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FEDERAL BUREAU OF PRISONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

HOMELAND SECURITY, AND INVESTIGATIONS 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 19, 2013 

Serial No. 113–50 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, AND INVESTIGATIONS

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

HOWARD COBLE, North Carolina 

SPENCER BACHUS, Alabama 

J. RANDY FORBES, Virginia 

TRENT FRANKS, Arizona 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

CAROLINE LYNCH, Chief Counsel 
(III) 

C O N T E N T S 

SEPTEMBER 19, 2013 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ................................................ 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 11 

WITNESS 

The Honorable Charles E. Samuels, Jr., Director, Federal Bureau of Prisons 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 15 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 30 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ...... 50 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions for the Record submitted to the Honorable Charles E. Samuels, 

Jr., Director, Federal Bureau of Prisons ............................................................ 114 

(1) 

FEDERAL BUREAU OF PRISONS 

THURSDAY, SEPTEMBER 19, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON CRIME, TERRORISM, 

HOMELAND SECURITY, AND INVESTIGATIONS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:01 a.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Bachus, 

Franks, Scott, Conyers, and Bass. 

Staff present: (Majority) Allison Halataei, Parliamentarian & 

General Counsel; Robert Parmiter, Counsel; Alicia Church, Clerk; 

and (Minority) Ashley McDonald, Counsel. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

And without objection, the Chair will be authorized to declare recesses of the Subcommittee at any point. 

The Chair recognizes himself for 5 minutes for an opening statement. 

Since the passage of the Sentencing Reform Act of 1984, the Bureau of Prisons has experienced exponential growth in its prison 

population. Today the BOP houses 219,196 inmates in 119 institutions across the country and currently accounts for a quarter of the 

Justice Department’s operating budget. If you add the offenders in 

the custody of the Marshals Service, which is responsible for pretrial and pre-sentencing detainees, the Department spends a full 

third of its budget housing prisoners. 

The dramatic growth in the BOP’s population over the last 3 decades is of concern to Members on both sides of the aisle. It has led 

to extremely high crowding rates in BOP facilities. Today the BOP 

is operating at 39 percent above capacity across the board. The 

crowding problem is particularly acute in high security facilities 

which house some of the most dangerous inmates in the Federal 

system. High security facilities are experiencing a crowding rate of 

55 percent. To increase available bed space, wardens have resorted 

to extreme measures like triple and quadruple bunking or converting common space such as the television room into temporary 

housing space. As a result, inmates may experience crowded bathroom and food service facilities and more limited opportunities for 
2 

recreational, vocational, and educational programming, all of which 

can contribute to inmate misconduct. 

It is clear that Congress and the Administration need to closely 

look at the problems associated with the BOP’s population growth 

because there is no indication that the tide of Federal inmates is 

ebbing. On the contrary, GAO estimates that by 2020, BOP may 

be responsible for housing nearly a quarter of a million inmates 

eating up more and more taxpayer dollars. Clearly, this is an 

unsustainable trajectory. 

While we all agree that there is a problem, it is less clear what 

the solution should be. Some in Congress and the Administration 

have suggested the answer is to give the inmates additional good 

time credits for not engaging in bad behavior while incarcerated. 

I am concerned, however, that Congress simply cannot solve the 

problem by letting the inmates out early. We need to take a hard 

look at the increasing incarceration costs that the BOP faces regardless of an increasing prison population. We need to address the 

issue of inmate and prison guard safety as exemplified by the murder of Correctional Officer Eric Williams at USP Canaan in Pennsylvania earlier this year. And we need to identify proven cost-effective programs to reduce recidivism and overcrowding. 

Today’s hearing will examine the Bureau of Prisons’ policy surrounding all these issues and identify systemic problems that need 

to be corrected. I hope to learn more about the issues surrounding 

the cost to construct and operate BOP facilities and deliver health 

care to an aging population and rehabilitative programming to 

those inmates who will benefit and to support and maintain a professional, dedicated staff. I look forward to hearing from the director on all these important topics today. 

And it is now my pleasure to recognize for his opening statement 

the Ranking Member of the Subcommittee, the gentleman from 

Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I thank you for calling the 

hearing today. 

I welcome Director Samuels to the hearing. 

This hearing comes at a very important time. Today the number 

of Federal prisoners has grown from 25,000 in 1980 to almost a 

quarter of a million now. Imprisoning this many people is expensive. The average annual cost for an inmate for low security is 

about $25,000; high security, over $30,000 per year. Even if we go 

through with the sequester, the Bureau of Prisons is actually receiving over $6 billion for this fiscal year. 

The Federal prisons are overcrowded. The Bureau is currently 

operating at 39 percent its rated capacity with 55 percent crowding 

at high security facilities. Overcrowding at these levels threatens 

the safety both of inmates and correctional officers and undermines 

the ability of the Bureau to provide programming for inmates. 

Now, the main drivers of prison growth are front-end decisions 

about how long someone goes to prison. Obviously, the Bureau cannot control that. But mandatory minimums have a lot to do with 

that, as well as simple-minded slogans like ‘‘three strikes and you 

are out,’’ ‘‘the failed war on drugs,’’ all of which lead to the fact that 

the United States locks up a higher portion of its population than 

any country on earth, about five times the international average. 
3 

I applaud the Attorney General’s recent announcement about reforms within the Department of Justice, but we need to do a lot 

more if we are going to extend this expansive growth. The Bureau 

cannot control what we send them or how long, but the General Accountability Office has identified several programs that the BOP 

can make better use of on its own without congressional action to 

reduce overcrowding. These include fully utilizing the residential 

drug abuse program. The GAO found that only 19 percent of inmates who successfully completed the program in 2009 to 2011 received the maximum reduction available under the Bureau policy, 

and the average sentence reduction was only 8 months. If inmates 

had received the full 12-month reduction in those years, the Bureau would have saved over $100 million. 

In addition, the Bureau excluded by policy entire categories of inmates from participating in the program. For example, inmates 

whose Federal sentencing guideline was increased because a weapon was possessed are excluded from participation. Even more 

money could be saved if all statutorily eligible prisoners were allowed to participate. 

Second, the GAO found that the Bureau was not fully utilizing 

the pre-release community corrections. The Second Chance Act of 

2007 doubled the amount of time from 6 to 12 months that an inmate could serve in pre-release community corrections at the end 

of the sentence. However, the GAO found that in practice inmates 

serve an average of less than 4 months in community corrections. 

By just increasing home confinement by 3 months, the BOP could 

save over $100 million a year. 

These are actions that the BOP could take now to reduce overcrowding and save hundreds of millions of dollars. 

In addition, there are reforms that we in Congress should pass 

to reduce overcrowding. The first and easiest thing we could do is 

to clarify how a good time credit is calculated. According to the 

U.S. Code, prisoners may currently earn 54 days of good time credit to be applied at the end of each year, but based on the way the 

Bureau calculates the good time, prisoners are actually only credited with 47 days each year or portion of a year for the sentence 

imposed. My colleague from Michigan, the Ranking Member of the 

Committee, and I have introduced H.R. 2371, the ‘‘Prisoner Incentive Act of 2013,’’ a legislative fix for that calculation problem. If 

BOP changed its policy, it could save about $40 million a year just 

through that alone. 

Second, my colleague from Utah, Representative Chaffetz, and I, 

along with 12 other cosponsors from both sides of the aisle, have 

introduced H.R. 2656, the ‘‘Public Safety Enhancement Act of 

2013.’’ This would implement a post-sentencing risk and needs assessment to match inmates with evidence-based correctional programs. Inmates can earn credits for participating in the programs, 

credits for time each month toward eligibility for an alternative 

custody arrangement such as a halfway house or home confinement 

or ankle bracelet monitoring. 

I hope the bill and the hearing today ignites a conversation on 

broader issues today: reducing overcrowding, reducing the amount 

of time spent in prison, reducing recidivism, and reducing costs. 
4 

I am also interested in hearing an update from the director on 

the Federal Prison Industries. FPI operates at no cost to the taxpayer, is entirely self-sufficient, never received appropriated money 

from Congress. CBO estimates by eliminating FPI and replacing it 

with other inmate training programs would cost about $500 million 

over 10 years. Research shows that inmates in the FPI program 

are 24 percent less likely to recidivate than similar inmates not in 

the FPI program. But despite this, we in Congress are curtailing 

the FPI program. 

Finally, I would like to hear from the director on many other important issues, such as the BOP’s plans for prison construction, 

what effect the sequestration is having on operations, what educational programs are currently available in the prisons, and how 

a program might be expanded, and the use of solitary confinement, 

as well as inmate access to health care. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. SENSENBRENNER. Thank you very much. 

The Ranking Member of the full Committee, the gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

I want to start off by quoting Michelle Alexander, who recently 

released a new book called ‘‘The New Jim Crow.’’ And here is the 

quotation. Drug offenses alone account for two-thirds of the rise in 

the Federal inmate population and more than half the rise in State 

prisoners between 1985 and 2000. Approximately a half million 

people are in prison or jail for a drug offense today compared to 

an estimated 41,000 in 1980, in other words, an increase of 1,100 

percent. Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the war on 

drugs. 

And so this becomes a very important hearing for that reason 

alone and also additionally because we incarcerate more people 

proportionately than any other Nation on the planet. And it is in 

that spirit that we approach this very important hearing. 

And I would like to focus on what the Inspector General of the 

Department of Justice said when he testified earlier this year before the Committee. Even as the Bureau of Prisons receives an 

ever-increasing share of the Department’s scarce resources, conditions in the Federal prison system continue to decline. And so 

when you add that to sequestration, we see that we are in a very 

difficult situation. 

This Committee can help people understand the dilemma and 

some of the solutions that we are posing to relieve the stress of 

overcrowding and the continued reduction of the scarce resources 

of the Bureau of Prisons. 

And with that, I will submit the rest of my statement into the 

record. 

Mr. SENSENBRENNER. Without objection, it will be included. 

[The prepared statement of Mr. Conyers follows:] 
5 

Statement of the Honorable John Conyers, Jr. for the 

Hearing on Oversight of the Federal Bureau of Prisons Before the 

Subcommittee on Crime, Terrorism, Homeland Security, and 

Investigations 

Thursday, September 19, 2013, at 10:00 a.m. 

2141 Rayburn House Oilice Building 

I am extrelnely concerned about the precipitous 

rise in the federal prison population over the last 40 

years. We must do something to stop these rising 

numbers. 

To begin with, I want us to examine the role of 

sentencing for drug offenses in the prison 

overcrowding problem. 

Much of the growth in the federal prison 

population has been fueled by the so-called War on 

Drugs. Almost half of the 219,000 prisoners 

( 46.8 0/0) are incarcerated for drug offenses. 
6 

Michelle Alexander, in her excellent book, The 

New Jim Crow, says: "Drug offenses alone account 

for two-thirds of the rise in the fedcral inmate 

population and morc than half of the rise in state 

prisoners between 1985 and 2000. Approximately a 

half-million people are in prison or jail for a drug 

offense today, compared to an estimated 41,100 in 

1980 --- an increase of 1,100% .... Nothing has 

contributed more to the systematic mass 

incarceration of people of color in the [U.S.] than the 

War on Drugs." 

I know Director San1uels does not make the 

laws, but he certainly sees the effects of them. 

Another issue we should consider is the 

Bureau of Prison's use of solitary confinement. 

2 
7 

While the Bureau does not use the term "solitary 

confinement," it operates several types of segregated 

housing units which are, in fact, solitary 

confinement units. 

For example, the Bureau as of February 2013, 

confined approximately 12,460 federal inmates-or 

about 7% of inmates in Bureau-operated 

facilities-in segregated housing units. 

Federal prisoners in segregated housing are 

locked in their cells for 22 to 24 hours a day, 

sometimes for years on end. 

So1itary confinement cells are no bigger than a 

parking space, and the inmates locked in them have 

little or no human interaction other than prison 

guards or a healthcare provider or attorney. 
8 

This is inhumane, and it undermines a prisoner's 

ability to successfully re-enter into society when his 

or her sentence is complete 

The Bureau's own Psychology Services Manual 

recognizes that extended periods in segregated 

housing "may have an adverse effect on the overall 

mental status of SOlne individuals." 

Although the Bureau has not conducted any 

assessment of the effect of segregated housing on 

prison safety or of the effects of long -term 

segregated housing on prisoners, a recent report 

frOln the Government Accountability Office states: 
9 

"without an assessment of the impact of segregation 

on institutional safety or study of the long-term 

impact of segregated housing on inmates, BOP 

cannot determine the extent to which segregated 

housing achieves its stated purpose to protect 

inmates, staff and the general public." 

Accordingly, I very much want to hear Director 

Samuels' thoughts about the Bureau's use of solitary 

confinement. 

Finally, I would like us to focus on what 

Michael Horowitz, the Inspector General of the 

Department of Justice, said when he testified before 

this Committee earlier this year that !1 even as the 

BOP receives an ever-increasing share of the 

Department's scarce resources" "conditions in the 

federal prison system continue to decline." 
10 

He stated, "For example, since FY 2000, the 

BOP's inmate-to-staff ratio has increased from about 

four-to-one to a projected five-to-one in FY 2013." 

He further said: "The OIG believes that the 

Department can make better use of existing 

programs to realize cost savings and reduce 

overcrowding. " 

I want Director Samuels to address these 

programs, such as the Residential Drug Treatment 

Program. It is clear that the Bureau needs to make 

full use of existing statutory authority and programs 

to save taxpayer funds, reduce recidivism, and 

reduce overcrowding. 
11 

Mr. SENSENBRENNER. The Chair of the full Committee, the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate your 

holding this hearing, and I am very pleased to be here today on the 

issue of oversight of the Federal Bureau of Prisons. 

When I became Chairman of the Judiciary Committee in January 

of this year, I said that this Committee would play an active role 

in advancing an agenda to restore economic prosperity and fiscal 

responsibility to America. And I know that you and the Ranking 

Member share that goal. This hearing is part of that agenda. 

The Department of Justice currently spends a third of its budget 

housing prisoners, and the Bureau of Prisons population continues 

to grow, consuming even more taxpayer dollars every year. Given 

our current fiscal climate, it is our responsibility to ensure that 

every dollar spent is put to the wisest use. 

The growth in the Bureau of Prisons population has also led to 

increased overcrowding in Federal prisons. As Chairman Sensenbrenner mentioned, earlier this year Correctional Officer Eric Williams was tragically murdered by inmates while performing routine 

lockdown duties. According to reports, Officer Williams was assigned to oversee a unit of approximately 130 inmates on his own 

with only keys, handcuffs, and a radio to protect himself. In response to Officer Williams’ tragic death, the Bureau of Prisons approved the use of pepper spray by correctional officers for all of the 

Department’s high security prisons. This is a positive step following a horrible tragedy. 

But Congress and the Justice Department must also ensure that 

the BOP can safely and properly house Federal inmates. Both 

branches of Government should also strive to deliver programs to 

inmates that are proven to reduce recidivism. The simple fact is 

that over 90 percent of Federal inmates will be released from prison back into society and will be our neighbors and coworkers. We 

can work to ensure that, upon their release, these individuals are 

able to become productive taxpayers rather than more efficient 

criminals. 

There is a strong support from Members of Congress on both 

sides of the Capitol for current BOP programs that are proven to 

reduce recidivism. For example, inmates who participate in BOP’s 

well known program, the Residential Drug Abuse Program, are significantly less likely to recidivate and less likely to relapse to drug 

use than non-participants. However, this program is currently experiencing long waiting lines. I look forward to hearing from the 

director about how that can be addressed and whether the Bureau 

of Prisons has similar recidivism-reducing programs in development. 

Another program that has proven to reduce inmate recidivism is 

Federal Prison Industries, or FPI. FPI provides opportunities for 

training and work experience in textile and other forms of manufacturing to Federal inmates. However, the FPI has been severely 

restricted by Congress in recent years. In 1988, FPI employed 33 

percent of the Federal inmate population. It currently employs less 

than 10 percent of the population, which has forced the Bureau of 

Prisons to close or downsize some 50 factories. 
12 

While I support FPI’s mission, I also believe FPI must think creatively to avoid undue competition with American businesses. For 

example, FPI is currently running a repatriation pilot program involving a few different products from places like China and South 

America. This is a positive start. 

I look forward to hearing from Director Samuels today about the 

steps the Judiciary Committee can take to address these and other 

important issues in the area of prison management and recidivism 

reduction. It is also my hope that this Committee and the Bureau 

of Prisons can work on new and innovative ways to address the Bureau of Prisons crowding and budget issues, protect its employees, 

and provide valuable training to inmates in a manner that does not 

create undue competition with American companies. 

Again, I thank the Chairman and yield back. 

Mr. SENSENBRENNER. Without objection, all Members’ opening 

statements will be placed in the record at this point. 

It is the procedure in this Committee to swear in witnesses. So, 

Mr. Samuels, could you please stand and raise your right hand? 

[Witness sworn.] 

Mr. SENSENBRENNER. Let the record show the witness answered 

in the affirmative. 

Charles E. Samuels, Jr. was appointed Director of the Federal 

Bureau of Prisons on December 21, 2011. He is responsible for 

oversight and management of all Bureau of Prisons institutions 

and for the safety and security of inmates under the agency’s jurisdiction. He began working for the Bureau in 1988 as a correctional 

officer and served in many capacities rising through the ranks from 

case manager up to warden and eventually was named Senior Deputy Assistant Director of the Correctional Programs Division, or 

CPD for short. 

In 2011, Mr. Samuels was selected as Assistant Director of CPD 

where he oversaw all inmate management program functions, including intelligence and counterterrorism initiatives, security and 

emergency planning, inmate transportation, case management, 

mental health and religious services, and community corrections. 

He received his bachelor of arts degree from the University of 

Alabama and graduated from the Harvard University Executive 

Education Program for Senior Managers in Government. 

Mr. Samuels, without objection, we will include your written testimony into the record at this point. We would ask that you would 

summarize it in 5 minutes. You know what the green light, the yellow light, and most importantly, the red light in front of you 

means. So please proceed. 

TESTIMONY OF THE HONORABLE CHARLES E. SAMUELS, JR., 

DIRECTOR, FEDERAL BUREAU OF PRISONS 

Mr. SAMUELS. Good morning, Chairman Goodlatte, Chairman 

Sensenbrenner, Ranking Member Conyers, Ranking Member Scott, 

and Members of the Subcommittee. 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. Lieuten-
13 

ant Osvaldo Albarati was shot 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 that 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’s public safety efforts, but we understand that 

incarceration is only one aspect of our 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, although the extent of the impact 

is hard to predict at this time. 

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 53 percent crowding at high security facilities and 

45 percent crowding at our medium security facilities. 

I am extremely 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 with assist with the reduced crowding rates by almost 4 percent. 

Reentry is a critical component 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 skill training, and more that takes place throughout the inmate’s term. 

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

and expansion of our inmate reentry programming. My goal as director is to ensure that every institution provides cognitive behavioral therapy programs for the inmates, a treatment approach that 

has proven effective to improve reentry outcomes. 

Several of our most significant programs have been 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. While FPI reached 

as many as 33 percent of inmates in the past, it currently only employs about 8 percent of the inmates. This decline is due to various 

provisions in Department of Defense authorization bills and appropriations bills that have weakened FPI’s standing in the procurement process. We were recently given new authorities to seek repatriated work for FPI, and we are working diligently to maximize 

these opportunities. 

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. We continue to provide effective, evidence-based, cost-efficient treatment programs to address the needs of the inmate population. We have recently begun to enhance the tools we use to assess risk and to construct appropriate treatment plans. 
14 

The safety of the staff, inmates, and the public are our highest 

priorities. I have made several recent changes to Bureau operations 

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

some of these recent advances. 

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 are developing plans to add an additional correctional officer to each high security housing unit for 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 by adding 18 new programs to bring our total to 81. 

Chairman Goodlatte and Chairman Sensenbrenner, this concludes my formal statement. Again, I thank you, Mr. Conyers, Mr. 

Scott, and Members of the Subcommittee, for your continued support. The mission of the Bureau of Prisons is challenging. By maintaining high levels of security and ensuring inmates are actively 

participating in evidence-based reentry programs, we serve and 

protect society. 

I will be happy to answer any questions. 

[The prepared statement of Mr. Samuels follows:] 
15 

ilqmnment of Justice 

S'I'ATI::I\I(NTO" 

CIIARLES E. SAMUELS, JR. 

DIRECTOR 

FEDERAL. DUREAU OF PRISONS 

BErORE TlI I:: 

SUBCO,\lMln'[[ ON C RIM E, TERRORtSM, 110M [LAND SECURITY AND 

INVESTIGATIONS 

COMMITTEE 0'" T il E JUDI CIARY 

V.S. 1I0US[ OF REPRESENTATIVES 

FOR A il EA RING ON Til E 

OVERSIGIIT OFTlI E FEDERAL BUREAU OF PRISONS 

PRESENTED ON 

SEI'TEMlJER 19,2013 
16 

Statement of Charles E. Samuels, .Jr. 

Director of the Federal Bureau of Prisons 

Before the Subcommittee on Crime, Terrorism, Homeland Security and 

Investigations, U.S. Honse of Representatives Committee on the Judiciary 

For a Hearing on the Oversight ofthe Federal Bureau of Prisons 

September 19, 2013 

Good morning, Chainnan Sensenbrenner, Ranking Member Scott, and Members of the 

Subcommittee. 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 20 II, T 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 25"" 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 26th, 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 53 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, lessening crowding remains a critical 

challenge. 
17 

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 we applaud the policy changes the Attorney General recently announced to 

recalibrate America's federal criminal justice system. These changes, part of the Department of 

Justice's (Department) "Smart on Crime" initiative, will help ensure that federal laws are 

enforced more fairly and federal resources are used more efficiently by focusing on top law 

enforcement priorities. 

Institution Crowding 

Of the 219,000 federal inmates, 176,000 are housed in Bureau-operated facilities, which 

have a total rated capacity of just under 129,000 beds. The remaining approximately 42,000 are 

housed in privately operated prisons and residential reentry centers. Most of the inmates in BOP 

facilities (50 percent) are serving sentences for drug trafficking offenses. The remainder of the 

population includes inmates convicted of weapons offenses (IS percent), immigration offenses 

(11 percent), violent offenses (5 percent), fraud and other property offenses (7 percent), and sex 

offenses (10 percent). The average sentence length for inmates in BOP custody is 9 '12 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 are 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 gang at1iliated. 

There is a much higher incidence of serious assaults by inmates on statf 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 staff, 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. 

2 
18 

The BOP perfonned a rigorous analysis of the effects of crowding and staffing on inmate 

rates of violence. 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 off actors known 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 that the rate of 

serious inmate assaults were 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-statl' 

ratios. The analysis revealed that an increase of one inmate in an institution's inmate-to-custodystaff 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. 

The Bureau manages overcrowding by double and triple bunking inmates throughout the 

system, or 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 lockdowns, 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, and we thoroughly review the underlying causes of criminal 

behavior including substance abuse, education, and mental health. Institution misconduct is 

highly correlated with recidivism. Understanding the underlying causes of criminal behavior has 

allowed us to make great strides in enhancing our treatment efforts, and to ensure we are 

providing offenders the best opportunities for success once back in the community. 

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 offailing to 

successfully reintegrate into society, and they also agree with several general principles 

regarding how best to lower such risks. It is critical that otlenders are triaged based on risk of 

failure, prior to fonnulating 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 

1 The E1TeeLs of Crowding and SLalTing Le,cls in Federal Prisons OnlnmaLe Violence and AdminisLraLive Remedies 

Granted. Federal Bureau of Prisons Office of Research and Evaluation. July 20, 20 II. 
19 

example, resume preparation/job search, securing identification, applying for benefits, etc. High 

risk offenders require a more thorough assessment to identify their individual risk factors, and 

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 inmate. By 

providing all staiTwith an understanding of each inmate's strengths, weaknesses, and 

programming goals, staff can work more 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 security level. We will also continue our comprehensive evaluation of inmate 

programming needs and are enhancing the tool s 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, 

education, counseling, and other assistance such as treatment for substance use disorders, anger 

management, parenting skills, and linkage to community resources for continuity of care if they 

are to successfull y reenter soci ety. 

In the BOP, 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 inmate 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 (RDAP». Specifically, empirical research has shown that inmates who participate in 

the FPI program are 24 percent less likely to recidivate than similar non-participating inmates; 

inmates who participate in vocational or occupational training are 33 percent less likely to 

recidivate. Inmates who participate in education programs are 16 percent less likely to 

recidivate; and inmates who complete the residential drug abuse treatment program 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 

4 
20 

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 conducted several evaluations of the 

costs and benefits of a variety of correctional skills-building programs, examining program costs; 

the benefit of reducing recidivism by lowering costs for arrest, conviction, incarceration, and 

supervision; and the benefit by 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 of the Residential Drug Abuse Treatment program (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 inmate programs result in 

significant cost savings through reduced recidivism, and their expansion is important to public 

safety2 

Based on these proven-effective programs, we have implemented additional programs for 

the inmate population. These include Challenge for high security inmates, Resolve for females 

with trauma-related mental illness, BRAVE for younger, newly-designated offenders, Skills for 

cognitively-impaired offenders, Sex Offender 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 inmates 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 noteworthy for reentry given the many 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 BOP 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 

2 Aos, Steve. Phipps. P., Bamoski, R. and Lieb, R. (2001) The Comparative Costs and Benefits of Programs to 

Reduce Crime. WashingLon SLaLe InsLiLuLe for Public Policy, as updaLed April 2012, 

http://www.wsipp. wa.gov/pub.asp?docid~O I -05-I 20 I. 

5 
21 

appropriations bills tbat 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 very 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. Tn 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 has created an in-house group to focus exclusively on 

business development and to address the unique challenges of operating the FPI program. 

Recent Innovations and Achievements 

The safety of staff, inmates, 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 (OC) spray for use in emergency situations. The assessment involves designated staff 

being authorized to carry OC spray for use in situations where there is a serious threat to the 

safety of staff, inmates, or others. All staff authorized to carry OC spray underwent an initial 

four-hour training, and subsequently underwent quarterly re-familiarization training. 

Preliminary results of the assessment suggested that OC spray was improving safety, and in 

February 2013, 1 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 am working to increase our Correctional Officer complement at high security 

institutions. The Bureau operates using a "Correctional Worker first" philosophy. This means 

that every institution staff member, irrespective of their professional duties, is also expected to 

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 rather than in their cells, the 

institution is staffed primarily by Correctional Officers. Therefore, we are developing a plan to 

use existing resources to add an additional Correctional Officer to each high security housing 

uni t during these shifts 

6 
22 

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 inmates 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 inmates housed in SHU, and Executive Staff 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. 

1 have focused significant resources on the mental health of inmates who are placed in SHUs 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 restricted 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 operati ons. 

In July of this year, the Bureau updated policies regarding searches of staff and visitors. 

While we have had authority to conduct staff searches since 2008, these enhanced policies will 

provide increased security to deter the introduction of contraband into our facilities. While the 

vast majority of Bureau staff continually demonstrate the highest levels of professionalism and 

are committed to our agency's core values, we continue to have incidents involving the 

introduction of contraband into our facilities that threaten the safety of staff, inmates, and the 

public. These incidents provide clear justification for enhancing our search policies, and these 

policy changes are an important step to strengthening our public safety mission. 

We are moving forvv·ard 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 ofT enders, successful completion 

of the entire RDAP program, to include transitional treatment while in the 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 return 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 18 new programs in FY 13, bringing 

our total to 81 programs, 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 

7 
23 

sentence for inmates facing extraordinary and compelling circumstances and who pose no threat 

to public safety. We expanded the medical criteria for inmates seeking release, and the Attorney 

General recently 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. In both cases, the Bureau would generally consider inmates who did not commit 

violent crimes and have served a significant portion of their sentence. The sentencing judge 

would ultimately decide whether to reduce the 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 

sentencingjudge, 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 is also modifying their 

charging policies so that certain low-level, non-violent drug offenders who have no ties to largescale organizations, gangs, or cartels will be charged with otfenses for which the accompanying 

sentences are 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 tenn. 

The "Smart on Crime" initiative is only the beginning of an ongoing effort to modernize 

the criminal justice system. In the months ahead, the Department will continue to hone an 

approach that is not only more efficient and more effective at deterring crime and reducing 

recidivism, but also more consistent with our nation's commitment to treating all Americans as 

equal under the law. These reforms are about much more than fairness for those who are 

released from prison. They are about public safety and public good, and they make economic 

sense. 

The Administration has also supported two legislative initiatives 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 112th Congress' Second 

Chance Reauthorization Act, and we are hopeful the 113th Congress will consider them as well. 

The first expands inmate Good Conduct Time (GCT) to provide inmates up to the full 54 days 

8 
24 

per year stated in statute, rather than the current net maximum of 47 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 )). The second 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 the RDAP, 

and caps the total amount of sentence credits earned from all sources at one-third of an inmate's 

total sentence. 

Conclusion 

Chairman Sensenbrenner, this concludes my formal statement. Again, I thank you, Mr. 

