Bureau of Prisons: Information on Efforts and Potential Options to Save Costs
Released: 2014-09-30T00:00:00

Letter

Background

BOP’s Cost-Accounting Methods

BOP uses a network of cost centers—individual accounting units in which costs can be segregated—to obligate, account for, and manage various costs. Managers of each cost center are provided with information to control and manage costs within their area of responsibility. Cost centers can be structured along different dimensions, such as organizational units, operating processes, and activities.centers include Correctional Services, Inside Medical Services, and Food Services at each institution.

For example, BOP cost BOP also tracks its obligations and expenditures by budget object and subobject classification. Object classes are categories used in budget preparation to classify obligations by the items or services purchased by the federal government (e.g., personnel compensation, contractual services). Within these object classes, the Department of Justice has assigned subobject class codes that further define the nature of services or articles obligated and provide DOJ with a detail of expended funds. For example, under the personnel compensation object class, BOP has defined subobject class codes for items such as compensation for full- time, permanent appointment employees; overtime; and holiday pay. Object and subobject classes are used for direct tracking of specific items on which funds are being spent (e.g., salaries, supplies, pharmaceuticals, etc.) and are used across all cost centers.

BOP Organizational Structure

To carry out its responsibility for the custody and care of federal offenders, as of June 2014, BOP houses inmates across six geographic regions in 120 federal institutions, 14 privately operated secure contract facilities, home detention, and as of July 2014, 200 residential reentry centers. These federal institutions and other facilities are managed and overseen through the following offices:

Central Office. The Central Office, which serves as BOP’s headquarters, consists of nine divisions that provide oversight of major BOP program areas and operations, such as correctional programs and health services, as well as the National Institute of Corrections. BOP’s Program Review Division, which leads BOP’s process for conducting internal reviews of each program or operation at each BOP institution, is among these nine divisions.

Grand Prairie Office Complex. This complex, located in Grand Prairie, Texas, was created to consolidate various processes into one location. It consists of three components: human resource services, designation and sentence computation, and field acquisitions exceeding $100,000.

Regional offices. BOP has six regional offices, each led by a regional director, covering the Mid-Atlantic, North Central, Northeast, South Central, Southeast, and Western regions of the United States. These offices provide oversight, technical assistance, and training to the BOP facilities located within each region.

Residential Reentry Management field offices. BOP has 25 field offices that administer contracts for community-based programs and serve as liaisons with various federal, state, and local groups within their judicial districts. Staff at these offices also monitor residential reentry centers (RRCs), which provide offenders with community- based services to assist with their reentry needs.

BOP generally houses sentenced inmates in its long-term institutions. Male long-term institutions include four security level designations–– minimum, low, medium, and high––and female institutions include three security designations––minimum, low, and high. 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 institutions, which house male and female inmates and specifically serve inmates awaiting trial, or those with intensive medical or mental health conditions, regardless of the level of supervision these inmates require.

The Sentencing Reform Act of 1984 and Federal Sentencing Guidelines

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. The act was effective for offenses committed on or after November 1, 1987. The act abolished 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. USSC establishes sentencing policies and practices for the federal criminal justice system that provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted. To foster this goal, 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 properly and consider the Sentencing Guidelines and other sentencing goals.

In applying the USSC’s guidance, federal district judges are to determine the appropriate sentencing guideline range for an offender based on various factors related to (1) the offense and (2) the offender. The offense is assigned an offense level; drug offenses are based on several factors, such as the quantity and type of drug involved and whether the offense involved violence.

The offender is also assigned a criminal history category based on the number of criminal history points. USSC sentencing guidelines assign criminal history points based on a defendant’s criminal record:

A single point is assigned for every other federal or state prior sentence of conviction, subject to certain exceptions.

Two or more points are assigned for every prior sentence of imprisonment or juvenile confinement of 60 days or more or for offenses committed while the defendant was in prison; was an escaped prisoner; or was on probation, parole, or supervised release;

Three points are assigned if an offender has been previously sentenced or is being sentenced to a prison term of 13 months or more.

Taken in combination, the offense level and criminal history category correlate with a sentencing guideline range, expressed in months. For certain types of offenses, including certain drug and weapons offenses, statutorily specified mandatory minimum sentences supplant the lower end of the otherwise applicable guidelines range. While federal law generally requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses, there are two statutorily provided exceptions. One—the substantial assistance exception—is available upon motion of the government, and allows the court to impose a sentence below the level established by statute as a minimum to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. The other, commonly referred to as the safety valve, was created by the Violent Crime Control and Law Enforcement Act of 1994 and is available for certain types of defendants for certain drug offenses that carry minimum sentences.

