perfonnanee. 

a. Individualized Assessments for Housing Transgendcr Individuals 

The final PREA standards require adult prisons and jails to screen individuals within 72 

hours of intake to assess the individual's risk for sexual victimization or abuse 44 This screening 

·'shall consider, at a minimum ... whether the inmate is or is perceived to be gay, lesbian, 

bisexual, transgender, intersex or gender nonconforming."45 

The standards also require agencies to make individualized housing and program 

placements for all transgender and intersex individuals.46 This includes assignment of 

transgender and intersex individuals to male or female facilities 47 All such program and housing 

assignments must "be reassessed at least twice each year to review any threats to safety 

experienced by the inmate''48 and an individual's "own views with respect to his or her own 

safety shall be given serious consideration" in these assessments.49 Agencies are required to 

provide transgender and intersex individuals with access to private showers in all 

circumstances. 50 

One year later, reports from transgender and intersex prisoners in BOP custody continue 

to reveal that the agency does not provide individualized assessments in making housing, 

program, work and other assignments. Transgender detainees regularly report that they are 

housed solely based on their genital characteristics and birth-assigned sex, and many transgender 

prisoners report violence from staff and other prisoners with no safety precautions being taken by 

BOP despite clear guidance under PREA. 51 

6 
165 

b. Searches of Transgender Individuals 

The PREA regulations impose a number of requirements on how prison oflicials search 

transgender individuals. The regulations prohibit any search that is conducted for the sole 

purpose of determining an individual"s genital status. 5

2 All cross-gender searches are subject to 

strict guidelines under PREA, but restrictions on cross-gender pat searches offemale individuals 

do not go into effect until August 2015.53 Under the regular effective dates for PREA 

compliance, BOP is currently prohibited from conducting cross-gender strip and cavity searches 

except in exigent circumstances or when performed by a medical practitioner. 5

4 

PREA further mandates that facilities implement policies to ensure that individuals are 

able to shower and undress without being viewed by staff of the opposite gender and that staff of 

the opposite gender atmounce themselves prior to entering any housing area. 55 These limitations 

apply to trans gender individuals in custody. BOP should take clear steps to protect transgender 

individuals from abusive cross-gender searches. 

c. Strict Limits on the Use of Protective Custody 

PREA also strictly regulates the use of protective custody. Prisoners cannot be placed in 

"involuntary segregated housing" unless (1) an assessment of all available alternatives is made 

AND (2) a determination has been made that no available alternative means of separation is 

available (and this determination must be made within the first 24 hours of involuntary 

segregation). 56 The PREA standards recognize that protective custody is too often synonymous 

with solitary confinement by requiring that involuntary segregated housing should generally not 

exceed 30 days.57 PREA also set standards geared to ameliorate isolation by requiring that, when 

prisoners are placed in protective custody, they must be given access to "programs, privileges, 

education, and work opportunities to the extent possible.''58 For all placements in protective 

custody, the nature of, reason for and duration of any restrictions to program, privilege, education 

and work opportunities must be documented59 

If the PREA regulations are subject to stringent and consistent enforcement, compliance, and 

monitoring, they are likely to protect many vulnerable prisoners from abuse and assault, In 

August, 2013, BOP commenced a series ofPREA-mandated third-party audits, but has yet to 

release data or results publicly.60 These audits, along with publication of their results and 

implementation of follow-up compliance measures, should be a top priority and we urge the 

Committee to follow up on these reports. 

7 
166 

V. BOP Should Ensure Compliance with Requirements To Provide Hormones and 

Other Medical Care to Transgender Individuals 

In 20 II, BOP changed its policy for treating individuals in custody for Gender Identity 

Disorder (GID). As part of a settlement with one trans gender prisoner who challenged BOP's 

policy that limited transition-related healthcare such as hormones to the level of treatment 

received prior to incarceration, the new policy promised to provide ''a current individualized 

assessment and evaluation'' to any prisoner with a possible GID diagnosis. 61 

Despite this change, reports persist from transgender individuals who have not received 

evaluations for hormone therapy despite repeated requests. Others have had their ongoing 

hormone treatment disrupted without any clear medical basis for the disruption in care and with 

severe physical and psychological side cfTects. For individuals in BOP custody who experience 

gender dysphoria and/or other symptoms of GID, there continues to be delayed or in some cases 

no response from BOP medical staff62 

BOP has an obligation under its own policy and the Eighth Amendment of the Constitution to 

provide necessary medical care, including transition-related medical care such as hormones, to 

prisoners in need of such care. To meet this obligation BOP should provide infom1ation on its 

compliance with the GID policy, and should take steps, including training of facility-level 

medical and mental health staff and contractors, to ensure that prisoners who are diagnosed or 

may be diagnosed with GID receive proper care. 

VI. BOP Should Stop Monitoring Contact Between Prisoners and Attorneys, and 

Should Close Its Communication Management Units 

When BOP chooses to designate certain people as terrorists-including both post-conviction 

prisoners and pre-trial detainees· .. the agency removes constitutional safeguards that apply to 

other detainees. In some circumstances, BOP denies prisoners the basic right to confer 

confidentially with an attorney or to have normal limited visitation with loved ones. There should 

be greater transparency and accountability in the federal Bureau of Prisons' use of 

''Special Administrative Measures'' and in its operation ofGuantanamo-like "Communication 

Management Units" within two federal prisons. 

a. Special Administrative Measures 

After the September 11 attacks. the Department or Justice (DO.ll issued a rule that 

c:xpandcd BOP's pzmers under the special administrati\c measures (Si\Ms) promulgated in the 

1990s. These SA1\1 regulations alhn1 the Attorney General unlimited and unrcliCIIable 

8 
167 

discretion to strip an: pcrson in federal nrstod) of the right to communicate contidentiall: '' ith 

an attorney. The: apply to com icted indi' iduals held by BOP. as \Yell as others hdd by DO.l. 

C\ en the pre-trial accused. n1atcrial \Yitncsscs. anJ in1migratjt'~Il t.ktaint.:('s.r'4 

BOP should not haw the po\\cr to monitor communications between detainees ami 

attornc~ s: nor should it be able to rc·strict such communications. Because SAi'v!s also permit 

c~tremc social isolation of certain prisoners. BOP should conduct a mental health screening or all 

those currently subject to SA\ls: the serious!) mentally ill should be relocated to an institution 

that can prO\ ivk appropriak mental-health sen ices. 

b. Communication :\lanagemcnt t:nits 

After 9/11, BOP set up and began operating two Communication Management Units (CMUs) 

at federal prisons in Marion, Illinois, and Terre Haute, Indiana65 BOP opened these CMUs in 

violation offedera11aw requiring public notice-and-comment rulemaking.66 The units severely 

restrict visitation privileges-for instance, prisoners in the CMU may receive fewer family visits 

per month than those in general population at even maximum-security prisons67 Many critics 

argue that this psychological punishment is arbitrary, and often the result of racial and religious 

profiling. 68 The criteria for placing prisoners in these extremely restrictive units remain so broad 

and ill-defined that they could apply to virtually anyone, inviting arbitrary, inconsistent and 

discriminatory enforcement 

VII. BOP Should Share Its Current Plan for FCI Aliceville 

Earlier this year, BOP was enacting a plan to relocate approximately 1,000 women in the 

federal system to a new, $250-million prison in Aliceville, Alabama, a small town 110 miles 

southwest ofBirmingham.69 The plan would leave only 200 federal prison beds for women in the 

northeast. 70 BOP planned to convert the vacated units at Danbury into more space for male 

prisoners. Last month, however, BOP suspended the relocation in the face of criticism from 

elected officials and the public. 

Because of the remote location of the Aliceville facility, contact with family through visits 

would be severely limited. As Senator Chris Murphy noted, the "transfer would nearly eliminate 

federal prison beds for women in the Northeastern United States and dramatically disrupt the 

lives of these female inmates and the young children they often leave behind."71 Maintaining 

relationships is crucial, and can be even more difficult for women prisoners than for men. One 

lawyer noted, in response to the proposed relocation that [ w] omen get fewer visits in jail, they 

become alienated from families and children, husbands and boyfriends move on72 

9 
168 

The general public has a significant interest in prisoners' ability to stay connected with loved 

ones while serving a sentence. Maintaining important relationships helps fonner prisoners 

successfully reenter their communities after they are released. Upon release from prison, people 

who maintain strong family contact were sho-wn to be more successful at finding and keeping 

jobs, and less likely to recidivate. 73 Disrupting the ability to visit a parent in prison, as the 

contemplated move would do in countless cases, can also victimize the children of incarcerated 

people. 

BOP's plans to relocate many women from Danbury to Aliceville were criticized in the 

media and by a group of 11 senators in a high-profile public letter to BOP Director Charles 

Samuels74 As a result plans to open Aliceville and relocate many women from Danbury have 

recently been suspended.75 However, BOP currently describes Aliceville as a "low security 

institution for female inmates'' that is "currently undergoing the activation process."76 Ifthe 

move occurs and the prison opens as originally planned, BOP will be the cause of hundreds of 

families being torn apart irreparably. We urge the Committee to put BOP on the record on this 

issue and urge members to oppose the relocation of women prisoners from Danbury to 

Aliceville. 

