Federal Prison System: Justice Has Used Alternatives to Incarceration, But Could Better Measure Program Outcomes
Published: 2016-06-23T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Since 1980, the federal prison population increased from about 25,000 to almost 200,000, as of March 2016. In part to help reduce the size and related costs of the federal prison population, DOJ has taken steps to slow its growth by pursuing alternatives to incarceration at various stages of the criminal justice process for nonviolent, low-level offenders. Senate Report 113-78 included a provision for GAO to review DOJ's management of the federal prison population.
This report (1) describes factors criminal justice stakeholders consider when using incarceration alternatives at or before sentencing and identifies the extent to which those alternatives are used, (2) describes factors BOP considers when using incarceration alternatives for inmates and the extent of their use, and (3) assesses the extent DOJ has measured the cost implications and outcomes of using the alternatives.
GAO analyzed DOJ and federal judiciary branch data and documents from fiscal years 2009 through 2015, and interviewed DOJ and judiciary officials at headquarters and in 11 selected nongeneralizable judicial districts about the use of alternatives. GAO selected districts to provide geographic diversity and a mix of districts using and not using the alternatives.
section_title: What GAO Found
paragraphs: Department of Justice (DOJ) and federal judiciary officials reported considering numerous factors when using alternatives to incarceration at or before an offender's sentencing, but DOJ does not reliably track the use of some alternatives. A variety of alternatives can be used for offenders at or before sentencing, such as referral to state and local prosecutors, pretrial release, and probation. Other such alternatives include pretrial diversion programs which divert certain offenders from the traditional criminal justice process into a program of supervision and services or into court-involved pretrial diversion practices, such as drug courts, that provide offenders an opportunity to avoid incarceration if they satisfy program requirements. DOJ and judiciary officials most commonly reported considering the presence of violence and the offender's role in the crime when determining use of an alternative at or before sentencing. Based on DOJ and judiciary data on referrals to other jurisdictions, pretrial release, and alternatives at sentencing, the overall use of such alternatives across districts was largely consistent during the periods for which data were available from fiscal years 2009 to 2015. However, DOJ data on the use of pretrial diversion is unreliable because DOJ's database does not distinguish between the types of pretrial diversions. Further, when and whether the use of the pretrial diversion is recorded into the database varies across DOJ staff responsible for entering the data. By revising its system to track the different types of pretrial diversion programs, and issuing guidance as to when staff are to enter their use into its database, DOJ would have more reliable and complete data.
DOJ's Bureau of Prisons (BOP) considers statutory requirements and risk levels when placing inmates into incarceration alternatives such as residential reentry centers (RRCs, also known as halfway houses) and home confinement, and has increased its use of alternatives, particularly home confinement, in the past seven years. In addition to the basic eligibility requirements, BOP evaluates inmates' needs for reentering society, risk for recidivism, and risks to the community if placed in RRCs or home confinement. For low-risk and low-need inmates, home confinement is the preferred alternative according to BOP and BOP increased its use by 67 percent for minimum security inmates and 58 percent for low security inmates from fiscal years 2009 through 2015. Relative to home confinement, use of RRCs grew at a slower pace for low security inmates and declined for minimum security inmates.
DOJ has tracked some data on the cost implications of using incarceration alternatives, but could better measure their outcomes. For example, DOJ conducted a survey in 2014 and 2015 of U.S. Attorneys to obtain district-level information about the use of court-involved pretrial diversion practices. However, the data collected do not measure the outcomes or cost implications of the alternatives. For alternatives used at the end of inmates' sentences, BOP maintains data on the costs, such as average daily costs, of placing inmates in RRCs and home confinement. While BOP has measures in its strategic plan to monitor the use of RRCs and home confinement and has contracted for an analysis of its use of RRCs and home confinement that is expected to be completed during the summer of 2016, BOP, does not currently track the information needed to help measure the outcomes of these alternatives. By taking steps to obtain outcome data and developing performance measures for the alternatives used, DOJ and BOP would be better able to determine the extent to which the alternatives are achieving their goals and objectives and what adjustments may be necessary to make them more effective.
section_title: What GAO Recommends
paragraphs: GAO recommends that DOJ enhance its tracking of data on use of pretrial diversions and that DOJ and BOP obtain outcome data and develop measures for the alternatives used. DOJ concurred.

section_title: Letter
paragraphs: As of March 2016, the Department of Justice’s (DOJ) Federal Bureau of  Prisons (BOP) was responsible for managing almost 200,000 inmates in  122 institutions, more than half of whom are housed in low and medium  security facilities. Despite a decline of about 8,400 inmates since the end  of fiscal year 2015, BOP’s inmate population is seven times the  population it managed in 1980. BOP’s inmate population increased by  about 700 percent from 1980 to 2016—from 24,640 to almost 200,000.  Given the increase in population, BOP’s annual appropriations have  increased from $330 million in fiscal year 1980 to almost $7.5 billion for  fiscal year 2016. According to DOJ’s Inspector General, the rising costs  for BOP threaten the department’s ability to fulfill its mission in other  areas, including maintaining national security, enforcing criminal law, and  defending civil rights.
In 2013, in part to help reduce the size and costs of the federal prison  population, DOJ implemented the Smart on Crime Initiative, the goals of  which include prioritizing prosecutions to focus on the most serious  cases, and pursuing alternatives to incarceration for low-level, nonviolent  offenders. DOJ and its components, such as BOP and the U.S.  Attorneys’ Offices (USAO), in conjunction with the federal judiciary and its  components, such as the U.S. Probation and Pretrial Services Office  (PPSO), have made use of a variety of alternatives to incarceration for  federal offenders and inmates. These include alternatives on the front- end of the criminal justice process, such as releasing offenders pretrial  and allowing offenders to participate in pretrial diversion programs and  specialty courts, such as drug courts, which provide offenders an  opportunity to avoid incarceration if they satisfy program requirements.  For those offenders who are convicted of a criminal offense, judges may  use alternatives to incarceration during sentencing, such as sentencing  an offender to probation without a period of incarceration. After an inmate  has been incarcerated, BOP has alternatives available that would allow  the inmate to serve out a period of his or her sentence outside of a BOP  institution, such as in a Residential Reentry Center (RRC, also known as  a halfway house) or on home confinement, both of which are designed to  supervise inmates in a community setting to facilitate an inmate’s reentry  into society.
We previously reported that BOP’s population size is driven by factors  beyond BOP’s control, such as law enforcement policies and sentencing  laws. In the last few years, DOJ has implemented targeted initiatives to  address the concerns of overcrowding and costs of federal prisons.  Senate Report 113-78 included a provision for us to conduct a review of  these recent efforts, including whether incarceration and prevention  programs are being used effectively, given DOJ’s department-wide  approach.
This report addresses the following questions:  1.  What factors have selected criminal justice stakeholders reported  considering when determining whether to use alternatives to  incarceration when charging, litigating, or sentencing offenders, and to  what extent have these alternatives been used?  2.  What factors has BOP considered when determining whether to use  alternatives to incarceration for minimum and low security inmates,  and to what extent has it used these alternatives?  3.  To what extent has DOJ measured the cost implications and  outcomes of alternatives to incarceration?
To answer the first question, we reviewed federal policies such as the  U.S. Attorney’s Manual used by federal prosecutors and federal  sentencing guidelines used by judges when determining whether to use  an alternative. To determine the extent to which districts use the  alternatives at or before sentencing, we obtained and analyzed available  data for the fiscal year 2009 through 2015 time period from DOJ on  referrals to other jurisdictions and the use of pretrial diversion; the U.S.  Sentencing Commission (USSC) on the use of incarceration alternatives  (e.g., probation) at sentencing; and the Administrative Office of the U.S.  Courts (AOUSC) on pretrial release rates to identify trends in the use of  those alternatives, if any, over time. We selected this time period  because we believe that 7 years is sufficient time to provide an adequate  understanding of recent trends in the use of those alternatives. We  assessed the reliability of these data and generally determined them to be  sufficiently reliable for our purposes of reporting trends in use of the  alternatives. This reliability assessment included reviewing relevant  documentation and interviewing or obtaining information about the data  from knowledgeable officials from DOJ’s Executive Office for United  States Attorneys (EOUSA), the USSC, and the AOUSC. However, we  determined that DOJ’s data on pretrial diversion were unreliable, for  reasons discussed later in this report. We also reviewed DOJ’s policies  and procedures for tracking its use of alternatives to incarceration and  compared those policies and procedures with criteria in Standards for  Internal Control in the Federal Government.