Correctional Services Is BOP’s Largest Operational Cost, and BOP Has Initiated a Number of Efforts to Reduce Costs

BOP’s Correctional Services, Private Prison Contracts, Medical Care, and Food Services Account for the Majority of Its Costs, with the Largest Share of Spending on Personnel

During fiscal year 2013, BOP obligated approximately $6.6 billion for all its programs and operations. According to our analysis of BOP’s fiscal year 2013 obligations by cost center, correctional services, privately operated secure contract facilities, medical care, and food services represent the majority (approximately $3.56 billion, or 54 percent) of BOP’s expenses, as illustrated in figure 1. See appendix III for a breakout of cost trends in these and other key cost centers over the last 5 fiscal years.

Figure 2 provides further information on the key cost centers represented above.

Within its cost centers, the majority of costs across the bureau are payment of staff salaries and benefits. Detailed data on these expenses are tracked using budget object and subobject classifications. These budget classifications are used consistently across all cost centers and represent items or services actually purchased by BOP. Figure 3 shows the budget object classifications that accounted for BOP’s total fiscal year 2013 obligations.

As figure 3 shows, personnel compensation and benefits (retirement contributions, health insurance benefits, etc.) account for approximately 59 percent of BOP’s overall obligations. Moreover, BOP’s personnel costs are actually higher than 59 percent because compensation for other staff employed on a contractual basis is included in the “other contractual services” object class. This object class consists of privately operated prison expenses, outside medical services, and other items—as well as contract staff—and accounts for nearly 26 percent of fiscal year 2013 obligations. See appendix IV for more detailed data on object and subobject class obligations from fiscal years 2009 through 2013.

BOP Has Identified and Implemented Various Cost Savings Efforts

BOP’s Director, in an April 2014 statement before Congress, highlighted BOP’s commitment to stewardship of financial resources by seeking cost avoidance and greater efficiencies throughout the bureau.accordance with this focus, BOP has embarked on a number of initiatives in recent years that have resulted in actual or projected cost savings. Key initiatives for which BOP has estimated cost savings over the last 3 fiscal years are listed in table 1.

These efforts reflect a focus on the part of both BOP management and staff to identify and implement cost savings initiatives, on both a large and a small scale. BOP-developed estimates of savings from these efforts total about $61 million, which is just under 1 percent of total obligations for fiscal year 2013. BOP officials stated that since such a large component of BOP’s costs is related to paying salaries and benefits necessary to manage its inmate population, their ability to recognize cost savings beyond those efforts presented here is fairly limited.

In addition, BOP is in varying stages of taking additional actions such as converting inmate case files from paper to electronic records that may reduce costs—for which it has not determined or provided savings estimates—that can be found in appendix V. According to BOP officials, they may undertake such initiatives in order to operate more efficiently, and these initiatives may also result in immediate cost savings. However, the officials said that they do not always develop cost savings estimates for initiatives whose primary purpose is to improve efficiency, rather than achieve cost savings.

BOP Has Designed Internal Processes to Identify Opportunities for Additional Cost Efficiencies, but Could Improve the Monitoring of Corrective Actions

BOP Has Designed Mechanisms to Identify Opportunities for Cost Efficiencies

BOP has various mechanisms to identify opportunities for cost efficiencies, including the following:

Strategic Plan. BOP’s Strategic Plan helps guide its efforts in fulfilling its mission and achieving strategic goals. As one strategic goal, BOP states that it will manage its operations and resources in an effective manner that encourages innovation, and that it “continually strives toward improvements in its effective use of resources and its efficient delivery of services.” Further, BOP has developed a strategic objective focused on cost efficiency and innovation, stating that it will continue to focus on reducing costs using efficient and cost-effective methods to perform tasks. According to the Strategic Plan, it will accomplish this through, in part, “continued emphasis on financial planning, analyzing workload and staffing requirements, using consolidated and shared services, increasing the use of technology, and refining the processes of the BOP.” In support of this strategic objective, BOP requires that institutions and regions submit to Central Office established local best practices or cost savings measures that can be shared and replicated at other institutions.

Cost Efficiencies and Innovations Catalog. This product is a compendium of institution-level efficiency efforts and innovations that serves as a reference for other institutions. The catalog is a result of efforts to identify cost efficiencies as stated in BOP’s Strategic Plan. To compile this catalog, BOP’s Central Office surveys institutions twice a year regarding new or ongoing efforts that they consider to be local best practices in achieving cost efficiencies. After compiling the catalog, BOP distributes it bureau-wide, including to program managers at all institutions. Some examples of cost-efficiency efforts identified and shared throughout BOP via this catalog include efforts in recycling material and food waste, water and energy conservation, use of video conferencing, and inmate training and education. Institutional officials we spoke with reported that they were aware of and reviewed this catalog. BOP institution-level staff estimated that the catalog issued in March 2013 contained items saving tens of millions of dollars in expenses.