Conclusion 

The BOP has the enonnous task of managing and detaining over 219,000 people. The 

ACLU is pleased that the Senate Judiciary Committee is conducting today's oversight hearing to 

ensure that the agency respects the constitutional rights of individuals in its custody and 

maintains safe and humane conditions. If you have any additional questions or need more 

information, please feel free to contact Jesselyn McCurdy, Senior Legislative Counsel at 

(202)675-2307 or .iJnccQIQ}iZi'<i£.GltLQ.t:g. 

1 About the Bureau of Prisons. FFDERAL BUREAU OF PRISONS, .!Jttp://~H"'~'I:\·:J;~.0P..J£QY.'.!.h.Q!JLi!lQ~t::i.J.ill. 

'!d 

'Federal Bureau of Prisons, Weekly Population Report. http://www.bop.gov/locationsiweekly_report.jsp 4 

Nancy LaVigne, Julie Samuels. Urban Institute The Growth & increasing Cost of the Federal Prison System: 

Drivers and Potential Sol111ions pgs.l and 2 (20 I 2) (hereinafter LaVigne Urban Institute Report). 5 18 U.S. C. 

Sec. 3624(b )( 1 ). 

See. e.g .• BUREAU OF PRISONS: IMPROVFME!\TS NEEDED IN BUREAU OF PRISONS' MO"liTORING AND 

EVALUATION OF IMPACT OF SEGRFGATt:D HOUSING 39. United States Government Accountability Office, Report to 

Congressional Requesters (May 2013) [hereinafter GAO Report]. 7 See. e.g., Angela Browne. Alissa Cam bier, Suzanne Agha, Prisons Within Prisons: The Use of 

Segregation in the United States. 24 FED"L SENTENCING REPORTER 46-47 (2011). 

Solitwy Confinement Should Be Banned in Most Cases. UN Expert Says. UN News Centre. Oct. 18, 2011, 

https://www.un.org/apps/ncws/story.asp"News!D=40097. 

See DANIEL P. MEARS, URBAN lNST .• EVA!.l!ATING Hie EFFECTIVENESS OF SIJPERMAX PRISONS ii (2006). 10 

Highlights ofGA0-13-4929. at 1 (May 2013). 

10 
169 

11 See GAO Report, supra note 6, at2. 12 See GAO Report, supra note 6. at 5, 6, 7-10. 13 See id at 7-8, 60 (describing disciplinary and administrative segregation conditions). 14 From October 2007through February 2013, the total prisoner population in BOP facilities increased by about six 

percent, yet the total prisoner population in segregated housing units increased approximately 17 percent. GAO 

Report, supra note6, at 14. 15 U.S. Bureau of Prisons To Review Solitary Confinement, REUTERS, Feb. 4, 2013, 

h!Jp;.J:.,,~,u:.e_~!!'.r~c.QlJLillticLe.'20 I l'9L05'us-L!_S_e.::PJisons-solitarr:idU~RE91401~1_0j)_Q;_Q.).. 

'"!d. 

17 !d. 

18 See genera/iy GAO Report, supra note 6. 

19 See GAO Report, supra note 6, at 33-34. 20 See id. at 39 (outlining studies that document that adverse and long-lasting effects of solitary confinement on 

mental health); id. at 40 (citing BOP's own admission. in a Psychology Services Manual, that solitary confinement 

can have adverse cfiects on mental health). 21 See Erica Goode, Prisons Rethink Isolation, Saving Money, Lives and Sanity. N.Y. TIMES, March II, 2012, 

http:i/www.nytimes.com/2012/03/ll/us/rethinking-solitary-confinement.html?pagewanted~all (noting that 

violence actually decreased after Mississippi closed its notorious supcrmax unit). 

II 
170 

22 See JOHN J. GIBBONS AND NICHOLAS DE B. KATZEN BACH, CONFRONTING CONFINEMENT: A REPORT OF THF 

COMMISSION ON SAFETY AND ABUSE IN AMERICA'S PRISONS 55 (2006) (citing a study from Washington state that 

linked long-term solitary confinement to higher recidivism rates), available at 

http:/ iwww. vera.org1sites/default/fi les/resources/ downloads/Confronting_ Confinement. pdf. 

23 U.S. Immigration and Customs Enforcement Regulation II 065.1: Review of the Use of Segregation for ICE 

Detainees (Sept. 4, 2013) [hereinafter ICE Regulation 11065.1]. 

"See Fact Sheet: Detention Management, Nov. 10, 201 L 

http://www.ice.gov/news/library/factsheets/detentionmgmt.htm. 

25 ICE Regulation II 065.1, supra note23, at Section 2 (Policy) and Section 5.1 (Extended Segregation Placements). 

26 ICE Regulation 11065. I, supra note 23, at Section 5.2 (Segregation Placements Related to Disability, Medical 

or Mental Illness. Suicide Risk. Hunger Strike, Status as a Victim of Sexual Assault, or other Special 

Vulnerability). "ICE Regulation II 065.1, supra note 233, at Section 7.5.4 (Detention Monitoring Council). 

28 ICE Regulation 11065.1, note 23, at Section 5.2.4 (requiring notification of a detainee's attomey, if applicable, 

when a vulnerable detainee is placed in segregation). 29 ICE Regulation II 065.1, supra note 23, at Section 5.1. 

30 Sec State Reforms To Limit The Use O(Solitmy Confinement, 

biUl~:'\vw\\'.aclu.orglf!!e~~·~.?i~.§:l'i.~tsm solitarv n;cent ~!ate reforms to limit_ the use of solitar\' contincmell1._Q 

slf, (June 6, 2013) 

31 Garance Burke & Laura Wides-Munoz. Immigrants prove big business for Prison Companies, AssOCIATED PRESS 

(Aug. 2, 20 12), available at http: ·:ne\\S.' ahoo&Q.Dfimm.Lwm ... t~:PLQ.Y.£.-big-Q_v.5.in~~;;_-prisonc omQan ics084 3 5 J.L2). hun!. 32 See Letter from Center for Constitutional Rights et al. to Rep. Sheila Jackson Lee I (Dec. 18. 20 12) (citing the 

U.S. Senate's Lobbying Disclosure Electronic filing System for the fact that Corrections Corporation of America 

has spent millions of dollars lobbying against the passage of various Private Prison Information Acts since 2005). 

33 THE SFNTFNCING PROJECT. DOLLARS AND DETAINEES: THE GROWTH OF FOR-PROFIT DETENTION, at 4 (July 

2012); Prison Population Declined In 26 States During 2011, PR Newswire (Dec. 17, 2012), available at 

h1ro:.· www.marketwatcJJ"'-~onLgQJlJ?Ih9D.:.P_QQlllation-declined-i!86-states-duxing:2QlL:~-0Jl::lJ..:.ll. 

34 See FY 2014 Perfonnance Budget Congressional Submission, Salaries and Expenses 86, U.S. Dept. of Justice. 

Federal Prison System, available at l.l!.!P,.;~~~l~\J.Vstie_,.gov 'jmdi20 14justilication.'pdfbop-se-justiflcation.Illi.f 

("The BOP requests $26.2 million to procure 1.000 contract beds to house low security male criminal aliens."). 

35 Illegal reentry cases are prosecuted subject to 8 U.S.C. § 1326 Reentry of removed aliens_ See US: Prosecuting 

Migrants is Hurting Families. HUMA~ RIGHTS WATCH (May 22, 2013), 

!:!.!.112: '. \\W\\·.hnv.on!'ne\\ s/20 13 '05/22:"t1WLOsccuting-migrants-hurting-families. 

36 See Letter from Center for Constitutional Rights et al., supra note32, at I. 

37 Forrest Wilder, "The Lawsuit West of the Pecos." Texas Observer (Dec. 8. 2010), available at 

h.ITQ~li,\ \\ w.texasohserver.org forrestfm1hetrec~~t1J~:-1'!~~~1ll~-~:._~g:Q.f.:1l:1~.:12£.~Q;i. 

38 Judith Greene & Alexis Mazon. PRIVATELY 0PERATFD FEDERAL PRISONS FOR lM:vtiGRANTS: EXPLNSIVE. UNSAFE. 

lJNNECr.SSARY 7, Justice Strategies (Sept. 13, 2012). available at 

~~:..}~~\Y .j usticestrategies.org -'sites default fi !es /publication~~Privatclv<;·0200perated /020Fcderal ·0 7 0Prisons0 ·0.20fo 

r~:~.Qll11l.lli_gr..ill~~~Q_9-\3-! ~o20Fij1j?.Q.f. See also Associated Press, FBI reports lYfexican group '·PaLms .. started 

prison riot in Adams Counly (Aug. 13. 2012)("FBI spokeswoman Deborah !vladden said Paisas are a loosely 

affiliated group within the prison, without ties to organized gangs."), available at 

hltJ?..:~J~ Jog. gu In i\'e .com /miss is~ in.n.i:Rr~ss-Ilc~~-2.0 1 2/_()8 /fQ.Lx~.P..Q.I:t~Jn~_;'iis:f!!L£El!JQ.~ill~ii$,_htm1. 