Additionally, for our first objective, we interviewed officials at USAOs;  court officials, including district and magistrate judges, and probation and  pretrial services officers; and defense counsel in 11 selected judicial  districts. These districts include 6 districts that reported using alternatives  such as a court-involved pretrial diversion practice—Central District of  California, Southern District of California, Western District of Washington,  Central District of Illinois, Eastern District of New York, and District of  South Carolina—and 5 districts that do not—District of Nevada, Southern  District of Iowa, Eastern District of Michigan, Southern District of Texas,  and Northern District of Georgia. We selected the 6 districts based on  information available as of August 2015 from DOJ, the USSC, and U.S.  District Court for the Eastern District of New York that identified which  districts used court-involved pretrial diversion practices such as drug  courts, veterans’ courts, or other specialty courts. In addition, we selected  all 11 districts using a mix of other criteria such as geographic location,  geographic characteristics (i.e., along a border or body of water), and  demographics (i.e., urban and rural). We interviewed officials from these  districts to discuss the alternatives to incarceration they have used at or  before sentencing and the most frequently used factors that stakeholders  considered in their decisions whether to use these alternatives.  Information from the interviews with officials in our 11 selected districts  cannot be generalized across all federal judicial districts. However, the  information we obtained from these districts provides insight into what  alternatives are being used and how they are used in practice. We are not  taking a position on whether these alternatives to incarceration should be  used, but rather present information on stakeholders’ perspectives about  deciding whether to use alternatives.
To answer the second question, we reviewed BOP policy and guidance  related to the process for identifying and placing eligible inmates into  RRCs and home confinement, including home confinement through the  Federal Location Monitoring Program (FLM), a joint program between  BOP and PPSO. Additionally, to determine the extent to which BOP uses  these alternatives, we analyzed BOP data on the number and type of  inmates placed in RRCs and home confinement alternatives from fiscal  years 2009 through 2015 to identify trends in the use of these  alternatives, if any, over time. We selected this time period because we  believe that 7 years is sufficient time to provide an adequate  understanding of recent trends in the use of those alternatives. We  assessed the reliability of these data and determined them to be  sufficiently reliable for our purposes. This reliability assessment included  obtaining information about the data from knowledgeable officials at BOP.  We also compared BOP’s and PPSO’s policies and procedures for  carrying out the FLM program against practices that we have identified in  prior work to enhance and sustain collaboration among federal agencies  and Standards for Internal Control in the Federal Government.
For our second objective, we also interviewed BOP officials in the  Reentry Services Division at headquarters, which provides management  and oversight of BOP’s use of RRCs and home confinement, as well as  wardens and other BOP staff located at selected minimum and low  security institutions to discuss the factors they consider when deciding  whether to place an inmate into an RRC or home confinement. Within our  11 selected districts discussed above, we selected all 4 of BOP’s  minimum and low security institutions located within those districts— Federal Correctional Institution Lompoc and Federal Correctional  Institution Terminal Island in the Central District of California, Federal  Prison Camp Bryan in the Southern District of Texas, and Federal  Correctional Institution Milan in the Eastern District of Michigan. We also  interviewed BOP residential reentry management (RRM) officials, who  are responsible for managing the placement of inmates in RRCs and  home confinement, and RRC contractors within the 3 districts above  where BOP minimum or low security institutions were located to better  understand the key factors they consider in decisions to use incarceration  alternatives. We also interviewed BOP RRM officials and an RRC  contractor in the Western District of Washington in our initial work on the  engagement before we had made our selections of BOP institutions.  Even though this office was outside of the districts where the selected  BOP institutions were located, we included its officials’ responses in order  to be comprehensive in our analysis. We also interviewed officials with  PPSO in the 11 districts mentioned above about their role and factors  they consider when accepting inmates into the FLM Program.
To answer the third question, we reviewed results from a 2014 survey  conducted by EOUSA of USAOs regarding the implementation of the  department’s “Smart on Crime” initiative—the first such survey  conducted—which included their use of court-involved pretrial diversion  practices, such as a presentence diversion court, and, if they used such a  court, whether the court was evaluated or assessed. We also reviewed  available cost estimates and program measures compiled by PPSO  officials from some districts using court-involved pretrial diversion  practices, such as the data compiled by the Eastern District of New York.  Additionally, we analyzed BOP daily cost data for inmates at BOP  facilities and RRCs for fiscal year 2015 to determine the cost of BOP  facilities compared to RRCs. We selected this year because it is the most  current data available. We assessed the reliability of these data and  determined them to be sufficiently reliable for our purposes. This reliability  assessment included reviewing relevant documentation and interviewing  and obtaining information from knowledgeable officials from EOUSA and  BOP. We also reviewed DOJ’s Strategic Plan, Smart on Crime Initiative  goals, and BOP’s Strategic plan to identify any relevant measures for the  performance of the alternatives and compared those against the  characteristics of measures as called for in Standards for Internal Control  in the Federal Government and the GPRA Modernization Act (GPRAMA)  of 2010. We interviewed officials at EOUSA and BOP to better  understand how or whether they measure cost implications and the  effectiveness of using alternatives to incarceration.
We conducted this performance audit from March 2015 to June 2016 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Key Stakeholders in the Federal Criminal Justice Process
paragraphs: Various DOJ and federal judiciary stakeholders play key roles in the  federal criminal justice process, and as such, they can also have key  roles in considering whether to use incarceration alternatives for a given  offender or inmate. For example, in the course of the federal criminal  justice process, a U.S. attorney is involved in the process of investigating,  charging and prosecuting an offender, among other responsibilities.  Federal defenders are called upon to represent defendants who are  unable to financially retain counsel in federal criminal proceedings.  PPSO, an office within the judiciary, also has responsibilities including  supervising an offender pretrial or after conviction. Likewise, federal  judges are responsible for determining an offender’s sentence, and, in the  case of incarceration, BOP is responsible for caring for the inmate while  in custody. Table 1 describes these roles in more detail.
section_title: Federal Criminal Justice Process
paragraphs: Federal laws and guidelines determine what, if any, incarceration is  appropriate for offenders. Prior to passage of the Sentencing Reform Act  of 1984, federal judges generally had broad discretion in sentencing.  Most criminal statutes provided only broad maximum terms of  imprisonment. Federal law outlined the maximum sentence, federal  judges imposed a sentence within a statutory range, and the federal  parole official eventually determined the actual duration of incarceration.  The Sentencing Reform Act of 1984 changed the federal sentencing  structure by abolishing parole for federal offenders sentenced after its  effective date, and subsequent legislation established mandatory  minimum sentences for many federal offenses.
The Sentencing Reform Act of 1984 also established the independent  USSC within the judicial branch and charged it with, among other things,  developing federal sentencing guidelines. The guidelines specify  sentencing guideline ranges—a range of time (in months) that offenders  should serve given the nature of their offense and other factors—but also  permit sentences to depart upward or downward from guideline ranges  because of aggravating or mitigating circumstances. In 2005, the  Supreme Court found the Sentencing Guidelines, which had previously  been binding for federal judges to follow in sentencing criminal  defendants, to be advisory in nature. Regardless of the guidelines’  advisory nature, judges are still required to calculate them properly and to  consider the guideline ranges as well as the nature and circumstances of  the offense, the defendant’s history, and the need for deterrence, among  other sentencing goals.
However, sentencing and, if appropriate, incarceration, are two of multiple  potential steps in the federal criminal justice process. There are also  opportunities to use alternatives to incarceration for certain offenders  throughout the process, as illustrated in figure 1.
As figure 1 shows, alternatives to incarceration are available at various  steps in the federal criminal justice process from charging and  prosecution through incarceration—the steps in the process included in  the scope of our review. Multiple DOJ components, as well as the federal  judiciary, have specific roles and responsibilities in providing these  alternatives. Of the various incarceration alternatives that can be  exercised at the charging and prosecution or at sentencing and  incarceration stages, the use of court-involved pretrial diversion practices,  specifically, can be exercised solely in those districts that have decided to  adopt such practices.
Tables 2 and 3 provide details on the pretrial alternatives to incarceration  and those available at sentencing and after incarceration, respectively, as  well as the federal stakeholders or entities involved, and their role.
section_title: Overview of BOP’s Population and Institutions
paragraphs: BOP is responsible for the custody and care of federal inmates.  According to BOP data, eighty-one percent of these inmates are confined  in BOP-operated correctional institutions or detention centers. The  remainder are confined in secure privately managed or community-based  facilities, local jails or in home confinement. BOP itself houses inmates  in its 122 federal institutions and about 180 RRCs. The institutions  operate at different security-level designations—minimum, low, medium,  and high for institutions housing male inmates, and minimum, low, and  high for institutions housing female inmates. Of BOP’s 122 facilities, 39  are minimum and low-security institutions. The security-level designation  of a facility depends on the level of security and staff supervision that the  institution is able to provide, such as the presence of security towers;  perimeter barriers; the type of inmate housing, including dormitory,  cubicle, or cell-type housing; and inmate-to-staff ratio. Additionally, BOP  designates some of its institutions as administrative facilities, which house  male and female inmates and specifically serve inmates awaiting trial,  those with intensive medical or mental health conditions, or those who are  deemed extremely dangerous, violent, or escape-prone, regardless of the  level of supervision these inmates require.