Best practices internal site. In April 2007, BOP implemented an internal information-sharing site designed to facilitate bureau-wide communication of efforts that have resulted in cost efficiencies to bureau staff or inmates. This reference tool includes links to cost reduction initiatives, energy conservation efforts, and other items that have been reviewed and vetted by subject matter experts as having demonstrated their value to BOP. The website includes institution-led efforts such as battery-recycling operations and improved efficiencies to water-heating systems.

General staff/program area meetings. Officials at BOP’s Central Office, regional offices, and selected institutions with whom we spoke all cited frequent communication between and among program officials and executive staff regarding items such as general operations, budget and cost levels, staffing levels and use of overtime, health care topics, and other items. These officials frequently cited the quarterly executive staff meeting, which includes assistant directors from Central Office and the six regional directors, as a key meeting for these discussions. At these meetings, among other things, officials present and discuss position papers that lay out information on initiatives that may have the potential for cost savings. For instance, at one meeting, the participants discussed a paper describing ongoing efforts to convert BOP’s Inmate Case Files from a paper-based system to an electronic system, ultimately saving staff resources.

Internal control. Internal control is an integral component of an organization’s management that is to provide reasonable assurance that objectives are achieved, including the efficiency of operations. We focused our review on BOP’s internal control objective related to achieving operational efficiencies. Given this, we reviewed the elements of BOP’s internal control system that specifically provide BOP with opportunities to identify cost efficiencies, and found that BOP’s internal control processes align with Standards for Internal Control in the Federal Government. Table 2 provides examples and descriptions of BOP’s specific internal control processes, organized by internal control standard, that allow it to identify opportunities for cost efficiencies. We did not independently test BOP’s internal controls to determine whether they mitigate all possible risks and are operating as intended.

BOP’s Internal Control System Helps Identify Opportunities to Achieve Efficiencies, but Lacks a Mechanism to Consistently Monitor Bureau-wide Corrective Actions

We found that BOP’s internal control system is designed to identify additional opportunities for cost efficiencies, but BOP did not provide specifics or documentation on a mechanism to consistently monitor bureau-wide corrective actions. Program reviews—which document the results of the Program Review Division’s (PRD) internal reviews of programs and operations at each BOP institution—collectively cited repeated frequent control deficiencies and significant findings over multiple time periods that present inefficiencies or could increase costs. However, for these repeated issues, BOP did not provide specifics or documentation for how its corrective actions were always monitored consistently to ensure that the actions addressed the issues bureau- wide. Specifically, we reviewed BOP’s quarterly program review summaries—which compile each quarter’s internal review results and highlight frequent deficiencies and significant findings—for the years 2009-2013 to identify significant findings as well as the most frequent internal control deficiencies reported with respect to opportunities to achieve cost efficiencies in the highest-cost areas identified above. According to our review of these 20 quarterly summaries, frequent deficiencies or significant findings were repeatedly reported in three high- cost areas—time and attendance (14 of 20 quarters), food services (8 of 20 quarters), and RRC contract administration (6 of 20 quarters).

BOP has processes to identify and share information about these frequent and significant deficiencies. In particular, PRD disseminates its quarterly program review summaries to all BOP institutions and the other Central Office divisions to make them aware of these deficiencies. For instance, we found that officials from the Central Office Divisions with oversight over the repeated frequent deficiencies and significant findings that we analyzed—the Human Resource Management Division (HRMD), Health Services Division (HSD), and Reentry Services Division (RSD)— were aware of them.

Moreover, one of the divisions, HRMD, formulated a corrective action plan and has systematically taken steps to address and monitor progress toward resolving reported deficiencies and findings related to time and attendance that were identified at multiple institutions across multiple time periods. For instance, BOP’s program reviews identified control issues related to time and attendance in 14 of the 20 quarters from 2009 through 2013, such as inaccurate time and attendance records and the lack of appropriate documentation to support payment. These reported issues could lead to payment errors, such as incorrectly compensating staff for overtime. HRMD officials reported that, as a result of these issues, they implemented policy changes, such as developing mandatory training and requiring that each human resource office audit a representative sample of its time and attendance files annually. Further, BOP is currently transitioning to a web-based time and attendance reporting system, which includes information technology controls. Such information technology controls establish segregation of duties (e.g., the staff approving reported work hours is supervisory and different from the staff reporting the hours worked) and the retention of electronic records in compliance with rules and regulations, which officials report could help address the deficiencies. To consistently monitor progress toward resolving these issues bureau- wide, BOP’s Central Office has conducted a number of audits of time and attendance records and reports that error rates in record accuracy have declined from about 5 percent in 2010 to less than 2 percent in 2014.