39 See Prison Rape Elimination Act (Sexual Violence in Correctional Facilities). Bureau of Justice Statistics (last 

visited May 31, 20 13), available at http://www.bjs.gov/index.cfm ty~tp&tid~c20 (listing Bureau of Justice 

Statistics data gathered since the act's passage). 

40 NAT'L PRISON RAPE ELIMI~ATION COM~fN, NAT'L PRISm,; RAPE ELIMINATION COMM'N REP. 18 (2009), available 

at Imps:' "" w.nciJ:'-'l!-QV 'pdlliles I 226680.pdf. 41 See Press Release, Department of Justice. Justice Department Releases Final Rule to Prevent, Detect and Respond 

to Prison Rape (May 17, 2012), ami/able at http://www.justice.gov/opa/pr/2012/May/12-ag-635.html (summary 

of regulations). 

12 
171 

42 42 U.S.C. 15601 §8(b) (2003). See also Memorandum from the President of the United States Implementing the 

Prison Rape Elimination Act (May 17, 20 12), available at http:"www. whitehouse.gov 'thepressoffice/20 1 ':~05, 17 -'presj.fkmi~J:!ll~rnorandum-implementing-prison-rape-eliminat ion-act. 43 ~: ,,, \\\\. federalregister.c.ov 'articl~s ·'20 12 iQ6120/""0 12-124,7 'national-standards-to-prcvent-detectill.lliL~P-QD.Q:!Q::1"!.t.:~911.::.!~1n~ 44 28 C.F.R. § ll5.41(b); 28 C.F.R. § l 15.241 (b). 45 28 C.F.R. §I 15.41(c)(7). 46 28 C.F.R. §I 15.42 (c) ("In 

deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making 

other housing and programming assignments, the agency shall consider on a case-bycase basis whether a 

placement would ensure the inmate's health and safety, and whether the placement would 

present management or security problems."). 

-17 !d. 

48 28 C.F.R. § 115.42 (d). 49 28 C.F.R. § 115.42 (e). 50 28 C.F.R. § 115.42 (e). 51 The reports referenced in this paragraph come from prisoners, by mail, to legal and human-rights organization that 

advocate for PREA compliance, including the ACLU. National Center for Lesbian Rights (NCLR), National 

Center for Transgender Equality (NCTE), Just Detention International (JDI), Gay & Lesbian Advocates & 

Defenders (GLAD), Lambda LegaL and Sylvia Rivera Law Project (SRLP). 52 28 C.F.R. § 115.15 (e) 53 28 C.F.R. § 115.15 (b) and 28 C.F.R. § 115.215(b) 54 28 C.F.R. § 115.15 (a) 55 28 C.F.R. § 115.15 (d) 56 28 C.F.R. § 115.43 (a). " 

28 C.F.R. § 115.43 (c). 58 28 C.F.R. § 115.43 (b). 

"28 C.F.R. § 115.43 (b). 60 See Bureau of Justice Assistance, BJA PREA Audits, Aug. 29,2013 (on file with the ACLU). 61 See Memorandum for Chief Officers from Newton E. Kendig and Charles E. Samuels, Jr., U.S. Dept. of Justice, 

Federal Bureau of Prisons, at 2 (May 31, 20 ll ), available at llt!Jl;_~~ww,,gl<J!Lore'cunent'pr-detail Jedc1:gJ: 

h_~,JJ£9Jt9L:J2r.i59.!.l~::Ill<:l kt;i:!llill..<lt::.£.1limg_<;_:i!l:J.Gl!l~!l.4.9J:~Jn~illffi!:Pillis_:.:!. 62 The reports referenced in this paragraph come from prisoners, by mail, to legal and human-rights organization that 

advocate for compliance with OlD-treatment requirements, including the ACLU, National Center for Lesbian 

Rights (NCLR), National Center for Transgender Equality (NCTE), Just Detention International (JDI), Gay & 

Lesbian Advocates & Defenders (GLAD), Lambda Legal, and Sylvia Rivera Law Project (SRLP). 63 28 C.F.R. § 501.3(d); see also Rights Groups Issue Open Letter on Upcoming NYC Trial ofSyed Fahad Hashmi 

and Severe S'pecial Administrative !vfeasures, Apr. 23, 2010, h!!Qs:i/ccrjustice.org/newsroom 'prcs.,~~-

~.!f!l~.cs 'rjgb.!.~LQ.IJ.PS~issys.:.QPJ.?n~!etter.::.!!l2.~-mil1g:]l~:i>trial~sycd~fal:h'!Sf:.h~-~hnli:.illl~L~.i~.Y· 64 28 C.F.R. § 5013. 

65 Set:: Carrie Jolmson and Margot Williams, "Guantanamo North": Inside Secretive U.S. Prisons, NPR (March 3, 

20 II). http:i iwww.npr.orgi20 11 i03/03/134168714iguantanamo-north-inside-u-s-secretive-prisons. 66 See Letter from David C. Fathi et al. to Sarah Qureshi, Rules Unit, Bureau of Prisons, June 2, 20 I 0, at l-2 

(submitting comments to Notice of Proposed Rulemaking and noting that CMUs had already been in operation 

prior to the commencement of the notice-and-comment process), available at 

https:/ /www.aclu.org/filesiassets/20 I 0-6-2CMUComments.pdf. 67 See Johnson, supra note 65. 68 See Scott Shane, Beyond Guantanamo, a Web of Prisons for Terrorism Inmates, N.Y. TIMES, Dec. l 0, 20 I 0, 

available at http://www.nytimes.com/201lil2ill/uslbeyond-guantanamo-bay-a-web-offederalprisons.html?pagewanted~all (noting that the CMUs are ·'Muslim-majority''). 69 See Judith Resnik, Harder Time, SLATE, July 25, 2013, 

prison are being shipp 

13 
172 

71 Karen Ali, Federal Prison Officials Will Answer Questions Before Moving Women, CON'J. LAW TR113UNE, Aug. 

16, 2013. 

http:i www.ctla\\1tibune.com'PubArtkl.eLU?P}id•• I2026Jj.S66626~ftg_cr.al]rison Officials Will Answer Qucs 

tions Before MoYing Women &slrerurn-20130716182512. ''I'd~----·_ .............. _ ......... _ .. _ .. __ . __ . __ _ 

73 See Resnik. supra note 69 ("Being moved far from home limits the opportunities of women being moved out of 

Danbury; it hurts them in prison and once they get out. Recent research from Michigan and Ohio documents that 

inmates who receive regular visits are Jess likely to have disciplinary problems while in prison and have better 

chances of staying out of prison once released.''). 74 See Letter from Chris Murphy, Senator. eta!. to Charles E. Samuels, Jr., Director. Federal Bureau of Prisons 

(Aug. 2, 20 13), available at !ll!J2;~"iv'\\~!!llif!2]1\ .senate.gov/recorc!slb.l:;i.c].:145{2J.. 75 See Ali, supra note 711. 76 FC1 Aliceville, Federal Bureau of Prisons, http://www.bop.gov!Jocations/institutions/ali/ (last visited Sept. 15, 

2013). 

14 
173 
174 

The Wt'rc far re ... 1.chlng. Rhode island's 

e,o;,omy w2s v.·ell before ;.he current recession and 

soa:-ing mrrectional \O~ts were do:ng the:r part to \\Teak 

havoc on th~ state's budget. The ris:ng tide of inmat<".S was 

pmt:ng .a strc1ln on every aspect of insututlonal apcra!Jo:::s 

from !>lc:.ffing and sec.ur~ly to ht.calth SlT;.ices Gnd proOn the hori:wn, ;m even larger cris~s loomed. 

order in rJ:e f.ed(;ral case stipulated maxiat each it:stltution, which, if exceeded for a 

sd of days, could trigger renC'>\'erl jwilcial intervention. Tae Crirninal Justice Oversight Cow..rnittce. a statutory mechanism put irr place as pC>..rt of the federal court 

Sf'itle~nent, is for monHnring lh~~ 

n~ I he it:mate to the court's settlf'tnf'nt order. 

:s of kt:.dcr~ from every entity in ~he- justice sys~ 

com~1)l:ti:"£ v.ras wamcd that d trends conlinuPrl, 

imp11.'>f'cl •ap would be triggered in the notappet1te frn !m,lding and opPraUng more correction;ll instiarot:nd tJ,e 

<m ou1come of 

i!J\-·olvt>d were very well :tware of the IEg:tirua"!-e concerns 

i!nd politkaJ scf1~ii{v;ty <:.-'>.sncic:.tert with public saJety and 

th:: lW>:d to· C!Ji"l..Sidcr sij';n~ficant c-hange ln a thoughtiui, 

r-dtiona! and indt:...-;:ve mar::.il.Cr. 