Scott, and Members of the Subcommittee for your continued support. As I have indicated in my 

testimony, the Bureau faces a number of challenges as the inmate population continues to grow. 

For many years now, we have stretched resources, streamlined operations, and constrained costs 

to operate as efficiently 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. 

9 
25 

Mr. SENSENBRENNER. Thank you very much, Mr. Samuels. 

The Chair will recognize himself for 5 minutes. 

Mr. Samuels, we heard an awful lot about the percentage of inmates that are in prison for drug offenses. What percentage of 

those inmates in there for drug offenses are there for possession offenses? 

Mr. SAMUELS. Approximately 50 percent of the inmates incarcerated in the Bureau are incarcerated for drug trafficking offenses. 

Mr. SENSENBRENNER. You are talking about trafficking rather 

than possession? 

Mr. SAMUELS. Total number. 

Mr. SENSENBRENNER. Total number. I am trying to differentiate 

between those who are there for possession and those that are 

there for trafficking. Do you have that information? 

Mr. SAMUELS. I would have to obtain that information and provide it to you for the record. 

Mr. SENSENBRENNER. Thank you very much. 

The second question is what percentage of the inmates are either 

repeat or violent offenders. 

Mr. SAMUELS. Within our population, when you look at the individuals who have been released after serving time in the Bureau, 

80 percent of the inmates who are released do not return to the 

Federal prison system within a 3-year period. 

Mr. SENSENBRENNER. And what percentage of the inmates are 

violent offenders? 

Mr. SAMUELS. Five percent of the inmates incarcerated within 

the Bureau of Prisons are there for violent offenses. 

Mr. SENSENBRENNER. Now I want to go back to my first question. 

You say that 80 percent of the people who are released are not convicted and re-sentenced within a 3-year of period of time. What 

percentage of those that are in prison are repeat offenders? That 

is the other side of that coin. I am talking about in the Federal 

prisons. 

Mr. SAMUELS. I will need to provide that for the record. 

Mr. SENSENBRENNER. What percentage are immigration offenders? 

Mr. SAMUELS. Eleven percent. 

Mr. SENSENBRENNER. And do you have a breakdown of what the 

immigration offenders are actually in prison for? Is it an immigration offense or is it an offense that is criminal in nature but is committed by someone who also could be convicted of an immigration 

offense? 

Mr. SAMUELS. I have the total number for the percentage, but I 

would have to gather the information to break it down into the specifics that you are requesting. 

Mr. SENSENBRENNER. Thank you very much. 

I yield back the balance of my time. I recognize the gentleman 

from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Let me follow through on one of the questions that the Chairman 

just asked. You said 80 percent do not return to the Federal prison. 

Do you track whether or not they return to a State prison? 

Mr. SAMUELS. When you look at the overall recidivism rate for 

the Bureau of Prisons, that number is 40 percent. 
26 

Mr. SCOTT. Forty percent—— 

Mr. SAMUELS. Forty percent recidivate. So the total would be 60 

percent—— 

Mr. SCOTT. Do not come back. Okay. So 80 percent do not come 

back to the Federal prison, but only 60 percent do not come back. 

Forty percent actually go to either State or Federal. 

Mr. SAMUELS. Yes. 

Mr. SCOTT. We know from studies that solitary confinement 

causes a deterioration of mental health and actually increases recidivism. Is there any evidence that use of solitary confinement 

serves any useful purpose? 

Mr. SAMUELS. Our practice for solitary confinement, which we 

are actually in the process of having an external evaluation done— 

the National Institute of Corrections has entered into a cooperative 

agreement. We are having corrections professionals come in to assess our practices and our policies. 

Mr. SCOTT. Are you also studying the use of solitary confinement 

with juveniles? 

Mr. SAMUELS. Could you repeat, sir? 

Mr. SCOTT. Use of solitary confinement for juveniles. Is that part 

of the evaluation? 

Mr. SAMUELS. No, sir. 

Mr. SCOTT. Do you subject juveniles to solitary confinement? 

Mr. SAMUELS. No, sir. 

Mr. SCOTT. The Prison Rape Elimination Act audit. You are undergoing an audit now, as I understand it. Is that right? 

Mr. SAMUELS. Yes. 

Mr. SCOTT. What is the current status of those audits? 

Mr. SAMUELS. We recently underwent the first pre-audit for the 

corrections systems for the entire United States at our facility at 

FCI Gilmer. The audit was completed toward the latter part of August. And I have not received the official report, but I am looking 

forward to reviewing the information. 

Mr. SCOTT. We have received reports that there have been a lot 

of complaints about youths at Lewisburg. Are you familiar with 

these complaints? 

Mr. SAMUELS. Complaints regarding USP Lewisburg? 

Mr. SCOTT. Inhumane treatment of young people, use of shackles, 

deplorable conditions, solitary confinement, guards promoting cage 

fighting, other kinds of reports. Can you review the reports of complaints at Lewisburg and provide us with your response? 

Mr. SAMUELS. Yes, sir. 

Mr. SCOTT. Could you comment on the use of compassionate release? Are you familiar with the process in that? 

Mr. SAMUELS. Yes. 

Mr. SCOTT. The Inspector General made some recommendations. 

What is the status of the Bureau’s response to the Inspector General report? 

Mr. SAMUELS. The Bureau—the compassionate program for the 

Bureau, also referred to as reduction in sentence—we have embraced all of the recommendations from the Inspector General. The 

program now has expanded the use of compassionate release, and 

I have to this date approved approximately 42 individuals to be released under compassionate release. We have also taken the posi-
27 

tion to ensure that there is transparency for the entire process. 

When individuals make a request at the institution level, we are 

monitoring all the requests to ensure that for any denials, that we 

have appropriate justification to include those that are being approved. 

Mr. SCOTT. You mentioned 42. The prior year how many were 

processed? 

Mr. SAMUELS. 39 were approved by me. 

Mr. SCOTT. Could you say a word about what you are doing to 

reduce the cost of telephone calls from Federal prisons? 

Mr. SAMUELS. Yes. Recently the FCC—they have addressed 

issues relative to telephone calls not only for the Bureau of Prisons 

but State corrections as well. The Bureau of Prisons—for years we 

have had a very low rate, which our rate has not increased in the 

amount of years we have had it. Right now, for direct calls domestically within the country, we have a rate of 23 cents per minute. 

We are waiting on the final ruling regarding the issue to determine 

where we go from there with any of the caps that have been determined by the FCC for the Bureau of Prisons, to include the States. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Samuels, everyone seems to agree that the Bureau of Prisons 

crowding is a problem. Some people here are saying we need to let 

people out of prison to fix it. However, certainly there are offenders 

we can all agree should not be released early. Correct? 

Mr. SAMUELS. I did not hear the question. 

Mr. GOODLATTE. That is a question. Do you agree that there are 

prisoners who should not be released early? 

Mr. SAMUELS. Yes. With our population having approximately 

219,000 inmates, I would state that for certain individuals, depending on their offense history and various areas when you look at risk 

factors—— 

Mr. GOODLATTE. So people with having a history of violence? 

Mr. SAMUELS. It depends on the circumstances on how they are 

being evaluated. 

Mr. GOODLATTE. What about sex offenders who are more likely 

to recidivate than anyone else? 

Mr. SAMUELS. We would have to assess the risk factors for each 

individual. And the reason I make this statement, with the recent 

initiative with our compassionate release efforts, if an individual 

falls within that category and they are submitting a request, we 

would have to evaluate all of the issues to make—— 

Mr. GOODLATTE. But you would be less likely to release somebody with a history of violence. 

Mr. SAMUELS. If there is a potential threat to the public based 

on the evaluation. 

Mr. GOODLATTE. And sex offenders? 

Mr. SAMUELS. Same. If there are significant concerns regarding 

any—— 

Mr. GOODLATTE. And gang members? 

Mr. SAMUELS. The same evaluation would occur. 

Mr. GOODLATTE. Your testimony says 75 percent of medium security and 90 percent of high security inmates have a history of vio-
28 

lence. Additionally, you testified that one in four high security inmates are gang affiliated. Surely they would not be eligible for 

early release. 

Mr. SAMUELS. They would be evaluated on a case-by-case basis, 

and if there is any likelihood that the individual would have the 

potential to re-offend, they would not be recommended for any type 

of release. 

Mr. GOODLATTE. So which inmates are we mostly talking about 

here? Are we talking about low security offenders, white-collar offenders, drug offenders? 

Mr. SAMUELS. Mr. Chairman, all inmates will be reviewed and 

assessed and the expansion of the compassion release program 

looks at medical and non-medical cases. So if an individual has 

been diagnosed with a terminal illness and they are subjected to 

have a life expectancy of less than 18 months, we would look at the 

individual, review all of the factors to include their potential risk 

to re-offend. And based on that assessment, a determination would 

be made whether to approve or deny the request. 

And for the individuals who fall in the category where they are 

not able to take care of themselves, to provide self-care, and these 

are individuals who have a progressive illness or they have been 

subjected to an injury where they are either 100 percent bed-ridden 

and/or cannot maintain the basic self-care for more than 50 percent 

of their time, then we would evaluate and look at all the circumstances, to include individuals who are the primary caregiver 

for dependents if there is a situation due to extraordinary or compelling circumstances that we should evaluate. So each individual 

would be assessed on their own individual issues in these. 

Mr. GOODLATTE. Do you envision that people with a history of violence or sex offenders who have a high recidivism rate or gang 

members would be likely to be primary caregivers? 

Mr. SAMUELS. If we are able to determine, based on their lack 

of participation in programs within the Bureau and no efforts on 

their part and with our validated risk assessment that we have 

been using for the past 30 years to assess the factors associated 

with misconduct—— 

Mr. GOODLATTE. I want to get in one more question, so let move 

on since my time is running out. 

What challenges does the Bureau of Prisons face in developing 

new programs that would help reduce recidivism? We have heard 

the RDAP and FPI have both proven to reduce recidivism. If Congress were to require the Bureau to implement additional recidivism-reducing programs to bring down its population, what challenges would you face? 

Mr. SAMUELS. The challenges the Bureau would face with this 

initiative, which we have been developing cognitive behavior therapy programs similar to what we offer with the residential drug 

abuse program by taking various elements to establish these types 

of programs, we have been doing. We have created programs in our 

high security facilities, which we refer to as the Challenge Program. We have established a program that we call Resolve for female inmates who have been exposed to traumatic incidents within 

their life. We have a staged program, sexual offender programs. So 

we are in the process of doing. 
29 

Our biggest challenge is with the growth of the population. When 

you look at the inmate-to-staff ratio, all of the staff who work within the Bureau of Prisons are considered correctional workers, but 

to maintain the immediate concern of safety and security to protect 

staff, inmates, and the public, sometimes we have to pull these 

staff to provide coverage. When we are put in a situation to maintain at the highest level the safety and security, the staff who are 

assigned the duties to carry out these treatment programs are 

pulled away from those duties because they are carrying out the efforts of the correctional worker duties. So as long as our population 

is maintained at an acceptable level, we are able to continue to provide the necessary programs to give us those reductions which 

overall with the recidivism reduction efforts helps us. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

We welcome you here, Director Samuels. And this is for me the 

beginning of what I hope is a continuing and fruitful relationship 

because the prisons are so important in terms of whether they have 

any beneficial influence on the inmates and the procedures going 

on. I know that sequestration and budget cuts have made it very 

difficult. But I think that your philosophy and experience combine 

to give you a very good platform for advocating. 

And I wanted to start off with the Aliceville site for women in 

which I note that 11 of our colleagues in the Senate have written 

you about asking about these changes of eliminating the women’s 

site and sending them to very long distances away, which we think 

might be counterproductive. 

Mr. SAMUELS. Thank you. 

The issue relative to the potential mission change for FCI Danbury—I am still working with my staff to finalize the outcome of 

how we are going to proceed with the issues that have been raised 

by the 11 Senators which you made reference to. And at some point 

in the near future, we will be providing what we are trying to do. 

But I think it is very, very important that everyone understands 

and knows that I firmly believe in trying to keep the inmates as 

close to their residences for all of the concerns and issues associated with making sure that they can have family visits and definitely for the individuals who have children, the children of incarcerated parents having access to their parents. We will continue to 

do everything possible within the resources that we have to make 

all of those efforts be something that is meaningful and doable to 

the best of our abilities. 

Mr. CONYERS. Well, I would like to get a copy, if it is appropriate, 

of the response that you send the 11 Members of the Senate in this 

regard because I agree with what you are saying. 

Mr. SENSENBRENNER. Without objection, when Mr. Conyers gets 

that copy, it will be included in the record. 

[The information referred to follows:] 
30 

Office of the Director 

The Honorable Patrick Leahy 

United States Senate 

Washington, DC 20510 

Dear Senator Leahy: 

U.S. Department of Justice 

Federal Bureau of Prisons 

Washington. DC 20534 

September 27, 2013 

I am writing in response to your August 2, 2013, letter 

expressing concerns regarding the planned mission change for the 

Federal Correctional Institution (FCI) in Danbury, Connecticut, 

and in response to additional concerns set forth in an August 6, 

2013, email from committee staff. I appreciate your concern for 

the well-being of the female inmates housed at Danbury, and I 

assure you that the Bureau of Prisons (BOP) remains committed to 

keeping inmates as close to home as reasonably possible in order 

to assist with maintaining family ties and preparation for 

reentry. 

Before answering your specific questions, I want to provide 

you some background information about the BOP's inmate 

population and our facilities. Women have constituted a 

relatively small percent of the total federal inmate population, 

comprising approximately 6 to 7 percent of federal inmates for 

the past 50 years. But over time the number of women in BOP 

custody has increased, consistent with the overall growth of the 

federal inmate population. Crowding at secure female facilities 

is now higher than any other security level other than high 

security male facilities. 1 

Between FY 2006 and FY 2008, appropriations bills were 

enacted that provided $210 million to complete construction of a 

secure prison in Aliceville, AL. By the time the final 

1 Crowding percentages are based on the number of inmates housed in a facility 

above the rated capacity. For example, if a facility has a rated capacity of 

1,000 and houses 1,400 inmates, then the crowding rate is 40% (400 inmates 

greater than rated capacity, divided by the rated capacity). Rated capacity 

calculations for secure female facilities assume 100 percent double bunking 

(for example, a secure female facility with 500 cells would have a rated 

capacity of 1,000). 
31 

construction appropriation for the prison in Aliceville was 

being debated and passed in FY 2008, the Senate Appropriations 

Committee included report language (S. Rept. 110-124), based on 

discussions with BOP, that recognized the need for "additional 

bedspace capacity for female inmates at new facilities." At 

that time, the crowding rate in secure female facilities was 56 

percent and some facilities were being "quadruple bunked", that 

is, rooms designed for two inmates were housing four inmates. 

Construction of a facility for women in Aliceville, AL 

began in September of 2008. The FY 2009 President's Budget 

Request named this facility "Secure Female FCr Aliceville, AL", 

and it has been identified as such in each President's Budget 

Request through FY 2013. Following submission of these budget 

requests, Congress appropriated partial year funding for 

staffing and equipping the facility (referred to as 

"activating") in FY 2012 (Public Law 112-55, November 18, 2011), 

and the remainder in FY 2013 (Public Law 113-6, March 26, 2013), 

for a total of about $51.5 million. 

Fcr Aliceville's rated capacity is 1,536 inmates. rt is 

the second LEED-certified facility in the Bureau of Prisons, 

consisting of all "green" materials by design and construction. 

Fcr Aliceville formally opened and began receiving female 

inmates at its minimum security camp in December 2012, and at 

its secure facility in July 2013. 

Fcr Aliceville is located approximately 45 miles southwest 

of Tuscaloosa, which has a population of approximately 92,00D, 

is home to the University of Alabama, and has commercial bus and 

Amtrak service. Fcr Aliceville is also close (35 miles) to the 

town of Columbus, Mississippi, and is 111 miles from the 

Birmingham airport. 

We have provided specific information below to address the 

questions posed in your letter and the supplemental questions 

submitted by Committee staff. We would be pleased to provide 

any additional information that might help assure you that our 

plans to proceed with activating Fcr Aliceville and modify the 

mission of Fcr Danbury are indeed in the best interest of all 

inmates in the BOP. 

2 
32 

1. Given the unique proximity of the Danbury facility to major 

Northeastern cities, why was it selected to be converted into a 

facility for men? And what facilities in the Northeast will be 

available for women currently at the security level housed at 

Danbury? 

Apart from Fcr Aliceville, BOP presently operates low 

security female inmate institutions at the following locations: 

Danbury, CT; Dublin, CA; Hazelton, WV; Tallahassee, FL; and 

Waseca, MN. Before the recent activation of Fcr Aliceville, the 

overall crowding rate at our five existing female low security 

institutions was 48%. 

BOP low security male facilities, meanwhile, are operating 

at an overall crowding rate of 38%. As part of our regular 

evaluation of our facilities and inmate population, we have 

determined that with the activation of Fcr Aliceville, we can 

convert one of the existing female low security institutions to 

a male facility. This conversion will allow us to realize 

substantial reductions in the crowding rates at low security 

female institutions, while also providing some relief to our 

overcrowded male low security institutions. 

To realize these reductions in male and female low security 

crowding, we decided to change the mission at Fcr Danbury. As 

of July 27, 2013, Fcr Danbury housed 1,337 female inmates in two 

facilities: 1,120 inmates in a low security facility and 217 

inmates in a minimum security camp.2 The BOP's plan to change 

the mission at Fcr Danbury concerns only the low security 

facility; the minimum security camp at FCr Danbury will continue 

to house female inmates. We estimate that even with the change 

in mission at FCr Danbury's low security facility, the 

activation of Fcr Aliceville will permit the BOP to achieve a 

significant reduction in the overall crowding rate at low 

security female facilities across our system, from the pre-FCr 

Aliceville rate of 48% to an estimated crowding rate of 23%. 

Meanwhile, by converting Fcr Danbury to a male institution, we 

anticipate the overall crowding rate at low security male 

institutions will be reduced to 36%. 

Following receipt of your August 2, 2013, BOP temporarily suspended its 

plans to transfer female inmates from Fer Danbury in connection with the 

change of mission. However, as we separately related to Committee staff 

during the week of August 19, 2013, approximately 98 female inmates have been 

transferred from Fer Danbury during the month of August in order to move 

these inmates to facilities closer to their release residences or to permit 

their continued participation in the Residential Drug Abuse Treatment 

Program. For purposes of answering the questions in your letter, we are 

using the inmate population as it existed before these moves took place. 

3 
33 

Our justifications for converting the low-security facility 

at Fcr Danbury to a male institution, as opposed to converting 

one of the other low-security female institutions, are two-fold. 

First, as of July 27, 2013, there were 7,421 male inmates housed 

in low security facilities throughout the BOP who would be 

closer to their release residences if they were transferred from 

their current institution to Fcr Danbury. While Fcr Danbury 

does not have the capacity to house all 7,421 of these male 

inmates, the conversion of Fcr Danbury will allow hundreds of 

low security male inmates to move closer to their homes in the 

Northeast. 

Second, while we anticipate that the mission change at Fcr 

Danbury will result in some female inmates being moved farther 

from their release residences, we anticipate that the mission 

change on balance will result in the transfer of a much greater 

number of women closer to their release residences. As 

explained above, as of July 27, 2013, there were 1,120 women at 

Fcr Danbury's low security facility. Of these women, 673 are 

United States citizens. BOP is reviewing each of these inmates, 

on a case-by-case basis, to determine the best possible transfer 

location. Consistent with BOP policies and practices, BOP is 

considering each inmate's eventual release residence as well as 

individual security, medical, and programmatic needs. The 

release residence will be a significant consideration in 

determining the transfer location. 

While reviews of these 673 inmates are ongoing, we have 

identified a total of 391 women who are from Northeast or MidAtlantic states, including the District of Columbia. Of these, 

43 will be released prior to January 1, 2014; these female 

inmates will not be transferred. Each of the remaining 348 

inmates from Northeast or Mid-Atlantic states, including the 

District of Columbia, will be reviewed to determine if they 

qualify for a reduction in their security level, and, if so, 

they will be evaluated for placement at the Fcr Danbury prison 

camp to the extent there is capacity there. Those who are not 

placed at the Fcr Danbury camp will be transferred from Fcr 

Danbury either to the Secure Female Facility (SFF) Hazelton, 

West Virginia, located in the Northeastern panhandle of West 

Virginia near the Maryland and Pennsylvania borders, or to the 

Federal Detention Center (FDC) in Philadelphia, Pennsylvania. 

We estimate that these transfers will result in placements of 

approximately 243 of the 348 female inmates at facilities that 

are closer to their residences than Fcr Danbury. 

4 
34 

Similarly, the 282 female inmates from areas outside of the 

Northeast and Mid-Atlantic Regions will be transferred closer to 

home as well. These inmates will be transferred to the Federal 

Medical Center Carswell, TX; FCr Waseca, MN; FCr Tallahassee, 

FL; FCr Aliceville, AL; or FCI Dublin, CA; as appropriate. 

BOP records reflect that 447 female inmates at FCr Danbury 

are not United States citizens. Consistent with BOP practice 

for housing inmates who are not United States citizens, BOP will 

determine a transfer location for these women based on factors 

other than their identified address, including factors such as: 

security needs, medical needs, and crowding considerations. 

Additional information about these 447 inmates is set forth 

below in response to question number 10. 

2. What are the home residences for the women currently housed 

at Danbury, broken down by city and state? 

Although we do not have city information readily available, 

below please find a listing of the states of residence for the 

women in the low security facility at FCI Danbury as of July 27, 

2013. The first listings below include all inmates regardless 

of their citizenship, but 305 of the 447 female inmates who are 

not United States citizens are not included because BOP's 

records do not contain a known United States address for these 

305 women. Following the first listings, we have included a 

separate listing that shows country of origin for the 305 women 

for whom we lack an identified address in the United States. 

5 
35 

Table of States of Residence for the 815 Inmates at DAN with Identified Address in 

the US Excluding Camp Inmates as of July 27,2013 

Sorted by Frequency Sorted Alphabetically by State Abbr. 

State of Residence Number of Number of 

Female Inmates Slate of Reeldence Female. 

NY 92 Inmates 

TJ( 73 AK 

VA 53 AL 

PA 51 AR 

DC 47 AZ 17 

CA 45 CA 45 

FL 44 CO 5 

MD 37 CT 13 

NC 30 DC 47 

IL 29 DE 2 

OH 24 FL 44 

WV 21 GA 11 

NJ 20 HI 3 

Puerto Rico 17 IA 11 

AZ 17 ID 1 

TN 16 IL 29 

MA 14 IN 8 

CT 13 KS 7 

ME 13 KY 3 

MI 13 LA 5 

IA 11 MA 14 

GA 11 MD 37 

NH 8 ME 13 

MN 8 MI 13 

IN 8 MN 8 

VT MO 7 

SC MS 4 

MO 7 NC 30 

KS 7 ND 

AR 6 NE 

WI 6 NH 

CO NJ 20 

LA NM 

OK NV 

AL NY 92 

NE 4 Northern Marianna Islands 1 

ND OH 24 

MS OK 5 

SD OR 4 

OR PA 51 

HI Puerto Rico 17 

KY RI 2 

NM SC 

WY SD 4 

RI TN 16 

DE TJ( 73 

ID VA 53 

Virgin Islands VT 7 

AK Virgin Islands 1 

Northern Marianna WI 6 

Islands WV 21 

NV WY 

6 
36 

Below please find the countries of origin for the 305 

female inmates at the low security facility at Fcr Danbury who 

are not United States citizens and who do not have an identified 

address in the U.S.: 

MEXICO 181 

COLOMBIA 24 

DOMINICAN REPUBLIC 17 

CANADA 10 

ELSALVADOR 8 

JAMAICA 7 

GUATEMALA 6 

CHINA, PEOPLES REPUBLIC OF 5 

HONDURAS 4 

TRINIDAD AND TOBAGO 4 

AUSTRALIA 3 

KOREA, REPUBLIC OF 3 

NIGERIA 3 

CUBA 2 

ECUADOR 2 

GUYANA 2 

HAITI 2 

HUNGARY 2 

KENYA 2 

LAOS 2 

PERU 2 

PHILIPPINES 2 

BELIZE 1 

BRAZIL 1 

DENMARK I 

GREECE I 

ISRAEL I 

ITALY 1 

MALI I 

RUSSIA I 

RWANDA 1 

TOGO I 

UNITED KINGDOM 1 

VIETNAM 1 

3. What percentage of the female inmates at Danbury have 

children under the age of l8? 

Of the 1,120 female inmates at the low security facility at 

Fcr Danbury on July 27, 2013, there are 665 (59%) with a child 

under the age of 21. BOP does not maintain more specific 

information regarding the ages of inmate's children. 

7 
37 

4. Why was the Danbury facility selected to be converted into 

a facility for men, given that Aliceville was explained as 

needed to respond to overcrowding of women's prisons? 

Please see our answer to question #1, above. 

5. How much will it cost to "convert" Danbury to a men's 

facility? What different kinds of programs, activities, and 

facilities will be provided? What will happen to the current 

equipment or other items used by women? 

The BOP does not have to remodel, construct, or make 

significant changes to Fer Danbury to accommodate male inmates. 

There will be costs of approximately $260,000, to cover inmate 

clothing suitable for male inmates and other general inmate care 

items. Female-specific clothing and serviceable supplies from 

Fer Danbury will be distributed to our female facilities, 

including Fer Aliceville, thereby reducing expenditures for the 

facilities receiving the female inmates. 

Fer Danbury will offer all of the education and reentry 

programs that are typically provided in male low-security 

institutions across the country, including Residential Drug 

Abuse Treatment. 

6. Since some Bureau policies suggest that family visits are 

one factor included when inmates are considered for transfer to 

less secure facilities, what role will visitation history play 

in the transfer of inmates from Danbury to Aliceville? 

Pursuant to BOP policy, family visits are a factor in 

reviewing inmates' custody scores, which impact their overall 

security level and the range of institutions where they can be 

housed. This information is included when inmates are 

considered for a transfer to a less secure facility, and will be 

taken into consideration when reviewing Danbury inmates for 

possible transfer to the minimum security camp. 

7. Given the 1997 Program Statement on meeting the needs of 

women prisoners, and the June 19, 2013 memo committing resources 

and support to parenting and to "helping you prepare to reenter 

society", what steps is the Bureau taking to ensure women 

inmates transferred from Danbury to Aliceville continue to have 

contact with their families and are prepared for reentry, 

inclUding the following: 

Cost of communication (e.g., phone calls, packages)? 

• Cost of transportation to Aliceville? 

8 
38 

• Access to lawyers from their home districts to support 

keeping custody of children, dealing with immigration 

issues, or questions on convictions and sentencing? 

• Access to education and reentry programs? 

• Access to work opportunities? 

• Access to residential drug and alcohol treatment 

programs similar to the ones currently offered at 

Danbury? 

As described above, the BOP presently is reviewing 673 

female inmates at the low-security facility at FCI Danbury, on a 

case-by-case basis, to determine the best possible transfer 

location, mindful of the importance of fostering a successful 

reentry while also attending to security, medical and 

programmatic needs. Female inmates from FCI Danbury or other 

BOP facilities who are transferred to FCI Aliceville will be 

provided a broad variety of programs in the areas of education, 

drug and alcohol treatment, job training and work skills 

development. Some examples are listed below: 

• Adult Continuing Education: GED, English as a Second 

Language, accounting, business ownership, publishing, and 

business courses. 

• vocational Trade: commercial driver's license (CDL) and 

HVAC/refrigeration. 

• Apprenticeship: cosmetology, horticulture, barber styling, 

and culinary arts. 

Psychology, Drug, and Alcohol Treatment: Alcoholics 

Anonymous, drug education, non-residential drug abuse 

treatment program, and Resolve program (for abuse and 

traumatic experiences) . 

Employment Skills and Work Opportunities: auto garage, 

general maintenance, HVAC, painting, welding, carpentry, 

electrical training, plumbing, landscaping, and food 

services. 

Federal Prison Industries 

In addition, the FCI Danbury mission change will not impact 

participation in the Residential Drug Abuse Treatment Program 

(RDAP). Inmates currently participating in the FCI Danbury RDAP 

will be transferred to other RDAPs to ensure program continuity 

so that participants receive the maximum benefits of the 

program. We will attempt to place all of the RDAP inmates at 

facilities as close to their residences as possible. 

9 
39 

8. What will be the total cost of transferring female inmates 

to Aliceville from Danbury and moving male inmates into Danbury? 

As described above, the activation of FCr Aliceville and 

the conversion of FCr Danbury will involve transferring inmates 

to many different institutions in order to house inmates as 

close to home as reasonably possible. The exact movement plans 

have not yet been formulated for each individual inmate. Based 

on the average cost of an inmate transfer, we currently estimate 

the transfers will cost approximately $847,000. 

9. What information did you provide to Congress and when 

regarding this transfer project? 