Table 4 depicts the number and percentage of inmates in the custody of  BOP, by security level of the institution, as of February 27, 2016. As table  4 shows, more than half of BOP’s inmates are incarcerated in low and  medium security institutions.
section_title: Selected Stakeholders Reported Considering a Number of Factors When Using Alternatives at or before Sentencing, but DOJ Does Not Track the Use of Some Alternatives
subsections: section_title: Selected Stakeholders Reported Considering Presence of Violence and Offender’s Role in the Crime, Among Other Factors, When Determining Use of Alternatives to Incarceration
paragraphs: DOJ and court officials we interviewed told us they consider various  factors when deciding whether to use an alternative to incarceration for  certain federal offenders in the early stages of the federal criminal justice  process. Across all the alternatives available at or before sentencing, the  63 federal stakeholders in the 11 selected districts with whom we spoke  (11 federal prosecutors, 25 judges, 12 defense counsel, and officials in 15  PPSOs) most commonly reported that they considered whether the crime  involved any acts of violence and the offender’s role in the crime. These  stakeholders reported that such alternatives are generally targeted to  non-violent, low-level offenders. These stakeholders also reported that  other factors, such as the nature of the crime, offender’s criminal history,  and mental health or drug abuse issues influenced their decisions, but the  extent to which these specific factors were considered varied by the type  of alternative under consideration. Table 5 below and the discussion  that follows identify and describe the most commonly considered factors  among the federal stakeholders we interviewed, by type of alternative.
Case referral to state and local prosecutors: Eleven federal  prosecutors in 11 districts with whom we spoke reported that they  consider the seriousness of the offense, as federal prosecution is typically  reserved for cases that are considered higher level or more serious  cases, such as those involving drug cartels, racketeering, and conspiracy.  Prosecutorial guidelines establish the thresholds for prosecution which  are set at the district level; therefore, thresholds may vary from district to  district. Some prosecutors also reported considering the amount of time  and resources that would have been required to prosecute these low- level, nonviolent cases. For example, four federal prosecutors noted that  the amount of time used to prepare for a trial can be time-consuming, so  referrals to state prosecutors can help reserve resources for the higher  level or more serious cases.
Pretrial Release: The 12 magistrate judges with whom we spoke most  frequently reported considering the nature of the crime when considering  whether to release an offender before trial. Magistrate judges also  frequently reported factors such as offender’s criminal history (11 of 12),  supporting ties of family and community (11 of 12), past conduct while on  supervised release, such as probation (11 of 12), offender’s employment  status (10 of 12), and offender’s drug addiction or abuse and mental  health issues (9 of 12). For example, 2 of these 9 judges indicated that if  the offender has a drug or mental health problem, they consider  alternatives such as a drug or mental health treatment program instead of  incarceration, or they establish conditions such that the offender is  regularly tested for drugs or counseling while on pretrial release. Some  magistrate judges (6 of 12) also stated they rely on recommendations  from the PPSO officer in making their decision related to pretrial release.  For example, 4 magistrate judges with whom we spoke stated that they  rely heavily on these recommendations when deciding to release or  detain an offender because the PPSO officer generally conducts a  thorough pretrial investigation of the offender. Three magistrate judges  also reported using information provided by others, such as the USAO or  federal defenders, on the nature and severity of the crime or any  extenuating circumstances, such as mental illness or drug addiction, in  their decisions.
Title 9 Pretrial Diversion Program: Ten of the11 federal prosecutors  with whom we spoke—who have discretion over whether to use Title 9  pretrial diversion for offenders—noted that they most frequently consider  the offender’s criminal history and the nature or seriousness of the  offense. In particular, they reported that, generally, the program is used  for first-time offenders and offenders who have committed low-level,  nonviolent offenses or white collar crimes such as Social Security or mail  fraud. In districts that have other alternatives, such as court-involved  pretrial diversion practices, 2 of the 6 prosecutors we interviewed stated  that they prefer to use these other alternatives because they provide  more intensive services and supervision compared to Title 9 Pretrial  Diversion. For example, a prosecutor with whom we spoke indicated that  Title 9 Pretrial Diversion is not widely used because the court-involved  practice provides more rigorous supervision such as weekly contacts with  offenders.
What is a court-involved pretrial diversion  practice?  In addition to Title 9 Pretrial Diversion, federal  criminal justice stakeholders within some  judicial districts have voluntarily established  court-involved pretrial diversion practices or  specialty courts that handle specific offender  populations such as veterans, or those with  specific problems such as substance abuse or  mental health issues that appear to be the  root cause of their criminal activity.  Unlike traditional diversion, court-involved  pretrial diversion practices vary in structure  and do not uniformly result in the avoidance of  a federal conviction upon successful  completion. While some provide for a full  dismissal of charges, others may provide for a  sentence of probation or little to no  incarceration. Also, unlike Title 9 Pretrial  Diversion, courts are primary actors in these  practices and must participate in their  creation.
Court-Involved Pretrial Diversion Practices: As described earlier, to  obtain perspectives on court-involved pretrial diversion practices, we  spoke with stakeholders in 6 districts that use such practices, and 5  districts that do not. Within the 6 selected districts that use court-involved  pretrial diversion practices, the 13 judges, 6 prosecutors, 6 defense  counsel, and officials in 9 PPSOs with whom we spoke identified a  number of factors that led their districts to adopt such practices. Most  frequently, they reported that three particular factors influenced their  decision to adopt such alternatives. First, they reported that an  awareness of effective state-level pretrial alternative programs influenced  their decision. For example, 5 judicial branch officials (3 judges, 1 federal  defender, and 1 PPSO officer) with whom we spoke in 3 of the 6 districts  explained that their awareness of state-level pretrial diversion programs  helped them understand how to replicate a similar program at the federal  level. Further, 4 of the stakeholders with whom we spoke in 2 districts  indicated that some federal judges who were former state judges involved  in state pretrial diversion programs brought their past experience to the  federal judicial system. Second, 11 stakeholders representing a mix of  judges, federal defenders, PPSO, and USAO staff with whom we spoke in  5 of the 6 districts indicated there is a perception that offenders may  commit crimes as a result of addiction to drugs, and that if the addiction  were addressed, they would be unlikely to continue to commit crimes. For  instance, among the judges with whom we spoke in the 6 districts, 3  indicated that many of the offenders they see in court have a substance  abuse problem, which is generally linked to the crimes they commit.  Given this, these judges explained that they believe that incarcerating  these offenders would probably not resolve that problem. Third, 3  defenders and 3 prosecutors with whom we spoke identified a perception  that continuing to prosecute and incarcerate low-level, nonviolent repeat  offenders drains limited federal resources as a factor influencing their  decision to establish a pretrial diversion program. These stakeholders  explained that trial preparation for such prosecutions can be time- consuming and costly. Five of these 6 stakeholders noted that court- involved pretrial diversion practices can be mutually beneficial to the  offender and the district by providing an opportunity for the offender to get  help to change their lives for the better while helping the district to focus  resources on the most serious crimes.
While stakeholders in our 6 selected districts that use court-involved  pretrial diversion practices identified common reasons for adopting such  practices, we found that the factors stakeholders in these districts  consider when determining whether to use this alternative for a given  offender may vary depending on the specific criteria and design of the  respective practices. For example, in the Western District of Washington,  stakeholders reported that they consider factors including whether the  offender’s criminal behavior is motivated by substance abuse issues,  whether the offender is a resident of the district, and the number of prior  felony convictions they have had, but admission to the program is not  limited to a specific type of crime. In contrast, stakeholders in the  Southern District of California reported that they consider similar factors  but their program is specifically targeted to young offenders charged with  alien smuggling and drug trafficking offenses.
Within the 5 districts that have not adopted court-involved pretrial  diversion programs, 3 judges, 2 prosecutors, 3 defense counsel, and  officials in 2 PPSOs with whom we spoke most frequently identified a lack  of interest or need for such programs as reasons why their districts have  not adopted them. Some stakeholders also reported not having eligible or  qualified offenders (5 prosecutors and 2 judges), a lack of resources to  operate such programs (2 judges, 1 PPSO, and 2 prosecutors), or having  other alternative programs available (2 prosecutors and 2 defenders). For  example, stakeholders in all 5 districts explained that they do not have  enough low-level, nonviolent offenders who would qualify for a court- involved pretrial diversion program to make operating a program  worthwhile. Furthermore, according to 5 prosecutors and 2 judges we met  with in these districts, their districts’ prosecutorial priorities focus on  higher level offenders who would not qualify for this type of program.  Additionally, 2 judges, 2 prosecutors, and 1 PPSO officer in 4 districts  cited a lack of resources to operate a court-involved pretrial diversion  program as current caseloads are already extensive.