Investing in Justice Reinvestment 

It was Qg"aifl~t this bc.ckdrop that in 2003 Gov. Donald 

of both l'ioHses in the kglslaCenter of the Councll of 

State Goven:mt;:nts a.sking for il.o;; help. Thi~ org;,.nilalion 

wu~ :o l!":nri its support to rc!;ohting 

CSG l..:; a nonprofit, nonpartisan 

;nerabersh;p a::;soclatinn of of:idals from ;Ullhree branches 

d .state government. A!i such, it is ideally posltloned to 

<lssist poliqmak~rs with data Jriven and evidence-based 

~ulutions as they with difficdt and controversial 

i::;.~ues. The Justice \\ith f\nanl'ial 

US. Jnstke Dep?.rlment's Bnrean uf 

the. Puhlk Safety Pel fonnancc Project of the Pew Charita~ 

blr. Tn:.<;.ts' Cc.nt•cr on the Statr..s, had hcgun worJ.."'in.g>vith a 

few· jurlsdictions on n pioneering Initi2tive known as justice 

reilrves~mcnt. The conn~pt recognizes the predicament 

;ms-Pd populations c:oup!~d \-v·tth mmmt~ 

!ng pre__ssur!'s on sta~e budgets. It contemplates the 

rl.e\-'elovment of state~spedfic ways to of 

Sf'tvc to incrcilosc pu!:llic s.afc:ty. 

R.b.ode Island was fortunate enough to be sckctcd as 

one of the fir~t jurlsdlctjon~ to implement the rein~ 

vestment model. Consistmt \~ith the approach, 

work began with a tt.orougt a:udysis of the reasons for 

Rhode lslcmd's inma~e grov.-th. Tr.is analysis was underta..";:~ 

en by James Austin, Ph.D., of JFA A.ssociates/fhe JFA Lnstl· 

:Ute. The Justice Center asked him to conduct this re.':l-ea:c.h 

because his Hrm •vas thoroughly familiar v.:'ith the state's 

con:ect:onal system, bavhg done its annual p(Jpulaton 

projections for almost 20 years. In addit!on, Austin \-'1-'as 

working w:th the Rhode Isla.>d Parole Board to dcv(:;lop 

rlsk-baseJ guidelines for granting parole applications. la 

keeping witl1 a state--centered approach, which recognizes 

tLat the drivers of correctional populations differ accordin~; to each jurisdlction's :;pedEc statutes, policie-.s, practices and culture, Austin focused e.xplidtly on these factors 

as they played out in Rhode lsland, 

Aust:n presented his findings on the tbeshoid of tte 

2006 session ln <'1 fomm at the state House. Leaders of all 

thrc(.! branches, criminal justice officials, community leaders and members of the media ·were in attendance. His condusions, as dc-s<-ribcd at lhe se;slon a.'1d in a subsem1ent 

analy.si:; conducted daring the follo-wing months, ~ere 

sobering: 

The ja:J anrl prlson population, whlch had rise..'1 bv 15 

pe-.rce.nt from 1997 to 2007, was projected to ;:;ro~v ;:_t 

ill accelerated rate in the nt".xt decade; -

• The Lnmatc census would increase by Rn add;tion~~l 

25 perceilt in the next decade; aml 

• Cn!ess policymakers acted, the !.'tate wm::lct necrl to 

<tppropriale an addiUonal $300 million ln operating 

costs at the adult <:orrectional institutions durir~g ti-,e 

rom:ng 10 years to accommodate the prnje<'.ted 

incrense::.. 

Austin al«o pointed out that the outcomes of the currc..11t 

~ys!cm were not partit·ularly good; Nec.rly onc·third of 

tnm;ltf'.S rele<tSed from the instltutl:rms were reincr.:rcoated 

v.ithin 12 mo::1ths of release on nev.- sentences or 1.rinlaHo:;s 

of condit5ons o! supervision. In addition, 1f the figures were 

included for released oHenders who were back m corrections custody within one year but still awaJting tr~al, the 

number ruse to 45 percent_ 

Faced Vl--ith this evideiKe, the governor. Jp_;::d~ 

crshlp and the judiciary'~ arlministrative asked the 

Justice Center to follow up hy proposing options that could 

1cducc proJected grov.-1h 500 beds vrithin one year of 

their implementation (see 1). The center's staif 

delved into the riata and generated a mern of ideas that, 

taken in the aggregate, would both accomplish this goal 

emd would augmf'.nt bed and dollar savings in subsequent 

)'€<-'JS. Finalized ln the spring of 2007, oplions nmged from 

expanding home confinement reforming tbc terms and conditions supet"\ision to 

reducing the nu.:.nbcr of offenders held a\•..-;~i!ing trial and 

c:hanging the length of stay for sentenced inmates. GivEn 

the seno;itiv':ty of the topic and the :1eerl for all affectj"d parties to have an opportunity to we!gh in on Ideas 

before a final set of options was agreed upon, 

as:semhly adjot:rned in June 2007 without 

package. 

Although the initiative had been delayl"cd, it c:e-rtfllnly 

was not dead. Through Lt)e summer and fall. l!Ov, c.-vcleri, 

Senate Majority Leader Teresa Paiva-\·Veed and House 

Spf'a.ker WilHam Murphy Rll e:x:;>rf'_c;serl their resolve to pur~ 

sue the justice reinvestment approach. As fr.e inmate cen~ 

sus soared to all-time highs in t..l-Je summ~r and fall of 2007, 

tJ:.e DOC sought t.'1e approval of chief counsel for L~e plaintiffs b the federal Etigation to increase the: c.apncitles ot 
175 

Table I. Justice Center Proposed Policy OptioiL< to Reduce Projected Gm\\ih 

Policv Options 

the r:a.p;H-:ity of the residential substaw::e abuse treatment system to 

the numher of people ap-prove<! for parole but await:ng treatment 

board's use of data regarding uifendcr·s risks/nceri!' to 

are sc1ence--based. 

l'Y2008 

Bed 

Savings 

!DO 

FY 2017 

Berl 

Savings) 

118 

18 

3. ln:prove the eifec.til.•eness of parole s11p0rvis!o:1. 27 

4. re!>ourccs to supf'N.se offenders when they are most llkely 27 75 

----··-·-----~ 

5_ Mnkr proht1t\on supc-.rvi~!on re.spon.sive to the risksjnecds of offenders. 55 8\ 

7b. :\1ake the st;_;nda:rdlzed '·<'arneU time"' policy rdroactive for all currently 

sentenced offendct"s.J 

84 

9i 

20 

288 

--t--------·---- S. F...r;t_tlfr;. the paym.-~nt nf restitution to victi.c'11S. 10 

9. Reduce the number oi people held at the ACI ttwniting trial v..ith brul set at 

less Lha::1 SS00:1 10 

people placed on home omfinement who would other- 70 70 

·---1-~---------· 

E.<.timate-d Combined Impact 502 765 

Averted Cost.<:; 

(;"he cost of impiementbgthe pulley options is not included.) FY2008 

S4 milliOOl 

FY 2008-2017 

S58.6m:llion 

identltied and are nof cumulative.. For eX?.n:pl<', policy o;)tion 2 will require 43 fe•~ 

projec-ted in FY 2017 . 

. "'.Sr>umpt<>n: ''"""''o·r:<utrertummu·.,.ourc•es are sufficient b elimlGak the h~tcklog of people sc-.hedu\ed for re.lea<;e o:; pace!<!': whn n.nrent~ 

past their :elE';JSe date for a n>slrlentJalsubstance o.~use treatmer-.t bed to become available~ FurU1er of 6e subs~a.nce 

a?>'m'>~atcly. hm'f~ ttn addit:ional unkno"''fl. lmpact on the pr.son population by Judges to 

of incarceration. 

7b rt'.prf'.se:..ts the impact :hls policy could have on the pC\plllation at the ACI in addition to lhe 

r-... 5-limated in po:\cy option 7b may be reduct"..d by any increase in the parol::; gT<L"lt rate !1 

4 T:-tr r~•:JfmE~f' of 0Fil sa\ings ,._<;sodared v.>t., pollty opt!on 9 '.s based on data (;om ~alenrlar yf;;rr 2{)06 and extrapolated over the 10 ye.?.r 

pe.-rioC, unl:ke the rest of L1e bed savir..gs estima~es, ·which t::ilize a statistkal model of L'1e p.~.ison ;:>opulation. 
176 

s.cverallns'Lt:ltons in ordt·T to avoid violating the terms of 

1he st1tloncnt order. He agreed, but stated in a mcetiog 

v.ith the governor nnd in ~ubseque:nt rr:rrmrb to the media 

that his consent v.'as o..ylicil1y contingent on his l.mderstanding that the state would enact solutjons to the crowding cris~s in tJ1e next legislclive session. 

Also :n the i<ill of 2007, the Criminal Justice cr ... -crsight 

Com.rnntee convt:>Jled a meeting in the state HOllSC to vet 

the options put togelher the previous spring. Present were 

the governor; the Senate president; a key aide tn th~ House 

sp~-akt:r; leaders of the Leglslature's Finance aud Judkl<t!Y 

cornrrJttees: the c~lcf }1.n:!ges of the state's trial courts and 

top staH to the Supreme Court chief the parole 

board chair; the chid of the Divi~ion for the 

attorney general (wto serves as Rhorlc lsl;md's <:hiJ;>f prosecuto?); the sfa~c's public defender; the superintendent (Jf 

the .~>tate polke.; anrl Rb.orie Island'~ leading victims' advor~te-, Recogni7lng the importnn<:f': of consensus, they 

agreed thtlt nny option that met,vitil :re.c;lstance from any of 

those gathered would he tabled. 