On July 2, 2013, the Bureau made telephonic contact with 

the following offices to inform them of the Danbury mission 

Change: 

Personal offices of the Connecticut delegation: Senators 

Blumenthal and Murphy, and Representative Esty. 

• Personal office of Delegate Holmes-Norton. 

• Senate Judiciary Crime Subcommittee majority and minority 

offices. 

• House Judiciary Crime Subcommittee majority and minority 

offices. 

• Senate Appropriations Commerce, Justice, Science 

Subcommittee majority and minority offices. 

House Appropriations Commerce, Justice, Science 

Subcommittee majority and minority offices. 

Staff members in the offices of Senator Murphy and Delegate 

Holmes-Norton were available to take our call and we responded 

to specific questions regarding the mission change. The 

remaining staff members were not available to take our call, and 

detailed voicemails and contact information were left as 

follows: 

Rr wanted to alert you that the Bureau of Prisons female 

facility in Danbury, CT will be undergoing a mission 

change. Due to additional female capacity added at our 

FCr Aliceville, AL site, beginning in August 2013, the Bureau 

will begin moving female inmates out of the Danbury 

facility. Movement to other facilities will be determined on a 

case by case basis. The movement should be complete by the end 

of the year, after which we will convert Fcr Danbury to a low 

security male facility. Please let me know if you have any 
40 

questions regarding the mission change and I will be happy to 

assist you." 

The House and Senate Judiciary Crime Subcommittee staff 

received the information above as both a voicemail and an email. 

In addition to the questions above included in your 

August 2, 2013 letter, the questions below were submitted in a 

follow-up email received on August 6, 2013: 

10. For the 41% of the Danbury population that is comprised of 

"non-citizens", what is their U.S. home residence, or if that 

information is unavailable, in what jurisdictions were they 

sentenced? Many of them may well have family that live in the 

United States despite the fact that they are not U.S. citizens. 

As stated above, there are 447 female inmates at FCI 

Danbury as of July 27, 2013 who are not United States citizens. 

Of these 447 inmates, 142 have an identified address in the 

United States. Information pertaining to these 142 inmates is 

provided below: 

State of Residence Number of Inmates 

NY 32 

TX 27 

FL 16 

CA 15 

VA 7 

NJ 6 

PA 6 

AZ 5 

IL 5 

GA 3 

KS 3 

MA 3 

MD 3 

NC 3 

AR 1 

CO 1 

DC 1 

NM 1 

OR 1 

OR 1 

Puerto Rico 1 

SC 1 

11 
41 

For the 305 female inmates who are not United States 

citizens and who do not have an identified address in the United 

States, the court of jurisdiction is listed below. 

Court of Jurisdiction Number of Inmates 

TX S 47 

CAS 29 

TX W 20 

NY S 18 

AZ 17 

FLS 17 

CAC 9 

FLM 8 

TX N 8 

GAN 7 

NJ 7 

VA E 7 

NM 6 

NY E 6 

PA E 6 

MA 5 

MO W 5 

IN S 4 

MD 4 

MI E 4 

NY W 4 

OH S 4 

TX E 4 

CT 3 

IL N 3 

NC W 3 

NE 3 

Puerto Rico 3 

DC 2 

ME 2 

NC E 2 

NV 2 

NY N 2 

OH N 2 

TN E 2 

TN M 2 

VA W 2 

AL M 1 

ALN 1 

ARE 1 

12 
42 

Court of Jurisdiction Number of Inmates 

CAE 1 

CA N 1 

DC Superior 1 

FL N 1 

HI 1 

IA N 1 

IA S 1 

ID 1 

IL C 1 

IN N 1 

KY E 1 

KY W 1 

MN 1 

MT 1 

NC M 1 

NH 1 

PA M 1 

SC 1 

UT 1 

Virgin Islands 1 

WA W 1 

WV N 1 

WY 1 

11. How many inmates will be transferred out of the Hazelton, 

West Virginia facility (and where are they from and where are 

they going) to make room for the Danbury inmates from the MidAtlantic region? What are the other facilities that are 

available in the Mid-Atlantic region? 

We estimate that approximately 200 inmates at Hazelton can 

be moved to another facility without being transferred further 

from home, thereby freeing up beds for inmates from the 

northeast. At this point, we do not have the details of each 

specific case but can provide that at a later date. 

* * * * * * 

We anticipate lifting the suspension and resuming the 

transfers of female inmates from FCI Danbury on October 7, 2013. 

In the past, FCI Danbury staff have held informational sessions 

with inmates on these matters, and staff will do so again in the 

future when the suspension on transfers is lifted. 

13 
43 

Thank you for your support of the Bureau. I trust this 

response has addressed your concerns and I look forward to 

continued collaboration on these important criminal justice 

issues. Please do not hesitate to contact me if I can be of 

assistance on this or any other matter. 

14 
44 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

Now, let’s turn to what I consider a not so pleasant subject of 

contracting with private prisons in the Federal system. I am not 

a supporter of that policy. And I understand that maybe as much 

as 11 percent of our inmates are in such facilities now. Is this necessary and cannot be avoided? Or is there some way that we can 

minimize and lower this number? You know, we have solitary confinement and segregated housing, and all of these things. When 

you combine that with private prisons, I do not think it helps 

things at all. What do you say to that? 

Mr. SAMUELS. Congressman Conyers, with our population being 

at 219,000, we actually have 179,000 inmates in Bureau facilities. 

Approximately 42,000 of those inmates are in some form of private 

prisons, which that number is about 30,000, and the remaining 

number, or 12,000, in our residential release centers. When you 

look at the crowding for the Bureau of Prisons in our agency-wide 

crowding of about 36 percent, we would be placed in an extreme 

difficult situation to absorb those 30,000 inmates into the existing 

beds. Our rate of capacity for the 179,000 inmates I mentioned— 

we only have 126,000 beds. So we do not have the capacity to absorb the inmates who are in the private facilities. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. CONYERS. Just let me get a yes or no from him on this. Do 

you support limiting the amount of private prisons to the maximum extent possible? 

Mr. SENSENBRENNER. Yes or no. 

Mr. SAMUELS. Yes. 

Mr. SENSENBRENNER. The gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. Thank you, Mr. Chairman. 

Mr. Samuels, I think a lot of the problems that the Bureau of 

Prisons is experiencing is a failure of the Congress to respond to 

reforming our sentencing laws. 

I do not know whether most Members of Congress realize that 

we have—China I think has four times as many people as the 

United States. Yet, there are fewer people in prison in China than 

in the United States, and we consider China as somewhat of a repressive regime. 

We all, I think, know, if you have even paid scant attention, that 

our number of Black prisoners—almost 50 percent of our prison 

population is Black. And if you go back to 1980, first of all, that 

was not the case. Since that time, our violent crime rate in the 

country has decreased to a third of what it was in 1980, but the 

number of Black prisoners numerically and as a percentage of our 

total prison population has virtually exploded. And you can take 

about probably half of that because of the discrepancies between 

crack and cocaine. 

I saw this article in the Economist that came about 1 month ago. 

It said that one of the most repressive regimes in the world and 

racist regimes was South Africa during apartheid. Yet, our incarceration of Blacks between the ages of 20 and 34 is almost four 

times that of South Africa during apartheid. So we talk about the 

conditions under apartheid in South Africa and how unfair it was 

for the Black population. Yet, our incarceration rate is actually 3.6 

times as much for Blacks between the ages of 20 and 34. Now, that 
45 

is not something that you have caused. It is not something that I 

have caused, but it is something that I think we have a responsibility to respond to. 

There are two pieces of legislation in the Senate right now. Both 

of them are bipartisan. One is the Justice Safety Valve Act by Senators Leahy and Paul, one of the liberal Members and one of the 

conservative Members. Another one is the Smarter Sentencing Act 

of 2013 by Mr. Leahy, Durbin, and Mike Lee of Utah. Mike Lee is 

one of the most conservative Members of the Senate. 

Mr. SCOTT. Will the gentleman yield? 

Mr. BACHUS. Yes, I will. 

Mr. SCOTT. There is an identical bill in this Subcommittee. 

Mr. BACHUS. You know, and I did not know that. 

Mr. SCOTT. And we will be calling on you to cosponsor the bill. 

Mr. BACHUS. In fact, I plan to do that because I have looked at 

this just this week and talked to two different Senators. We had 

a long conversation. 

It just amazes me. Let me give another statistic that is hard to 

believe. Our prison population in 1940 was 24,000. In 1950, it was 

approximately 24,000. In 1960, it was approximately 25,000. In 

1970, it was back around 24,000. Where am I? 1970? In 1980, it 

was about where it was in 1940. From 1980 to 2013, it has gone 

to over 200,000. And as I said, our violent crime rate is a third of 

what it was in 1940. In the history of our country, we are sentencing people to longer sentences than we ever have. 2008 is when 

we hit that mark. 

So we talk about hanging people in the wild west and intolerance 

of crime in the late 1700’s and the early 1800’s. But when we send 

somebody to prison in the last 10 years, we send them for longer 

than we ever have in the country. So it is a national disgrace. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Bass. 

Ms. BASS. Well, I first want to thank the gentleman for your 

comments. I really appreciate that and look forward to working 

with you on those issues. 

I wanted to ask you a few questions, Mr. Samuels. One is do you 

know the percentage of inmates who have a history of child welfare, have been in the child welfare system? 

Mr. SAMUELS. I do not have that information. 

Ms. BASS. I would like to follow up with you about that. Okay? 

And then also I wanted to talk to you about—I mean, all of us 

are concerned about the numbers of prisoners that we have in the 

Federal system and how do we go about reducing those numbers. 

And given that the drug laws are changing around the country, 

particularly marijuana, I know you said that 50 percent, I believe, 

of inmates are there for drug-related offenses, but you did not distinguish between possession and trafficking. So I would like if you 

can follow up on that. Because if you come from California, for example, and you have a marijuana possession or Colorado, States 

where they have now either legalized it completely for recreation 

use or decriminalized it down to medical marijuana, which in California it is really legal, should we not look at that in terms of people who are languishing in prison for possession but the laws have 

been changed? 
46 

Mr. SAMUELS. I will respond by stating what the Attorney General’s initiative with the Smart on Crime initiative is and particularly with the low level drug offenses not tied to gangs or large 

scale drug organizations and/or to cartels, that for those types of 

offenses, depending on how the charging procedures are going to be 

assessed, that potentially, I mean, it could have some impact on 

the Bureau’s population because when you look at the number with 

50 percent of our population being individuals who are involved in 

some drug offense, I mean, it is pretty significant. As Congressman 

Bachus stated, our population overall, when you go to the 1940’s, 

we were at 24,000, and in 1980, our population was 26,400. Our 

staffing at that time was 10,000. We had 10,000 staff. So you go 

from 1980 to 2013, that is an 832 percent increase. 

Ms. BASS. Right, and we know that is because of drug laws that 

are now being reconsidered. So if we are reconsidering the drug 

laws, we should be reconsidering the people that are people that 

are incarcerated. 

So in that regard, also in terms of the powder to crack and the 

change in law that happened before I got here but I was so excited 

that Members on this Committee got that done, what about those 

inmates? Because isn’t there supposed to be an evaluation of people 

who are incarcerated when that changed? So do you know the numbers in terms of people that have been released because the law 

was changed? Because I thought it could be reconsidered. Couldn’t 

it, Mr. Scott? 

Mr. SCOTT. There is a Sixth Circuit case where there was a 

three-judge panel that ruled that it could be applied retroactively. 

That has been appealed en banc. And the first thing that happens 

when you go en banc is to vacate the three-judge panel decision. 

So there is really nothing pending in that decision right now. 

Ms. BASS. I see. 

And then I believe that you said that there are no juveniles that 

are in solitary confinement. I really wanted to ask you about that 

because I know in my State and I know in other States we reduced 

the age in which a juvenile could be tried as an adult. And I am 

sure they did that in other States too. But then the problem we got 

into in California was that there was no place to put them and 

then they were put in solitary. So I really wanted to ask you again. 

Are you sure there are no juveniles that are in—maybe they were 

not—— 

Mr. SAMUELS. To my knowledge, we do not have any juveniles 

who are in restrictive housing. The number is very, very small for 

the number of juveniles that we have within the Bureau. So I 

would double check. I will take this back and I will come back to 

confirm whether or not that is an absolute. But to my knowledge, 

we do not. 

Ms. BASS. Okay. 

And then also I believe in February of this year, the Bureau of 

Prisons was going to undertake a third party audit for the use of 

solitary confinement in general. And I wanted to know if you could 

give me a status of that audit. 

Mr. SAMUELS. Yes. The National Institute of Corrections—they 

have awarded a cooperative agreement to correctional professionals 

to come in to look at the Bureau of Prisons, our policies and our 
47 

procedures. Within the last year, since I testified regarding this 

issue before Chairman Durbin, at that time, the Bureau of Prisons 

had 13,700 inmates in some form of restrictive housing. I have now 

been able to reduce that number from 13,700 to approximately 

9,800. So we have had a 25 percent reduction. 

Ms. BASS. Excellent. And when will the audit be done? 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. 

The gentleman from Arizona, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Director Samuels, thank you for being here. 

You know, sometimes it is important for those of us on this Committee just to get a sense of the general population ratios. Your testimony says 11 percent of inmates in the Bureau of Prisons’ custody are there for immigration offenses, and that is over 24,000 of 

your 219,000 inmates. And you also testified that 26 percent of 

your inmates, nearly 57,000 inmates, are non-U.S. citizens. 

What do you mean by ‘‘immigration offenses’’? And could we get 

some kind of a breakdown of what those immigration offenders are 

actually in the prison for? 

Mr. SAMUELS. Congressman, earlier that question was presented. 

I would need to come back for the record to provide the specifics 

to give the breakdown. This is just a general number that captures 

the entire population. 

Mr. FRANKS. Okay. Well, I know that a lot is said about drugrelated offenses. And of course, you have got pure drug offenses. 

But I understand that the drug-related offenses is quite high, that 

most prisoners are in prison on a drug-related offense as opposed 

to someone just there on a drug possession offense. What percentage are there on a drug-related offense? 

Mr. SAMUELS. Again, for the record, I would need to come back 

with the specific details. 

Mr. FRANKS. All right. 

What do you think as Director of Prisons would be the number 

one thing this Committee could do to reduce the prison population 

without endangering the public? 

Mr. SAMUELS. Could you repeat, sir? 

Mr. FRANKS. Yes, sir. What do you think would be the most important reform that we could make as a Committee to try to help 

you reduce the prison population without endangering the public? 

What is the number one incongruity here? Where are we going 

wrong? 

Mr. SAMUELS. I think for the Bureau, which our biggest concern 

is—we obviously are operating under the guidance of the Department and for the laws that we have to enforce with our mission. 

We do not control the number of individuals who are prosecuted, 

nor do we control the sentence length. The biggest driver of cost 

in the Bureau of Prisons and the challenges that we face are the 

significant numbers. The inmate-to-staff ratio right now is 4.8 to 1. 

When you look at the largest State systems, the inmate-to-staff 

ratio is 3 to 1. And when you break that out and you look at the 

specifics of the correctional officers, that number is 10 to 1. And 

when you look at the States specifically, you are looking at about 

5 to 1. 
48 

If everyone could imagine in our system, because staff are considered correctional workers, all staff, it equates to having a teacher 

who is responsible for providing the education and also the teacher 

is responsible for providing the security in the classroom. In many 

other State systems, they have a correctional officer and a teacher 

in the classroom. 

So we have to work with then trying to augment to have a balance and maintaining safety and security in our institutions. So if 

we are able to somehow find a way with the Smart on Crime initiatives and a lot of the other bills that are being introduced to reduce 

the population without jeopardizing the safety and security—— 

Mr. FRANKS. Well, that is my question. I am wondering what 

would you suggest would be a good strategy to accomplish that. 

Mr. SAMUELS. I think a good strategy for us right now would be 

individuals embracing the Smart on Crime initiatives where when 

you are looking at the low level, you know, drug offenses where individuals are not attached to a significant large-scale drug operation and/or cartels, that if those numbers start to be reduced, it 

would eventually have some impact on the Bureau of Prisons. Now, 

we would not see any immediate impact. This would be based on, 

I think, the eventual outcome of reducing the population in the 

years to come. 

Mr. FRANKS. As far as violent crimes, aren’t a lot of the violent 

crimes that your prisoners are incarcerated for—aren’t they also 

drug-related? A significant percentage? 

Mr. SAMUELS. In most cases. 

Mr. FRANKS. Yes, in most cases. So, I mean, I guess that is the 

concern, you know, as to how to protect the public. 

And so last question. If you were here to ask this Committee any 

one thing that you thought would be good for this country, given 

your position, given your particular responsibility, what would that 

be? 

Mr. SAMUELS. The one thing that I would ask this Committee is 

to consider the men and women who are very dedicated who go in 

and risk their lives every single day for the American public. They 

are working under very challenging circumstances, not to say that 

the Bureau of Prisons is any more important than any other Government agency, but with the continued growth, which is 

unsustainable, it puts staff at risk. It puts the public at risk, as 

well as the inmate population. There has to be an effort to find a 

solution to reduce the population. 

Mr. FRANKS. I thank you, sir, and thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

I want to thank you, Mr. Samuels, for testifying today. We will 

include your responses that you promised into the record. 

And before adjourning the hearing, I recognize the gentleman 

from Virginia, Mr. Scott, for a number of unanimous consent requests on documents. 

Mr. SCOTT. Thank you, Mr. Chairman. I ask unanimous consent 

that the following documents be entered into the record: one from 

the ACLU; the other, the GAO report on ways to end the waste of 

millions on unnecessary over-incarceration; a letter from several organizations, the Drug Policy Alliance, Families Against Mandatory 

Minimums, the Leadership Conference on Civil and Human Rights, 
49 

the National African American Drug Policy Coalition, Open Society 

Policy Center, Sentencing Project of the United Methodist Church 

Board of Church and Society, and a separate letter from the Leadership Conference on Civil and Human Rights. 

Mr. SENSENBRENNER. Without objection, all of the records referred to by the gentleman from Virginia will be included in the 

record. 

[The information referred to follows:] 
50 

ACLU 

AMERICAN CIVil LIBERTIES UNION 

\Vritten Statement of the American Civil Liberties Union 

Before the United States House of Representatives 

Committee on the Judiciary's 

Subcommittee on Crime, Terrorism, Homeland Security and 

Investigations 

lIearillg 011 

Oversight of the Federal Bureau of Prisons 

TlmTS(lay, September 19, 2013 

!0:00a.m. 

Submilll'd by Iht 

ACLU Was hingl!)" Legislali,'r OfficI' 

ACLU Na tional Prison Projeci 

For furl her informa lion co.lfact Jesstly" M cCurdy. Senior Ltgislati,·(, Coumiel III 

jmCC llrdy® dcaclll.org 
51 

The American Civil Liberties Union (ACLU) welcomes this opportunity to submit 

testimony to the House Committee on the Judiciary's Subcommittee on Crime, Terrorism, 

Homeland Security and Investigations for its hearing on Oversi[<ht of the Federal Bureau of 

Prisons, and urges the Subcommittee to take action to bring the Bureau of Prisons into 

confonnity with accepted legal, public-safety, and human-rights standards. 

The ACLU is a nationwide, nonprotlt, 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 people1 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 some of its prisoners and detainees 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 contlnement; 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 from a Connecticut federal prison to a new 

facility in Aliceville, Alabama. 

I. BO P's use of Solitary Confinement is Excessive and Should Be Monitored 

a. The BOP's Use of Solitary Confinement 

Solitary contlnement is an extreme form of punishment that should be reserved only as a 

measure oflast resort. Prisoners housed in solitary continement 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 health care provider or attorney. Many in 

the legal and medical tlelds criticize solitary contlnement as both unconstitutional and inhumane 

It is widel y accepted that the practice exacerbates mental illness and undennines a prisoner's 

ability to successfully re-enter into society when his or her sentence is complete.' An estimated 

80,000 people are currently held in solitary contlnement in prisons across the country. Many are 

nonviolent offenders, caught up in punitive disciplinary systems that sometimes send prisoners 

into solitary contlnement for infractions such as "possession of contraband" or talking back. 4 The 

United Nations Special Rapporteur on Torture has concluded that any period in solitary 
52 

confinement over 15 days amounts to torture. 5 Yet many American prisoners can end up 

spending months or years in solitary confinement. 

Over the last two decades, corrections systems across the country have increasingly relied 

on solitary confinement, even building entire "supermax"-super-maximum-security-facilities, 

where prisoners are 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 

Supermax prisons, for example, typically cost two or three times more to build and operate than 

traditional maximum-security prisons." 

BOP currently holds about seven percent of its population-more than 12,000 

prisoners-in solitary confinement7 About 435 of these people are incarcerated at ADX 

Florence, the federal supennax prison, in Colorad08 Thousands more are held in "Special 

Housing Units" (SHU) or "Special Management Units" (SMU) within other prisons 9 Prisoners 

can be sent to these solitary confinement units for administrative reasons, as punishment for 

disciplinary rule violations, or as a result of gang affiliations or activity. 1 0 That is to say, many 

prisoners held in solitary confinement are not particularly dangerous or even difficult to manage 

Despite the human and t1nancial costs of solitary continement, the number offederal 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. 11 

b. The Need for Monitoring of BOP's Use of Solitary Confinement, and Its 

Effects 

Following a Senate hearing in the 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 contlnement. 12 In particular, BOP planned to review the fiscal and public-safety 

consequences of solitary confinement. 13 A BOP spokesman told reporters in February that the 

audit would begin "in the weeks ahead." 14 However, since then there has been no news on the 

progress of the planned audit. 

In May, the U.S. Government Accountability Office (GAO) added to public calls for 

more infonnation on BOP's use of solitary confinement when it published a detailed report based 

on extensive investigations of BOP's use of solitary contlnement. 15 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 etTects 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. 16 The report 

noted that BOP otlicials refused to acknowledge that long-term segregation can seriously hann 

2 
53 

prisoners-even though BOP's own policy recognizes the potential for damaging lasting 

effects17 

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 management and safety. 18 Indeed, emerging research suggests that supermax prisons 

actually have a negative etfect on public safety, because prisoners released trom solitary 

confinement may be more likely to recidivate than those released irom general population. 19 

c. BOP Can and Should Limit Its Use of Solitary Confinement 

Another federal agency with many detention facilities, the U.S. Immigrations and 

Customs Enforcement (ICE), recently released a new directive regulating the use of solitary 

confinement in immigration detention20 While not perfect, the new ICE directi ves represent a 

major step in curbing the inhumane and unnecessary use of solitary confinement. BOP should 

look to the ICE directives as an example of a policy designed to monitor and control the use of 

solitary confinement significantly more effectively than current BOP policies. 

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 21 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 coniinement for more than 14 days at a time, 

including an evaluation of whether any less-restrictive option could be used instead of solitary22 

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 

coniinement. 23 In addition, ICE now requires medically and mentally ill detainees to be removed 

from solitary if they are deteriorating24 It requires attorney notification in certain 

circumstances2

, and it requires regular reviews of all longer detentions in solitary26 

In addition to examining ICE's new directive, BOP should look to states that have refonned 

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. We urge the Committee to inquire as to BOP's plans 

in this area and to push the agency to move forward with reforms that have worked elsewhere. 

II. BOP's Contracts with Private Prisons Under the Criminal Alien Requirement 

Pose Human-Rights and Accountability Problems 
54 

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 27 This increase in privatization demands that the 

companies who 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 subj ecting their BOP 

contract facilities to the same transparency requirements as BOP facilities 28 

According to the Sentencing Project, 33,830 BOP prisoners were held in private facilities in 

2010 (a 67% increase from the number of prisoners in 2002); by the end of2011, while overall 

numbers of state prisoners in pri vate prisons decreased, the federal number continued to climb, to 

38,546 (18% of the total BOP population). 29 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 facilities 30 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 

levels, and many are serving sentences solely for unlawfully reentering the United States after 

having been previously deported.'1 

For-profit prisons-even those under BOP contract, housing BOP prisoners-are not subj ect 

to the same disclosure requirements under the Freedom of Information 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 32 

As a result, it is extremely difficult for the public to obtain the infonnation necessary to help 

ensure that the constitutional rights of those held in private facilities are respected, and that their 

living conditions are humane. 

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 anti-convulsant 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.·n 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 continement. 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.'4 Stories like these underscore the need for greater oversight and 

accountability of the conditions and policies at private, for-protit prisons within BOP's system4 
55 

and the need for BOP to cancel contracts when the private prison companies fail to meet 

appropriate standards. 

III. 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,JS and created a commission to study the 

problem and recommend national standards to DOJ36 After nine years of study and commentary 

by experts, the DOJ promulgated a comprehensive set of national standards implementing the 

Act in May 2012 37 The Federal government was immediately bound to implement the PREA 

regulations in federal prison facilities 38 

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) indi viduals 

Testimony before Congress and National Prison Rape Elimination Commission (NPREC) 

highlighted the particular vulnerability ofLGBTI people to sexual victimization at the hands of 

facility statf 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,,39 This testimony led to the landmark inclusion ofLGBTIspecific 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 

performance. 

a. Individualized assessments for housing transgender individuals 

The tinal 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 40 This screening "shall 

consider, at a minimum ... whether the inmate is or is perceived to be gay, lesbian, bisexual, 

transgender, intersex or gender nonconforming.,,41 

The standards also require agencies to make individualized housing and program placements for 

all transgender and intersex individuals 42 This includes assignment of trans gender and intersex 

individuals to male or female facilities. 41 All such program and housing assignments must "be 
56 

reassessed at least twice each year to review any threats to safety experienced by the inmate,,44 

and an individual's "own views with respect to his or her own safety shall be given serious 

consideration" in these assessments.45 Agencies are required to provide transgender and intersex 

individuals with access to private showers in all circumstances46 

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 PREA47 

b. Searches of transgender individuals 

The PREA regulations impose a number of requirements on how prison officials search 

transgender individuals. The regulations prohibit any search that is conducted for the sole 

purpose of determining an individual's genital status."R All cross-gender searches are subject to 

strict b'llidelines under PREA, but restrictions on cross-gender pat searches of female individuals 

do not go into effect until August 2015 49 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. 50 

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 announce themselves prior to entering any housing area. 51These limitations 

apply to transgender 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 detennination has been made that no available alternative means of separation is 

available (and this detennination must be made within the first 24 hours of involuntary 

segregation)s2 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 dayss, 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."s4 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 documented. 55 

6 
57 

If the PREA reb'lliations 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 of PREA-mandated third-party audits, but has yet to 

release data or results 56 These audits, along with publication of their results and implementation 

offollow-up compliance measures, should be a top priority and we urge the Committee to follow 

up on these reports. 

IV. BOP Should Eusure Compliance with Requirements To Provide Hormones and 

Other Medical Care to Transgender Individuals 

In 2011, BOP changed its policy for treating individuals in custody for Gender Identity 

Disorder (GID). As part of a settlement with one transgender 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 diagnosis57 

Despite this change, reports persist from transgender individuals who have not received 

evaluations for hormone therapy despite repeated requests. Others have had their ongoing 

honnone treatment disrupted without any clear medical basis for the disruption in care and with 

severe physical and psychological side effects. 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 statY 58 

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 information on its 

compliance with the GID policy, and should take steps, including training offacility-level 

medical and mental health staff and contractors, to ensure that prisoners who are diagnosed or 

may be diagnosed with GlD receive proper care. 

V. 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 of Guantanamo-Iike "Communication 

Management Units" within two federal prisons. 

7 
58 

a. Special Administrative Measnres 

After the September Il attacks, the Department of Justice (DOJ) issued a mle that 

expanded BOP's powers under the special administrative measures (SAMs) promulgated in the 

19905" These SAlVI regulations allow the Attorney General unlimited and unreviewable 

discretion to stlip any person in federal custody ofthe right to communicate confidentially with 

an attomey" They apply 10 convicted individuals held by BOP, as well as others held bv DOl 

even the pre-tlial accused, material witnesses, and immigration detainees 

BOP should not have the power to monitor communications between detainees and 

attorneys; nor should it be able to restrict such communications" 13ccause SAl'vls also permit 

extreme social isolation of celtai 11 prisoners, BOP should conduct a mental health screening of 

all those currently subject to SAMs; the seriously m(~ntally ill should be relocated to an 

institution that can provide appropriate mental-health services" 

b. Communication Management Vni!s 

After 9/11, BOP set up and began operating two Communication Management Units (CMUs) 

at federal prisons in Marion, Illinois, and Terre Haute, Indiana."l BOP opened these CMUs in 

violation of federal law requiring public notice-and-comment rulemaking62 The units severely 

restrict visitation privileges-for instance, plisoners in the CMU may receive fewer family visits 

per month than those in general population at even maximum-security prisons."3 Many critics 

argue that this psychological punishment is arbitrary, and often the result of racial and religious 

profiling64 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 

VI. BOP Should Share Its Current Plan for FCI Aliceville 

Earlier this year, BOP was enacting a plan to relocate approximately 1,000 women from a 

federal prison in Danbury, Connecticut-70 miles from New York City-to a new, $250-million 

prison in Aliceville, Alabama, a small town 110 miles southwest of Binningham'"5 The plan 

would leave only 200 federal prison beds for women in the northeast 66 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" ,,67 Maintaining 
59 

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 [wl omen get fewer visits injail, they 

become alienated from families and children, husbands and boyfriends move on6

& 

The general public has a significant interest in prisoners' ability to stay connected with loved 

ones while serving a sentence. Maintaining important relationships helps former prisoners 

successfully reenter their communities after they are released. Upon release from prison, people 

who maintain strong family contact were shown to be more successful at finding and keeping 

jobs, and less likely to recidivateW 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 

Samuels 70 As a result, plans to open Aliceville and relocate many women from Danbury have 

recently been suspended71 However, BOP currently describes Aliceville as a "low security 

institution for female inmates" that is "currently undergoing the activation process."n [fthe 

move occurs and the prison opens as originally planned, BOP will be the cause of hundreds of 

families being tom 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 

1 About the Bureau of Prisons_ FLDLRALBLRE.\U 01' PRISONS. http://v\.\y\y.bop gm;/aboutiiudex.jsp 

21d. 