Sentencing Alternatives: For those offenders who do not go through a  pretrial diversion program and are instead convicted through the normal  criminal justice process, district judges may hand down sentences that  involve incarceration or alternatives to incarceration, such as probation.  When asked about what factors they consider when determining  sentencing for an offender, 8 of 13 district judges we spoke with in our  selected districts stated that they consider the federal sentencing  guidelines in their decisions. The sentencing guidelines generally take  into account the seriousness of the offense and the offender’s criminal  history, however, because the guidelines are advisory, 6 of 13 judges  noted they may choose to deviate from the guidelines and instead  consider other options for sentencing, such as probation. Other common  factors the judges reported considering included the offender’s personal  situation, such as family and community ties (8 of 13 judges), whether the  offender had a drug addiction problem (7 of 13 judges), education level  and employment status (6 of 13 judges); and the recommendation from  PPSO officers (6 of 13 judges).
The judges also reported that the manner in which they consider these  factors are very case specific and individualized. For example, of the 8  judges that consider family support as a factor in deciding whether to use  a sentencing alternative, 3 explained that if the offender has strong family  ties, probation would probably be a better sentence than incarceration so  that the offender could get the needed support from family. Additionally,  when asked a general question about what factors they consider when  deciding on a sentence for an offender, 7 district judges explained that  they base decisions of whether to sentence offenders to incarceration  alternatives on their professional judgment regarding whether the  offenders seem receptive to changing their criminal ways and working  toward a better life without crime. For example, one district judge  explained that he considers whether imposing a minimum of 12 months of  incarceration will help to rehabilitate or deter an offender from committing  future crimes as compared to offering them greater leniency through an  alternative, such as probation.
section_title: Use of Alternatives to Incarceration has Largely Remained Consistent, but DOJ Lacks Reliable Data on the Use of Pretrial Diversion
paragraphs: As figure 2 shows, based on data from AOUSC, DOJ, and the USSC on  the use of alternatives to incarceration at or before sentencing, the overall  use of these alternatives nationally and across the subset of districts that  have adopted court-involved pretrial diversion practices has been largely  consistent during the respective time periods for which they are  available—from fiscal years 2009 to fiscal years 2015 for alternatives at  sentencing; from fiscal years 2012 to 201 for pretrial release; and from  fiscal years 2014 to 2015 for referrals to another jurisdiction.
However, in performing our analysis of the data on the use of alternatives  over time, we found that DOJ’s data on pretrial diversions were unreliable  for two reasons. First, DOJ’s pretrial diversion data do not distinguish  between Title 9 pretrial diversions and diversions that were the result of a  court-involved pretrial diversion practice. As previously described, Title 9  pretrial diversions are at the discretion of the U.S. Attorney, divert  offenders from prosecution into a program of supervision by the PPSO,  and, if successful completed, can result in the offender not being  prosecuted or a dismissal of charges. Court-involved diversion practices  involve additional stakeholders—including federal judges and defense  counsel—with participation generally determined by all stakeholders.  Unlike Title 9 pretrial diversions, participants in court-involved diversions  generally meet regularly with court officials to discuss progress.  Moreover, if successful, participants in court-involved diversions may  avoid prosecution or have charges dismissed, like those in Title 9 pretrial  diversion, but may also receive a reduced sentence. Therefore, given the  differences between these types of diversion in terms of the stakeholders  involved, the level of supervision provided to offenders, and the outcomes  successful completion can lead to, they are each unique types of  diversion. Given DOJ’s current data entry process, however, while DOJ  has data on the counts of cases that were diverted pretrial overall, DOJ  cannot determine whether the diversions were through Title 9 pretrial  diversion or a court-involved pretrial diversion practice.
According to EOUSA officials, DOJ lacks detailed data on the type of  pretrial diversion used because DOJ’s data entry processes do not allow  for USAO staff to make entries according to the type of pretrial diversion  used. According to EOUSA officials, the Legal Information Office Network  System (LIONS)—EOUSA’s case management system—is set up so that  only a single disposition code can be used by USAO staff when entering  a diversion case into the system. Consequently, both Title 9 pretrial  diversion cases and cases that have been diverted through court-involved  pretrial diversion programs are recorded simply as pretrial diversion.  EOUSA officials stated that given the volume of complex data that is  already required to be entered into the system for any given case, it can  be difficult to add new codes into the data entry process and ensure they  are being entered correctly and consistently across all districts where the  data is being entered. However, while the officials noted that they  recognized the need to revise the system to improve the data and make it  more specific and useful they did not identify any specific actions or plans  to do so.
Second, DOJ’s pretrial diversion data has limited reliability due to  potential variability as to when and whether the pretrial diversion code is  entered into LIONS by a USAO. According to EOUSA officials, while DOJ  has established some coding policies for pretrial diversion in LIONS, it  has not provided specific guidance as to when in the process USAOs are  to enter the cases under the pretrial diversion disposition code. Therefore,  this could result in inconsistent and unreliable data on the use of pretrial  diversion. For example, according to officials, some USAOs may enter  the pretrial diversion code into the system for a case when the offender  enters into a diversion program, while other USAOs may wait until the  offender has completed the program. The officials noted that there may  not be a record of all instances in which an offender enters a pretrial  diversion program, but does not successfully complete it. For instance, if  an offender does not successfully complete the pretrial diversion program  and the USAO subsequently files charges against the offender, the USAO  may solely enter the charges filed against the offender in LIONS, but  never indicate that the offender first entered a pretrial diversion program,  but then did not successfully complete it. As a result, EOUSA’s data may  not consistently capture the total number of instances in which such  diversion is offered. EOUSA officials stated that they have not provided  specific guidance on when to enter pretrial diversion codes in LIONS  because of the relatively small number of diversion cases relative to the  total cases handled by USAOs that would require such coding and to  mitigate the likelihood of further complicating the data entry process for  USAO staff. However, EOUSA officials recognized the potential value in  being able to comprehensively track the data to help it determine what  types of pretrial diversion are being used and in what districts.
One of the key principles of the Smart on Crime Initiative is for DOJ to  pursue alternatives to incarceration for low-level, nonviolent offenders,  and DOJ has specifically recommended the use of court-involved pretrial  diversion practices as a means of putting this principle into action.  According to Standards for Internal Controls in the Federal Government,  management should ensure that events are being recorded in an  accurate and timely manner. Further, the standards also state that  information should be recorded and communicated in a form and within a  time frame that enables them to carry out their responsibilities. In  addition, the recently updated standards that went into effect at the start  of this fiscal year further clarify that agency management should use  quality information to achieve the entity’s objectives, which can include  obtaining relevant data from reliable sources that are reasonable, free  from error and bias, and faithfully represent what they purport to  represent. The updated standards also state that management should  process the data into quality information, and use the information to make  informed decisions and evaluate the entity’s performance in achieving key  objectives.
By taking steps to revise its case management system to separately track  the use of Title 9 diversion and court-involved pretrial diversion programs,  and issuing guidance to USAOs as to how and when to use them—for  instance, when the offender enters the program, completes the program,  or both—-DOJ would have more reliable and complete data to determine  what types of pretrial diversion are being used, in what districts, how  frequently, and how successfully. In turn, DOJ would also be better  positioned to revise its guidance and direction, as necessary, to USAOs  on how they might use pretrial diversion alternatives to more effectively  support the Smart on Crime initiative.
section_title: BOP Considers Statutory Requirements and Inmate Risk Levels when Deciding Whether to Use Incarceration Alternatives and Has Increased Use of Such Alternatives for Minimum and Low Security Inmates
subsections: section_title: BOP Guidance and Policy Identifies Key Statutory Requirements and Risk Levels when Deciding Whether to Place Inmates into Incarceration Alternatives
paragraphs: According to BOP officials, when placing inmates into incarceration  alternatives they consider factors that are in accordance with BOP policy  and guidance which also provides for the overall process for identifying  and placing eligible and appropriate inmates into the incarceration  alternatives of RRCs and home confinement. In particular, according to  this policy and guidance, the eligibility requirements for an inmate’s  placement into the alternatives have been set by the Second Chance Act  of 2007. Moreover, according to BOP guidance, in addition to  considering the basic eligibility requirements, BOP staff must consider the  appropriateness of placing inmates into RRCs and home confinement as  well as evaluate each inmate for their individual reentry needs, risk for  recidivism, and risks posed to the community for placing them in RRCs or  home confinement. For example, BOP guidance states that research has  shown inmates with low reentry needs and a low risk of recidivating do  not benefit from placement in a RRC and could become more likely to  recidivate than if they were not placed. Therefore, according to BOP  guidance, home confinement is BOP’s preferred option for inmates with  low needs and of low risk.