Key Solutions 

Ultimately, ;Jl pnrtle$ co;Jesced arowtd three key Idea.<>. 

which were introduced into the General Assembly in a 

serif'-'> of budget articles that bt::came know;1 as tbe "Corn.:-ctional Options" package. Enacted in !\-fay 2008 by an ovcrmajor~ty, Correctional Options Lncluded three 

major 

S!andartfizatiorr or r::arned tirrte~ .A.ustin had highlight.Pd 

a statulory sc}:ec.w '..lsed by Rhode Island whereby inmates 

t"..amed credit off sentences for complyir;g v..ith :nstitutlon~l 

rules. Under this inw-rh·d and fllogical system, inmates 

\Vho r~b;ded by L'i-te rules were given the number ol rlays off 

each month th2t corresponded to the ye<~rs of their 

sentence (up to a n1axlmum of 10). This policy greatly bl;netited the inmates v.ith lor;:g sentcncF_., tor the most serious 

crime.<:: while afforCing those serving short terms for petty 

crlrnes almost no time off. For examnle, an inmate with a 

three-month sentence served cve1y sh1gle day of that te~m 

while an inmate dolng 10 years saw his or her sentence 

rerluced The Legislature standardi7erl the formula so all inmates (r:xccpt those serving only one 

month or less, sex offenders ;mrl. llfcrs) cnuld earn the 

sa..me l 0 days earh month. 

Inau:guration of T'isk reduction pl·ogram credits. 

Rhode Island's. reh;o_h\Htatlvc programs had he€n offered 

cafettria-style: Interested 1nmates could sign up for ava!!-

able programs and were waJUisted when the slots were 

fiiled. Rho(le Island law provided very linllted incentives for 

the ofiender populatiua to complete programs that woulO 

rcrince their risk of rc-otknding upon release_ Under thenew legisiation, inmatf"s (except those excluded in the 

option above) who fully participated in prog1·ams that 

nddre.,.sed their criminogenic factors are eligible for t~ 

five days cretlit oif ttu":ir 5?.nte...'1c.e_<; each montit. Comr)letion 

of a program can earn an inmate up to 30 additional days. 

RIDOC staff prCGua!'....l)• each program by deciding L1.e maximum amount of days credit that can be earned for each 

program and then awarding participating offenders the 

number of days j:.1stUied by their perlonnance. As this 

author explalucd at a meeting of the state's police chl:::f.s, 

these lnmates wuuld of course be released eventually. It is 

prefercib1e to disch.:ngc an offender a kw weeks earlier 

k.'1ov.ing that he or .she had dealt \'li.th addiction and oU~er 

issues than waiting and dt~charging the inn1ate untreated. 

The chiefs are re.c1Lsts and they understood the advantages 

of thls approach to pubEc salety. 

Ri.~k assessment in parole decisions. The new legislation manrlatcrl that the parole board consider not only the 

seriousne$S of the crime and tl:e offe.nder's institutional 

bf'bavior but also the potential to re--offend as deterrrLned 

by a v~lirlrtted risk instrumer,L This tool p:n:nides suppmt 

to members of the board as they make the difficult decisions abnut whom to parole. 

Improving Services 

In keeping with the phiJosophy that underlies justit.:e 

rr.imr>"'"tment, the legislathm Cid not f'liminate the fnll Sl-l.V~ 

lngs as.soe'J,;.ted with thE:.se refon:1s from RIDOC's budget. 

lr.stf'_ad, ii relalned a portion of t.be funds and redirected 

tl1eru to three areas of need: 

Increased pragn.:rmming. Recognizing tl1at tl1c number 

of iasmutiona1 prograr:ns must b~ expanded for iiunates to 

e<.mt risk reduction crc<hts anrl ieave bdter vrepared to be 

law-abiding citizens, money ·was reinvested to increase the 

number of .slots for such program;:; as .substance abuse 

treatment, anp,:er man<tgf':mf'nt acd cognitive rcstructur:ng. 

Investment in community corrections. As 1t w.a.s nident that Correctinnr1l Options would shift more offemlers 

onto po::;.t~rele.ase probation and do so more quickly, 

money was reserved tu aug1nent U!sd1arge planning .c;e:rvices and incrt:ase the number of t)TObation officers. R!DOC 

implemented. a process to place the inmates. released pur~ 

st!3Jlt to Corredloual Options on a heightened 1eYrJ of 

supervlsiuu tmtil such time as they would otherwise have 

lC:t an ln~titution. 

C-Omputer enhancements. Money was provided for a 

one-time t5lhruJcenH~nt to the dgcncy's databasts in ordt:r 

to rccaknlatc release:. elates u.o;;ing the new critcrio. established ln the legislation. These upgrades Kcre completed iTt 

Novembrr 200S. 

Current Outcomes 

Key outcomes to date of thls fundamental cha<ge in 

Rhode lsland's correctionc-J policy art>..: 

Impact on lhe census.. E.ighty'-Dne percent of the .>;en· 

tenced inmates di.~charged in fiscal year 2009 were 

released carller than they would have been under j}e old 

law. There were no significant che:tges in cither the number of cor..un.i'~ments <?.nd disr:.harges or in the.le.ngth of sen~ 

tcrKes between Hscal year 2008 and fiscal year 2009. Tnc 

overa11 population dropped bctwcf'_t1 the t\'-"0 years becall*'e 

of the: ch.'creasc in length of time sen·ed. In other words, 

Correctional Options has had the inte.."lded E'lfect on length 

of stay. This d&1ine reversed lo:1gstanding trp;nds, The rlip 

in the a>:erage daily populatio::1 has accelerated as the 

effects of the legisJaUon cont.nue to reverberate in th.e cur~ 

rent fis-cal year. The census for 2010 to date ls 3,64.3; it was 

3,850 iu fiscal year 2008 and 3,773 in fiscal year 2009. 
177 

Figure 1. Population Projections Before and After Corrections Options l·iscal Year 2005 to Fiscal Year 2018 

Impact on costS. The DOCs costs have decreased. 

While significant porUons of the reduction have been due 

to the constraints on hirfi1g and pttrcha .. '5f'_<; because of the 

state's deteriorating financ:al plclure, the savings are also 

census-driven. For example, Rhode Island has been able to 

dose housing units at several of its largest male ins:ltutions 

on n periodic basis since the ~n .. 'lctment of thls legislation. 

lrnpact on public safety. lnsuffidet1t time ha<; dapsed 

for a credible study of the legislation's effect on reridi"i.sm. 

In order to calculate the :mpact, a group of inmates need to 

leave the system and be ~t!lowPd a certain amount of time 

out in the commu."1ity before a compo~it1on of their return 

rates and comparisons to past depa1tmental redclhism 

studies can be undertaken. The earliest one--year group 

rel.f',..·lsed under the new earaed time calculatlons encom~ 

pa.s.ses relea:;es from July 1, 2008 through June 30, 2()09. 

Therefore, the return rates for the first one-year group 

released under this initiative v;riU be cakulat(~d sometime 

alter July l, 2010. 

Seeing Results 

The fact that the number of adm:ssions has not 

increased. even as lru:1ates are being released earlier, ls an 

encouraging sign. Larger numhe.rs of inmates are better 

equipped for rc;nte.grntion into the community as a result 

of the risk rcductlon ?rogriL""n credits. The programs t..l-tat 

av,:arded the most aedits were high school equivalency, 

residential substance abuse treatnw..nt, and adult bask a.'1d 

special t:duralional services. 

An i.nte-.rview \\oith a former inmate from Pawtucket, R.l., 

publisi!ed by the ...\.ssociated Pr~s on Oct. 15, 2009, put a 

hunan face on the !mpact. As reported in the article, 24-

year-old Joshua Gomes has been worki.ng,_passing drug 

scree.ns, continUing substance abuse treatment and keeping appointments wlth his prohation officer since his 

reJe.ase frorr, lnc-;rrceration :n Jtme 2009. He .acknm\•lc•dge.s 

that the prospect of a.cre1erated rdf' ..a.s.e tl1rough program 

credits ga"\.""C him the added incentive to complete his drug 

treatment regime be.,ind walls ''for the sake of going horne 

a couple of months earlier.'' in the process, he credits the 

program wilh changing his atttude about his beha'i-'ior arld 

its effect on others. 

Rhode Island's experience shows that debates over correctional policy need not pit public protection against the 

costs of im:arceration. Although conections is a wrticu!arlv 

volatile component of the public domain, a careful proces~, 

shaped by evidence and conducted among thoughtful leaders with the requis:te. political will, can yield a balance that 

respects both Hsca1 responsibHity and public safety. For 

correctional professionals, it is an encouraging devek.pment lndf'..ed. 

AT. Wall is director of the Rhode Island Department of 

CmTections. 