1 See. e.g., BUREAU OF PRISONS: IMl'ROVhMENTS NEI!J)EJ) IN BUREAU OF PRIsm,s' MOGlTORING AN]) EVALl ArIO'J 

OF IMPACT OF SEGREGATED HOllSIl\G 39, United Swtes Govennnent Accountability Office, Report to Congressionnl 

Requesters (May 2013) [hereinafter GAO Report]. 

-15,'ee. e.g, Angela Bro\vne, Alissa Cmnbier. Suzanne Agha, Prisons Wahin Prisons: The L'~':e ofS'egregotion in the 

iiniled Siales, 24 FED'!. SFl\TFNCIl\G REPORTER 46-47 (2011). 

'Solitary Confinement Should Be Banned in Most Cases, UN Expert Savs. UN News Centre. Oct. 18,2011, 

https:!/www.un.org/apps/news/story.asp?NewsTD~41l1l97. 

A See DANIELP. MEARS, URBAN !'1ST.. EV.ALUATING THE EFFECTlVE'lESS OF SUER'lA.X PRlSOJ\S ii (2006). 

- Highlights ofGAO-13-4929. at I (May 2013). 

l-: See GAO Report. supra note 3. at 2. 

9 See GAO Report. supra note 3. at 5.6.7-10. 

10 See id. at 7-8,60 (describing disciplinary and administrative segregation conditions). 

11 From October 2007 through Febmuy 2013. the total prisoner population in BOP facilities increased by about six 

percenl. yet the total prisoner population in segregated housing units increased approximately 17 percenl. GAO 

Report, supra note 3. at I~ 

I~ [,'.5,'. Bureau (?fPrisons To Rel'iew .... , 201 J, 

11 lei. 

1< See geueraiiv GAO Report. supra note 3. 

" See GAO Report. supra note 3, at 33-3~. 

9 
60 

17 See id. at 39 (outlining studies that document tlmt adverse and long-lasting effects of solita!)' confinement on 

mental health): id. at ~O (citing BOP's own admission, in a Psychology Services Manual. that solitary confinement 

can have adverse eJIects on mental health), 

Hi See Erica Goode, J>risons Refhink isolafion, Saving ~\lone.-v, Lives and Sani~}'. N. Y. TUdES, March 1 L 2012. 

http://www.nytimes.comI20l2/03/11/usirethinking -solitary -confinement html"pagewanted ~a1l (noting that violence 

actually decreased after .Mississippi closed its notorious supermax unit). 

19 See JOll'i J. GIlJlJONS ,\'iD NICllOL\S DL B. KITLLJ-,lJ,\cll, COMRONTIMi CONI'I'inlLJ-,'1: A Rl'I'OIU 01' TllL 

COvIMISSION ON SAFETY A'IJ) ARCSF I'l AMERICA'S PRISONS 55 (2006) (ciling a sludy from Washinglon slale Ihal 

linl<;:ed long-term solitary confinement to higher recidivism rates). available at 

http://www,vem,o rg/sites/dcfault/fi les/rcsources/downloads/Co nfro nti ng_ C.o nfi neme nt, pdf. 

'" U,S, hmnigmtion and Customs Enforcement Re,,'lJiation 11065, I: Review of the Use of Segregation for ICE 

Detainees (Sept. 4, 2011) [hereinafter TCE Regnlmion 11065,1], 

2! See Fact Sheet: DetelltiollManagemellL Nov, 10, 2011, http://www.iee,gov/llews/library/faetsheetsJdetelltionmgmt.htm 

"TCE Regulation 11065, I, supra note 20, at Section 2 (Policy) and Section 5,1 (Extended Segregation Placements), 

niCE Regulatioll11065,1, supra note 20, at Seetioll52 (Segregation Placements Related to Disability, Medical or 

Mental Illness, Suicide Risk Hunger Strike, Status as a Victim of Sexual Assault or other Special Vulnerability), 

21 ICE Regulation 11065,1, supra note 20, at Section 7.5A (Detention Monitoring Council), 

"ICE Regulation 11065,1, supra note 20, at Section 52A (requiring notification of a detainees attorney, if 

applicable, when a vulnerable delainee is placed in segregalion), 

"ICE Regulation 11065,1, supra note 20, at Section 5,1. 

:::7 Garance Burkc & Laura Widcs-Muno/., Immi}!.ranfs prove hig husiness/hr Prison {ompanies. ASSOCIATF.D PRF.SS 

(Aug. 2. 2012). available at http://nev.'s.vahoo.comiimnriErants-pIOve-big-business-prison-companiesOR-1.:"553I 95.html. 

"'S~~Lett~~f~~m Center for Constitutional Rights et al. to Rep, Sheila Jackson Lee I (Dec, 18,2(12) (citing the 

US Senate's Lobbying Disclosure Electronic Filing System for the fact that Corrections Corporation of America 

has spent millions of dollars lobbying against the pnssage of various Private Prison Tnformntion Acts since 2005). 

2Y THE SE'iTE'iCIJ-,G PROJECT, DOLLARS AND DETAINEES: THE GROWTH OF FOR-PROFIT DETENTION, at ~ (July 

2012): Prison Population Declined In 26 States During 201 L PR Newswire (Dec, 17, 2012), aI'ai/able at 

http://\\'\' n .rnarKct\V3tctlcom/slon iDr1SOn-population-dcclincd-in-26-;,latcs-durlll o -20 1] -20] 2-12-] 7. 

;0 See FY 20 I ~ Performance Budget Congressional Subntissioll, Salaries and Expenses 86, U.s. Dept of Justice, 

Fedcral Prison System, m 'ai/able aI JHJp:_.UYY}\~S\jHsJj~~cg9\'LLmd/2_QJ_1il~lU]~2U_Ql}~pdj~1J_9V:_~_G:iuJ~~1J)~-,1JJ9J)cpJJJ (liThe 

BOP requests $26.2 million to procure LOOO contract beds to house Imv security male criminal aliens. ") 

31 Tllcgal reentry cases are prosecuted subjcct to 8. V.S.c. § 1326 orremo\'cd aliens. S'ee US': Prosecuting 

Migrants is Hurting Families, HU~lA." RlGHl'S WAl'CH (May 22, 2013), lillJrrJi\lJ.l}Y,]tIDl:mg1J;m:;;!2!W:m;;a;illlli: 

R!Q~_0J!il)g=-mlgmlJt~-:hillting=-fjJmiji~3. 

" See Letter from Center for Constitutional Rights et aL supra note 28, at 1. 

11 Forrest Wilder. "The Lawsuit West of the Pecos," Texas Observer (Dec. 8, 2010), available at 

!lttP~{.~'J'3y_,y,t~'S!lSoJ~w~'~Gr.9Ig/fi1T[C~t~Qrth~t~~_~/tb_G-!a,\:sJli1:y{~'?:t:Qf-:LhQ:p~_~Q:~. 

" Judith Greene & Alexis MlIZon, PRIVATEL \' OPERXl'ED FEDERAL PRISONS FOR IWvllORA'iTS: EXPENSIVE, UNSAFE. 

U};Nr,cr.sS,\RY 7, Justice Strategies (Sept 11,2012), available at 

hUp:'! In.',,,",,\,, j uslicestralenies.org/sitt':s!dt: fau lUrHes/publicatiollsJPri" atel \ ~o20Operated%20 Federal %20 Prlsonst;.1)20fo 

flo£I)l!lJ-l~l]JR-r;JrJ.t~~~Q2:rt-_-L21!~:el'f~~. ,')'ee also Associated Press. FBI reports ~\1exican group "Paisas" started 

prison riol in ~ldmns COlln(~' (Aug. 13,2012) CFBI spokeswolll.an Dcborah Madden said Paisas are a loosely 

affiliated group \Vithill the prisOl~ \vithout ties to organized gangs. "). available at 

hll}2;/lbl.9g-,illdniyg.~QJ}l!~[l)_i~~i~~)p--R~-PIC~~-l~\:~,:slZPJ2iD~/1l~j_-r:9J2~2n5_1l,-~~jCJ1~!.~19Jll~..J!Dj'Jj1SJ!l..H1!. 

Vi See Prison Rape Elimination Act (Sexual Violence in Correctional Facilities). Bureau of Justice Statistics (last 

visiled Mav 31, 2013), available al htlp:llwww,bjs,gov/index,erm?ty~tp&lid~20 (Iisling Bureau or Jusliee Slatisties 

data gathered since the act's passage). 

'" N,\ n, PmSO'l RAPE EI .IMNA TIO'! COMM'N, N,\ T'I, PRISO'! RAPE, EI .l'vfI'lA TIO}; COMlvl'N REP, 18 (2009), availa"le 

at h~])5;!iw'nUlgI~,gQvijJ<lfm~" li~,266S9, pdf. 

" See Press Release, Depattment of Justice, Justice Department Releases Final Rule to Prevent, Detect and Respond 

to Prison Rape (May 17,2012), available al http://www.,iustice,gov/opalpr/2012/May/12-ag-635,iltml (sulIlumry of 

regulations) 

10 
61 

"42 U .S.C. 15601 ~8(b) (2003). See a/so Memorandum from the President of the United States Implementing the 

Prison Rape Elimination Act (May 17, 2012), aI'ai/able at http://WWW whitehouse.go\"/the-pressQfl1fr;/;,Q];! t1-l5il ]/pg;~jd;;1!liqt~nlQJ1}Oqt~J]~JJ-imntl.?lJlGJlJjng:-J2ri~911-Jl}1~~_::h~HmjJlnll9Il":;:t~t. 

3':) htws:/I \V\V H ,f ederalred:'Jler, go\' iartic1esi2 0 12/06120120 12 -12-+27 ilm llonal-Skllldards-to-pre\ en! -detect-mldre_~QJKtjQ:mi>;Ql}:F1Dg 

·w 28 C.F.R. ~ 11Hl(b): 28 C.F.R. ~ 115.241 (b). 

41 28 C.F.R. § llHI(c)(7) . 

. " 28 C.F.R. ~ 115.42 (e) ("In deciding whether to assign a transgender or intersex inmate to a [aeilitv [or male or 

female inmates_ and in making other housing and pro,gramming assignments, the agency shall consider on a case-bycase basis whether a placement \yould ensure the inmate's health and safety. and \vhcthcr the placement ,vould 

present management or secmity problems. "). -L< ld. 

·11 28 C.F.R. ~ 11542 (d). 

4< 28 C.F.R. § 11542 (e). 

4(, 28 C.F.R. § 11542 (e). 

'1'7 The reports referenced in this paragraph come from prisoners. by nmil, to legal and human-rights organiLation tlmt 

advocate for PREA compliance, including the ACLU, National Center for Lesbian Rights (NCLR). National Center 

for Transgender Equality (NCTE), Just Detention Internalioml (JDI), Gay & Lesbian Advocates & Defenders 

(GLAD), Lambda Legal, and Sylvia Rivera Law Project (SRLP) . 

• ]8 28 C.F.R. ~ 115.15 (c) 

49 28 C.F.R. § 115.15 (b) and 28 C.F.R. §115.215(b) 

50 28 C.F.R. § 115.15 (a) 

" 28 C.F.R. § 115.15 (d) 

" 28 C.F.R. § 11543 (a). 

"28 C.F.R. § 115.43 (c). 

" 28 C.F.R. § 11543 (b). 

5< 28 C.F.R. § 11543 (b). 

'" See Bureau of Justice Assistance, BJA PREA Audits, Aug. 29, 20B (on file with the ACLU). 

57 See Memorandum for Chief Officers from Ne\\ton E. Kendig and Charles E. Samuels, Jr., U. S. Dept. of Justice, 

Federal Bureau of Prisons. at 2 (!\tiay 31, 2(11). available al http:;'!';,,\v\v.'2lad.om/cum:llVur-dctaillfcdCi'al-burcauQf:Dlt,'iQ!lB-=n~~§:l1m9X:i=111!ngt=-iJY!J~1}.'ill~~J£kr:111~jli~1l::QplJcsL 

5::; The reports referenced in this paragraph come [rom prisoners. by 111.1iI, to legal and hUllmn-rights organiLation tlmt 

advocate for compliance ,,,itll GID-treatment requirements, including the ACLU. National Center for Lesbian Rights 

(NCLR), National Center [or Transgender Equality (NCTE), Just Detention Tntematioml (JDT), Gay & Lesbian 

Advocates & Defenders (GLAD), Lan1bda LegaL and Sylvia Riverd Law Project (SRLP). 

5

r

) 28 C.P.R. § 501 J(d): see also Rights (-;roups J.ssue Open Tetter 011 Upcoming ,\IT Trial of,~ved Fahad Hashmi 

and Severe Special Administrative l\Jeasures, Apr. 23, 2010. Jm:p-s)Ji;-'~Iilr3!jg~j;rrg(U~.IysJJ~Qm/Qr~~~_·:ri;:k'j~e~L:rigbJ~-: 

k'Iq!l125_:is.g1~-i1Pe.D.:l~t1~J::-JJPf91!1Ln-&.m~c--=trjllJ:~leA-=-liUlli~1:b;L~lu--.l~i~4!ld~_~y. 

w 28 C.F.R. § 501.3. 

01 See Carrie Johnson and IVlargot Williams. "Guantanamo ;Vorth": inside Secretive U.s. Frison.'), NPR (lvlarch 3, 

20 11), http://www.npr.orgl20 I 1103/031134 I 68714/gu2ntanamo-north-inside-u-s-seeretive-prisons. 

6: See Leller from David C. FaUn et al. to Sarah Quresln, Rules UlnL Bureau of Prisons, June 2, 2010, at 1-2 

(submitting eonm1ents to Notice of Proposed Rulemaking and noting that CMUs had already been in operation prior 

to the eOlIl1Ileneement oflhe notiee-and-<:olll1nent process), available at hllps:/lwmv.aclu.orgifilesJassets/2010-6-2-

CMUComments. pdf. 

63 See Johnson. supra note 61. 

" See Scott Shane, Bemnd Gliantanmno. a Web ojPrisons jar Terrorism Inmates, N.Y. TIMES, Dec. 10,2010, 

available at hllp:l/www.nvtirnes.eom/20 III t2111/uslbevond-guantanamo-bay-a-web-{)[-[ederalprisons.html?pagewanted~all (noting that the CMUs are "Muslim-majority''). 

(J5 See Judith Resnik. Harder Time. SLyrE. 25. 

Karen Ali, Federal Prison Ojjicials Will Anmer Questions Bejore Moving Women, COI\I\. LAW TRlllUNL, Aug. 

16, 2013, 

11 
62 

,)ee K""mIL supra note 65 ("Being moved far from home limits the opportunities of women being moved out of 

Danburv: it hurts them in prison and once they get out. Recent research from Michigan and Ohio documents that 

inmates who receive rcguk1f visits arc less likely to have disciplill<.1IY problems \vhile in prison and have beller 

chances of staying out of prison once released."). 

~o See Leiter rrom Chris Murphy, Scnalor. cl aL 10 Charles E, Samuels, Jr., Dircclor, Fedcral Burcau or Prisons 

(Aug. 2. 2013), available at http://,,,,y\v.murphv.sel1<lte.goy/recorci.cfm?id=3-!.5491 

~I See Ali, supra note 67 

'2 FC] Aliceville. Feder.1 Bureau of Prisons. http://www,bop,gov/locations/institutionsJali! (last visited Sept 15. 

2(13), 

12 
63 

REPORT REVEALS MULTIPLE WAYS To END THE 

vV ASTE MILLIONS UNNECESSARY OVERINCARCERATION 

ON BEHALF OF THE 

FEDERAL AND COMMUNITY DEFmmERS 

Thomas W. Hiller, II 

Federal Public Defender, Western District of Washington 

Michael Nachmanoff 

Federal Public Defender, Eastern District of Virginia 

Panel 

R. 

Chief Deputy Federal Public Defender, District of Oregon 

April 4, 2012 
64 

FACT SH1~FT: GAO REPORT RK\'EALS THE 

BOP'S UNIlERUTJLIZATION OF COST-SAVING PROGRAMS 

The Ciovemment Accountability Office (GAO) has performed an important in its 

snldy on the Bureau of Prisons' ability to reduce incnrceratiNl costs. The report can be used a 

starting point for identifying ways to reduce prison over-crowding, reduce the risk of filmrc 

save millions of taxpayer dollars every year. The BOP's underutilizution of 

available programs that would reduce over-incarcemtion and fuhlrc recidivism falls into severnl 

general categories. 

First, the GAO identified three statutory programs that, if fully implemented, would save 

taxpayer dollars are now being wasted on unnecessmy incarceration: 

The BOP unc1emtilizes the residential abuse program (RDA.P) incentive for 

nonviolent o±Tenders. If inmates had the fbll 12-month reduction from 

2009 to 20] L the BOP would saved up to $J 44 million. Iv!uch more would 

be saved if all stalutorily eligible prisoners allowed to participate. 

The BOP underutilizcs nvailable cotnmunity corrections so thHl innlatcs an 

average of only 4 months of the available months authorized by the Second 

Chance Act. Jml by increseing home confinement hy three months, the BOP 

could save up to $111.4 million each year. 

The BOP undemtilizes available sentence modification authority for 

"extraordinary and compelling reasons," depriving sentencing judges of the 

opportunity to reduce over-incnrceration of deserving prisoners wlk)sC continued 

imprisonment involves some of the highest prison costs. 

Second, the GAO confinned thm amending the good time credit statute 10 require that 

inmates serve 110 more than 85% 0 [. the sentence would better calibrate actual time served with 

tbe assumptions ullderlying the sentencing guidelilJe1, consulted at Both the 

Department of Justice atld the BOP favor the After the release about 3,900 

inmates the first fiscal year, the BOP would continue to save abom :140 million a year once the 

arnenchnent was enacted. 

Third. the GAO identifies cost savings that the BOP could realize simply by using 

available rules ii))' executing and calculatillg sentences. For example, the BOP unilaterally 

abolished the shock program, spending unnecessary millions by sentence 

reductions and increa~ed home detention wlth prison time for nonviolent 

criminal history. The BOP nlso fails to trem defendnnts' time in 

detention," an unnecessary policy Ihm increases custody costs by 

should act immediately these snd other unnecessary 
65 

~FEnERAL PUBLIC DEFENDER 

Western District of\Vasningtoll 

Thomas W Hillier, II 

Federal Public De/ender 

The Honorable Patrick 1. Leahy 

Chairman 

Committee on the Judiciary 

[j Ilitcd States Senate 

Washington, D.C 20510 

Honorable Bobby Scott 

Ranking Member 

April 4, 2012 

Subcommittee on Crime, Terrorism, and Homeland Security 

Commitlee on the Judiciary 

Unikd States Hou;e of Representatives 

Wu,hingtoll, nc 20510 

Rc: Response to GAO Report on BOP Underutilization of Statutory 

Authority To Reduce Prison Over-Crowding and Incarceration Costs 

Dear Senator Leahy and Congressman Scott: 

Thank you for your request for our comments the Government Accountability 

Office's February 2012 report on the Bureau of Prisons' authority to reduce inmates' 

time in prison, I The GAO report can be used as a starting point to identify the numerous 

areas in which the BOP is systematically underutilizing available programs under statutes 

Congress enacted. If the BOP fully implcrmmled Ih\) programs, it would reduce prison 

overcrowding and save millions in taxpayer dollars each year. By implementing - and in 

some cases expanding available programs, and 111 a few instances by securing new 

authority through legislative changes, thc BOP can achieve major cost savings nut only 

without compromising public safety, but increasing public safety by reducing the risk of 

future recidivism and by overcfO\vding of federal prisons that arc operating at 

137%, 

You charged the GAO to determine two things: 

I Goven1ment Accountability Oftlce~ Bureau of Prisons: Eligihility and Cnpacity Impact Use of 

Flexibilittes to Reduce Inmates' Time in Prison (1~'eb. 

[601 Fifth Aven"e, Room 700, Seattle, Wo,hillgtOll 9SJ(J! - Teiephollc (206) 553-1H)() Fax (2116) 553-0120 
66 

April 4, 20 l2 

Page 2 

1, To what extent does the BOP utilize its authorities to reduce a 

federal prisoner's of incarceration; and 

2, What factors, jf any, impact the BOP's use of these authorities? 

The GAO analyzed statutes, BOP policies, program statements and guidance, conducted 

interviews and site visits, and obtained and analyzed data and research, including costs 

and It also interviewed subject matteI cxpm1s and reviewed literature. 

The GAO identified the universe orEOP discretionary authority available to 

reduce time in custody: 

Residential Drug Abuse Program (RDAP) - 18 U.S.c. § 3621(e) 

Residential Reentry and Home Detention 18 U.S.c. § 3624(c) 

Good Conduct Time (GCT) - 18lJ.S,C. § 3624(b) 

Modiflcation of an Imposed Sentence-l8 U.S,c. § 3582(c) 

Shock Incarceration Program - 18 l.J.S,c. § 4046 

Elderly Offender Pilot Program - 42 U,S,c. § 17541 (g) 

Sentence Computation Authority to Allow Concunent Service of State and Federal 

Sentences - 18 U.S,c. Il 3584 

Credit for Time Served in Custody -18 U.s,C. 9 3585(b) 

The GAO highlighted a number of statutory authorities that, if fully utilized, could 

save hundreds of millions of dollars that are now wasted on unnecessary 

incarceration. Below we describe each area in which the GAO found that the BOP is 

underutilizing its authority 10 reduce sentences, suggest potentia] solutions, and estimate 

the cost savings. For solutions that involve only administrative action, the BOP should 

implement the solutions as a condition of receiving increased Annrr",,'!"! 

For the few soluilons that would require legislative action, Congress should act as soon as 

practicable to provide the BOP with the ability to rcduee expenditures. 

The folJov\,'ing an outline of the areas in which the BOP is cither 

underutilizing available statutes or should be provided further authority to reduce ()verincarceration. The changes recommended here would not only reduce time spent in 

federal prison save hundreds of millions of taxpayer dol1<lrs, hut they would nlso 

result in policies that betler serve the goal of' reducing the fisk of fi.lture rcoffending and 

its attendant social and institutional costs, 
67 

April 4, 2012 

Page 3 

TABLE OF CONTENTS 

A The BOP Should Fully Implement the RDAP Sentence Reduction and Make the 

Incentive Applicable to All Statutorily Eligible inmates ............................................ .,4 

I Unnecessary delay resulting in inmates not receiving the full 12-month 

reduction ..... ................. .. .. 6 

2. Categorical exclusion of statutorily eligible inmates with detainers. 7 

Unnecessary categorical bars on sentcnce reductions for other inmates 

convicted of a nonviolent offense ........................................... . ........... 10 

B. The BOP Should Fully Implement the Second Chance Act's Provision for Up to 

Twelve Months of Prc-Rele~se Community COlTectlOl1S Cnder 

18 U.S.c. § 3624(a) ............................... ..... 12 

C. Changes to the BOP's Treatment of Good Time Credit Woule! Save Hundreds of 

lVlillions of Dollars ....................... c .. c............. ..14 

1. Method of calculating good tiaw condl~ct 

2. Inmates with disahilities 

.. 15 

.J6 

1. Partial days . .17 

4. Concurrent stiltc senlences .............. oc.. ..17 

D. The BOP Underutilizes Sentence Reductions Under 18 U.S.c. !j 3Sg2(c)(l)(A).. 19 

!. Extraordinm1' and compelling reasons.. . ...... c .. 20 

2. Inmates sentenced lo mandatory life under 18 USc. 3559(c) ........... 22 

E. The BOP Should Reinstate the Congressionally Approved Shock Incarceration 

Program.c. .23 

F. Wi,en a State Court Imposes a State Sentence to Run Concurrently with a Previously 

Imposed Federal Sentence, the BOP Should Execute (he Sentences to Achieve 

Concun'ency ............. . .................................................................. c ••••• c •• 25 

G. Congress Should Carefully Examine the BOP', Report on the Elderly Offender 

Pilot Program. ...... ....... ..... ......... ............... ...... ........ ........ ..26 

!T. The BOP Should Provide Credit for Post-Arrest Custody by Immigration Authorities 

Against the Sentence Imposed.. cc .. c ........ c .. c ...................... c .......................... .28 

Cooclusion ................................... n •••••• 

Summary of Recommendations .. 

. .......................................... .28 

• •••••••••••••••••••••• c ••••••• , ••••••••• 30 

Attachment - Defender Comment Regarding Proposed Regulation on Pre-Release 

Community Confinement - N()vember 2011 
68 

April 4, 2012 

Page 4 

A. Tile BOP Should Fully Implement tile RDAI' Selltence Reduction and Make tbe 

Incentive Applicable to All Statutorily Eligible Inmates. 

In 1990, Congress created the in-prison residential substance abuse treatment program 

(RDAP) to address 1'.'10 leading canses of recidivism alcoholism and drug addiction. When 

very few prisoners volunteered for the program, Congress in 1994 enacted an Incentive of a 

sentence reduction of up to for successfiJl orthe program, which resulted in 

greatly increased participation. ouly to prisoners convicted of a 

nonviolent offense. 

According to a rigorous Shldy conducted by the BOP in coordination with the National 

lnslitu«; on Drug J\bus~, RDAP is extremely effective in providing prisoners the tools to return 

to their communities and to live law-abiding, sober lives.; While RDAI' itself reduces 

recidivism, earlier inlo the cOnlrnunily also promotes recidivism became it 

to return to work to strengthen family tics, and to remove themselves 

from criminogenic effects of imprisonmentS In short. the more inmates who pRrticipnte in 

the program and the sooner Ihey arc released, the bettcr 

However, the GAO reports that only a fraction of the inmates who successfully complete 

the RDAP program receive the ±iJll 12-month sentence reduction allowed by statute, and do 

not receive any reduction at all. GAO Report at 13. The GAO reports (hal only 19% of inmates 
69 

April 4, 2012 

Page 

who successfuHy completed the program in fiscal years 2009 to 2011 received the maximum 

reduction available under BOP policy, and 1 % did not receive reduction at alL GAO Report 

13, The average reduction was only 8 months, GAO Report at 14, While the noted 

that BOP limits the amount of reduction by sentence length,6 this is not required by 

statute, the of iUlnates who received the Ihll 12 months allowed bY.ltallite 

aChrally less than 19'%, 

Moreover, contrary to BOP's description of "eligihle" inmates, GAO Report at 13, the 

BOP calegOlically bars entire of prisoners f1'<)111 receiving the reduction even 

they are otherwise statulorily The BOP does not permit inmates 

delainers to participate in RDi\P, It also excludes inmates who were not convicted 

of a violent offense, but ralher wcre drug whose federal sentencing guideline level was 

increased hecause a "was possessed," or who were previously convicted of a minor 

long ago, 

RECOMMENDA TIONS 

The BOP should take the steps ncccssmy TO ensure that all inmmes who 

successfully complete RDAP receive the hill 12-monlh reduction, 

regardle,;s of semence length, This would save over $45 million a year in 

prison costs 3lone~ \vith additional societal savings rcallzed through 

reduced recidivism, better employment prospect,;, and stronger family lie" 

The BOP should rescind its categorical mle excluding ilIDmtes vdtll 

detaincrs ti'om participatillg in RDAP, This would save al leasl another 

$25 million a year, I ikely much more, 

The BOP should rescind its categorical rules excluding (1 inmates 

L:onvicted ofpOSSCSSlOH firearm and {hose convicted or R drug 

who received an enhancement under the guidelines because 

and (2) imnates previously convicted of Qn 

viDlence, no matter how minor or how old, This would save 

tnany rnore mIllions in prislJn costs, and would likely result in similar rates 

of reduced recidivism and increased societal benefits, 

Each of these recommendations is explained in more detail below, 

, BOP Program Statement 533L02, 

less may of no 

rnor!? than months}. 