BOP’s policy and guidance lays out a multistep process for placing  inmates into the alternatives once eligible inmates are identified. A variety  of BOP and other officials are involved in the process such as BOP  officials at the institution, Residential Reentry Managers (RRMs), contract  staff at RRCs, and PPSO officials, depending on the type of alternative  being considered. Figure 3 summarizes BOP’s process for placing  inmates into RRCs and home confinement.
BOP officials and RRC contractors with whom we spoke reported that  they consider factors identified in BOP policy and guidance when  attempting to place inmates into incarceration alternatives. In addition to  the eligibility and appropriateness of an inmate for placement in an  alternative, staff with 3 of the 4 BOP institutions and three of the four  RRM offices we spoke with stated that they take into account factors such  as whether the inmate has committed a sexual offense because they  must consider whether the locality of the RRC the inmate may be placed  in has any zoning restrictions that prohibit sex offenders from locating  there. Officials at 3 BOP institutions and two RRM offices we spoke with  also mentioned that they consider whether an inmate has any medical  issues that may be difficult to manage in an RRC environment. Staff at all  four RRM offices we spoke with indicated that another key factor they  consider when placing an inmate into an RRC is the availability of  bedspace within their desired placement area. Officials at three of the four  contracted RRCs we met with indicated that when reviewing referrals for  possible placement they also pay attention to public safety factors such  as whether the inmate is a sexual offender, a member of a gang, or might  otherwise pose a threat to RRC staff in general.
In addition to placing home confinement eligible and appropriate inmates  with contracted RRCs for monitoring, BOP’s process also allows RRMs  the option to refer inmates into home confinement through a joint BOP -  PPSO program known as the Federal Location Monitoring (FLM)  Program. If accepted into the program by PPSO, the inmate is supervised  by a PPSO officer instead of RRC staff while on home confinement.  PPSO officials in six of the nine districts among our selected districts that  were participating in the FLM program stated that they considered factors  such as the inmate’s potential risks for public safety, such as whether the  inmate is a sex offender, as well whether the inmate’s proposed living  arrangement met program requirements when determining whether to  accept the inmates into the program.
section_title: BOP Use of Incarceration Alternatives for Inmates Increased Overall from Fiscal Years 2009 through 2015, Particularly in Home Confinement for Minimum and Low Security Inmates
paragraphs: From fiscal years 2009 through 2015, BOP increasingly placed inmates  into RRCs and home confinement, with inmates designated as minimum  and low security making up the two largest groups of inmates in RRCs  and home confinement. According to BOP data, the total number of  inmates placed into RRCs or home confinement during this period  increased by about 16 percent from about 28,400 in fiscal year 2009 to  almost 33,000 in fiscal year 2015. As figure 4 illustrates, relative to  inmates of other security levels, minimum security inmates represented  the largest numbers of inmates being placed in RRCs and home  confinement overall with low security inmates representing the second  largest inmate group.
During the seven year period of our analysis, BOP significantly increased  its use of home confinement among low and, especially, minimum  security inmates. For instance, the placement of inmates into home  confinement overall, either directly or subsequent to being in an RRC,  increased by 67 percent—from 4,594 to 7,675—for minimum security  inmates and 58 percent—from 2,060 to 3,247—for low security inmates  from fiscal years 2009 through 2015. Relative to the increased use of  home confinement, placement of minimum and low security inmates into  RRCs grew more slowly or declined slightly. For example, in fiscal year  2009, 98 percent of minimum security inmates were placed in RRCs at  some point, whereas by fiscal year 2015, the percentage had declined to  87 percent. Although the total number of low security inmates placed in  an RRC at some point increased from about 8,000 in fiscal year 2009 to  almost 9,100 in fiscal year 2015, the percentage overall of low security  inmates placed into RRCs declined from 99 percent in fiscal year 2009 to  97 percent in fiscal year 2015. Figure 5 illustrates the relative changes in  the use of RRCs and home confinement among minimum and low  security inmates from fiscal years 2009 through 2015.
According to BOP officials, the increased use of RRCs and home  confinement is consistent with the Second Chance Act, corresponding  BOP implementing guidance, and BOP goals. For example, one of the  objectives of the Second Chance Act was to expand the use of  alternatives as a means to assist offenders overall in reentering society  and establishing a self-sustaining and law-abiding life. Similarly, BOP  officials also noted that BOP issued guidance in 2010 and 2013  specifically encouraging the use of direct home confinement for lower risk  inmates, in order to provide bed space at RRCs for higher risk inmates.  Consequently, the officials stated that while more inmates were placed in  RRCs and home confinement overall, minimum and low security inmates  were specifically targeted for placement in home confinement whenever  possible.
Within its strategic plan, BOP has specified two measures to track  placement of inmates into RRCs and home confinement. For its RRC  measure, BOP aims for its institutions to place at least a certain  percentage of their inmates into RRCs, with the specified target  percentages varying according to their security level. For the first and  second quarters of fiscal year 2015, both minimum and low security  institutions exceeded the target set for them for this measure. For the  second measure related to the use of home confinement, BOP aims for  its Residential Reentry Management Branch to maintain 40 percent or  more of home-confinement eligible inmates in home confinement. BOP  has come close to—but not met—this goal. From April 2015 to  September 2015, the most recent period for which data were available,  the monthly percentage of home confinement eligible RRC inmates in  home confinement fluctuated between 36.4 percent and 38.4 percent.  According to BOP officials, it has not met its stated goal largely because  of factors outside of its control, such as inmates lacking the resources  and ability to locate and prepare an acceptable home location to be  placed in home confinement in a timely manner.
section_title: BOP Increased Use of the Federal Location Monitoring Program
paragraphs: As with the increased use of home confinement in general, BOP has also  increased utilization of the FLM program as a means to provide home  confinement to inmates, especially for minimum security inmates, as  shown in figure 6. For example, the number of minimum security inmates  going into the FLM program increased from 281 in fiscal year 2009 to 592  in fiscal year 2015, a 111 percent increase. During this same time period,  the total number of low security inmates going into the FLM program  (both directly and subsequent to placement in an RRC) increased from 97  in fiscal year 2009 to 157 in fiscal year 2015, an increase of 62 percent.
The FLM program is currently available in over half of the federal judicial  districts and BOP officials have encouraged the expansion of the program  into additional districts, as they noted that the program can provide cost  advantages relative to home confinement through an RRC. According to  headquarters PPSO officials, approximately 51 out of the 94 federal  judicial districts nationwide were participating in the FLM program in fiscal  year 2015, nearly double the number of districts participating in 2010.  To foster further expansion of the program, BOP headquarters officials  stated that they continue to discuss and encourage the expansion of the  program into additional districts where possible with probation officials  both at the headquarters and district level. To encourage its use, in 2013  BOP issued an internal memo for BOP staff regarding RRC and home  confinement placements that stated that RRMs should consider using the  FLM program for home confinement to the maximum extent possible  where it is available. In terms of cost, according to BOP headquarters  officials, the average cost to BOP of PPSO supervising an inmate in  home confinement under the FLM program is $15 per day, whereas the  average cost for a RRC to supervise an inmate on home confinement is  $40 per day. Consequently, because the daily cost of home confinement  through the FLM program is less than half that of home confinement  through an RRC, effective utilization of the FLM program can potentially  yield cost savings according to the officials.
Despite BOP’s increased use of the FLM program in recent years, our  interviews with BOP and PPSO officials at headquarters and within our  selected districts suggest that usage may vary across districts. For  example, the program may be less utilized in some areas depending on  the terms of the contracts BOP has with RRC operators. Of the PPSOs in  our 11 selected districts, 9 reported participating in the FLM program. Of  those 9 districts, 1 reported moderate use of the program while 8 reported  that the program was either underutilized relative to available capacity or  that BOP had not made any referrals to the program, or if it had, BOP did  not ultimately place the inmates in the FLM program. Officials in two of  the four BOP RRM offices with whom we spoke noted that the program is  generally used as more of a backup option to place inmates into home  confinement whose desired home sites are more remote and not within  the service area of an RRC. According to BOP headquarters officials,  RRC contract terms may either require BOP to use the RRCs for home  confinement within the RRCs’ service areas or they guarantee RRC  operators a minimum quota of use of their home confinement services.  The officials stated that, consequently, depending on the terms of RRC  contracts in place in specific areas, RRMs may generally prefer to use  RRCs for home confinement in order to first satisfy RRC contract  requirements which may result in less utilization of the FLM program.