Reprinted u·ith permission of the American Correctional Assodation,. Alexancfria_. Va. 
178 

Statement of Julie Stewart, President 

Families Against Mandatory Minimums 

Submitted to the Senate Judiciary Committee for 

a hearing on 

"Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism" 

Introduction 

November 6, 2013 

Washington, DC 

I appreciate the opportunity to submit this written statement on behalf of Families 

Against Mandatory Minimums (F AMM). FAMM is a nonpartisan, nonprofit organization 

advocating for fair, proportionate, and individualized sentences that fit the crime and the offender 

and protect the public. FAMM supports punishment for those who violate our nation's laws and 

believes incarceration is necessary to protect the public from dangerous and violent offenders. 

We know, however, that mandatory minimum sentences are not essential to reducing crime and 

in fact contribute to the public safety funding crisis our nation faces today. Common sense 

sentencing reforms are particularly important, urgent, and relevant today because they will 

increase public safety by ensuring that the Department of Justice (DOJ) spends its limited 

resources on investigating, arresting, and prosecuting the most violent and dangerous offenders, 

rather than wasting that money on the needless incarceration of thousands of nonviolent and 

low level ofJenders serving excessive mandatory minimum sentences. 

F AMM has enjoyed working with many members of this committee to make our federal 

sentencing laws more just and rational. We thank Chainnan Leahy for his strong and steadfast 

leadership on this issue and on the Justice Safety Valve Act, S. 619. We thank Senator 

Whitehouse for chairing this important hearing and for his commitment to improving the federal 

prison system. We thank Senators Durbin and Lee for proposing reforms to federal mandatory 

minimum laws inS. 1410, the Smarter Sentencing Act. We also thank Senator Sessions for his 

leadership on reforming crack cocaine laws. In 1994, Senators Orrin Hatch and Chuck Schumer 

spearheaded the most important refonn of mandatory minimum sentences to date: the creation 

of the drug "safety valve" in 18 U.S.C. § 3553(1). 1 That provision allows judges to sentence 

federal drug offenders below the mandatory minimum term if the judge tinds that the defendant 

meets a strict, five-part test. Over 85,000 people have received fairer, more sensible sentences 

because of that refonn, saving taxpayers billions in unnecessary incarceration costs. We would 

not be having today's vibrant debate about mandatory minimum sentencing reform without this 

leadership from Senators Hatch and Schumer 20 years ago. 

We submitted testimony to this Committee at its September 18,2013, hearing on 

1 The drug safety valve is a five-part test: no one must have suffered serious bodily injury as a result of the o!Tense, 

and the drug offender may not have more than one criminal history point under the U.S. Sentencing Guidelines. 

cannot have possessed a weapon or used violence in the course of the crime. cannot have played a leadership role in 

the drug offense, and must confess his role in the crime to the prosecutor. See 18 U.S. C. § 3553(!) (20 12). 

1 
179 

"Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences," and we incorporate 

by reference the substance of that testimony here. 2 Today, we hope that the members of the 

Committee will recognize the connection that experts, academics, government agencies and 

officials, Republicans and Democrats, law enforcement and civil liberties groups alike are 

increasingly seeing: three decades of mandatory minimum sentences have produced an 

unsustainable. costly, overcrowded prison system that is hindering the Justice Department from 

protecting communities across America. The time to reform mandatory minimum sentencing laws 

is now. 

We understand that this hearing is designed to look primarily at Bureau of Prisons (BOP) 

reforms that could reduce overcrowding and recidivism, but this effort will surely fail unless 

Congress addresses front-end reform- specifically, reforming mandatory minimum sentencing 

laws. Today, the BOP consumes 25 percent of the DOJ budget; by 2018, if unchecked, it will 

reach 30 percent.3 The DOJ spends billions annually for a federal prison system overstuffed with 

nonviolent offenders; half of all federal prisoners are drug offenders4 The average drug offender 

who lands in federal prison (96 percent of all federal drug offenders get prison sentences5) is not 

the violent, armed kingpin Congress hoped to incapacitate when it created mandatory minimums. 

In FY 2012: 

• 53% of federal drug offenders had little or no prior criminal history; 

• 85% of federal drug offenders had no weapons involved in their cases; 

• Only 6.6% of federal drug offenders were considered leaders, managers, or 

supervisors of others in the offense. 6 

Despite this profile of an overwhelmingly low-level, nonviolent group of offenders, only 23 

percent of them received sentences below the mandatory minimum because they met the strict, 

five-part test of the "safety valve" at 18 U.S.C. § 3553(!)6 

The high cost of incarcerating tens of thousands of nonviolent offenders serving 

mandatory minimum sentences is depleting funds from the DOJ's crime-fighting budget. 

Recently, the Justice Department reapportioned $150 million in funds to cover BOP costs. Of 

1 Statement of Julie Stewart, President, Families Against Mandatory Minimums, submitted to the U.S. Senate 

Committee on the Judiciary for a hearing on "Reevaluating the Effectiveness of Mandatory Minimum Sentences," 

Sept. 18, 2013. available at 

ht!Q~~~y.judicif!.f_UeJJJlte.gov rcsour~jiQf!:!ll1t;.llt~!J1~.thC5?D.m:s.:ssDocun1~Dl~JJJ2load~Q2l~L2Jiecord~~~bLeab,XJ2 

cjf. 

3 Statement of Michael E. Horowitz, Inspector General. U.S. Department of Justice, before the U.S. House of 

Representatives Committee on Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies 

concerning Oversight of the Department ofJusticc 8 (Mar. 14, 2013). available at 

hl!I1;/j\J1JliQJ:lriati ons. house. go v 'llill oadcdf[lJ',S~UJJ.!:g:Jj}_::aJ2l2:llStat<c:hQt:9_'>:il?JIL~Q).30JJ.::LP.9f. 

4 BUREAU OF PRISONS. QUICK FACTS ABOUT THE BUREAU OF PRISONS, !lliJl.:ii\l\..\.."J'..QP.,.g.QY~fle\\:;;'qgjgcj;;p (last 

updated Sept. 28, 2013). 

5 U.S. SENTENCfNG COMM'N. 2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS Table 12 (2012), available 

at b.!.!Q.;~}.U\.Y• .ussc.oov, Research and_ Statistics/Annual ReJl.Ol1S and Sourcebooks '10 12 sbto~L2.htrn. 6 ld at 

Tables 37, 39, 40. 6 !d. at Table 44. 

2 
180 

that sum, $90 million had to be diverted from funds reserved for the FBI/ which might have 

used that money to further its top priorities of fighting terrorism and cyberterrorism.8 

Diverting money from police, investigators, and prosecutors to pay for unnecessarily 

lengthy prison sentences for nonviolent offenders contradicts what we've learned over the last 30 

years about deterrence. If we want to discourage people from committing crime, we need to 

make detection and punishment more certain and swift by capturing and prosecuting more 

oftenders. The DOJ cannot pursue this strategy if it must cut its number of investigators and 

prosecutors so that it can pay to incarcerate nonviolent offenders serving excessive mandatory 

prison terms. 

Legislative Proposals for Mandatory Minimum Sentencing Reform 

There are many ways the BOP population crisis can be addressed. thus saving money for 

crime-fighting priorities. Not all methods of prison population and cost reduction are created 

equal, however. Fortunately, Congress has several bipartisan mandatory minimum sentencing 

reform proposals to choose from. and over time both could restore up to billions of dollars in 

public safety funding to DOJ. 

A report published yesterday by the Urban Institute9 provides compelling evidence that 

the legislative reforms that will save the most without harming public safety are so-called 

"frontend" reforms: creating broader safety valves that allow judges to sentence below the 

minimum tem1 when doing so does not ham1 public safety, and reducing the length of our 

draconian mandatory minimum sentences for drug offenses. The Urban Institute's report 

provides conservative prison bed space and cost savings estimates that show that mandatory 

minimum sentencing reform far out-performs "back-end" refonns like expanding good time 

credit or pcrn1itting some low-level offenders to be released to home confinement if certain 

rehabilitative progran1s are completcd. 10 The Urban Institute suggests a combination affrontand back-end reforms to get a real handle on the BOP's high costs and overpopulation problem. 

The Justice Safety Valve Act of 2013, S. 619 

S. 619, the Justice Safety Valve Act of2013, sponsored by Senator Rand Paul (R-KY) 

and Chairman Leahy, seeks to build on the success of the existing drug safety valve by 

authorizing judges to depart below the statutory minimum in more cases where the minimum is 

7 Transcript of Testimony of Charles E. Samuels. Jr., Director of the Federal Bureau of Prisons, at the hearing on the 

Bureau of Prisons FY 2014 Budget Request before the U.S. House of Representatives Committee on 

Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies. 6 (April17. 2013) (on file 

with author). 

8 FEDERAL BUREAU OF lt>VESTIGATJON, QUICK FACTS, http:'/"·":":Jl;>J.gg_y::'!,bl1W-US'quick-fac1s (last accessed Nov. 5, 

2013). 