I The exact figure C:3.nnot be 

10 UvIar. 1 20(9) (<1n inmate serving a sentence.:; of 30 months or 

thall 6 mnntb:::.) and inm3tc serving 8. 11-36, no 

from the nurnbers rcporlcd the: GAO through other sources. 
70 

April 4, 2012 

Page 6 

L thmecessary deJay resulting in inmates !lot receiving the full 12-monlh 

reductioll 

The GAO reporTS [hat "[w]hilc eligible prisoners can in RDAP in time to 

complete the few receive the maximum sentence GAO Report at 10, 

According to BOP, the reason the average reduction only eigbt months, rather than the 

full 12 months available under § 3621(e), is that "by the time they complete RDAP, they have 

fewer months r~mail1ing on their sentences than the maximum allowable reduction." GAO 

Report at 14. While current BOP policy recommends that an inmate's eligibility screening 

process begin no less than 24 months before the inmate's projected release date, "some inmates 

may have to wait for clinical Interviews, for program slots to open, or both." GAO Report at 

The BOP explained that as a result of these system,wide delays and limited program there 

is a significant backlog of inmates on long waitlists, preventing some inmates from participating 

in the program soon enough to receive the maximum sentence reduction, or from participating 

ail. GAO Report at 14, 34. Further, \vhile those on the waitEst, are prioritized by projected 

release date, BOP chooses to include the polcntial sentence reduction in the projected release 

date for nonviolent offenders eligible for the sentence reduction. GAO Report 34. As a result, 

imnates enter the too late to receive maximum reduction allowed. These 

and practices of the sentence reduction Rllll1(m".m 

U.S.c. S :1621(0). 

In the the BOP made eligibility detenninations whenever a prisoner made a 

request,' but the nop !lOW delays eligibility detenninJtions, resulling in applications and 

eligibility interviews late in len11 0[" imprisonment. Early determinations of 

eligibility would allow the BOP lime to plan 10 send prisoners to facilities with room in 

their programs. avoiding the queues for eligibilily determinations noted by the GAO, 

me exacerbated by the BOP's omjssion the potential l{1);\P sentence 

reduction offenders in calculating projected release date. The BOP acktlOwlcdgcs 

it could cbangc this practice and include the potential RDA!' sentence reduction in the projected 

date in order to Cll~urc that those eligible would "enter the program sooner and in enough 

time to receive the maximum reduction." GAO Report 34, But doing so, it says, would 

prevent inmates - tbose who eligible tor RDAP but not eligible [or sentence reduction 

- !l'om participating ill the program by being continually displaced on [he list by those eligible 

for the reduction. GAO RepOli at 34. The BOP says that tbe statute prevents it hom displacing 

anyone determined to he ill of treatment However, when asked by GAO for 

documentation that eligible prisoners would be displnced, HOP was unable (0 provide any. GAO 

Report 35. 

3 BOP Program Statement 5330.10 (May 25,1995); v. F 2d 1201, 1204 0" 

2(05) (relying the BOP's 1995 polit:y, required it to evaluate early release eligibility at 

of the inmate's request to the program), 
71 

April 4, 2012 

Page 7 

Failure to prioritize offenders eligible for the reduction in sentence - as the BOP did for 

the ill's! decade of the program - unnecessarily delays entry ofprisoncrs eligible for the incentive 

and significantly shortens the awarded sentence reduction. It is also contrary to the 

congressional directive that the BOP "plioritize the participation of nonviolent offenders in the 

Residential Dmg Abuse Treatment Program (RDA!') in a way that maximizes the benefit of 

sentence reduction opportunities i,x reducing the inmate population. Though the BOP's 

methodology has been upheld valid administrative interpretation of the statute, at least one 

circuit court has recognized that the "BOP's administration of RDAP, combined with the 

program's capacity, has created a troubling situation that calls for a legislative or 

regulatory The fomwf BOP Director has also called for "the JiI11 12 months allowed 

by statute. 

The BOP should determine 'Nhether, by allowing inmates with detainers to participate in 

RDAP, other statutorily eligible inmates would tact be displaced. At the very least, the BOP 

should return lu its old rule and the timing screening and prioritize its 

waitiists so that lhose inmates eligible for a sentence receive the maximum available 

reducti"n. 

If the BOP fully implemented Ihe reduction these simple ways, savings would 

III 2009 through 2011, 15,302 inmates sLlccessfully completed the 

eligible for the sentence reduction. GAO Report at 13. These 

receivc.d an average sentence red.uction of e.ight months, the 

reduction was 11.6 months. i

.' With the annual cost of lmm,q(jl1ll"~,,t 

have SU\'cd $]44,267,256 - $45 offenders (he 

DlaxirrlUHl reduction for 

2. Categorical exclusion of slatutorily eligihle inmates with aetaincrs 

The GAO relies on the BOP's 2009 and 2010 annual reports to Congress for the 

2009 and 2010 all eligible '\v ho p')[nn"""rl interest 

and Urban Development, Kelated 

."\c"mm",nv JUt nBS, IT R. Rep. No. 111-366, 

(he 

oj' 

2010). 
72 

April 4, 2012 

Page 8 

RDAP were able to participate in the program in time complete it before their release trom 

BOP custody." GAO at 13. In fact, however, BOP does allow all statutorily 

"eligible prisoners" to participate in RDAP. In 2009. BOP declared for first time lhal 

statutorily "eligible prisoners" with detainers could no longer 

treatment at all, significantly narrowing the class of inmates deemed 

thereby making it appear though the BOP is closer fulfilling statutory mandate than it 

really is. 

In 1994, Congress required thm, by the BOP shall "provide residential substance 

abuse treatment" to "all eligible prisoners, Congress detined "eligible prisoner" as a person 

with a substance problem who is "willing to panicipate residential subslance abuse 

treatment program, Congress did not require as a condition of pmticipation in residential 

treatment that the prisoner must also be able to participate community corrections. As illitially 

promulgated in 1995, the BOP's rules provided for early rciease eligibility for all 

persons who successf1l11y residential program and then succeeded in either 

eOll1nlLlllity or programming within thc institution. lo This meant that 

nonviolent United States citizens with stalC det~incrs and nonviolent aliens with immigration 

detainers c('uld receive trcDtment al1d a sentcnce reduction upon successlu! completion of the 

progranl, 

This sensible policy has been dismptcd by two ill-considered decisions. In 1995, the 

American Psychiatric Association to the BOP suggesting that. for better outcomes, inmates 

should more than the proposed minimum of one hour per month of ins!ilutiooal 

transitionill treatment.'7 In response, the BOP flcknowledged that it may be able to increase the 

(lvaiiability of tran~iti()n111 servj(;e~ at an institution, but s;:lld (;jt cannot duphcatc the 

environment of community-based transitional "i6 It then promulgated a new rule thm 

only those inmates who cOlnplctc transitional services in a half\,vay bouse or while on h0111e 

detention could be considered the sentence reduction. Iq As result, prisoners with 

were ineligible for the sentence reduction, but could still participate in residential treatment. 

In June 2000, the American Asso(;iatiul1 reacted with alarm when it realized 

that its comment had been used to justify denying the sentence reduction tor sizcabk portion 

of the federal prison population - with detainer,. It provided new comment to the BOP 

11 18 USc. 3621(c)(!)(C). 

15 18 U.S.C. 3621(0)(5)(13). 

16 BOP Program Statement 5330.10, 6, at 2 (May 25, 1995) (repealed 2009); sec 28 c.r. R. § 550.56 

Letter from ?\1clvln ShatJsltl, IvLD.) Jvledlcal Director, ,A.,merican n5/c,""",nc 

Hawk, Ulrcclor, Bureal! ofPrisol1s (July 18,19951, available ai 

Incarcerntjon/Page%20 1 O. pdf 

"61 Fed. Reg. 25,121 (May! 7, 1996) (amoml!ng 28 C.ER * 1'1 [d. 

2\1 !d. 

lo Kathleen 
73 

April 4, 2012 

Page 9 

objecting to the misuse of its 1995 comment explaining that "transitional sen!lCOS be 

established within a prison setting that can improve the outcome related (0 successful completicll 

of a residential drug treatment that this can he accomplished by "increasing the 

minimum requirement services within the institution the original minimnm 

of one hOllr per month. The Association explained that it did not "'meHn to present an either/or 

choice of hour per month within the institution or ji,lll participation the community-based 

program. The BOP did not modify its position. 

In 2009, the BOP altered the RDAP participation criteria to completely exclude from 

residential trealment all prisoners with delainers or outstanding charges, regardless of their status 

as "eligible prisoners" within meaning or siiltuie. II accompbhed in a roundabout way 

by promulgatmg a rule staling thai in order 111 must be able to 

complete the residential re-entry (RRC) component the program. with 

detainers placement in RRCs, (hey ",-e inehgiblc to even parlicipate in RDAP. 

GAO Report at 30-32. 

significmlt proportion of inmate, are excluded from participating in RDAP. 

Based on its of BOP data, the GAO reports that 24.4% inmates 2011, or 

approximately 11.3%, were ineligible for placement in RRC in 11 due to a detainer. GAO 

Repon at I 31. BUl even lhis number may not fully reflect actual of inmates vvith 

detainers. According to BOP stalistics, 26.7% of inmilks arc non-citizens. C\lcarly half of 

defendants sentenced in fiscal 2010, over 40,000, V/ClT n.tJn-citiLens:~6 It safe tG say that 

mos! were convicted of a offense and therefore have nn immigration detainer. 

Not;lbly, the number of inmates with detainers steadily increased each year in the three 

cxamined by the Gr\O. 

the aellml number of inmates ",itli ctetainers, BOP officials 

policy deeming im1l8tes wilh detainers .ineligible f(lr placement in RRCs is " "chicf 

RDAP is unoel1.1tilized. GAO Report 30. BOP estimates that 2,500 

pnrticipale RDAP each year if il changed this policy, which it would save 

21 Letter from Steven 1v1. 1\111'ln, NLD., Tvledi<.::al Director) American Psychiatric Ass,ociatioll, to Kathleen 

1YT. Sawy.:!', Director) of Prisons, at (June 21, 2000); .see also Drug Abuse Treatment and 

intensive COnilll(;lnCnt Early Rdease ConSideration, fl5 Fed. 80, RO,746-47 (Dec. 

(descl'rhing the letter and adopting 1996 interim rule 

at 80,747 

28 § 550.53 (b)(3) (effecti,e Mar 16,2009). 

Sec BOP Progmm Statement .02 (Mar. 16, 2009) (Early Release Procedures linder 1 R U.S.c. § 

(e)), "According 10 BOP':) the GAO "inmates wilh dctaincrs deemed inciDDI01JTi,'le 

1]1 C01TcctiODS due to increased !'isk of escape and for those 

the of depurtation." GAO Report 

Quick Facts About the Bureau of Prisons, http://'vvv;w,bop.gov/newsiquiciz.jsp#2, last visited Mar, 

2012. 

US Sent'g 

citizens). 

2011 Sourcebook of Fecleml Sentencing Statistics, tbi. 9 (2011) (48% n011-
74 

April 4, 2012 

Page 10 

year. GAO Repnrl ilt 32 11,63, This figure doubt underestimates the actual savings because 

based on the BOP's policy of limiting the sentence reduction based on sentence length, 

~,'p"H"W above, and its discretionary rules excluding inmates based prior convictions and 

enhancements, which are not required by statute, as explained below, 

BOP told the GAO that transitional treatment 'Nith;n an institution is "ineffective because 

the inmate remains sheltered from the partial fi-cedoms and outside pressures experienced during 

an RRC placement" GAO Report at 32, but the GAO docs no! appear to have verified this 

statement. In fact, when the changed rule in 2009, it said nothing about transitional 

treatment being "ineffective,'- Indeed, the American Psychiatric Association specifically 

clarified that transitional wilhin 8n institution "will result in better outcomes than no 

Tcl1ingly, and ils purported reasons tor denying eligibility to inmates \'Iilh 

detainers, the BOP changing this policy and allowing those with delaincrs to 

complete RDAP without the RRC component and receive the sentence reduction, GAO Report at 

32, If the HOP allowed nonvic,lcn! otfenders complete the transition portion of the sentence in 

it did in 1995, a large population of persons who pose the least risk to public safetynonviolent offenders who will be immediately deporkd lIpon of their sentences -

would be eligible for release twelve carEer, saving at least million of unnecessary 

and likely much more, The BOP should act forthwith on restoring the 

sentence for plisoncrs detainers. 

3. linnecessary categorical bars on sentence rednctions for other inmates 

convicted of a nonviolent offense 

By statute. nil inmates convicted of a "nonviolent" offense and who have been identified 

as having a suhstance abuse disorder are eligible to participate in ROAP, The BOP 

exercised its dIscretion to categOlically bar from receiving the sentence reduclion prisoners who 

were convlctcd of mere possession of a firearm find those convicted of drug trafficking who 

receivC' a two-level increase under the Sentencing (Juidelines because 11 gun "was possessed," 

The BOP also excludes convicted of a notlvioicnl offense \\1110 have violent 

The nop does nol appear have engaged in dataSec 74 Fed, 

Lt"tter from 

1897. (Jan, 14,2009) 

Shabsin) M,O., 

Director, Bureau of Prisuns, at (,ldy 

Dnd promulgation of final rule), 

/\m~rican Psychiatric Association, to Kathleen 

Abuse Treatment and 11ltcns1v'C ContlneIY1Cnt Early Release ConsidcrntioIL (;2 

Fed. Reg, 53, 1i90 (Oct. 1997); BOP Slatemenr 5330,]0 (Ocl. 7, 1097); Drug Abuse 

amJ lntensive Confinemeilt Center Pl'ograrns: Fnrly Rclc:3.SC 65 hxl, 

80)45 (Dec, 2000); 2R CF,R, § 550,55(b) (Mar. i6, 2009); BOP Program Statement 553U12 (Mur. 

16,2009) (Hdrly ProGeclures linder 18 ~ ,1(,21 (e)); BOP Program Statement 

4(b) (Mnr. 16, 2009) (CategorIzation 
75 

4,20]2 

Page 11 

hased mlemaking in crealing 

offenders. 

exclusions of othe:nvise statutorily eligible nonviolenl 

In contrast, the Sentencing Commission excludes of a firearm by a felon from 

the category of offenses thal arc deemed "crimes or violence It also excludes, for purposes of 

calculating criminal hislory, convictions that are len fifteen years old, relying on the Parole 

Commission's validated, empirical data demonstrating certain sentences over ten years old 

should not for criminal history points because lhey do nut contribute to predICting risk 

of !'e-oftcnding. It has also dctemlincd that old prior convictiom lor actual crimes of violence 

do not fact predict ti1turc recidivism. Thus, there is no apparent reason why the BOP should 

exclude nonviolent offenders with prior convictions that do not even count sentencing and do 

not predict future As a resull of litigation in one circuit, hundreds of prisoners 

those categories have sllccessfully in the program and fe-entered the 

earlier than they otherwise would have:',] But those who have no! succeeded in such challenges 

excluded. 

The BOP should critically examine the raliOlwle for these exclusions by considering (I) 

the dala on compared thuse who the 

senience reduction; (2) reduction in and cost savings that would be realized by 

including additional statutorily eligible prisoners: nnd (3) cost savings realized by reducing the 

risk of fe-offendmg through the RDAI' Comparing may reveal thm 

those who tail in these categories but who nevertheless received treatment and 

reduction (such those in the Ninth Circuit) the same similar reduced rate 

as else who in RDAP, In other words, convicted of mere po:sse:SS1.on 

of a firearm or who the two-level enhancement under the drug guideline 

weapon possessed': or \vhose prior are so old they do not count for crin1inal 

history purposes do nol in E1C( pose a signilicantly greater risk public salety 

when reJeased early alter successliJlly completing the ROAP program. Indeed, the Sentencing 

Commission recently debunked dire predictions that the carly of thousands of inmates 

convicted of result of the 2007 guidclme amendment would cause serious 

public safety problems. In fact, recidivism mtes not statistically different for crack 

U.s. 4BL2 Cl1lL Ill, It 

U.S. Senfg Comm'n: If Comparison f?f the 

CategOl)l and the l1..')', Commission Saiiem Facror ,)'core 

S'entenr;[ng Guidelines Criminal 

(200S). 

eiL 

rlJlej see Arrington 

A Cornparison of the Federal S<::ntr:ncing 

Commission Scilienl FacIOI' Score 1, 1 (200S), 

Criminal History Categmy 

the Ninth the BOP provided the HrtA.p sentence reduction to inmates 

l11"m'JmndmrLS in 10 the of the i 995 

]091'.3d 

2009). The validity of the 2009 of tbe rule:, which \vas implemented \vithuut empirical study or 

nther data-based supporl j pending before 1he NJnth Peck v. Thomas. No. 11-352H3. 
76 

April 4, 2012 

Page 12 

offenders who were released early and those '#ho were not, even for those "with weapon 

involvement."14 

Even without entlrely eliminating these categorical exclusions, BOP could save 

millions of taxpayer dollars just by narrowing them. There is no apparent reason why a person 

with a nonviolent conviction InIlS! eliminated from the program for possession of a 

rifle, or for pawning a firearm, or for having a bullet withom a gUll. Nor is it clear very 

convictions involving violence mtist exclude an from participating in RDAP. As shown 

above, these categorical exclusions are not required by statute and not linked 10 increased risk 

of reoffending. They also discourage inmates fi'om shown to retiw 

recidiv ism. Instead, the BOP should presumptively permit in these catcgoncs 

to participate in RDAP, but may exclude an individual determined to be too great a risk based on 

an individualized assessment. 

B. TIlt' BOP Should FuHy Implement The Second Challce Ad's Provision for Up 

Twelve Months ofPr(,-Reicase Commullity Corrediolls Under 1f! U.S.c. § 3624(a). 

The GAO fonnd that the BOP "refers eligihle prisoners to commumly corrections, but has 

not assessed home detention to determine potential cost savings." GAO Report at V'Ihile the 

BOP does refer some eligible prisoners to community corrections, the GAO report makes clear 

the BOP significantly underutilizes community corrections, hundreds of millions of 

taxpayer dollars and denying inmates the opportunity to improve chances (lr successful 

reentry. According to its analysis of BOP elma, the BOP permits 

C0111111Unity corrections an Hyeragc of only four of the twelve n10nths 

Chance Act. 

As the GAO notes, the Second Chance Act of 2007 douhled the amount of time from 

ti> twelve months - lhat an inmate may serve in pre-release commllnity corrections at the end 

of the sentence. GAO Report at 15 n.24. But the BOP has not promulgated regulations, 

Congress required, to effectuate this increase. rcHeeted in the attached conmwnl by tbe 

Federal Defenders, the BOP has instead relied on an informal internal policy limiting community 

corrections placement to six months, which essentially maintains the p",-Second ChrulCC 

policies that sharply limited community corrections. AHilchmenl 1\. Indeed. the GAO found 

that of the 29,000 prisoners transferred to community corrections in 2()lO, (lver 60% were placed 

in halfway houses only and an average ofjl1s( (lver three monthR. GAO Report at 16-17. 

The remainder received combination of halfway house [(,]lowed by home detention, serving 

togt'ther an average of just over five months, or received bome detention only. serving an 

avemge less Ihan four months. GAO Report at 17. While inmates generally may serve up to six 

Afcmormulum: Recidivism Among Of tenders ,",Vith Sentence ';'Lvii""·"i"", 

Crock (Moy JL 2(11). 

and \Vllbollt, :Jtld 
77 

April 4, 2012 

Page 

months of home detcntion,16 only d 

just over three months. GAO 

tiny ii'action serve that long, with the average time served 

at 16-17. Overall, inmates serve an average of less than 

four months in community Repon at 17. 

The BOP should abandon the informal six-month limitation on community 

corrections and promulgate a regulation lhal includes a presumption of 

maximum available community con-cclions, limited only by 

cOllSidcrations of individualized risk and resources. 

To maximiye the duration of community confinement, the BOP should 

include part of this new regulation R dcscription of studies and analyses 

it col1sltiered in arriving criteria i,),- tbe exercise of individualized 

discretion. 

The BOP sbould direct carl IeI' placement of inmates in RRCs to maximize 

the ensuing home confinement component of community corrections. 

To maximize savings, tbe BO[, should follow its policy to ensure that 

more higher-security inmates are placed in RRCs, and morc minimumi}ccurity llfC pla~cd directly to hOll1e-confinernent and for longer 

pcri0ris. 

Contrary to the BOP's suggestion, adopting these changes would save hundreds of 

millions of dollars, assuming the BOP tollows its own policies rcgarding priority of placement 

RRCs. BOP told the GAO "housing inmates in cOIYltmmity correctilm more costly, 

than housing in minimum- and low-security facilities." GAO 

Using BOP data, lIw GAO found thaI the daily COSl of housing an inmate in 

"communilY corrections" is $70,79, while it cnsls S69.51 and to inmates in a 

minimum- or low-security facility, respectively, GAO Report 18-19. But the term "community 

correctiolls" as used here by the GAO oniy to placement in an which costs $70.79 

per day. GAO Report 18.20. As the GAO noted, the BOP recognizes that higher sc{'urity 

ll1mates more likely to benctii from RRC placement" in tenns of reduced and 

since 2010 has recommended that 313fT pnoritize those most likely to benefit, higher security 

inmates, placement in RRCs. GAO Report at 17. In other words, the BOP's policy is to 

reserve fol' RRC placement those security inmates who would benefit most from it in 

terms of reduced recidivism, and f()f these inmates, RRC placement IJmn inciir~emtion. 

GAO Report at 19. 

16 Home confinement is available for six months tor sentences of 60 months or more cmd for I OO/~ of 

sentences than 60 montbs. 1 X U ::J624(c)(2). 
78 

April 4, 2012 

Page 14 

At the same time, while the BOP not <1scertained the actual costs of home detention, it 

told the GAO that it pays contractors 50%, oftlle per diem rate for RRC placement, GAO Report 

at 20, which, at the average rate of S7(U9 t()r RRC placement, is $35.39 per day. BOP data 

suggests thal most of inmates placed directly to home detention arc minimum- and 

security inmates, see GAO Report at 18 & n.30, which mCH!1S that the current cost of home 

detention should be significantly less than incarceration. Assuming the BOP pays the contractor 

$ 35.39 per day, six months in home detention for a minimum-security inmate costs $6,370, 

'Nhile housing that same inmate in an institution for six months costs $10,359, a dit1erence of 

nearty $4,000. GAO Report at 18 fig.3. The BOP also recognizes that if increased the 

number of minimum-security inmates placed directly in home delention, more higher security 

inmates could be placed in RRCs. GAO Report at 18. Both actions would cost than 

incarceration. 

The GAO indicated that it unable to accurately weigh the costs and beneIits of 

supervising inmates home detention and recommended that tile BOP obtain information 

regarding the actual of home delention. GAO Report Ht But some information 

H'ism,w'''b potential savings is already available. Tn a 2011 memorandum, the i\dministrative 

av,:rage yearly cost of supervision hy probation o±1icers at 53,938, or $lO.79 

p"r day, which necessarily includes supervising those on home detention. I r the BOP paid 

RRC contractors S 1 0.79 a day for home detention, the save up to $58.8 million a year 

by increasing average home cletenilOll by Just month, while increasing the average 

detention by three months would save about $176.5 million <l yc~r. l,iven under the CUlTcm 

presumptive rate paid BOP for home detention (50% the RRe per diem rate), ifthe BOP were 

to increase the home detention compunenl of correctioni' by an average of just thl'ee 

111onths, it would save up to $111.4 million every year. 

C. Changes to the BOP's Treatment of Good Time Credit WOllld Save Hundreds of 

Milliolls of Dollars, 

A number of changes the BOP's approach to good lime credit under 18 l.JS.C. § 

3624(b) would save hundreds of millions of taxpayer dollars. 

community COlTC''''''''S 

costs); the monthly cost of 

cost of super vi, ion by probation officers). 

that by 29,000. the number of 

cost of 
79 

April 4, 2012 

Page 15 

Congress should pass the legislation proposed by the BOP so that Ihe full 

54 days of good time credIt will be a\varded for each year of imprisonment 

imposed, This change save approximately $40 million in the first 

year alone, 

The BOP should assure that an inmate's disability, which may impair his 

ability to participate in educational classes or complete the 240-hour 

genemi education program, does not result in a loss of good time credit 

and mmecessary costs of extended incarceration, 

The BOP should change its methodology for calculating good time credit 

so that fractions for partial credit are rounded up, thereby rewarding the 

good hehavior, treating prisoners fairly, and taxpayer donars, 

The BOP should promulgate to implement good time for 

sentences adjusted to reflect concurrenl state sentences under * 5GL3(b), 

or Congress should cnact a legislative fix, 

Each recommendation is explained in more detail below, 

1. Method of l'alclllating good conduct time 

The GAO reports that mnst inmates the maximum good lime credit allowed under 

the BOP's methodology, btlt the BOP's reSilib in a mnximum of 47 days of 

good time credit earned per year of sentence rather than the 54 days 18 

\i 3624(b), GAO RepOli at 23, While its methodology upheld by the Supreme Court, the 

BOP recognizes that the extra days result of its cnlculntions cost taxpayers 

millions of unnecessary tax dollars, The BOP informed the GAO that it supports ametlding § 

3624(h) ill1d has submitted a legislative proposal to Congress that 54 days would be 

provided for lOHCh of the term of imprisonment originally imposed by the judge, which 

would result in inmates serving 85 percent of their " GAO Report at 24, 

As noted by the GAO, !be Sentencing eSlablished !he sentencing guidelines 

on assumptiolllnat defendants would R5% oflhe thus on the assumption 

that serving 85°1" of' the sentence viill be sufficient to serve Ihe to protecl public from 

further crimes of the defendant" US,C § 3553(a)(2)(C), contrast, the DOP formula 

requires no less than 8,71 years in prison on a lO-ycar sentence, or 87,1% of their sentence, 

no related to sentenc.ing purposes, GAO Report at 24, By calculating the lime 

credit so thai 85'% of the originally imposed, the proposed fix 

40 Barher 1,', Thomas, 130 S. Ct. 2499 (2010). 
80 

April 2012 

Pag~ 16 

would hetter calibrate sentences served with (he and policies sel forth by the 

Sentencing Commission, and the purposes >~'UC''''''b set fmth by Congress. 

l! would also be consistent wilh understanding of the 85% rulc. In 1995, 

(hell-Senator Josepb Biden described support for the law requiring states to 

demonstrate that slale prisoners "serve nol less lhan of the senlence imposed" as a condition 

of federal 42 US.c. § 13704(a) (2000). He described lhis 85% mle in terms 

idclllic~l 10 the legislation the BOP now seeks: "in the Federal courts, if a judge says you me 

going for I (I you Know you are going to prison for atlcas! 85% of thai time 

- 85 years, law mandates. You can gel up 1.5 in good time credits, 

but thal alL,,42 

As recognized by Justice Kennedy, calculating good lime so that inmates earn the full 

54 days and serve 85% of their sentence would not only treat more tairly those "who have 

behaved the best" and better serve the purposes of the statute, but it would also save "untold 

millions of dollars. The BOP provided estimates to the GAO showing that if the BOP 

increased the good time credit by seven days, 3,900 incarcerated inmates would be released in 

the first hscal after the change, saving approximately $40 million in that year alonc. GAO 

Report at 25. Over several years, the savings would amount to hundreds of millions of 

dollars. 

2. Inmates wiHI disahililies 

The GAO notes that inmates who not earned a high school diploma or made 

"satisfactory progress" toward diploma or equivalent degree receive 12 fewer good time credits 

GAO Report at 21. The is that mJny lecteral prisoners mentally ill, or have 

disabilities language The reqnires the BOP 10 consider an 

inmate's educational efforts in awarding good time credit, but tbe BOP should assure that 

inmate's disability, which impair his ability to pal1i~ipale in educational classes or compiete 

240 .. hour general program, does no! result in denial good lime credits. The 

lwelve days saved multiplied by each year or a sentence for all prisoners with serious educational 

problems would result in savings. 

'y""~'H"" of Sen. Biden) 

.. said no State 

l-ve at 
81 

April 2012 

17 

3, Partial days 

Although no! addressed by (he GAO, the BOP should addreSS another small way in 

which sentences arc unnecessarily extended. Under the BOP's formula for implementing gohd 

time credit, credit is earned based on lime rather tharl sentence witb cdeh day 

served earning 0.148 of a day credit, which is the fraction of 54 days can be earned on 

each of the 365 days in a year. So, for example, afler seven days served, an inmate earns one 

fill! day of credit (0.148 x 7 = ! .036). However, in cillculating the amount of time remaining that 

must be served in the final year, the BOP rounds down to the nearest whole number any fraction 

of day. As the BOP explains in Program Statement: 

Since .148 is less than one full day, no GCT can be awarded for olle day served 

on the sentence. Two days of service on a sentellce equals "296 (2 x "148) or zero 

days GCT; three days equals .444 (3 .148) or zero GCT; four days equals 

.592 (4 .1411) or zero days GCT; rive days equals .74 (5 x .148) or zero days 

GCT; six days equals "888 (6 x .148) or zero days GCT; mod days equals 

1.0:16 x .148) or day GCT. The fraction is always dropperL 

By mle that "the fraction is always dropped," the BOI' denies any credit on partially 

earned days. Given lhat it is likely that virtually all prisoners will earn a Ii'action of good lime in 

their last year under the BOP's formula, and wi II have their good time credit rounded down by 

one day, and given that approximately 4,S00 pnsoners are released li"om BOr cllstody every 

the single days lost add up to 12.3 years, which at the average mcarcemtien per of 

$n,284, amounts to about $347,8'l} wasted year. With tho stroke pen, the BOP could 

change the rule to provide for rounding up, thereby rewarding the good behavior, treating 

prisoners fairly, and taxpayer dllllars. 