BOP has also faced some instances where inmates referred to the FLM  program have been rejected by a PPSO. For instance, PPSO officers in 5  of the 9 districts with whom we spoke noted that they had rejected FLM  referrals from BOP at some point. The reasons for the rejections varied— 2 of the districts noted they rejected referrals because the inmates were  unable to secure acceptable living arrangements; 2 of the districts stated  that BOP’s referrals were deemed to be too high risk to accept (e.g., sex  offenders); and 1 district rejected BOP’s referrals because they were not  made using the appropriate referral process—that is, BOP did not submit  the referral through BOP’s RRM. Further, an official in one of the four  RRMs with whom we spoke stated that he referred inmates to the FLM  program, but most were subsequently rejected by the local PPSO which  told them the inmates were not appropriate for the program—for instance,  because the inmates referred were higher risk than acceptable. BOP  headquarters officials stated that the rejection of referrals for risk reasons  is likely due to the fact that BOP and PPSO use different risk assessment  tools which may result in different risk scores of inmates. The officials  also noted that regardless of risk scores, the Chief Probation Officer in  each district has the final discretion to accept or reject inmates as he or  she deems appropriate for the district.
The fiscal year 2015 interagency agreement between BOP and PPSO for  the FLM program calls for BOP and PPSO to jointly develop additional  plans for identifying and selecting inmates, which could help reduce  rejections. According to BOP and PPSO officials, the interagency  agreement itself identifies the basic criteria for identifying and selecting  inmates into the FLM. Officials with BOP and PPSO at headquarters  stated that they maintain an ongoing dialogue with each other about the  FLM program and regularly discuss the referral process including any  unique cases as well as any other related process issues or concerns.  According to BOP headquarters officials, they have not issued additional  formal guidance on the FLM program, beyond the interagency  agreement, because the ability to participate in the FLM differs across  districts depending on the workload and capacity of the PPSO. However,  both BOP and PPSO officials at headquarters stated that they regularly  communicate to promote use and understanding of the program across  districts, as well as to help minimize and address any rejections from the  program, as envisioned by the agreement.
section_title: DOJ Has Tracked Some Data on the Cost Implications of Alternatives to Incarceration, but Could Better Measure Outcomes
subsections: section_title: DOJ Has Not Measured the Outcomes and Cost Implications of Pretrial Diversion Programs, but the Judiciary Has Collected Some Data
paragraphs: DOJ has not measured the outcomes or identified the cost implications of  the Title 9 and court-involved pretrial diversion programs DOJ has  decision-making power and expends resources on these incarceration  alternatives, which are carried out at or before sentencing. While the  department has conducted a survey to identify which USAOs use court- involved pretrial diversion practices and obtain any evaluations that  USAOs have conducted, in considering the information obtained, the  survey did not result in meaningful information on program outcomes.  According to the official, in late 2014, EOUSA surveyed the USAOs  regarding the implementation of the department’s Smart on Crime  initiative. The survey asked about their use of court-involved pretrial  diversion practices, such as a presentence diversion court, and, if they  used such a court, whether the court was evaluated or assessed.
According to the survey results, 16 out of 93 USAOs responded that their  districts were using a court-involved pretrial diversion court practice and  some respondents provided descriptive information on the number of  participants and program operations. According to the EOUSA official,  when responding to the survey question as to whether the court or  practice was assessed or evaluated, only one office provided  documentation—a 2013 summary that a PPSO officer compiled of the  accomplishments of the district’s pretrial diversion court and the potential  cost savings realized through the use of the court. EOUSA officials  stated they conducted another survey of the USAOs in late 2015 that  asked similar questions about the use of court-involved pretrial diversion  practices, but did not include the question about whether the practice was  evaluated. The officials stated that they expect to have results from the  survey in the spring of 2016. According to DOJ officials, the information  from these surveys is to inform a key indicator DOJ created for the Smart  on Crime Initiative that tracks the number of diversion courts. However,  while the data from survey responses may provide information on how  many districts are using the practices, the data will not provide systematic  information on the costs or outcomes associated with the use of those  practices.
Beyond the descriptive information gathered from the survey, DOJ has  not obtained data that would help it to measure the outcomes or cost  implications of the use of Title 9 and court-involved pretrial diversion  programs. According to an EOUSA official, DOJ has not yet measured  the outcomes and cost implications of pretrial diversion programs  because it lacks the resources that would be required to conduct a  comprehensive evaluation. Specifically, the EOUSA official suggested  that a third party, such as a research institute, would be best suited to  conduct an in-depth evaluation and that hiring such a third party would  require resources that are not presently available from DOJ.
Further, of our 6 selected districts that were using court-involved pretrial  diversion practices, officials at the USAOs and PPSOs in 2 districts stated  that they are in the process of attempting to use outside entities, such as  graduate-level students or faculty at local universities, to conduct  evaluations of those practices. For example, officials with the USAO in  the Western District of Washington stated that they have requested grant  funding to have the academic community work with them to evaluate their  court-involved pretrial diversion program to determine how the program  can expand. However, the funding had not yet been awarded. In the  Central District of California, PPSO officials stated that they were in the  process of selecting researchers from a local university to conduct a  multi-year evaluation of their district’s practice, but they had not yet made  the selection.
EOUSA and USAO officials with whom we spoke also reported that DOJ  has not yet measured the outcomes and cost implications of pretrial  diversion programs because of the lack of sufficient long-term data.  According to an EOUSA official, most court-involved pretrial diversion  practices are relatively new; consequently, most participants in practices  across the districts have not completed the programs and any  subsequent supervision period, making it difficult to accurately measure  long term outcomes. For example, of the 17 districts using court-involved  pretrial diversion practices, 5 districts reported using such practices for 5  years or more. According to an EOUSA official, considering the  relatively short time most of these practices have been in operation, the  length of time required for participants to complete pretrial diversion  programs (usually one to two years), and any subsequent period of post- conviction supervision that may be required afterwards, the number of  participants available to evaluate who have fully satisfied all of their  obligations is relatively limited. Further, according to the USAO staff we  met with in the 6 districts using court-involved pretrial diversion practices,  they have a general awareness of how many offenders had been placed  in the alternatives and how many have successfully completed them, but  they do not track these data systematically because such data are not  required by DOJ to maintain caseload counts and dispositions.
We recognize that tracking the data necessary and measuring the  outcomes and cost implications of pretrial diversion programs would  require resources and time. However, measuring and evaluating costs  and outcomes would not necessarily require hiring a third party to conduct  an assessment of diversion programs across all federal districts. For  example, according to a PPSO official in the Eastern District of New York,  judiciary officials in a number of districts that had implemented court- involved pretrial diversion programs have developed mechanisms to  obtain data and measure some of the cost implications and outcomes of  these programs, and were doing so without the use of a third party. For  instance, judiciary officials in some districts have developed estimates of  cost savings realized from the use of court-involved pretrial diversion  programs, and PPSO officials in the Eastern District of New York  compiled and publicly reported on these estimates in August 2015. See  table 6 for the cost estimates reported by the Eastern District of New  York.
Additionally, judiciary officials have also tracked data related to the  outputs and outcomes of the court-involved pretrial diversion practices.  For instance, officials in seven districts have tracked data on the number  of offenders successfully completing the programs. This information was  collected and compiled by the Eastern District of New York and reported  in August 2015, as shown in table 7. We have previously reported that  tracking successful completion can be a proxy measure for the  effectiveness of deferred prosecution and non-prosecution agreements  DOJ has used in lieu of prosecuting corporations for corporate crime.  Such agreements are similar in function to the type of agreements used in  diverting individual offenders through pretrial diversion.
In addition to these estimates and data, as another means of measuring  outcomes, judiciary officials in 3 of our selected 6 districts that use court- involved pretrial diversion practices reported also informally tracking  recidivism rates of participants who have successfully completed the  practices. For instance, officials from the PPSO in the Southern District of  California estimated a recidivism rate of 2.8 percent for individuals who  successfully completed the program in their district, while PPSO officials  in the Central District of California and the Central District of Illinois  reported that individuals who completed the respective practices in their  districts had not committed any new crimes to their knowledge.
According to DOJ’s current strategic plan, one of its objectives is to  reform and strengthen the country’s criminal justice system by targeting  the most serious offenses for federal prosecution, and expanding the use  of diversion programs, among other things. Consistent with that objective,  the Smart on Crime Initiative includes, as one of its key principles, the  pursuit of alternatives to incarceration for low-level, non-violent crimes. As  part of the Initiative, DOJ has encouraged its prosecutors to consider the  use of alternatives to incarceration and specifically encouraged more  widespread adoption of diversion programs and practices such as drug  courts and other specialty courts across the districts. For example, DOJ  issued a memorandum in August 2013 to its USAOs that cited as  examples several existing court-involved pretrial diversion practices,  stated that the use of such programs or practices can be part of an  effective prosecution program, and identified the potential for cost savings  from the use of these programs based on experiences at various districts.