9 URBAN INSTITUTE. STEMMING THE TIDE: STRATEGIES TO REDUCE TilE GROWTH AND CUT THE COST OF THE 

FEDERAL PRISON SYSTEM [hereinafter STEMMING THE TIDE] (Nov. 2013), available at 

!JUJ2i:..'Y~:S.W:llli!1Ql:lL.I,ill[Qilli_edPDF'4J)932~~<;t~Jll11ling-t!Jc-tide.pdf. 

10 ld at App. A. 

3 
181 

not warranted. The bill docs not repeal any mandatory minimum sentencing laws, but it 

represents the boldest reform introduced to date. According to the Urban Institute's report, the 

Justice Safety Valve could, by conservative estimates, save 81,000 prison bed years and $835 

million over 10 years. 11 

The Smarter Sentencing Act, S. 1410 

The Smarter Sentencing Act, S. 1410, reduces many drug mandatory minimum prison terms, 

applies the Fair Sentencing Act of 20 I 0 retroactively (permitting over 8,000 federal prisoners to 

seek sentences in accord with that legislation's fairer treatment of crack cocaine offcnses 12), and 

expands the criminal history prong of the existing drug safety valve so that drug offenders with a 

criminal history category ofl or Il under the U.S. Sentencing Guidelines may be sentenced 

below the applicable mandatory minimum term. According to the Urban Institute, the Smarter 

Sentencing Act could conservatively save more than $3 billion over I 0 years. 13 

Conclusion 

Public policy leaders, govemment officials, criminal justice experts, and advocates from 

across the political spectrum arc supporting federal mandatory minimum reform, including the 

Department of Justice, former New York City police commissioner Bemard Kerik, fom1cr Bush 

administration attomey general Michael Mukasey, the American Correctional Association, the 

Council of Prison Locals-American Federation ofGovemment Employees, over 50 former 

federal prosecutors and judges, Heritage Action, former National Rifle Association president 

David Keene, Americans for Tax Reform president Grover Norquist, conservative columnist 

George Will, Marc Levin of the Texas Public Policy Foundation's Right on Crime project, the 

National Association of Evangelicals, Justice Fellowship/Prison Fellowship Ministries, the 

NAACP, the ACLU, and the Leadership Conference on Civil and Human Rights, just to name a 

few. 

As Congress considers many options for reducing the BOP's high population and price 

tag, we urge it to enact meaningful, broad reforms to mandatory minimum sentencing laws as 

soon as possible. Such refonns will reduce prison overcrowding, save prison beds for the most 

violent and dangerous offenders, and restore crime-fighting funding to the DOJ so that it can 

continue to protect our communities. These reforms would be simultaneously smart on crime and 

tough on crime and would benetit public safety, taxpayers, the Justice Department, and the 

federal prison system. 

11 !d. at App. A. 

U.S. Sentencing Comm'n, Statement of Judge Patti B. Saris, Chair, United States Sentencing Commission for the 

Hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences'' before the U.S. Senate 

Committee on the Judiciary, Sept. 18.2013, available at 

lH!1~~~~!!J2.\V. ussc .0:ov 1Lef!islative and PubU£._~AfThiT~:~C Ot1_gressional Test.in.1Q!!Y .. ~DiJ~~Qort~/Submissions ,20 13_Q.2_ 

I 8 SJC ~Mandator\ Minimums~pdf 

13 STEMMING THE TIDE at App. A. 

4 
182 

December 11, 2012 

For Lesser Crimes, Rethinking Life Behind 

Bars 

TALLAHASSEE, Fla. - Stephanie George and Judge Roger Vinson had quite different 

opinions about the lockbox seized by the police from her home in Pensacola. She insisted she 

had no idea that a fonner boyfriend had hidden it in her attic. Judge Vinson considered the 

lockbox, containing a half-kilogram of cocaine, to be evidence of her guilt. 

But the defendant and the judge fully agreed about the fairness of the sentence he imposed in 

federal court. 

"Even though you have been involved in drugs and drug dealing,•· Judge Vinson told Ms. 

George, "your role has basically been as a girlfriend and bag holder and money holder but not 

actively involved in the drug dealing, so certainly in my judgment it does not warrant a life 

sentence.'' 

Yet the judge had no other option on that morning 15 years ago. As her stunned family watched, 

Ms. George, then 27, who had never been accused of violence, was led from the courtroom to 

serve a sentence of life without parole. 

"!remember my mom crying out and asking the Lord why,'' said Ms. George, now 42, in an 

interview at the Federal Correctional Institution in Tallahassee. ''Sometimes I still can't believe 

myself it could happen in America.·· 

Her sentence reflected a revolution in public policy, often called mass incarceration, that appears 

increasingly dubious to both conservative and liberal social scientists. They point to evidence 

that mass incarceration is no longer a cost-effective way to make streets safer, and may even be 

promoting crime instead of suppressing it. 

Three decades of stricter drug laws, reduced parole and rigid sentencing rules have lengthened 

prison terms and more than tripled the percentage of Americans behind bars. The United States 

has the highest reported_ rate of incarceration of any country: about one in I 00 adults. a total of 

nearly 2.3 million people in prison or jail. 

But today there is growing sentiment that these policies have gone too far, causing too many 

Americans like Ms. George to be locked up for too long at too great a price -economically and 

socially. 
183 

The criticism is resonating with some state and federal officials, who have started taking steps to 

stop the prison population's growih, The social scientists are attracting attention partly because 

the drop in crime has made it a less potent political issue, and partly because of the states' 

financial problems, 

State spending on corrections, after adjusting for inflation, has more than tripled in the past three 

decades, making it the fastest-growing budgetary cost except Medicaid. Even though the prison 

population has leveled off in the past several years, the costs remain so high that states are being 

forced to reduce spending in other areas. 

Three decades ago, California spent 10 percent of its budget on higher education and 3 percent 

on prisons. In recent years the prison share of the budget rose above 10 percent while the share 

for higher education fell below 8 percent. As university administrators in California increase 

tuition to cover their deficits, they complain that the state spends much more on each prisonernearlv $50.000 per vear- than on each student. 

Manv researchers agree that the rise in imprisonment produced some initial benefits, particularly 

in urban neighborhoods, where violence decreased significantly in the 1990s. But as sentences 

lengthened and the prison population kept growing, it included more and more nonviolent 

criminals like Ms. George. 

Half a million people are now in prison or jail for drug offenses, about 10 times the number in 

1980, and there have been especially sharp increases in incarceration rates for women and for 

people over 55, long past the peak age for violent crime. In all, about 1.3 million people, more 

than half of those behind bars, are in prison or jail for nonviolent offenses. 

Researchers note that the policies have done little to stem the flow of illegal drugs. And they say 

goals like keeping street violence in check could be achieved without the expense oflocking up 

so many criminals for so long. 

While many scholars still favor tough treatment for violent offenders, they have begun 

suggesting alternatives for other criminals. James Q. Wilson, the conservative social scientist 

whose work in the 1970s helped inspire tougher policies on prison, several years ago 

recommended diw1iinl! more nonviolent drug offenders from prisons to treatment programs. 

Two of his collaborators, George L. Kelling of the Manhattan Institute and John J. Dilulio Jr. of 

the University of Pennsylvania, have joined with prominent scholars and politicians, including 

Jcb Bush and Newi Gingrich, in a group called Ri>!ht on Crime. It advocates more selective 

incarceration and warns that current policies "have the unintended consequence of hardening 

nonviolent, low-risk offenders'' so that they become "a greater risk to the public than when they 

entered." 

These views are hardly uni versa!, particularly among elected officials worried about a surge in 

crime if the prison population shrinks. Prosecutors have resisted attempts to change the system, 

contending that the strict sentences deter crime and induce suspects to cooperate because the 

penalties provide the police and prosecutors with so much leverage. 
184 

Some of the strongest evidence for the benefit of incarceration came from studies bv a Uniwrsitv 

of Chicago economist. Steven D. Levitt, who found that penal policies were a major factor in 

reducing crime during the 1990s. But as crime continued declining and the prison population 

kept growing, the retums diminished. 

"We know that harsher punishments lead to less crime, but we also know that the millionth 

prisoner we lock up is a lot less dangerous to society than the first guy we lock up," Dr. Levitt 

said. ·'In the mid-1990s I concluded that the social benefits approximately equaled the costs of 

incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we 

should be shrinking the prison population by at least one-third." 

Some social scientists argue that the incarceration rate is now so high that the net effect is 

"crimogenic": creating more crime over the long term by ham1ing the social fabric in 

communities and permanently damaging the economic prospects of prisoners as well as their 

families. Nationallv, about one in 40 children have a parent in prison. Among black children, one 

in 15 have a parent in prison. 

Cocaine in the Attic 

Ms. George was a young single mother when she first got in trouble with drugs and the law. One 

of her children was fathered by a crack dealer. Michael Dickey, who went to prison in the early 

1990s for drug and firearm offenses. 

"When he went away, I was at home with the kids struggling to pay bills,'' Ms. George said. 

"The only way I knew to get money quick was selling crack. I was never a user, but from being 

around him I pretty much knew how to get it." 