4, Concurrent state sentences 

problem with the implementation of federal good time credit statute arises when a 

judge adjusts sentence pursuant to 5G1.3(b) of the sentencing gUIdelines to aCCQunt for a 

'"period of imprisonmet1t nlready served on [an] undischarged term and to 

achieve Cull concurrency of the slate federal sentence. For example, under this provision ~nd 

the governing concurrency credit lor Lime (1 g L.S.C. '~g 3584, 

person charged in both Slate Hnd court with the same gun offense, who hl1:l 

served part of (he state sentence in slatc custody, will receive a reduction at the time' of 

Statement 5881l.28, at 1-44-45 (Peb. 1992) (Sentence Computation II/lanual) ("The 

54 days (the maximum number of that he aW~lrded for one 

of a Aentence) into one wbich results in the portion one day of GeT that may be 

served on a sentence. 365 divided into 54 days equals .148,"), 

a nUlnbt:r equal to the nunlber of dRYS renluining 

rounds up. Tel. 
82 

Apri14,2012 

Page J g 

sentencing in federal court to for the Ijm~ already served on the concurrent state 

sentence. This because, as the Sentencing Commission explained, the BOP will not credit 

time agaimt a federal sentence thut h~s been credited another sentence, even if tbe 

sentencing jwlge intends the time to be served concurrently. hamwnizc the statutes the 

guidelines, courts have held that conclllTenl time served prior to the federal sentencing 

constitutes "imprisonment" that counts service of even a mandatory 1111oimul11 sentence 

pursuant the adjustment under 5G1.3(b). 

When the fedcml good time credit statute is considered in conjunction with § 5GL3(b), 

the period of time concurrently the sl~!e sentence should, assuming good behavior by 

the prisoner, result in the good time credits against tbat period of ""imprisonment" he docs 

t"r time spent in pre-trial custody on federal charges, regardless whether in a state or federal 

institution, the inmate should receive goed time credits for lime served the state sentence in 

state cllstody equal to the amount he would have gotten had he served the 

in federal [he ()f lime that already served by the and that 

federal sentence by virtue of § 501.3, 

prisoners serve varying of actual custody, even when the 

judge is identical, based on the timing of sentencing. 

A simple example unwarranted differences resulting fi·om accidents 

timing. Defendants B. and each were charged in both statc and federal court with being a 

felon in possession of a firearm. Each sentenced to 00 months prison state court Each 

was sentenced to 115 months in federal for the same offense, to he concurrently 

with slate sentence. With maximum 15-month would vary 

depending Oll the of the imposition In 

Defentlant A 'yvas senwTIced in the federal court before having served any state 

time. ! Ie will serve hlS entire GO-month state sentence whl1e serving his federal 

semencc. He will 115 months in exclusive BOP custody, less good 

credits, or 3, ()47 days in custody. 

" 18 US.C 3585(0) (requiring credit custody in official netention "that has not been 

against another sentence"). 

". Riven, 329 F.3d 119, 122-23 (2e1 eiL 20(3) C'the eHcct of an adjustment 

similar to that of a credif); Uniled Siaies Y. DorseY', 166 F.3d 563 f3d 1999) (* 5G1.3 

harmonizes § 3S84 and § to credit 011 conCU1Tent sentences hec!J.usc h[ a] be 

concurrent if the random chance of \~'hen ID.ultiple sentences hnposed ['csults in a defendant servJng) 

contrary to the intent of the sentencing COUtt. additional separate on one that '"vas 

to served at the time another sentence"); Linitec/ States v, Campbell, 617 95~, 961 

2(10) (the same analysis applies to both S 5G!. J(b) and § SGU(o) "li]l is 3584 that 

a sentencing court the discretion to impose a COnCUlTt:nt s~ntcnce, fnctnfs set 

f~)fth in § United Statf'S' L Drakcl 49 F3d 1438, 1440·-41 1995) (to not harmonize the 

concurrent stZltutes "",,'ould the concurrent sentencing prim:iples mfmduted by other 

20 F.3d at 077)). 
83 

April 4, 2012 

19 

Deti'mdant D was sentenced in federal court after having already served 21 months 

on his concurrent state sentence. The judge adjusted his [i5-month sentence 

downward by 21 months under ~ 501.3 -- to 94 months -- and he will serve the 

remaining months all the state sentence while serving his federal sentence. He 

will serve 94 months in exclusive BOP less 369 good time credits, 

3.129 days in cnstody, or 76 more days than A. 

Defendant C was sentenced in federal court after having served nearly ull of the 

60 months on his concunent stale sentence. The judge adjusted his IlS-month 

sentence by the full 60 concurrent months under § 501.3 -- 55 months. He wil! 

serve months BOP custody, less 216 good time credils, or 3,282 

days in custody, or 229 more days than Defendant A. 

There is simply no legitimate reason for identical who commit identical crimes, to 

serve different lem1S of actual custody. As the Supreme Court has staled, "We can imagine no 

reason why Congress would desire tbe presentence detention credit, whIch how much 

time an offender spends in prison, (0 depend on the Inning of his sentencing. 

To be sure, the Nimh and Second Circllih; recently upheld the BOP's policy of not 

good time for time served on il concurrent state sentence that was the basis tor an 

adjustment under 501.3.5: However, both courts did so based 011 ul1 of "tenn of 

impri,olU11cnt" under 18 U.S.c. § 3624(b), the good time statute, that is inconsistent with 

the courts' interpretation of in tae conI ext of § 3584(a) and § 50 LJ regarding 

concurrency (including the own), and inconsistent with the Supreme Court's 

interpretatlOll of "term of imprisonment" for purposes of good time credit under 

1'. Thorrws. Petitiolls c<:rtiomri been filed in both 

The BOP should either promulgate rules [0 implement good time tor sentences adjusted 

under 9 5G !.:l(b), or Congress should enact a legislative fix. Awarding time credits for 

time spent in concurrent state custody would not only lead ro more fair it would save the 

money for every Ul1neccssmy day served, which adds up. If the BOP awarded good time credits 

to Defendant C, nbove, tor the 229 unnecessary days served, it would save taxp"yers 

749. 

1), The BOP lindcrulilizes Sentence Reductions Under III U,S.c. § .3582(c)(1)(A). 

The GAO reports that the BOP "has aUlhority to motion the court to reduce an illllates' 

sentence in certain statutorily authorized circumstances, but that implemented 

infrequently, if at alL" GAO Report at 25. Changes in the way the BOP one of 

50 Uniled Stales v. Wilson, (1992). 

"Schleinil1g v. 642 F.3d 12.42. (9th 20ll); v. 

52 Barber) S, CL that of imprisonment" unambiguously 
84 

April 4, 2012 

Page 20 

these authorities would result in fhrther savings, while further investigation may be required for 

another, 

I. Extraordinary and compelling reasons 

Under U.S.C § 3582(c)(J)(A), the BOP motion with the court to reduce 

tenn of imprisonment if: after applicable under § 3553(a), [he court tinds 

"extraordinary and compelling warrant su.:h a reduction, and the reduction is 

"consistent with applicable statements issued by the Commission." But the 

BOP has motioned judges for such a reduction in fcw cases:" The 

BOP's infrequent use of this authority stems from unnecessarily restrictive BOP policies that 

keep prisoners in custody despite "extraordinary and compelling reasons." 

As the GAO notes, the BOP has historically inlerpreted "extraordinary and compelling 

circumstances" as limited to cases in which the inmale "has a terminal illness \'}ith a life 

expectancy or 1 year or or has a profoundly debilitating medical condition." GAO Report 

25. The BOP's regulation requires '~'1arlic1ilarly extraordinary and compelling reasons, 

which in practice 8TORC only when the prisoner was almost dead. In fact, in 14.9% of the 

prisoner died before receiving a ruling Irom the court.'< 

2006, the Sentencing Commission finally implemented 

promulgate policy statement governing the exercise of discretion in deciding 

motions lor redudion [or compeHing 

3582(c)(I)(A), the list of criteria that warrant early 

rekase to in dude h:rminal illness with no life expectancy; [l "permanent physical or 

medie;]l or physical or mental health" due to substantially 

diminishes the ability" of the innmte to ii)f himself institntion which treatment 

"promises no substantial 1111provmnem)"; the only fanlity 

capable of caring the inmate's minor belaled, the Sentencing 

Commission this policy in exercise of its delegated power to establish 

Of g9 requests for early release flIed from cakndar year 2009 through 2011, 55 were 3ppn:wcd by the 

GAO at 26. 

c/\.o Report at 25 (noting the directive at 

the Commission to "describe what should be COl1Slrrored 

including the criteria to be 3pplled and list of specifIC examples n); 

I B 1. I (20116) (policy statement). 

Federa1 Bureau of Prisons 

994(t)): 28 U.S.C. § 994(t) (directing 

reasons for sentence; reduction, 

U.S. Sent'g Manual 

See U.S. Guidelines Manual § 1131 U emf. (n.l(A)) (2011) statement.!. 

"other 

The 

Commission1s cornrnentary non-exclusive: or in 

c':Jmbjnation with)" listed factors, which the 

developments after sentencing "that 

1';0.10-7387,2012 WL 1019970, 

be based on 

Court has indicated should include unanticipated 

to the l' 5'etser v, United States, 

2012). 
85 

April 4, 2012 

Page 21 

"sentencing policies and practices that lJ assure the meeting of the purposes of sentencing" and 

that "reflect, to the extent practicable, advancement knowledge of human behavior as it relates 

to the criminaljuslice process," 2.8 U,S,c, 991(b)(I)(A), (C), 

As the GAO noted, however, the BOP has not to include the 

criteria developed by the and which mfltioll under 

§ 3582(c)(J)(A). GAO \{epoli at 25, While the OAO notes thm the BOP says it is "reviewing 

two cases" thai fall into the Commission's expanded criteria, we do not actually know how many 

morc inmates would apply for a reduction the amended to include the 

Sentencing Commission's ;,cntenec under this 

amend its written policy to encompass tbe criteria deemed appropriate by the 

BOP discourages applications and deprives senlencing judges of the opportunity to reduce the 

sentenc0S of deserving prisoners and to reduce, for those wilb penl1ancnt medical conditions, 

S0me ofthe highest costs of incarceration, 

l'he BOP tiJrther contributes to undcmtilization of this authority by filing a motion only 

when the BOP itself has detem1ined that the motion should be granted, Under § 3582(c), 

howevcr, courl is to exercise its discretion in determining whether and how much to grant 

motion "after considering the factors sel forth in II § 3553(a)," The BOP lakes the position that 

because it the only pany to file soch motions, controls whether the court's 

discretion is ever triggered in the fir:;t A rcccnl Oregon eHse illuslrates the prohlem, 

Phillip Smith received 156-111onlh sentence for dealing than half an ounce of 

methamphetamine, With approximately 29 months left 00 his sentence, lVlr. Smith was 

di,1gnosed with tenninal leukemia, The nop repeatedly refllScd to file a motion to reduce his 

,cntence, not because Smith did n()t qualify even under the BOP's bnnk-of-death standard, but 

because release" committee determined that his criminal did 

warrant the court that decides whether the "need to protect the 

hll'ther crimes of the defendant" will or will no! be adequately served by early release. By 

determining itself whether a mOlion should be gmnted, rather than simply whether a pOlentially 

meritonous motion should befilcd, the BOP transformed a gate keeping role into lhe role of final 

judge. In doing it circumvented Congress's expectation that Judges would decide, in the 

exercise of their discretIOn, the merits of a motion to reduce sentence, 

In ,]ddilioll to increasing incarceration costs, BOP's failure to implement the 

Sentencing Commission's broader definition of "extraordinary and compelling reasons" and its 

refusal 10 file potentially meritorious motions raises serious separation of powers issues, In 

effect, the Execurive Branch, through the BOP, is usurping the authority of the Sentencing 

Commission, located in the Judicial Brandl and to which delegated the task of 

establishing pc1licy regarding [hese sentence reductiuns, It usurping 

judicial fimction of Article lH judges by wfusing to file motions unless 

18 U,S,c. 3553(a)(2)(C), 
86 

4,2012 

Page 

detennined in its disGrelion tha! the motion should 

stated, "[ tJhe Bnreau is not charged with applying § 

As the Supreme Court recently 

The BOP should immediately adopt the Sentencing Commission's broader 

standard for deciding what constitutes "extraordinary and compelling 

reasons,;' 

The BOP should exercise no morc than a reasonable gatckeeping limction 

by notifying the sentencing judge when sllch reasons for sentence 

m()difie''lti(m arguably appear. 

By relying on robust judicial review where circumstances have sigllificantly changed, thc BOP 

can suhstantially expand the usc 0 r this stan,tory program for sentence reduction, thcrehy 

checking unncccsoary growth in the prison population and avoiding substantial costs for medical 

services, with no danger to public safety" 

2, Inmates sentenced to mandatory life under IS V.S.c. § 3559(c) 

The BOP also has the HuthOlity to file 11 :notion for a rcdllction in sentcnce an inmate 

who is at least 70 years old has served least 30 yenrs in prison pursuant a sentence 

imposed under 3559(c), and the BOP has determiner! that the mmate no! a danger to 

or other person or the commllnity" consideri!lg the factors set t'Jfth at § 3142(g). 

rhc reduction must also be "consistent with the applicable statement" issued by tbe 

Sentencing Commission, hut the C0111mlsslon has not issued a policy sratelTICnt gove)l1ing such 

motions" Acconimg to the BOP, It had Rn inmate in its custody meeting these criteria" 

However, it is not clear whether this is became there tlre inmates convicted under 3559(c) 

who over 70 and have served 8t lenst 30 on their sentence, or because BOP has 

determined that such inmate poses a danger. 

RECOMMENDATION 

The GAO should carefully examine the flOP's assertioo that there are no 

Jnn1Hles meeting the criteria for cady rciease under this provision in 

determining whether this may be an additional area that could be better 

Ull lized for increased cost savings. 

Set";er) S/Apyn, at *5. 

60 18 3SS2(c)(l)(A)(ii). 
87 

April 4, 20 l2 

Page 

E. Tile BOP Should Heinstate the Congressionally Approved Sboci, Incarceratioll 

Program. 

As noted by the GAO, the BOP discontinued i1s shock incarceration program - known as 

boot camp - in 2005. The authorized oy 18 UXc. q 4046, allowed for a sentence 

reduction of six 1110nths extended community con'cctiolls for nonviolent offenders with 

minimal criminall1lS1orics who successfully completed the program. As described by the GAO, 

Throughout the typical 6-111onl0 inmate participants were required to 

to a higilly regimented of strict discipline, physical training, hard 

labor, drill, job training, educational programs, and substance abuse counseling. 

BOP provided inmates who successfully completed the program and were serving 

seotences or 12 to 30 months with sentence reduction of up to months. All 

inmates who successfully completed the program were eligible to serve the 

remainder 0[' their sentences in community corrections locations, such as RRCs Of 

home detention. 

GAO Report at 27-28. The GAO repOlis that, according lo the BOP, the ROP discontinued the 

program "due to its cost and research showing that it was nol effective in reducing inmate 

recidivism." GAO Report al 27, The GAO reports that "8 study of one of BOP's shock 

incHfccmtioll programs, published September 1996, found that the program had no effect on 

participants' recidivism rates." GAO Report at 28. The BOP cited "other evaluation 

findings and the cost of the program, GAO Report at 28, but apparently did nol say what those 

other findings are or provide the cost of the program. 

In 2005, the Direct()r of the BOl' senl a memorandum to fderal judges, prosecutors, 

probation officers, and federal defenders staling that due to budget constraints and supposed 

studies showing the program was not effective, the program was being eliminated, effective 

immediately. In subsequent litigation, these representations turned out to questionable. The 

BOP's assistant director of research and evaluation testified that no new studies had been 

conducted regarding the efficacy of the fixleral hoot camp program; thill tbe swk studies the 

BOP relied on did not address icc\cral boot camps, which limit eligibility and require follow-up 

in community corrections; and that the change went into effect wilh little internal discussion. In 

tilet, the study of the Lewisburg boot camp, cited by the GAO, found that 111000 who graduated 

from the boot camp program had rearrest of only B.O % during the fi"st two in the 

community, slightly less than similar inmates otherwise eligible for the 

but who (lId not participate in it, The study reported that the 13.Il'% re-arrest rate for 

camp graduates "IS lower lhml that 1'01' graduates in similar progmms run by 

Slate correctional syslems, the program as having "demonstrated SUCCeSS 
88 

April 4, 2012 

Page 24 

regsrding: low rcmTcst rates.,,6] H reported that program participants were more 

made pre-release plans, and that such plans "had a significant and 

reducing recidi Vi,')111, 

to have 

effect in 

Reganiing COSlS, the study estimated that the BOP would save almost $10,000 in 

incarcemlion costs tor each inmate who participated in the boot camp program and whose 

sen1ence was reduced the full 6 months, and over $2,500 for each inmate whose sentence 

reduced by 3 months. While the bulk of inmates transfelTed into the program were nol eligible 

for a reduction, they were eligible for earlier release to a halfway house and lwme 

Tn addition to cost savings from shorter periods of incarceration, the study found that "the 

program also 118s the henefit of returning very risk offenders sooner to their families and 

their jobs," contributing to "inmate family stilbility, which criminological research to be a 

key clernent in reducing juveni]e delinquency and crllne mnong future generations. The study 

suggested that the BOP expand the prog1'8ill and infonn eligible inmates sooner of the 

opportunity to participate in It, both to provide an incentive for good behavior and to allow 

earlier placement in h8 [f\vay [,)1' those who participate in the program but who are not 

eligible sentence reduction. 

boot camp was well received by almost all pm1icipants in the f<xieral 

system. The Sentencing Commission promulgated a guideline addressing § SFl.?, in Part 5 

of ChapIer 5 ("Sentencing Options"). Both the statutory authorization in S . § 4046 and (he 

guideline at USSG SF 1.7 remain in force. 

RECOMMENDATION 

The BOP should reinstate the federal boot camp program to restore a 

congressloBHlly favored sentencing option shortens 

prepares t<',[ employment, and returns inmates to their families 

and con1rl1Unit1cs sooneL 

Doing so would al,o SRVC mOlley. As explained above, home detention costs lcs, than 

incarcermion for minirnum-securilY inmates, \vho have less need fe,r transitional piac.eJnenl in a 

halfway house. Mitlimum-secmity inmates who complete the boot camp program should have 

even less need for transiti0nal halfway house time. By the sentence of a minimumsecurity inmate by six months and then by placing her directly borne detention the full 

Id at 7. 

64 1d. at 5. 

65 ld. 1-2 & (b1, 2 

M[d.at8. 

6' Jd. at 2 

63 It!. at 7-8. 
89 

April 4, 2012 

Page 25 

six months the of her sentence, the BOP would save over $14,000, GAO Report 

AlthOl.lgh we do not know how many inmates would be eligible a sentence reduction, 

there were only 1,000 eligible inrnates year, their successfuJ completion of the boot 

program 'Nould taxpayers over $14 million, 

F, When a State Conrt Imposes a State Selltellce To Run Concllrrently with a 

Previollsly Imposed Federa! Sentence, tile BOP Should Execute Ihc Sl~ntcllee;; To 

Achieve Concllrrency, 

Some itmmks are prosecuted and sentenced in bOlh federal and slate for the same 

offense, the GAO, the BOP hm. the aUlhority (0 credit time served in a state 

institution toward an federal sentence, resulting concurrent sentcUi:C', GAO Report 

at Tn many inSlCmces, the federal court imposes sentence ~Wfl)re state court imposes 

sentence, and docs so without specIfying whether tile federal sellIencc is to be served 

consecutively or concurrently with yet-to-be-imposed state sentence,69 When the stelle court 

inter imposes sentence, it may explicitly order i( W be served concurrently with the federal 

sentence already imposed, However, the BOP presently has a policy that Rllows illo unilaterally 

reject a state court judge's determination that state should nm concurrently with a 

previously-imposed federal sentence, creating what amounts to an expensive consecutive 

sentence imposed by no judge, 70 

In recenl decision in I'. Ullited (he Supreme Court emphasiccd r'''''T---

of comity and ror court decisions, Allhough the federal in stated al 

of sentencing federal sentence Wl1S to be served concurrently or consecutively 

with the anticipated state senlcnce, the COUli indicated that, in the absence of slIch slatement, it 

would be disrespectful to a sovereignty for the BOP to alia the state com! has 

expressly decided run its sentence concurrently, nol (0 credit lhe stnte time served again:;t the 

federal sel11cncc, The the BOP has no business being engaged in what 

amounts to sentencing, which is essentially what it doing when it rejects il court 

decision to impose d concunent Indeed, the Supreme has long hctd that, in the 

of comity and mutual respect, federal government mllst credit slate cour! 

which have equsl validlty il system of dual sovereignties with eqL181 sentencing rights, Tbe 

BOP's mles do not respect state judgmenls, The Executive Branch has no legitimate interest in 

6~1 

, No, 10,7387, 2012 WL 1019970 

is be served ""'",,,,,'ml 

ld j ti1 *5 (rejecting an interpretAtion of 162l(b) as giving the BOP ',,"vhat amounts to sentencing 

authority"); /[1 at *6 n,5 (noting to the extent that the Executlve may have had effective "'sentencing 

('Juthority~' its ability to grant OJ' deny parole, the Reform .Act's "principle o!~iective was le' 

the E.1,J:'clfti1-:e 
90 

April 4, 2012 

Page 26 

viol'ating the rules of comity by undercutting a slate concurrent sentence through the manner in 

which it executes the !~deral sentence, 

REC01\lMENDA nON 

The BOP should execute the stat'lle to fully credit a latcr state sentence 

that is imposed to mn concurrclltly with a previously imposed federal 

sentence, 

Non'judicial consecutive sentences tremendous waste, The GAO reports that the 

BOP made what was functionally a judieial decision regarding concUlTcncy in 538 such cases 

year 2011, consecutIve sentences in vast majority of these cases, GAO 

Rep0!1 2g-29, The '!'! concurrency that were granted resulted in [olal of 

1 !8,/OO Cederal custody, At an average cost of $77,49 per day of 

incarceration, of $9,2 million, 

1\n cxmnpk can be seen in a single example, ;\ federal defendant pleads guilty 

federal court to robbery a 20-year federal sentence, The [lex! day, he is rele"sed 

to state court the slale judge imposes a 20-year sentence for robbery, which judge 

orders to run concurrently with the federal time, releasing him back to federal authorities. The 

BOP sends him back to state custody. where he compleles the state sentence. Twenty years later, 

when he is released to the federa 1 de1llincI', BOP treats him as having Just started federal 

sentence, At current costs of incarceration, this de facto consecutive 20 sentence, with 

good time at (he BOPs rate of 87.1 %, would cost about III (he 

aggregate, the BOP's de consecutive sentences only disrespect stat" courts t,x no 

reason, btl! cost millions of taxpayer dollars, 

G, Congress Should Carefully Examine tnt' BOP's Report on the Elderly Offender 

Pilot Program, 

of the Second Chance Act, authorized the BOP to coneine! the Elderly 

and family Reul1ilication Certain Non-Violent Offenders Pilot Program," UncleI' that !woprogram, the BOP was authorized to waive the stamtory requirements l()f community 

under ~ 3624 and release some or all or certain eligihle elderly offenders to home 

detention with the purpose of "delclmin[ing] the effectiveness of removing eligible dderly 

offenders from n Bureau of Prisons facility and placing such offenders on home c!etention until 

expiration the prison teml, The BOP was directed to "monitor and eVfliuatc each 

74 Administ1'8tive Oftlce, "Memorandum iI-om 

hlCOTceratiot1 

is Pub, L ))0, 

7(,42 

S/,/;')("'V1SWI1 (J line 3, 2011). 

§ 231(g) (2007); 42 

1 75111(g)(i), 

Rowland to Chief Probation Officers, C0St of 

R i7541(g). 
91 

April 4, 20 

Page 27 

eligible elderly offender placed on home detention under [the 

Congress concerning the experience with the program at the 

report to 

Under the an "eligible elderly offender" is defined primarily by its many exclusions: 

The ofIender must be (1) not less 65 years of age; (2) a term of ot.her 

than (3) whose term of imprisonment is "based on a for an or offenses 

that do lIot include any crime ofviolcnce, offense, or other specified offenses"; (4) who "has 

served the greater of 10 years or 75 percent of the term of imprisonment"; (5) who "has not been 

convicted ill the past of any Federal or Stale crime of violence, offense, or other offense 

described [above]"; (6) has not been determined by the Bureau of Prisons, on the basis of 

infonnation the Bureau to make custody classifications, and in the sole discretion of the 

Bureau, to have a history of violence. or of engaging in conduct conqtituting a sex offense or 

other offense described [above]": (7) "who has liot escaped, or attempted to escape" from BOP 

institution; (8) respect to whom the Bureau of Pnsons has determined that release home 

detention onder this section wiH result in substantial net reduction of costs to the Federal 

Government"; (9) "who bas been derGrmined by the Bureau of Prisons to be at no substantial risk 

of engaging in criminal conduct or of endangering any person or the pubJic if home 

detention," 

According to the BOP, only 71 inmates were transferred to home detention under the 

The GAO does not report, however, how the nop made eligibility 

or which restrictions most impacted eltgibility. The GAO repOits that the BOP 

has not yet completed its report conceming its experience vrith the program, and that (he GAO 

has '"ongoing work looking at the results and costs of the pilot" and plans to report on it later this 

year. GAO Report at 26. At the same time, currently pending before Congrc~s is the Second 

Chance Act, S, 1231, which would lower the age of eligibility (rom 65 to 60, 

but would leave all other restrictIOns on eligihiiity in place. 

RECOMMENDATION 

Congress should examine very the BOP's report rcgRrding its 

experience with the pilot progmm, as wel! as any report submitted by the 

on results and costs to the extent it on BOP ""'CiJHJ.WI 

Congress should relTIoving SOlne of the restrictions on 

better addf"" "the humanitarian and financial challenges of 

prison population. 

While some eligihility restrictions driven by statute, olhers driven by BOP discretionary 

determinations. As demonstrated throughout, the exercises its discretion in manner 

that unnecessarily a term of incarceratlon, 

77 Id. 9 17541(g)(4). 

Cong, Ree. S4430, 4431 (Apr. 12,2007 ) (remarks ofSenalor Kennedy). 
92 

April 4, 2012 

Page 28 

H. The BOP Silouid Provide Credit I'or Post-Arrest Custody by Immigration 

Authorities Against the Sentellce Imposed. 

The statute regarding credit for time served authority for counting time 

prellial "official detention" in connection with an o[f@sc. However, in immigration cases, 

with no statutory authorization, the BOP implements the statute so that time in 

custody oflmmigration and Customs En[orcemml (ICE) is not credited toward time served. 

the past ten years, the number of defendants sentenced immigration offenses in federal court 

has increased nearly three-fold, irom 11,689 in 20()O to 29,717 in 2011 81 In many of these 

cases, prisoners are held ill immigration cllstody while the federal crimin~l prosecution is 

arranged. Because the time in administrative custody follows ICE's knowledge of the alien's 

unlawful presence, the time easily 1illls within the scope of "official detention" in relation to the 

offense. 

Konetbeless, lhe BOP ilas adopled a mle that categorically denies credit for time m 

administrative cuowdy of the immigration service. The BOP has not articllimed a reason this 

mle in the administrative record, and there is no conceivable justi.t1cation for it. At bottom, the 

rule exlends the period of incaroeration for large numbero li lien defendants a 

cos! millions of wasted dollars. It also creates unwaml11ted disparity. ror example, a bank 

robber who tirst held in state custody for 30 days, then is to federal custody when the 

state case 1S dismissed, receives full credit lor the 30 days in state custody the 

federal robbelY sentence. Bnt an undocumented alien who spends 3D days in ICE 

administrative custody before charged in federal court for being illegally ill the 

does not credit against tbe the 30 days spent in ICE 

flOP's mle also unwarranted between similarly situated ,1lien 

defendants, depending on the vagaries of custodial that are irrelevant 10 the purposes of 

sentencing> 

REC01WVIENDA nON 

Conclusion 

The BOP should amend its mles to credit lime served in administrative 

custody oUhe Immigration and Customs Enforcement 

provides an invaluable service in demonstrating huge hom 

underutilizRtion statutes. The GAO's findings serve as an excellent starting 

te identify Heliom the BOP can take, some facilitated by congressional action, that 

reduce the real dangers associated wilh overcrowding and save taxpayers hundreds of millions of 

i9 lR U.S.c. § 35gS(lJ). 