Given that pretrial diversion programs can help DOJ achieve its strategic  objectives and the Smart on Crime Initiative, it is important for DOJ to be  able to track data related to their use and cost, and to measure their  impacts. According to Standards for Internal Control in the Federal  Government, among other things, agency management should establish  and operate monitoring activities to evaluate results of its efforts and  programs. We understand that some judicial districts may not have had  pretrial diversion programs in place long enough to fully track or assess  the outcomes of a large number of offenders who have completed the  programs. However, according to a resource cited by the Office of  Management and Budget on program evaluation, while activities such as  performance measurement are useful at all stages of a program’s  maturity, they can be particularly useful for providing evidence about how  programs are working in the early years of a program’s history when  impacts on program outcomes may not be detectable and rigorous, high- quality impact evaluations are not yet possible.
By obtaining data on the costs and outcomes of pretrial diversion  programs and establishing performance measures, DOJ would gain  multiple advantages in its ability to manage these programs and optimize  their outcomes and cost implications. First, having such data and  measures available would better position DOJ to determine if pretrial  diversion programs are effectively contributing to the achievement of  department goals and initiatives. Second, such data and measures would  better position DOJ to manage and provide additional guidance to the  districts using the programs and practices, as necessary, to make their  use more effective. Third, with information on the outcomes and cost  implications of the existing programs, DOJ would be better positioned to  determine whether and how it should encourage the use of such  programs. Finally, should DOJ decide to pursue a more in-depth  evaluation by an outside entity of the long term impacts and outcomes of  the programs and practices, having such data and measures in place  would better position DOJ to inform and facilitate that evaluation.
section_title: BOP Measures the Costs of RRCs and Home Confinement, but Lacks Data and Measures to Identify Their Outcomes
paragraphs: BOP collects data on the costs of RRCs and can measure their costs, but  it does not collect data that would help it to measure the outcomes of  RRCs, nor does it measure their outcomes. In particular, through the  contracts it has with RRC operators, BOP has data on and has the ability  to track the cost of placing inmates in RRCs. According to BOP, the  total cost of RRCs in fiscal year 2015 was almost $360 million. Further,  BOP can calculate the average daily cost for placing an inmate into an  RRC, and can compare the cost with the daily cost of housing inmates in  minimum, low, medium, and high security institutions. Specifically,  according to our review of BOP data, the daily cost for placing an inmate  into an RRC is greater than the cost to incarcerate the inmate in a  minimum security institution, but less than incarcerating an inmate in low,  medium, or high security institutions. For example, in 2015, the daily per  capita cost for placing an inmate in an RRC was about $71 per day. In  comparison, as shown in figure 7, the daily cost in 2015 to house an  inmate in minimum security was about $66 while for low, medium and  high security institutions was about $80, $81, and $101, respectively.
According to BOP officials, RRCs are more costly than some BOP- operated institutions because RRCs tend to be located in more urbanized  areas in which it is usually more expensive to operate. Locations for  RRCs are selected after BOP RRM field offices identify a need for RRC  services in a specific area. Factors BOP identified as taken into  consideration when locating a RRC include the number of beds needed  as determined by the number of inmates projected to release to the area,  prosecution trends, new initiatives, and contacts with other federal law  enforcement agencies. Based on our comparison of the locations of  RRCs BOP used in 2015 with Census Bureau data on urbanized areas,  we found that 173 of the 175 RRCs serving adult inmates were located in  urbanized areas.
Further, BOP can track and report the daily costs of individual RRCs,  which can vary widely due to additional factors or features specific to the  RRC. For example, according to BOP data in 2015, the daily costs to  BOP for placing an inmate in an RRC averaged $89 but ranged from  about $45 in Oklahoma City, Oklahoma to about $164 in Brawley,  California. According to BOP officials, the variation in daily costs between  RRCs is due to a variety of factors, such as facility sizes/inmate bed  counts, variances in programming requirements, geographic location, and  services offered for special populations such as mothers with infants.  BOP officials also noted that while the RRCs may generally be more  expensive than incarceration in minimum security facilities, the primary  reason for using alternatives such as RRCs is not to reduce immediate  operational costs, but to provide inmates with an opportunity to adjust to  life outside of an institution and ease their transition back into society from  incarceration.
Similarly, BOP can measure the costs to place inmates into home  confinement. For inmates in home confinement under the FLM program,  BOP officials stated that the average cost to BOP is about $15 per inmate  per day. According to BOP, although the cost of home confinement varies  depending on the contract terms and location, the daily cost to BOP of an  inmate in home confinement is no more than 50 percent of the daily cost  for an inmate placement into the supervising RRC. However, BOP  officials stated they are in the process of updating their contracts to more  precisely track home confinement costs through RRCs. As we reported in  February 2012, BOP at the time did not require contractors who provide  both RRC and home confinement services to separate out the price of  home confinement services, and thus did not know the actual costs of  home confinement. Consequently, we recommended that BOP establish  a plan for requiring contractors to submit separate prices of RRC beds  and home detention services. BOP concurred and determined that all  new solicitations as of February 1, 2013, will have separate line items for  RRC and home confinement services. BOP officials stated that at this  time, current home confinement contracts are a mix of the two types, but  that as the older contracts expire, new ones with separate line items for  home confinement services will be implemented. Once all contracts have  a separate line item, BOP officials stated they would be better able to  identify its precise costs of home confinement going forward.
While BOP can measure the overall costs of RRCs and home  confinement, it does not track the information needed to help measure  their outcomes and does not have such measures in place. For example,  one of the goals in BOP’s strategic plan calls for BOP to, among other  things, provide services and programs to address inmate needs and  facilitate the successful reentry of inmates into society. As mentioned  previously, as part of its strategic plan, BOP has specified two measures  to track placement of inmates into RCCs and home confinement—one  measuring institutions’ placement of inmates into RRCs by security level,  and the other measuring the Residential Reentry Division’s placement of  home-confinement eligible inmates in home confinement. However,  neither of these measures assesses the outcomes of RRCs and home  confinement, such as how they relate to the recidivism rates of inmates.
The GPRAMA of 2010 requires agencies to have outcome-oriented goals  for major functions and operations and an annual performance plan  consistent with that strategic plan with measurable, quantifiable  performance goals. Although GPRAMA requirements only apply at the  DOJ-level, we have previously reported that they can serve as leading  practices for performance planning and measurement at lower  organizational levels, such as bureaus, offices, and individual programs.  Specifically, the GPRAMA requires agencies to set performance goals  and measures each year and measure progress against those goals.  According to GPRAMA, performance measurement allows agencies to  track progress in achieving their goals and provides information to identify  gaps in program performance and plan any needed improvements.
According to BOP, RRCs provide programs that are intended to help  inmates rebuild their ties to the community and to thereby reduce the  likelihood that they will recidivate. The current measures BOP tracks are  useful for monitoring the near term use of RRC bedspace and home  confinement relative to targets and in planning for future RRC bedspace  and home confinement capacity. However, they do not yield information  or insight into the potential benefits they provide after the inmates use  them, or potential areas for program improvement. While BOP  headquarters officials also stated that they were aware of an effort by the  Office of the Deputy Attorney General to solicit an outside contractor to  evaluate and measure the outcomes provided by BOP’s use of RRCs and  home confinement, DOJ was unable to provide any additional information  or documentation on the details of this intended evaluation. Without data  or measures to assess the outcomes of RRCs and home confinement,  BOP does not know whether RRCs and home confinement—programs  intended, in part, to help facilitate the successful reentry of inmates into  society—are contributing to its strategic goal in this area.
Given the limitations of BOP’s current measures, taking additional steps  to develop more outcome oriented measures could enable BOP to better  track the outcomes of the alternatives in achieving BOP goals. BOP  officials stated that measuring the outcomes of alternatives such as RRCs  and home confinement is difficult due to methodological challenges, such  as the need to designate a control group of inmates for comparison that  fully accounts for the diverse characteristics and reentry needs of the  inmates. We recognize the challenge in conducting such a rigorous study;  however, other options are available to assess the outcomes of RRCs  and home confinement that may pose fewer challenges, such as  measuring how frequently offenders who have gone through RRCs or  home confinement reoffend or find jobs. For example, in an August 2015  testimony, the former BOP Director cited statistics on the percentage of  inmates released from federal prison who were rearrested, had their  supervision revoked, or returned to federal prison within 3 years. Given  that BOP has recidivism data available on former inmates, BOP may be  able to develop similar statistics for inmates who had served time in an  RRC or home confinement. As another approach to obtain data and  develop performance measures, BOP could conduct surveys of inmates  who have completed time in RRCs or home confinement to get their  perspectives and feedback on the outcomes of RRCs and home  confinement in helping them to transition back into the community.