After the police caught her making crack sales of $40 and $120- which were counted as 

separate felonies she was sentenced, at 23, to nine months in a work-release program. That 

meant working at her mother's hair salon in Pensacola during the day and spending nights at the 

county jail. away from her three young children. 

"When I caught that first charge, it scared me to death," she recalled. "! thought. my God. being 

away from my kids, this is not what I want. I promised them I would never let it happen again.'' 

When Mr. Dickey got out of prison in 1995, she said. she refused to resume their relationship. 

but she did allow him into her apartment sometimes to see their daughter. One evening, shortly 

after he had arrived, the police showed up with a search warrant and a ladder. 

"I didn't know what they were doing with a ladder in a one-story building," Ms. George said. 

"They went into a closet and opened a little attic space I'd never seen before and brought down 

the lockbox. He gave them a key to open it. When I saw what was in it, I was so mad I jumped 

across the table at him and started hitting him." 

Mr. Dickey said he had paid her to store the cocaine at her home. At the trial, other defendants 

said she was present during drug transactions conducted by Mr. Dickey and other dealers she 
185 

dated, and sometimes delivered cash or crack for her boyfriends. Ms. George denied those 

accusations, which her lawyer argued were uncorroborated and self-serving. After the jury 

convicted her of being part of a conspiracy to distribute cocaine, she told the judge at her 

sentencing: "I just want to say I didn't do it. I don't want to be away from my kids." 

Whatever the truth of the testimony against her, it certainly benefited the other defendants. 

Providing evidence to the prosecution is one of the few ways to avoid a mandatory sentence. 

Because the government formally credited the other defendants with "substantial assistance," 

their sentences were all reduced to less than 15 years. Even though Mr. Dickey was the leader of 

the enterprise and had a much longer criminal record than Ms. George, he was freed five years 

ago. 

Looking back on the case, Judge Vinson said such disparate treatment is unfortunately all too 

common. The judge, an appointee of President Ronald Reagan who is hardly kno'~'<n for 

liberalism (last year he ruled that the Obama administration's entire health care act was 

unconstitutional), says he still regrets the sentence he had to impose on Ms. George because of a 

fommla dictated by the amount of cocaine in the lockbox and her previous criminal record. 

"She was not a major participant by any means, but the problem in these cases is that the people 

who can offer the most help to the government arc the most culpable," Judge Vinson said 

recently. "So they get reduced sentences while the small fry, the little workers who don't have 

that information, get the mandatory sentences. 

"The punishment is supposed to fit the crime, but when a legislative body says this is going to be 

the sentence no matter what other factors there are, that's draconian in every sense of the word. 

Mandatory sentences breed injustice." 

Doubts About a Penalty 

In the 1980s, stricter penalties for drugs were promoted by Republicans like Mr. Reagan and by 

urban Democrats worried about the crack epidemic. In the 1990s. both parties supported 

President Bill Clinton's anticrime bill, which gave states money to build prisons. Three-strikes 

laws and other formulas forced judges to impose life without parole, a sentence that was 

uncommon in the United States before the 1970s. 

Most other countries do not impose life sentences without parole, and those that do generally 

reserve it for a few heinous crimes. In England, where it is used only for homicides involving an 

aggravating factor like child abduction, torture or terrorism, a recent studv reported that 41 

prisoners were serving life terms without parole. In the United State.!i, some 41,000 are. 

''It is unconscionable that we routinely sentence people like Stephanie George to die in our 

prisons," said Mary Price. the general counsel of the advocacy group Families Against 

Mandatory l\1inimums. "The United States is nearly alone among the nations of the world in 

abandoning our obligation to rehabilitate such offenders.'' 
186 

The utility of such sentences has been challenged repeatedly by criminologists and economists. 

Given that criminals arc not known for meticulous long-term planning, how much more seriously 

do they take a life sentence versus 20 years, or l 0 years versus 2 years? Studies haw failed to 

tind consistent evidence that the prospect of a longer sentence acts as a significantly greater 

deterrent than a shorter sentence. 

Longer sentences undoubtedly keep criminals off the streets. But researchers question whether 

this incapacitation effect. as it is known, provides enough benetits to justify the costs, especially 

when drug dealers are involved. Locking up a rapist makes the streets safer by removing one 

predator, but locking up a low-level drug dealer creates a job opening that is quickly filled 

because so many candidates are available. 

The number of drug o!Tenders behind bars has gone from fewer than 50,000 in 1980 to more than 

500,000 today, but that still leaves more than two million people on the street who sell drugs at 

least occasionally, according to calculations by Peter H. Reuter, a criminologist at the University 

of Maryland. He and Jonathan P. Caulkins of Carnegie Mellon University say there is no way to 

lock up enough low-level dealers and couriers to make a significant impact on supply, and that is 

why cocaine, heroin and other illegal drugs arc as readily available today as in 1980, and 

generally at lower prices. 

The researchers sav that if the number of drug offenders behind bars was halved reduced by 

250,000 there would be little impact on prices or availability. 

"Mandating long sentences based on the quantities of drugs in someone's possession just sweeps 

up low-level couriers and other hired help who are easily replaced," Dr. Caulkins said. "'Instead 

of relying on formulas written by legislators and sentencing commissions, we should let judges 

and other local officials use discretion to focus on the dealers who cause the most social hann -

the ones who are violent, who fight for turf on street comers, who employ children. They're the 

ones who should receive long sentences." 

These changes are starting to be made in places. Sentences for some drug crimes have been 

eased at the federal level and in states like New York, Kentucky and Texas. Judges in Ohio and 

South Carolina have been given more sentencing discretion. Californians voted in November to 

soften their state's "three strikes" law to focus only on serious or violent third offenses. The usc 

of parole has been expanded in Louisiana and Mississippi. The United States Supreme Court has 

banned some life sentences without parole lor juvenile offenders. 

Nonetheless. the United States, with less than 5 percent of the world's population, still has nearly 

a quarter of the world's prisoners. 

A Mother Taken Away 

Ms. George said she could understand the justice of sending her to prison for five years, if only 

to punish her for her earlier crack-selling offenses. 
187 

'Tm a real firm believer in karma- what goes around comes around," she said. "I see now how 

"-TOng it was to sell drugs to people hooked on something they couldn't control. I think, what if 

they took money away from their kids to buy drugs from me? I deserve to pay a price for that. 

But my whole life? To take me away from my kids forever?" 

When she was sentenced 15 years ago, her children were 5, 6 and 9. They have been raised by 

her sister, Wendy Evil, who says it was agonizing to take the children to see their mother in 

prison. 

"They would fight to sit on her knee the whole time;' she recalled recently during a family 

dirmer at their home in Pensacola. "It's been so hard for them. Some of the troubles they've had 

are because of their anger at her being gone.'' 

The youngest child, William, now 20, dropped out of middle school. The older two, Kendra and 

Courtney, finished high school but so far have not followed their mother's advice to go to 

college. 

·'I don't want to blame things on my situation, but I think my life would have been a whole lot 

different if she'd been here," said Courtney, now 25, who has been unemployed for several 

years. "When I fell off track, she would have pushed me back. She's way stronger than any of 

us.'' 

Ms. George, who has gotten a college degree in prison, calls the children every Sunday. She pays 

for the calls, which cost 23 cents a minute, with wages from two jobs: a regular eight-hour shift 

of data processing that pays 92 cents an hour, supplemented by four hours of overtime work at a 

call center in the prison that provides 411 directory assistance to phone companies. 

''I like to stay busy," she said during the interview. "I don't like to give myself time to think 

about home. I know how much it hurts my daughter to see her friends doing things with their 

mothers. My boys are still so angry. I thought after a while it would stop, that they'd move on as 

they got older and had girlfriends. But it just seems like it gets worse every Mother's Day and 

Christmas.'' 

She seemed undaunted, even cheerful, during most of the interview at the prison, where she 

sleeps on a bunk bed in an 11-by-7-foot cell she shares with another inmate. Dressed in the 

regulation uniform, khaki pants and work boots, she was calm and articulate as she explained her 

case and the failed efforts to appeal the ruling. At this point lawyers say her only hope seems to 

be presidential clemency -rarely granted in recent years- yet she said she remained hopeful. 

She lost her composure only once, while describing the evening in 1996 when the police found 

the lockbox in her apartment. She had been working in the kitchen, braiding someone's hair for a 

little money, while Courtney, then 8, played in the home. He watched the police take her away in 

handcuffs. 

"Courtney called out, 'Mom, you promised you weren't going to leave us no more,' " Ms. 

George recalled, her eyes glistening. "I still hear that voice to this day, and he's a grown man." 
188 

Æ 

This article has been revised to reflect the following correction: 

Correction: December 14,2012 

An article on Wednesday about growing skepticism over mandatory prison sentences referred 

incorrectly to Supreme Court rulings on sentencing for juvenile offenders. The court has banned 

sentences of life without the possibility of parole for juveniles convicted of crimes that did not 

involve killings; the justices also struck down laws that required such sentences in homicide 

cases without allowing judges or juries to consider individual circumstances. The court has not 

completely "banned life sentences without parole for juvenile offenders."