;0 BOP Program Statement 5880.20, l-ISA (Feb. 14, 19Q7). 

8] U,S, Senfg Comru'n, Sourc.ebook of Federal Scnte.ncing Statistics, tbL3 (2000); 

Sourcebook of Federal Sc--;nicIlclng Statistics, tbl. J (2011), 
93 

4,2012 

29 

dollars. The administrative and statutory 

recidivism allowing more inmates to 

sooner into community. 

recommended here will also 

in beneficial programs 

Federal Public Defender 

W.stern District of Washington 

Michael Nacbmanoff 

Federal Public Defender 
94 

April 4, 2012 

Page 30 

SUMMARY OF RECOMMENDATlO:"lS 

A. Re~ideiltiai Drug Abuse Program (RDAP) - 18 U.S.c. § 3621(e) 

The BOP should take the steps necessary to thai all inmales who successfully 

complete RDAP receive the fulll2-month reduction, regardless of sentence lenglh. This 

would save over $45 million a year in prison alone, additional societal savings 

realized through reduced recidivism, better employmeut prespec(s, and stronger Camily 

ties, 

The BOP should rescind its categorical mle excluding inmates with detainers from 

participating in RDAP, This would save at least another $25 million a year, likely much 

more, 

The BOP should rescind its c~tegorkal rules excluding (1) inmates convicted 

possession of a and those convicted of a drug offense who received 

Cnhil11CemCnl under the guidelines because wcapon possessed" and (2) 

previously convicted of an offense involving violence, matter how minor or 

This would save many more millions in prison costs, and would likely resul! in similar 

rmes of reduced recidivism and increased benet1ts, 

B. Residelltial Reentry ami Home Detention 18 U.S.CO § 3624(c) 

The BOP should abandDn the informal six-month limitation on community corrections 

and promulgate a regulatioll that includes presumption or maximum available 

community corrections, limited only by considerations individualized risk and 

resources. 

The BOP should include pm'! of this new regulation a description of stndies and 

analyses it conslciercd arriving at criteria the exercise of individualized discretion to 

maximize the duration of community confinement. 

The BOP should direct earlier placement of inmates in RRCs to maximize (he ensuing 

home contlnement component of community corrections, 

To maximize savings, the BOP should tt1110w its policy to ens me that more highcrsecurity inmates are placed in RRCs, and more minimum-security inmates are placed 

directly to home-contlnement and f()f longer periods, 
95 

April 2012 

31 

C. Good Conduct Time (GeT) -Ill U.S.c. § 3624(b) 

Congress should the proposed by th" BOP so (hat tbe full 54 days of good 

time credit will awarded each year imposed. This change would 

save approximately $40 million in the first year 

The BOP should assure that an inmate's disability, which may impair his ability to 

participate in educational classes or complete the 240-hour general education program, 

does not result in a loss of good lime credit and unnecessary costs of extended 

incarceration. 

The BOP should change its methodology for calculating good time credit so that fractions 

for pm1ial credit are rounded "l', thereby rewarding the good behavior, treating prisOllCfs 

fairly, and savmg taxpayer dollars. 

The BOP should promnlgate mles to implement good time for sentenc.es adjusted 

To reflecl concurrent state sent",nces under § 5G 1.3(b), or Congress should enact a 

legislntive fix. 

D. Modificatioll of an Imposed Sentellce-IS U.s.c. § 3582(c) 

,WH""".ltI.g Commission's bro8cier standard f')f 

deciding what constitutes rCaS{l;ls.~' 

The BOP should exercise no more than a reasonable gatekeeping function hv simply 

notifying the sentencing judge when such reasons sentencing n10(hfication argual)ly 

appear. 

The GAO should carefully examine the that there no inmates 

mccl1ng the criteria for l"eJcase under pro\' ision in dctelluining whether this Inay 

he an additional that could be better utilized for cost 

E. Shock Incarcermioll Program -18 V,S.c. § 4046 

The BOP should reinstate the federal boot camp program to restore a congressionally 

favored option that shortens prison terms, prepares inmates for employment, 

and returns to their families sooner. Shorter prison renns mean less cost and 

greater chance fDr successful reentry. 

F. Elderly Offender Pilot Program - 42 U.S.c. § 17541(g) 

Congn;;ss examine very careftllly the BOP's report regarding Its experience with 

the pilot program, as well as any report submitted by the GAO on results and costs. 
96 

April 4, 2012 

Page 32 

Congress should consider r",,,,,y,,in," 

address the humanitarian and 

some of the restrictions on eligibility to belter 

challenge~ of housing an aging prison population, 

G. Sentence Computation Authority to Allow Concurrent Service of State and Fedenrl 

Sentences 18 U.S.c. § 3584 

The BOP should fully credit a latcr stale sentence that is imposed to mil concurrently 

with a previollsly imposed fixleral sentence, 

H. Credit for Time Served ill Custody - 18 U.S.CO § 3585(b) 

The BOP should amend its rules to credit time served in administrative custody of the 

Immigration and Customs Enforcement. 
97 

ATTACHMENT A 

FEDRRAL PUlLlC DEFENDER 

\Vestern Distrkt of \Vashington 

November 16,2011 

Thomas R. Kane 

Acting Dir~c(or, PederalBureau of Prisons 

clo Rules Unit 

Office of General Counsel, Bureau of Prisons 

320 firs! Street, NW 

Washington, DC 20534 

Re: Comment On Proposed Regulations 

Pre-Release Community Confinement 

76 Fed. Reg, 58197-01 (Sept 20, 2011) 

Dear Director Kane: 

This ieller is 10 provide comment on behalf of the Federal Public and Community Defenders 

regarding the proposed regulation implementing the pre-release community coni,nement provision 

ofthe Second Cbance Act (SCA), The Defenders represent the indigent accused in almost everj 

Judicial district ofthe United States pursuant to authorization in18 V.S.c. § 3006A. The Defenders 

viewed a very favorable development the bipartisan suppOli for the SeA's increa,e ofavuilabJe 

pre-release community corrections from six to twelve mClnlh, in I R U,S.c. § 3fi24(c), We 

anticipated that the increased utilization of halfway houses and home detention would promote our 

clients' more successful reintegration into the community through earlier family reunification, 

establishment of employment, treatment in the community, and separation from the negative aspects 

- and dangers - of prison life. The increased length of reentry programming would also reduce 

prison ovcr-cnlwding, resulting in safer prisons and lower prison costs, 

In contrast to optimism generated by the SCA' 5 staTUtory shift in favor of more prerelease community conilnement, the Defenders have been disappointed in the ilureau of Prisrms 

(BOP)'s failure to implement meaningful change by continuing the informal rule that effectively 

limits pre-rdcasc community cUl1finemcnt to six months, The proposed regulation does nothing to 

correct the BOP's failure to effectuate Congres,', directivelhat the optimum durationof comtmmity 

corrections should be addressed by regulation and that the available period of community corrections 

fOT indi vidual prisoners should be doubled from six to lwei ve months. Our comments address three 

aspects ofthe new regulation, fir,t, the regulation appears to violnte Congress's requirement that 

the BOP "shall" promulgate reglllmions to ensure that the lCilgth of community corrections "of 

sufficient duration to provide the greatest likelihood of successful reintegration into the cOlmmmity" 

18 U.S.c. § 3624(c)(6)(C). Second, the regulation should presume that the maximum period of 

community corrections should be provided, absent individualized factors disfavoring community 

corrections for a particular prisoner. Third, the regulation implementing the SCA should reject the 

HilH Fifth Avenue, Room 70[1, Scattle, W[I.~hirlgtf)tJ 98101 - TdcpholH.~ (:lOO) 553-1 HHJ 1'",,; (206) 553-(11211 
98 

Thomas R. Kane 

Novemher 16,2011 

Page 2 

current informal limitation to six months (1 f community currections, absent extraordinary 

circumstances, which is unsupported by empirical evidence and, in effect, nullifies the SeA's 

increase in the available time in community corrections. 

A. The Proposed Regulation noes Not Comply With The Congressional Instruction To 

Address The Optimal Duration Of Pre-Release Community Corrections. 

An essential component of the SCA's change in reentry policy was the doubling of the 

available pre-release community corrections halfway houses and home detention - from six to 

twelve months. 18 U.S.c. § 3624(c). The same statute required that, within 90 days of enactment, 

the BOP "shall" implement the reforms to the pre-release community placement statute through the 

formal procedures provided undcr the Administralive Procedure Act (APA). 18 eSc. § 3624( c)(6) 

(",The Director oflhe Bureau of Prisons shall issue regulations" regarding the "sufficient duration" 

of community corrections) (emphasis added)). "ID]iscretion as to the substance of the ultimate 

decision does not confer discretion to ignore the required procedures of decisionmaking." Bennett 

v. Spear, 520 U.S! 54, 172 (1997). Here, Congress used the mandawry ,,",ore! "shall." The BOP 

must follow procedural requirements for an exercise of discretion to be lawful: "[T]hc promulgation 

of [the] regulations must conform with any procedural requirements imposed by Congress" because 

"agency discretion is Illnited not only by substantive, statutory grants of authority, but also by the 

procedural requirements which 'assure fairness and mature consideration of ruleS general 

application.'" Chrysler Corp. v. Brown. 441 U.S. 281, 303 (1979) (citations omitted). 

The SeA cxplicitly refers to the need for reenlry policies 10 be empirically based, 42 U.S.c. 

17S41(d). Congress's intention that the !::lOP engage in notice-and-comment rule-making 

effectuates this approach by giving the public and interested organizations, like the Defenders, the 

opportunity to provide input regarding the duration of community c()rrectiuns. See Chrysier Corp., 

441 Ii.S. al 16 ("In enacling the AI''-\' Congress made a judgment that notions of fairness and 

informed administrative decisionmaking require that agency decisions be made only aner aft(Jrding 

interested persons notice and an opportunity (0 comment. "); see also CDnf. Rep. to Consolidated 

Appropriations Act of 20JO, 155 CONGo REC. H13631-03, *lllJSSg (daiiy ed. Dec. 8,2009) 

(directing the BOP to consult with the public and experts regarding reentry issues). Congrc,s also 

made lhejudgment that agencies must do more than simply [('peat statutory language: agencies are 

required to articuiate their rationale and explain the data upon which the rule is based Furling/on 

il'uck Lines. Inc. v. Stales, 371 U.S. 156, 167-68 (1962). Neverthekss, the proposed 

regulation provides none of the material required for infoDlled rule-making. instead, the BOP issued 

the informal memoranda with no support in best pracrices, no social studies, and no 

articulated rationale with any support in the literature. The proposed regulation appears to be 

unlawful hecause it fails to address a critical questioll that Congress determined should be addressed 

by fio,ir and neutral rule· making, not by administrative nal. 

JiiilJ Ii mil A"I't;!lue, H00Il17(lO, Sc:Htle. W:uilillgtQ, 9~HlI - re!epholl(, (2116) ::;:SJ-i 100 F:u.: (206) ~5J-(JJ2fl 
99 

Thomas R. Kane 

N()vember 16, 2011 

Page 3 

B. The Regulation Should Incorporate A Presumption of Maximum Community 

Correctiuns In Order To Promote Successful Reentry /\.nd To Save Taxpayer Money. 

The SeA's amendment of § 1624(c) rests on three assumptions apparent from the legislation: 

the amount of available time in community corrections should be doubled; the likelihood of 

successful reentry will be enhanced by earlier reintegration through family reunificati()n, 

employment, and treatment in the community; and the costs of incarceration can be ameliorated by 

greater utilization of community resources for those determined not to create substantial risks in the 

community. The proposed regulation does nothing to further these legislative goals. The BOP 

should promulgate regulation that furthers the SCA's reentry goals by presumptively 

tire maximum time available for community corrections, with less time depending on 

safely factors ami availability of facilities. 

Congress's intent that placeme!1ts be longer is rein£clrced by the Consolidated Appropriations 

of2010. which provides: 

Because BOP is required to implement 

fully Its Second Chance Act responsibilities, the conferees expect the Department to 

propose signi fkant additional funding for this purpose in the tiscal year 20 II budget 

request including significam additional limding for the enhanced use (lfResidential 

Reentry Centers (RRC) as part of a comprehensive prisoner reentry strategy. The 

conferees also urge the BOP to make appropriate use of home confinement when 

considering how to provide reentering oftcnders with up to 12 months in community 

corrections. 

] 55 CUNC;. REC. al H [3887. Congress thus clearly expressed its continued intention thai the BOP 

fully use its authority to place federal prisoners in the community for as iOIlg a period as appropriate 

to ensure the grealesllikelihoDd ofsuceesshrl reintegration - including greater utilization of halfway 

houses and home confinement. Congress has indicated tbat t(\TIding considerations will not be 

tolerated as an excuse for failing to implement fully BOP's responsibilities under the SCi\. The six 

month limit is inconsistent with the statutory instruction to enhance and to improve utilization of 

community confinement for federal prisoners. 

By increasing pre-release community corrections, the BOP Can suhstantially reduce prison 

over-crowding in facilities that are currently at about 137% ofcapaclty, \\lith grealerover-cTOwding, 

the danger to both prisoners and correctional officers increases. At the same time, the agency can 

save scarce reS()UfCes. redirecting them toward more etIectivc rehabilitative programs. With the 

exception offoreign nationals. almost all of the 217,363 federal prisoners are eligible for community 

correclions under the seA (about 26% ofiedcral prisoners are aliens with immigration holds), with 

about 45,000 transferred to the community each year. 

IM)! Fifln A vellue, RO{)nl 700, Sl'attle, Washington 9810] - Telephone (;.tOG) ,53-1100 Fnx (20(j) 553-01:;W 
100 

Thomas R. Kane 

November 16,2011 

Page 4 

Besides the greater freedom at slake. ellonHOUS saving are available. For one year, 

incarceration in costs about $28,284.00; in a haJt\vay house $25,838.00; and home detention 

about $),000.00, So ifprisoners were transferred from prison to home confillement even one month 

earlier, the BOP could save about $94.8 million each year2 By increasing the average time in home 

detention by three months, the BOP would save about $284.4 million every year. Similarly, the cost 

in halfway houses ralher than in prison for ill1 additional month would save about 

) The di fference for three month:; would he $27,6 million. And these savings would 

multiply with each addition"l year that the SeA fully implemented, The proposed regulation does 

not address either the financial or human costs associated with maintaining the status quo. 

The BOP should honor both the spirit and letter ofthe rule-making process. The regulation 

should be precise so lhat the public bas a meaningful opportunity to comment. The Detenders 

suggest that the tinal regulation include, at a minimum address, the following: 

A presumption of maximum community contincment to i~lcilitate reentry and 

to save money, wilh less time based on individual risk factors and resource 

availability; 

A description of allY studies and analyses considered in arriving al criteria for 

the exercise of discretion to maximize the duration for community 

confinement to achieve successful reintegration; 

Early placement of prisoners in residential reentry facilities to maximize the 

home confinement component of community corrections, 

In times like these whell prisoners are facing great to successful reintegration, the 

BOP, through its policies regulations, should strive to make the difficult transition easier. The 

seA provides a clear message that up to the !"hll available year of community corrections should be 

I Annual Determimtion Of Average Cost OfIncarceration, 76 Fed. Reg. 57081 (Sept. 15, 2011); 

Memorandum from Matthew Rowland to Chid Prohation OtTIcers Cost of Incarceration (JVlay 6, 

200':1), 

, With I il2 of the $3000 yeady cost of home confinement equaling $250 lor one month, 

Sllhtractcd from one month of prison at $2357 (lil2 ofrhe 28,284 annual costs), equals $2,107, 

multiplied by 45,000, the number of prisoners rdeased each year to community corrections, equals 

$94,815,000. 

) The difference every month of $204.00, multiplied by the 45,000 prisoners released eqnals 

$9, ]80,000, 

1501 Fifth AVcllUe, Room 700, St'atH(', Wflsl!illg!Oil 9'8Wl- Tc1cphoi1c(206) 553-1100 Fa,. (206) 553·0120 
101 

Thomas R. Kane 

November l6. 20 II 

Page 5 

utilized to reach the greatest likelihood of success on supervised release. The BOP should 

promulgate a regulation to achieve the SCA 's goal hy presuming that1he prisoner should receive the 

maximum available community corrections, limited by individualized assessments regarding public 

safety and available community resources. 

C The Six-Month Informal R.ule Should Be R.ejected, 

The need for a regulation regarding the duration of community corrections is especially acute 

becsuse, in the absence of a regulation Oil the subje~t the default directive is the BOP's informal sixmonth rule under memorandums to staff and progmm slatements. The only rationale for the sixmonth rule proffered by the BOP related to the optimum time in halfway house. In fnct, 

the evidence presented in the case in which Marsh invalidated the earlier regulation 

establisbed that the six-month norm was based on erroneous assumptions. Most glaringly, the 

evidence discloseu that the Director Oflhc BOP erroneously helieved were studies supporting 

the rule, but BOP's own records established that no such studies exist: 

The Director claimed that "OUf research thaI we've done for many years 

retleets that many offenders who spend more than six months in a halfway 

house tcnd to do worse rather than better. The six months seems to be a limit 

for most ofthc folks, at which lime if they go much beyond that, they tend to 

fail more often than oflendcrs that serve up to six months. 

The ROP's research department could not back up the Director's claim, 

slating "l am trying to lind out if there is any data \0 suhstantiate the length 

oftimc in a 'halhvay house' placement optimally x number of months. 

rhat is, was the '(i-lllonth' period literally one ofuadition, or was there some 

data··driven or empirical basis for that time frame'! . .. I've done a lot of 

searching of' the litemture, but so fur llllVC not tound anything to confinn that 

the '6-111ontl1,' was empirically hased."s 

Because the BOP had no meaningful experience with community corrections greater than six 

monthe" the erroneOllS assumption regarding "research" was cspeciallyprcjudicial. Rather than bci!lg 

4 United States Sentencing Commission, Symposium On Aitemalives To Incarceration, at 267 

(July 15.2008). 

5 Sucora v. Thomas, CV 08-578-MA, CR 48-9 (D. Or. Mar. 1,2010) (exhibit in support of 

memorandum of law). 

HiOl Fifth AHHUC, Hoom 700, Se:Hlle, W;oshingtfm 98101 - Tel~phonc (206) 553-1HW Fux (20fl) 5!i3·(H20 
102 

Thomas R. Kane 

November 16, 2011 

Page 6 

based in empirical research, the six-month rule may simply be 11 vestige oflitigation positions that 

hrrve been superseded by the SCA.' 

Even if the erroneous belief regarding halfway hOllse studies had not been debunked, the 

SCA could still have been implemented to make a difference: even with six-month limit on the 

duration of halfway house placements, earlier placement would allow [elf up to six months of 

additional time in home detention under § 3624(e)(2l. The SCA clearly permits such a change, 

which would result in significant savings. More importantly for prisoners, earlier community 

corrections would cnabk them accelerate their reintegration into the community through family 

reunific.atioll, work, treatment, and other appropriate community-based programming. The proposed 

regulation fails to address this aspect SCA, leaving inlact the informal and unsupported sixlTIonth rule. 

The six-month informal rule is also irrational because its "extraordinary.Justification" 

exception indistinguishable from "extraordinary and compelling rcason,,'· under 18 U.S.c. 

§ 3582(c). The informal rule states that pre-release community corrections exceeding six months 

may be permitted only with "extraordinary justification." Program Statement 7) 1 0.04 at g (Dec. 16, 

1(98). But under § 3582(c), the BOP supposed to alert the district COlllt by filing a motion to 

reduce the sentence ror "extraordinary and compelling reasons." The informal rule, hy Llsing an 

indistinguishahle standard, creates an irrational and unworkable system in which BOP personnel, 

instead of permitting more than six-months of community corrections, should be mooting the 

question by moving the district judge to reduce the sentence. 

Conclusion 

An essential component of the seA is the doubling of the ~vailable time for pre-release 

community corrections. By essentially maintaining the pre-SCA slalus qU(), and hy failing to 

promulgate a regulation on the optimal duration for community corrections, the BOP misses the 

opportunity tll implement Congress's intent that reentry he eased by increased custody ill the 

community, with its concomitant promotion of family unity, comrmll1ity-based treatment, and 

employment the prisonc{s home region. The Defenders speak in one voice in encouraging the 

BOP to implement the SeA by promulgating a regulation on the duration of pre-release community 

"Starting in 2002, the BOP has argued that no community confinement could exceed six months. 

The pre-SCA litigation depended on things: the discretion place prisoners in community 

confinement under 18 U.S.C § 3G21(b); and the six-month limitation on pre-release custody under 

the former § J624( c). With the SCA, Congress has reaffirmed the BOP's authority to place prisoners 

in c(1mmunity confinement at any time and expanded the prc-release custody to twelve months. 

Thus, the informal six-month rule no longer has any basis in the relevant statutes. 

J6Ul Fifth Avem!c, i:tOOnl 700, SeaU]r, \V:l5hill~t)))l 9SHH - Te!eph()l1~ (206) :-53-1100 Fux (206) 553-0120 
103 

Thomas R. Kane 

November 16, 20! 1 

Page? 

corrections that abandons the informal six-month limitation and presumes the maximum available 

community corrections, limited only by individualized safety and resource cOllsi derations , 

TWH/mp 

V cry tmly yours, 

Thomas W. Hillier, n 

Federal Public Defender 

1601 Fifth AYCIlIIC, Room 700) SenUle1 Waghington 98101 ~ Tdepholll! (lOG) 553Pj 100 P2X (2()6) 553DOl20 
104 

Septemher I R, 201 :J 

The Honorahle Jim Sensenhrenner 

Chairman, Subcommittee on Crime, Terrorism, Homeland Secmity, and Investigations 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Lo uic Golnncrt 

Vice Chainnan, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Robert C. "Bobby" Scott 

Ranking Member, Suhcommittee on Crime, Terrori;;m, Homeland Security, and Investigations 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, D.C. 20515 

RE: Hearing on Oversight ofthe Federal Bureau of Prisons 

Dear Chairman Scnscnbn:nner, Vice Chairman GohnllTt, anc1 Ranking l\kmber Scott: 

We are writing to express om support for actions that can be taken by the Federal Burean of 

Prisons (BOP) to reduce unnecessarily lengthy incarceration and costs in the federal prison 

system. Several of our organizations are dedicated to promoting a fair and just criminal justice 

system and have becn engaged in research and advocacy at the federal and state levels for several 

decades. We welcome this opportunity to draw on our extensive experiences to share lessons on 

how to achieve effective refonn. Given limited resources, we urge the BOP to prioritize 

evidence-based policies and programs that would reduce the population and cost of the tederal 

corrections system without compromising public safety. 

Introduction 

A report by the Congressional Research Service {CRS) found lhal the number of people confined 

under the BOP's jurisdiction grew from about 25,000 in 1980 to nearly 219,000 in 2012 - an 

increase, on average, of about 6,100 individuals each year. 1 Despite dispropOltionate investment 

I Congressional Research ServLce, "The Federal Prison Population Buildup: Overview: Policy ~hanges, Issues: and 

Options," hy Kathan James (R42937; Jan. 22, 2013). 
105 

in prison capacity in recent decades, our federal systcm remains severely ovcn;rowded. {iunding 

for BOP now makes up a quarter of the Department of.Tustice (DOl) budget. 

As Allorney General Eric Holder said recenlly Lo a gathering of the American Bar Association, 

"vVidespread incarceration at the federal, state, and local levels is both ineffective and 

unsustainable. It imposes a significant economic bmden - totaling S80 billion in 201 0 alone -

·and it comes with human and moral costs that are impossible to calculate." 

We now have a generation of evidence-based refonns throughout the country that have reduced 

prison populations and costs at the state level without adverse impacts on public satety. BOP 

can replicate this success using its existing authority by adopting the practices described below. 

Residential Drug Abuse Treatment Program 

The BOP can and should expand the use of its Residential Dmg Abuse Treatment Program 

(RDAP). Congress mandaled lhat the BOP make available substance abu8c u·catment for each 

person in BOP custody wilh a "treatable condition of substance addiction or ahuse· and created 

an incentive for people convicted ofnonviolcm offenses to complete the program by authorizing 

a reduction. of incarceration of up to one year. However, the full cost-saving bendits ofRDAP 

are not currently being realized. For cxample, according 10 a Govcnmlcul Accountability Office 

(GAO) report that assessed the program, from 2009 to 2011 only 19% of those who qualified for 

a 12-monlh sentence reduction after compleling UIC program received the maximum sentence 

reduction. On average, eligible RDAP graduates received only an eight-month reduclion2 

BOP also has an opportunity to significantly expand the eligible pool benefiting from a sentence 

reduction and further increase savings and reduce overcrowding. For example, BOP should 

revise its definition of "v iolent offender" to exclude people whose offense involved mere 

possession of a firearm, rather than actual violence. Moreover, because BOP poliey requires 

completion ofRDAr in a conununity corrections facility, those with detainers are baiTed from 

residential placement and cannot benefit from RUAP" s sentence reduction. Many of lhose 

disqualified are low-level undocwnented immigrants. According to BOP estimates, changing 

BOP policy to allow completion of RDAP by tl,is population alone would save $25 million each 

year because of reduced time in prison] We are encouraged that the BOP is considering this 

policy chang" and luge you to support participation by undocumented immigrants. 

Compassionate Release 

Unless one of several rare exceptions applies, a court may not revisit a sentence once a 

conviction is finalized.4 One of those exceplioris is when the BOP Director asks the Coult to 

:2 Government Accountability Office, EHgibility and Capacity Impflct lise oCFlexihilities to Reduce Inmates' Time 

in Prison 13··14 (2012), available at hup://www.gao.goy/products/GAO-12-320(hereinafiel· "GAO Report"). 

J GAO Report at 35. 

4 See 18 U.S.c. § 3582. 
106 

reduce a sentence because "extraordinary and compelling" reasons warrant such a reduction.' 

For mauy y"ars, the Bureau limit"d "extraordinary and compelling circumstances" 10 those cases 

where the prisoner had a tenninal illness with a life expectancy of one year or less or had a 

profoundly debilitating mdical condition6 However, the U. S. Sentencing Commission 

promulgated a guideline in 2007 that delineated additional circumstances a court could take into 

account, including "the death or incapacitation of the inmate's only family member capable of 

caring for the inmate's minor child or children or any other reason determined by the Director.',7 

This summer, BOP set fmth additional guidelines, expanding eligibility to the parents of minor 

children contemplated by the Commission and extending eligibility to certain other prisoners, 

including revised criteria for elderly inmates whu did not COillillit violent crimes and who have 

served significant portions of their sentences. g 

We are heartened by the expanded grounds announced by the BOP, but concerned that, until 

now, the sentence reduction autbority has been rarely invoked. '110/ e urge the Bureau to take full 

advantage. O[U,C new guiJclincs to identify and bring to the eow't's attention all w0l1hy cases 

that meet the outlined criteria. 

Community Confinemeut 

The BOP is obligated by law to ensure people in federal prison have an opportunity to spend a 

portion oftinle at the end of their sentences "(not to exceed 12 months) under conditions that 

will afford [them] a reasonable opportunity"[0 prepare to return to society9 The statute provides 

that the BOP may transfer eJigihle people to contract residential re-entry centers (RRCs), also 

"ailed half'Nay huuses, and, up to the lesser of 6 montl...., or ten percent of the tern1 of 

imprisonment, in home confinement for up to the one-year total that Congress provides in the 

Second Chance Act. lO 

The Second Chance Act sponsors understood the role that halfway houses play in the 

management ofthe federal prison population and explicitly rejected the Bureau's alteration of 

policies in 2002 and 2005 limiting halfway house use, and expanded the law's guarantee of 

consideration for pre-release progral1ll1ling from six to 12 months. The Second Chance Act 

specifically amended the law governing RRC transfers to instmct the BOP to ensure that 

placement in community corrections be "of sufficient duration to provide the greateBt likelihood 

of successful reintegration into the cOllllllunity."[[ Stays in RRCs alone in 2010 averaged only 95 

days and peopJe released to RRCs and home detention averaged only 4.5 months.12 Although the 

, See 18 U.S.C. * 3582(c)(1)(A) 

'GAO Report at 25. 

7 See U.S.S.G. ~ IB1.l3. app. note A. 

S BOP Program Statement No. 5050.49 

, 18 U.S.C. * 3624(c)(1). 

'" Second Chance Act of2007. Pub. L. No. 110-199, § 251 (2008). 

II 18 C.S.C. § 3624(c)(6). 

" GAO Report at 17, Tbl. 2. 
107 

BOP has begun to give staff more discretion abouL how mach time people mnst serve in halfway 

houses, who should he placed in a halfway house, and who may be placed directly on home 

wnfincment, much more needs to be done La ensure that people benefit from the full 12-month 

reentry period. While the BOP cites high costs and lack of space, the 2012 GAO report notes that 

the BOP failed to clarify the cosL of RRC bcds and home detention services and that it provided 

"no road map" as to how to secure this intormation. 