Further, during the course of our review, BOP headquarters officials  stated that under the direction and guidance of the Office of the Deputy  Attorney General, a project was initiated to contract for an analysis of  BOP's current RRC model and identify specific recommendations for  improvement.  Among other things, this analysis is to assess the degree  to which current RRC programming addresses criminogenic needs,  reduces recidivism, and meets the programmatic needs of the reentering  population. In addition, the analysis is to provide recommendations for  monitoring performance including identifying benchmarks, goals, and  performance targets to measure and monitor outcomes. According to  BOP officials, the contract was signed in April 2016 and the report is  expected to be released during the summer of 2016. Given the scope and  intent of this analysis, its results may provide BOP insights into its use of  RRCs and home confinement. However, because this analysis is still in  process, it is too early to determine the extent to which the results of this  analysis will be helpful to BOP in identifying potential data and measures  to monitor the outcomes of RRCs and home confinement. Regardless of  the measure or method BOP determines to be most appropriate, by  tracking data and developing performance measures to monitor the  outcomes of RRCs and home confinement, BOP would be better  positioned to determine how those alternatives are contributing to its goal  of helping inmates successfully reenter society, and how to adjust its  policies and procedures for the use of these alternatives, as necessary  and within statutory requirements, to optimize the net benefits they can  provide.
section_title: Conclusions
paragraphs: To help reduce the overall size and costs of the federal prison population,  DOJ components such as USAOs, in coordination with judicial branch  stakeholders such as PPSO and federal judges, have utilized alternatives  to incarceration for low-level offenders and minimum and low security  inmates at various stages of the criminal justice process. DOJ has taken  some initial steps to collect data and measure its efforts for several of  these alternatives. However, DOJ’s data on the use of pretrial diversions  is of limited usefulness and reliability because EOUSA’s case  management system does not distinguish between the different types of  diversion and DOJ has not provided guidance to USAOs as to when and  how pretrial cases are to be entered into the system. Additionally,  because DOJ does not track data on the outcomes and costs of its  pretrial diversion programs, it does not have awareness about the overall  outcomes of the programs in achieving the department’s goals. Tracking  the use of Title 9 diversion and court-involved pretrial diversion programs  using separate codes, and issuing guidance to USAOs as to what codes  to use and when to use them, would provide DOJ more reliable and  complete data on the overall use of pretrial diversion across districts.
Further, by taking steps to obtain and track data on the outcomes of the  programs and developing performance measures for its use of pretrial  diversion, DOJ would be better able to determine the extent to which the  alternatives are contributing to the achievement of DOJ goals and  objectives and what adjustments to policies and procedures, if necessary,  may make them more effective. Moreover, for the alternatives at  incarceration, because BOP has not assessed the outcomes of RRCs  and home confinement, it does not know whether RRCs and home  confinement, which are intended, in part, to help facilitate the successful  reentry of inmates into society, are in fact doing so. By tracking data and  developing performance measures for RRCs and home confinement,  BOP would be better positioned to determine how these alternatives are  contributing to its reentry goals, adjust policies and procedures, as  needed, and optimize their benefits.
section_title: Recommendations for Executive Action
paragraphs: To help ensure that USAOs consistently track the extent of use of all  pretrial diversion alternatives, the Attorney General should direct the  EOUSA to take the following two actions:  revise its data system to allow it to separately identify and track Title 9  and court-involved pretrial diversion alternatives; and develop guidance on the appropriate way to enter data on the use of  Title 9 and court-involved pretrial diversion alternatives, including the  timing of entry and use of revised codes.
To help determine if pretrial diversion programs and practices are  effectively contributing to the achievement of department goals and  enhance DOJ’s ability to better manage and encourage the use of such  programs and practices, the Attorney General should take the following  two actions: identify, obtain, and track data on the outcomes and costs of pretrial  diversion programs; and develop performance measures by which to help assess program  outcomes.
To determine how the use of RRCs and home confinement contribute to  its goal of helping inmates successfully reenter society, and to better  enable BOP to adjust its policies and procedures for the optimal use of  these alternatives, as necessary and within statutory requirements, the  Director of BOP should take the following two actions: develop performance measures by which to help assess program  identify, obtain, and track data on the outcomes of the programs; and  outcomes.
section_title: Agency Comments and our Evaluation
paragraphs: We provided a draft of this report to DOJ, the AOUSC, and the USSC for  review and comment. The AOUSC provided written comments, which are  reproduced in appendix I. The USSC did not provide comments. In an e- mail we received May 27, 2016, DOJ’s audit liaison stated that DOJ  concurred with all of our recommendations and provided comments,  which we incorporated as appropriate and have further addressed below.
In particular, in our draft report, we recommended that EOUSA identify,  obtain, and track data on the outcomes and costs of pretrial diversion  programs, and develop performance measures to help assess program  outcomes. The DOJ liaison stated that implementing these two  recommendations would be the responsibility of the department, not  EOUSA exclusively. As a result, we directed these two recommendations  to the Attorney General. In addition, the liaison  provided information  about efforts taken in April 2016, during the course of our review, by the  Office of the Deputy Attorney General and BOP to solicit an outside  contractor to evaluate and measure the outcomes provided by BOP’s use  of RRCs and home confinement  contracts. We reviewed and  incorporated this information in this report, and will continue to monitor  the implementation of this contract to identify whether it meets the spirit of  our recommendation.
Moreover, the DOJ liaison stated that BOP does not view inmates’  placement in RRCs and home confinement as incarceration alternatives  when it is done pursuant to BOP’s statutory authority. As noted earlier in  the report, we acknowledge BOP’s position, but, for the purposes of this  report, we consider RRCs and home confinement to be alternatives to  incarceration because they allow inmates to serve a portion of their  sentences outside of a prison environment.
Additionally, the liaison stated that BOP had concerns about our  comparison of the daily cost to house an inmate in an RRC with the daily  cost to house an inmate in a minimum, low, medium, and high security  institution. Specifically, BOP believed our comparison was misleading  because the costs shown for BOP institutions includes the additional  support costs (e.g., staffing, food, medical services) that BOP incurs  when housing an inmate at one of its facilities and that such costs are not  incurred by BOP when an inmate is at an RRC. The cost information we  presented was taken directly from a table prepared by BOP that presents  the same information for public disclosure on BOP’s website. We believe  our comparison accurately reflects the total out-of-pocket costs to BOP  for placing inmates in its institutions and RRCs because for the RRCs,  those additional support costs are either the RRCs’ responsibilities under  its contract with BOP or, in the case of medical services, are the inmates’  responsibility while at an RRC. However, to help provide context, we  revised our discussion to include additional information on the support  costs BOP incurs at its institutions.
Further, we state in the report that one option available to BOP to assess  the outcomes of RRCs and home confinement could be measuring how  frequently offenders who have gone through RRCs or home confinement  reoffend. In the emailed comments, the DOJ audit liaison stated that BOP  does not believe recidivism data should be used as a performance  measure for RRCs due to external and unique factors that may impact the  likelihood an individual will recidivate, such as economic conditions. In  addition, the DOJ liaison stated that recidivism indicators are a negative  measurement of criminal actions that do not consider positive behavior or  successful adjustment of the offender, while the re-integrative model and  definition of RRC programs mandates a measure of positive behavior or  adjustment which is very difficult to quantify or measure. We cited the  potential use of recidivism or re-offense indicators as one example of  using currently available data to attempt to assess outcomes of the use of  RRCs and home confinement. In our report, we also offered other  examples of potential positive outcomes or adjustments BOP could track  and measure, such as tracking measures related to inmates’ ability to find  jobs or the value of RRCs and home confinement to inmates in helping  them to transition back into the community as shown through results of  surveys of inmates who have completed time in RRCs or home  confinement. We defer to BOP to determine which measures are most  appropriate. While we acknowledge the challenge in establishing such  measures, we continue to believe it is important for BOP to identify,  obtain, and track data on the outcomes of the programs and develop  appropriate performance measures in order to be better able to monitor  its use of RRCs and home confinement as a means to achieve its goal of  helping inmates successfully reenter society.
AOUSC and DOJ also provided technical comments, which we  incorporated as appropriate.
We are sending copies of this report to the Department of Justice;  Administrative Office of the U.S. Courts; U.S. Sentencing Commission;  appropriate congressional committees and members, and other  interested parties. In addition, this report is available at no charge on  GAO’s website at http://www.gao.gov.
If you or your staff have any questions, please contact Diana Maurer at  (202) 512-9627 or maurerd@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made significant contributions to this report  are listed in appendix II.
section_title: Appendix I: Comments from the Administrative Office of the U.S. Courts
section_title: Appendix II: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Jill Verret (Assistant Director),  Pedro Almoguera, Erin Butkowski, Willie Commons, William Egar, Sally  Gilley, Christopher Hatscher, Susan Hsu, Amanda Miller, and Jeff Tessin  made key contributions to this report.