The limited use of RRCs and home detention is an area where the BOP can improve the 

implementation of Second Chance Act directives. We urge you to ascertain up-to-date costs and 

savings possible under the program; to ask the BOP why its usc of halfway houses and home 

detention has been so sparing; and determine what the BOP might need to implement the 

directives in the Second Chance Act. 

Conclusion 

Federal prison populations and costs cannot truly he addressed without Congressional action to 

redu~e the number of people entering federal priSDn ea(;h year. For example, the C.S. 

Sentencing Commission concluded that certain mandatory minimum penalties, which apply too 

broadly, are excessively severe, and arC applied inconsistently, have led Lo an explosion in the 

federal prison population and spending on federal prisons. 1J Nevertheless, the Administrative 

changes described above would both save money and promote successful reentry, increasing 

public safety, We urge you to use your influence to promote these policies. 

Sincerely, 

Drug Policy Alliance 

I'amilies Against Mandatory Minimums (FAMM) 

fhe Leadership Conference on Civil and HUlllan Rights 

National African American Drug Policy Coalition, Inc. 

Open Society Policy Center 

The Sentencing Project 

United Methodist Church, Gcncl'al Board of Church and Society 

cc: Members or the U.S. House of Representatives SubcommiuclO On Crime, Terrorism, 

Homeland Security, and Investigations 

13 U.S. Sentencing Commission, Report to the- Congres...;;: Mandatory Minimum Penalties in the Federal Criminal 

Justice System 367-69 (20Ilj, available at 

http://www . ussc .gov/Lcgislali VI:'; _ ;:uHl_ Public _A ff2!il's/Congressiollai_ T csti mony _and_Reports/Mandatory _ Minimu 

m_ r~nalticsl20 III 031_ RtC _ MarHJ.atury_~'lifLirnurn.cfm_ 
108 

The Leadership Conference 

on Civil and Human Rights 

September 19,2013 

The Honorable Jim Sensenbrenner, Chainnan 

1629 K Sln::e-l, NI.;IJ 2\:2.1.1663311 ':c'ce 

10th Hom ~G!.4f)o.341S ;ax 

Wa'lhinytor"l, DC 

IGO06 

ff~. Londerseip 

Conference 

Suhcommittee on Crime, Terrori~m, Homeland s.ecurity, and Investigations 

Committee on the Judiciary 

U.S. House of Rcpres(""'ntativcs 

Washington, D.C20515 

The Honorable Louie Gohmert. Vice Chainnan 

SubcommIttee on Crime, Terrorism, Homeland Security, and Investigations 

Committee On tht: JuJit..'1ary 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Hobert C. "Hobby" ScotL Ranking I\·jemher 

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations 

Committee on the Judiciary 

U.S. House of Representatives 

W"hington, D.C. 20515 

RE: Hearing on Oversight ()fthe FederalBureau of Prisons 

Dear Chainnan Senscnbrcnncr, VicC' Chainnan Gohmert, and Ranking Member Scott: 

On hehalfofThe Leadership Conference on Civil and Human Rights, a coalition charged by 

its diverse membership of more than 210 national organizations to promote and protect the 

ei viI and human righls of ::ell pcrsun~ in lhe Uniled Slales, we write to express our supporl [or 

the expanded use of evidence-based policies and programs by the Federal Bureau of Prisons 

(BOP) to reduce overcrowding and the costs of incarceration in the federal prison system. 

We urge you to use your intluence with the BOP to promote policy changes to three critical 

prograu", the Residential Drug Abuse Treatment Program (RDlll'), Compassionate Release 

and COllllllWlity Confinement. 

A recent report by the Congressional Research Service (CRS) found that the federal prison 

population "a< grown since 1990 hy an alarming 790 percent, from approximately 25,000 

people to more than 219,000 people. The agency', [acilitie, are operating at almost 140 

percent capacity. The president's FY 2014 budget request for l30P was $6.9 billion, 

accOlmting for more than 25 percent of the Department of Justice's (DO) entire budget. 

The Leadership Conference believes the nation can no longer atlord to incarcerate such large 

numbers of people for ~uch long prison sentr;;:m.:es. Criminal j uslil:t: reform modds -t:II1ployeJ 

by sLate and local governments have proven that there are a number of evidence-based 

refonns. that can reduce both costs and the prison population without a negative impact on 

puhl1c safety. These refonns and policy changes aTe dl;;icufl.sed helmv. 
109 

September 19, 2013 

Page 2 of4 

Residentia1 Drug Abuse Treatment Program 

ff ~e Leadersh<p 

Conference 

V\'e urge the BOP to CXl.-'Tcisc its authority to expand the use of the RDAP. Congress mandated that the 

BOP make available substance abuse treatment for each person in BOP custody with a "treatable 

condition of substance addiction or abuse" and created an incentive for people convicted of nonviolent 

offenses by authorizing a one-year sentence reduction upon completion of the program. However, 

according to a Government Accounlability Office (GAO) report that a"e"od the program, from 2009 to 

20 II only 19 percent uf lhose who qualified for a 12-monlh senlence reduction after completing the 

program n.:cl:ivcd the maximum sentence reduction. On average, eligible RDAP graduates received only 

an eight-month reduction. I Expansion of the use of RDAP to allow for the maximum sentence reduction 

would significantly impact costs and overcrowding, 

Moreover, the BOP also has an oPP01tunity to expand significanLly the eligible pool benefiting [rom a 

senLence reduction and fwther increase savings and reduce overcrowding. For example, the BOP should 

revise its definition of"violcnt offender" to exclude people whose offense involved mere possession of a 

firearm, rather thC:1ll actual violence, Further, the BOP should revise its policy to allo-w completion of the 

RDAP by those vvith detainer:::, who in many instances are low-1t:vd undocumented immigrants. 

Currently, BOP policy requires placemenl in a t:ommunity corrections facility to complete the RDAP, 

which disqualific~ lhis population. According to BOP estil11atc-s~ changing nop pol1cy in this area alone 

would save $25 million each year due to reduced time in prison.2 VvTe are encouraged that fhe HOP is 

considering this policy change, and urge YOll to~support par'ticip(l.t10n of undocumented immigrants in the 

program. 

Compassionate Release 

The Sentencing Reform Act of [984 gave the HOP authority to request that a federal judge reduce an 

inmate's sentence for "extraordinary and compelling'; clrcumstances, This practice is abo kfll}1,.vn as 

compassionate relea:-.e. The request can be based on either meJil:al or non-medical conditions that could 

not reasonably have been fon;sl)l,"1l by lhc judge at the time of sentencing, "While c-Ollsistency and the 

finality ofscntcnccs arc an imponant goal of the criminal justice system,judicial discretion ond review is 

equally as important to ensure the fairness of punishment ana that the system continues to serve the 

purpose ofjl1stice. Congress recognized the importance of ensuring that JUSTice he ha!anced with mercy 

when it created compassionate release.3 It is the C.S. S~Illencing Commission's responsibility Lo 

detel'mine the deIillitio-n o["cxtmordlnary and compelling" circumstances and it has addressed this in its 

policy statements. 

Under 18 U.S.c. § :15R2(c) (1) (A) (i), the BOP lws authority to petition for compassionate release. Yet 

The BOP ha<.; been reluctant to use thi~ authority in a manner consistent with the Senlc:~m;ing Commission's 

current policy statement. Even tbough the Commission promulgaLLXl a more expansive intelpretation of 

"extmordinary and compelling," the BOP issued regulations reiterating a very nall'OW "terminal 

illness/total disability') standard for seeking reduction of 8 prison term under thi'J statute, inconsistent with 

the Sentencing Commission!::; definition. The Commission's definition does not require "total" disability 

and sho allows for consideration of a family member's death or inability to care for minor dlildrell or any 

I (;O\iBmment Accountability OHice, Eligibility and Capacity Impact Use ofFlexibiliLie:.: lu Rt:liul:t: Jmll<ltes' ·rime in Prison 13· 

14 (2012), available 8t http://www.gao.gov/products/GAO 12 -320 (bcrcinaftcl" '-GAO Report"). 

2 (lAO Report at 35. 

3 fAMM ar.d Human Rights Wat-ch, TI FE ANSWER IS NO: Too Little Comp{mio!J{!{e Rde{Js(! 1/1 [IS Federal Prisons (December 

2U12) 
110 

Seplember 19, 2013 

Page 3 of 4 T'" I.. The Leadership 

Conferellce 

other reason determined by the Director. The BOP has administered its far nalTower test in fewer than 30 

cases each year.4 

According to the Department of Jw;tice's recent letter to the Sentencing Commission, DO.! is -in the 

process of reviewing and modifying aspects of the "Reduction in Sentence" program, has issued new 

medical criteria for evaluating requests, and is considering non-medical criteria.s Although the 

Department's comment signals steps. in the right direction, we urge the BOP to not only evaluate 

amending its policy statement, but also to continue to work to bring its compassionate release policy in 

line with that -of the Sentencing C0111mission's, and to improve the application process to include hasic 

procedures to ensure fair and reasoned decision making. Ultimately, the BOP should align its policy with 

thal of the Sentencing COlTImissiun, whkh would proviue more opporlunities for n:sentem:ing unJer these 

circumstallces and provide resource saving sentence reductions. 

Community Confinement 

Under current law, the BOP is required to ensure people in federal prison have an opportunity to spend a 

portion of Lime at lht! i:.mJ oflheir !:-t!ntences ··(not to excl::cJ 12 munths) umkr l,:onJition::; that will afford 

[them] a reasonable opportunity" to prepare to return to society.6 The statute provides that the BOP may 

transfer eligible people to contract residential re-entry centers (J{RCs), also called halfway houses, and, 

up to the lesser of 6 months or ten percent of the tenn of imprisonmem, in horne confinement, for up to 

the one-year tolal that Congress provides in the Second Chance Act.' 

Understanding the important role that halfWay houses play in the reentry process, the Second Chance Aet 

specifically amended the law governing RRC transfers to instruct the BOP to ensure th[lt placement in 

community corrections (lre "of sufficient duration to provide the greatest likellhood of successful 

reintegration into the COlllmLlllity:'~ Tn 2010. stays in Ree's averaged only 95 days and people released to 

RRCs and home detention averaged only 4.5 months.9 Although the BOP has begun lO give stan-mon.: 

discretion in how much time people must serve in halfvvay houses, in detennining who should be placed 

in a halfway hom:e, and who may be placed directly on horne confinement, much more needs to he done 

to ensure that people benefit from the full 12-month reentry period. While the BOP cites high costs and 

lack o[space, lhe 2012 GAO report noles U,allhe BOP [ailed Lo clarify Ihe cosl oIRRC beus anu home 

detention services and that it provided "no road map·' as to how to secure this infol1Tlation. 

The limited use of RRCs and home detention is an area where the BOP can improve the imp}ementation 

of Second Chance ,Act directives_ \'Ive urge you to- ascertain up-to-date costs <]TId savings possible under 

the program: to ask tile BOP why its use of halfway houses and home detention has been so limited; and 

to detemline what the BOP might need to implement the dire("'tives in the Second Chance Act. 

In sum, redllctions in the federal corrections populations and costs caMot tml}' be ~ddressed without 

Congressional action to reduce the number of people entering federal prison each year. The Leadership 

4 id at 2 

-; U.S. Department of Justice:: Annual, Ctimmal Division, Annual Report to U.S. Sentencing Commission Commenting on its 

pmpGsed priOrities for the guideline amendment year ending May 1,2014. 

http./:\'"\i ww.justicc.gov:criminal/foia1docs/20 13annual·lcttcr·final-071I 13.00f 

" j, U,S,C, ~ 3624(c)(I), 

7 Second Chance Act of 2007, Pub. L. No.1] 0 199, § 251 (2008). 

e IS U.S.C, § 3624(c)(6) 

90:\0 Report at 17, Tbl 2 
111 

Septemher 19, 2013 

Page4of4 ~ 

," The Leadership Conference 

Conference urge:>; Congress to consider the overall aim:» of the criminal justice system to not unly Jt:lt:::r 

and punish but also rehabilitate, while working to alleviate the probk'ln:::; o[mas8 incarceration, disparities 

in sent("''TIcing: and overspending. More specifically, wt': ask you to use your influence to urge the BOP to 

implement the administrative changes described above. 

Thank you for your attention to our concerns_ IfYOli have any questions, please contact S(:lkird Cl)ok, 

Senior Policy Associale, al cook@civilrights.org or (202) 263-2894. 

Sincerely, 

r::;) / ')/ /' 

l/l;ft,?(- frk~ 

Wade Henderson 

President & CEO Executive Vice President 
112 

Mr. SENSENBRENNER. Without objection, all Members will have 5 

legislative days to submit additional written questions for the witness or additional materials for the record. 

And without objection, the hearing is adjourned. 

[Whereupon, at 11:02 a.m., the Subcommittee was adjourned.] 
(113) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
114 

*The Committee had not received a response to these questions at the time this hearing 

record was finalized and submitted for printing on April 2, 2014. 

Questions for the Record submitted to the Honorable Charles E. Samuels, 

Jr., Director, Federal Bureau of Prisons* 

Q;ongrcss of thc 1!:lnitcd ,statcs 

i'lousr of "Rrprrswtlldotll 

Mr. Charles E. Samuels. Jr. 

Director 

Federal BW"Csu of Prioons 

320 Fil'$t SUed, NW 

Washing10n, D.C. 20Sl4 

Dear Mr. Samuels, 

COMMITTEe THE JUDlC .... RY " ..... _ _ 00 __ ..... 

w....,,""'. DC ",,"1 . 

1' ·lZ/:r.i0.-3t5 , --.--

Oclem ll. 2011 

~.:.:.-

...-. ..... ,-- --_ 

==~~- .... <- ,,-,­

..--<-.- .......... _-.. -.. ~~-- 2."''*'-=:= 

The Judidary Comm ll~· S Subc:ommil1ec on Crime, Terrorism, Homeland Security and 

lnvestig,"ions held a hearing on ··Ovcl'$ight of the Federal Bureau ofPrisonsH on Thursday, 

Sep1CJtIbcr 19. 2011 at 1i);OOa.m. in room 2141 of the Rayl>um House om"" Building. Thank 

you for your testimony. 

Queslions for the record have been submined to the ... bc:ommil1ce within five legislarive 

days of the hearing The qucstions addrt$sed 10 you "'" allao~. We wi ll appreciate a full and 

complere response as they will be included in the "mci.l he";0il =<lTd. 

Please submir your wri!len answers to Alicia Church a' ahcia s;hurch""mail.ho!lS!: GQV by 

Ikccmbcr 2. 20 I l , If you have any further questions Or co~ms, please contacT Roben 

Pannir.,. of my staff at robcn.parmirer@mail.bo!!Se ,gov. 

Thank you again for your paniciparion in the hearing. 

Si"""rely. 

~~ Bob GoodIaUe 

Chairman 
115 

Questions for the Record for Director Charles E. Samuels, Jr. 

House Committee on the Judiciary 

Hearing on Oversight of the Federal Bureau of Prisons 

September 19, 2013 .-~- .~----... --. 

Questions from Chairman Sensenbrenner 

Inmate Population 

1. You testified that approximately 50 percent of BOP's population is 

serving a sentence for drug trafficking. What percentage of BOP's 

population is serving a sentence for drug possession? 

a. How many that are incarcerated for simple possession were 

originally charged with a higher offense (e.g., possession with 

intent to distribute or a drug trafficking offense)? 

b. Is it fair to say that the majority of drug offenders in federal 

prison are dealers and traffickers? 

c. Of the 50 percent that are there for drug trafficking offenses, 

how many would you consider to be "low-level, non-violent 

offenders"? 

2. You testified that only 5 percent of your inmates are "violent 

offenders." However, your written testimony says 75 percent of 

medium-security and 90 percent of high-security inmates have a 

history of violence. 

a. What percentage of BOP's total population are repeat 

offenders, or offenders with a history of violence? 

b. Does BOP consider an inmate's history of violence when 

classifying the inmate as violent? 

Page 1 of 12 
116 

c. Does BOP consider an inmate's history of violence when 

placing the inmate? 

3. You testified that your high-security facilities are 53 percent 

overcrowded. Are high-security offenders typically repeat or violent 

offenders? 

a. How many of your inmates are category 3 criminal history or 

higher? 

b. How many of your inmates are incarcerated on gun charges? 

4. What percentage are immigration offenders? 

5. Isn't it true that in fiscal year 2012, nearly half of the individuals 

sentenced to federal prison were non-U.S. citizens? 

6. You testified that 11 percent of inmates in BOP custody are there for 

immigration offenses. That's over 24,000 of your approximately 

219,000 inmates. You also testified that 26 percent of your inmates -

nearly 57,000 inmates - are non-U.S. citizens. 

a. What do you mean by "immigration offenses"? Please provide 

a breakdown of what those "immigration offenders" are actually 

incarcerated for. 

b. How many of the immigration offenders are currently in removal 

proceedings? 

i. If those inmates, or a large chunk of them, were deported, 

would that help alleviate the crowding problem? 

ii. Do you have agreements with ICE to house their 

detainees? 

iii. Is that generally short-term, or only until ICE picks them 

up for removal? 

Page 2 of 12 
117 

c. BOP recently proposed using $26.2 million to buy an additional 

1,000 contract beds to house low-security male criminal aliens. 

i. By how much will this alleviate crowding at low-security 

BOP-operated facilities? 

ii. Does BOP plan to expand bed-space at existing 

contracted facilities or open a new competitive bidding 

process for contract bed-space? 

7. Your testimony talks about the "Smart on Crime" initiative and 

corresponding changes to BOP's Compassionate Release policy. 

a. What are those changes? You testified they will have a 

"modest" effect - what does that mean? By how much do you 

anticipate they will reduce your population? 

8. Your testimony talks about expansion of RDAP to 81 institutions. 

What effect will that have on your population? 

g, The Attorney General has reported that the U.S. prison population 

has grown by almost 800% since 1980, and federal prisons are 

operating at nearly 40% above capacity, estimating that overcrowding 

at the federal, state and local levels imposes a significant economic 

burden -- totaling $80 billion in 2010. 

a. Please explain how these economic costs were developed. Has 

BOP estimated costs due to overcrowding in 2012 and 20137 

Has BOP projected these costs for 20147 

10. Following up on your appropriations testimony in April 2013, how 

would you describe BOP's interest and progress in working with 

Congress to alleviate crowding through legislative changes, such as 

expansion of compassionate release, additional sentencing 

Page:l of 12 
118 

flexibilities within the federal court system, increasing good conduct 

time, changing drug sentencing laws, or other legislative changes? 

11. BOP's recent budget proposal discusses alternatives to traditional 

incarceration, such as expanded home incarceration/monitoring 

programs. Which alternatives are you specifically proposing and how 

do they differ from existing options? 

a. Which inmates will be eligible? 

b. What outcomes do you anticipate through use of each specific 

alternative? Are there specific financial savings you envision? 

12. To what extent does BOP measure the effectiveness of placing 

inmates in segregated housing units (e.g. SHUs, SMUs, ADX and 

"solitary confinement") in improving institutional safety? Why has 

BOP not completed a study to assess the impact of segregated 

housing units on inmates and institutional safety? 

13. Can you explain the term "rated capacity" to me, as it relates to 

overcrowding? 

14. If a prison is rated for triple bunking, would that triple-bunking still 

count as "crowding"? 

15. Will the four prisons BOP has in the pipeline for activation solve the 

crowding problem? 

a. If not, what effect will the new prisons have on crowding? How 

many more prisons would be necessary to bring the crowding 

down to zero? 

16. A DOJ study in 2010 found that BOP's overall staff to inmate ratio 

was just over 5 to 1, but a September 2012 GAO report found that the 

actual ratio of on-duty correctional officers to inmates can be about 

76 to 1. And, we have heard stories that oftentimes staff to inmate 

Page 4 of 12 
119 

ratios can reach well above 100 to 1, which puts corrections officers 

in very dangerous situations - as we tragically learned in Canaan 

recently. It seems to me like the huge gap between general staff 

ratios and supervising officer ratios implies that there are a lot of 

administrative and bureaucratic staff at BOP. Can you explain the 

enormous discrepancy between these numbers? 

Budget 

17. While the number offederal inmates has increased over time, the 

percentage of DOJ's budget that is comprised of BOP costs appears 

to have kept up or surpassed that increase. In fiscal year 2013, 

approximately 25 percent of DOJ's budget went to BOP, and BOP's 

FY 2014 budget request contemplates another increase. And yet, 

BOP is still experiencing a crowding rate of nearly 40 percent. 

a. Is the increase in inmates the only factor driving BOP's budget 

problems? 

b. Where are there greater efficiencies to be gained in BOP's 

budgeting practices? 

18. In the FY 2014 BOP budget, a number of offsets are cited for a total 

of almost $100 million; these include one for Expanded Sentence 

Credits for Inmates ($41 million) and one for Renegotiated Medical 

Costs ($50 million). What is the likelihood that these assumed 

savings will occur? 

a. Isn't the $41 million in savings dependent on Congressional 

enactment of an Administration proposal to expand Good 

Conduct Time? 

b. Why is that considered as savings in the budget if Congress 

has not yet passed the proposal? 

Page 5 of 12 
120 

19. The FY 2014 BOP Budget projects continued annual increases in the 

BOP prison population from the current level to about 236,000 in FY 

2018. 

a. At current average annual costs per prisoner ($25,000), 15,000 

fewer prisoners would translate to about $375 million annually. 

Could these funds be freed up to expand education and drug 

abuse treatment programs and thereby possibly further reduce 

recidivism and even decrease total BOP population? 

20. BOP's current population is over 219,000 inmates. If your population 

stopped growing today, would your costs continue to go up? 

a. If so, how do you explain that? 

b. If it's due to an aging population, does that mean there are 

issues with the delivery of medical services? 

21. According to GAO, in FY 2011 your "medical" population was 200 

inmates lower than it was in FY 2006 (five years earlier). 

a. Were your medical costs higher in 2011 than in 2006? If so, 

how do you explain that? 

b. What is BOP doing to achieve cost efficiencies in the delivery of 

medical services? 

22. How many facilities contract with local hospitals for inmate medical 

care, rather than using internal BOP staff? 

a. Are these contracts publicly and competitively bid? 

b. Are your inmates eligible for Medicare? 

23. Your 2014 budget discussed a number of Energy Saving 

Performance Contracts (ESPCs) and Energy Conservation Measures 

(ECMs) that have led to cost and energy savings at various 

institutions. 

Page 6 of 12 
121 

a. Please discuss any current plans in place to expand the use of 

these or other similar measures, and anticipated cost savings 

from these efforts. 

24. At our hearing on wasteful spending last year, Senator Coburn 

testified about how BOP spends $1.3 million each year to make 

hardcopies of prisoner x-rays, even though most x-rays today are 

digital. 

a. Is this practice still going on? 

b. Is BOP trying to identify ways like this to modernize its 

spending? 

25. Many states have implemented prison-related initiatives that have 

helped them reduce costs. What has BOP learned from these? 

26. Several states have implemented reforms in their prison facilities by 

significantly reducing or eliminating the use of special housing units 

(SHUs). Given the highly restrictive conditions of confinement and 

comparatively high costs of maintaining and holding inmates in 

segregated housing units, to what extent is BOP considering how 

such reforms to reduce the number of inmates in segregation may 

apply to BOP? 

27. BOP's budget proposes $28M for re-entry and recidivism 

programming. Please elaborate on your plans for this funding and 

discuss how projected reductions in recidivism may generate cost 

savings for the federal prison system. 

New Prison Construction/Thomson Prison 

28, One of BOP's recent budget submissions proposed about $141 

million to activate FCI Berlin, NH and FCI Aliceville, AL; and begin 

activation of FCI Hazelton, WV; USP Yazoo City, MS; and USP 

Thomson, IL. 

Page 7 of 12 
122 

a. How much will crowding be reduced when all of these facilities 

are fully operational and at capacity? 

b. To what extent will Thomson be used to address demands for 

more restrictive housing and provide additional housing for 

inmates in segregated housing (such as Administrative 

Maximum Security (ADX), Special Management Units, or 

Special Housing Units)? 

29. The Department of Justice purchased Thomson Prison in 2012 

despite the fact Congress opposed the purchase and the fact that 

DOJ already had four newly constructed Bureau of Prisons facilities 

awaiting full funding for operations. 

a. What is the status of Thomson prison? What are the expected 

costs and iimeframes to renovate and activate the Thomson 

facility? 

b. How much is it going to cost to secure this large, expensive 

investment each year while it sits empty, or partially empty? 

c. How will Thomson alleviate the crowding problem? 

d. What is the status of the other prisons? How will they alleviate 

the crowding problem? 

30. According to POLITICO, in late 2012 the Obama administration said 

that Thomson would be used to ameliorate overcrowding amongst 

"administrative maximum security inmates and others who have 

proven difficult to manage in high-security institutions." However, 

according to GAO, in FY 2011 Florence ADX, the only administrative 

maximum facility in the federal system, was operating 8% below its 

rated capacity. 

Page 8 of 12 
123 

a. Why did the Administration feel it was necessary to spend 

taxpayer dollars to address a problem that wasn't there? 

b. Couldn't the $165 million the Obama Administration spent on 

Thomson have gone toward opening the other empty facilities, 

decreasing inmate to staff ratios, or expanding reentry and 

recidivism-reduction programs? 

Recidivism Reduction/Inmate Programs 

31, How much would it cost for BOP to establish enough programs so 

that every inmate in your custody is involved in programming at some 

level? 

a. What would it cost to expand RDAP to include every inmate 

currently on the waiting list? 

b, Isn't it true that, to be in RDAP, an inmate has to be diagnosed 

with a drug dependency? That is, RDAP is not just a program 

any inmate can sign up for? 

c. Given that, in what areas is the Bureau planning to expand 

programming, in order to ensure inmates that do not have a 

drug dependency still are able to participate in programming 

that has a demonstrable effect on reducing recidivism? 

32. You testified about other programs that have recently been 

implemented, including Resolve for female offenders with traumarelated mental illness, BRAVE for younger, newly-designated inmates 

or Skills for cognitively-impaired inmates, 

a. Are efforts underway to assess the effects of these programs 

on recidivism, so they might become what RDAP is now? 

33. BOP has requested additional funding - $15 million, to be precise - to 

expand its Residential Drug Abuse Program (RDAP). 

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a. How will this expansion reduce costs and reduce the inmate 

waiting list? 

b. How many additional inmates will the program serve, and to 

what extent? 

34. ROAP is staffed by personnel from BOP's Psychology Services 

department. However, you have a pretty serious vacancy issue 

there: in FY 2012, of the 569 psychology staff positions allocated, 

there were 118 vacancies-a vacancy rate of about 21 percent. How 

does BOP plan to address these vacancies in order to ensure that 

staff will be available for the expanded ROAP? 

35. A BOP Office of Research and Evaluation (ORE) found that 

participants in BOP's pilot faith-based residential program called Life 

Connections were less likely to engage in serious misconduct while in 

the program and that recidivism and prison population sizes in 

Michigan had declined due to the success of comparable re-entry 

programs in its state prison system. 

a. To what extent has BOP expanded on Life Connections or 

comparable re-entry programs, and does BOP anticipate that 

such programs could help reduce future prisoner populations? 

36. In August, RAND released a major study that concluded education 

programs in prison for inmates had a marked impact on reducing 

recidivism. 

a. To what extent is BOP able to provide educational training to 

prisoners prior to release; that is, what percent of inmates 

released from BOP custody have participated in such 

programs? 

37. Both RDAP and Federal Prison Industries (FPI) have been proven to 

reduce recidivism. What challenges might BOP face in developing 

new programs that help to reduce recidivism? 

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a. Would each program have to be vetted and peer-reviewed, 

since it would award time credits to inmates based on their 

participation in the programs? How long would the vetting and 

peer-reviewing take? 

b. Who would develop the programs? Who would lead the 

programs in the facilities, once they've been implemented? 

c. How much does BOP estimate it would cost to develop new 

recidivism-reduction programs? 

38. Federal Prison Industries currently has a repatriation pilot program 

going on, involving products from places like China and South 

America. 

a. Can FPI get enough work via repatriation to keep it from 

competing with domestic companies? 

b. Are there other plans for repatriating products? 

i. Your testimony talks about 17 "potential opportunities" in 

addition to the current 17 pilot proposals. What are those 

other opportunities? 

39. The OIG recently released a report on FPI management. 

a. OIG said it was unable to gauge how well FPI's job-sharing 

program was working, due to a lack of reliable data. What is 

BOP's assessment of the program? 

b. The OIG report also noted that FPI had employed 37inmates 

who were under a final order of deportation. How did that 

happen? Since FPI is only available to a very small percentage 

of inmates, shouldn't BOP be very selective in choosing who 

can participate? 

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