The other two Central Office divisions with oversight over the repeated frequent deficiencies and significant findings that we analyzed—HSD and RSD—have taken actions at the national level to attempt to address some of the deficiencies. However, they did not provide specifics or documentation for how the divisions would monitor progress toward correcting them. With respect to HSD, BOP’s internal reviews identified findings related to the administration and management of resources in its Food Services Program (constituting $408 million, or 6 percent, of BOP’s obligations in fiscal year 2013) in 8 of the 20 quarters from 2009 through 2013, such as incomplete inventories; not properly reporting lost, damaged, or stolen property; or failures to adjust inventory records referenced when formulating and submitting an institution’s budget. At the national level, BOP is providing training on the use of the Food Services Program’s information system that includes a quarterly inventory control function, and has formed support teams to provide assistance to institutions identified as having deficient programs. For the staff performing inventory control at the local level (e.g., warehouse staff), the division is requesting that they attend national training or a similar training program. However, HSD did not provide specifics or documentation for establishing a mechanism that would allow it to monitor whether the actions taken have produced needed improvements within Food Services comprehensively across institutions.

With respect to RSD, BOP’s internal review identified findings related to RRC contract oversight and monitoring (RRC contracts constituting $296 million, or 4 percent, of BOP’s obligations in fiscal year 2013) in 6 of 20 quarters from 2009 through 2013, such as monitoring reports not being completed on a timely basis and inaccurate payments being made to contractors. These reported issues could result in failing to address contractor performance or overpayments. In July 2013, Residential Reentry Management (RRM) offices nationwide were consolidated under the direct management of the Residential Reentry Management Branch (RRMB). Previously, the RRM field offices were under the operational control of the six BOP regional offices. According to BOP, this reorganization has allowed BOP to implement and monitor consistent practices throughout the Residential Reentry offices. BOP also reported that, as a result of these findings, management teams within the Residential Reentry Management Branch provide guidance to individual field offices that require corrective actions. Additionally, they have scheduled a national-level training session in September 2014 to address repeated frequent deficiencies, share best practices in contract monitoring, and promote consistency and effective oversight of RRCs. Similar to Food Services, however, RSD did not provide specifics or documentation for establishing a mechanism that would allow it to monitor whether the actions taken have produced needed improvements with the Residential Reentry Program comprehensively across RRC contracts.

Internal control standards state that monitoring of internal controls should include policies and procedures for ensuring that the findings of audits and other reviews are promptly resolved. In particular, managers are to promptly evaluate findings from audits and other reviews, including those showing deficiencies and recommendations reported by auditors who evaluate agencies’ operations; determine proper actions in response to findings and recommendations from audits and reviews; and complete, within established time frames, all actions that correct or otherwise resolve the matters brought to management’s attention. According to the standards, the resolution is completed only after action that corrects identified deficiencies, produces improvements, or demonstrates the findings and recommendations do not warrant management action.

For deficiencies and other findings associated with a particular institution, BOP has a mechanism to monitor corrective actions at the individual institution to help ensure that the deficiencies and findings do not reoccur at that specific location. Specifically, according to BOP, the responsible official of the entity reviewed (most often the warden of the institution) is responsible for developing and implementing the corrective action, and PRD monitors that specific institution’s progress in implementing the corrective action. However, with respect to frequent deficiencies and significant findings across a number of institutions repeatedly reported over time, BOP did not provide specifics or documentation for establishing a mechanism to consistently monitor bureau-wide corrective actions to determine whether they are achieving desired results and helping to prevent similar deficiencies from occurring at different institutions over time. We found that in at least one instance in which deficiencies were repeatedly found across a number of institutions— HRMD’s process for resolving deficiencies associated with time and attendance—a Central Office division did successfully take steps to consistently monitor the deficiencies bureau-wide. Specifically, for the repeated frequent deficiencies and significant findings associated with time and attendance, we found that HRMD’s process for implementing and monitoring its corrective actions has resulted in fewer errors and stronger internal controls related to record retention and segregation of duties, which could reduce the risk of erroneous payments, thereby providing BOP with greater assurance that it is operating more efficiently with regard to its staff costs across its many institutions.

However, despite the repeated nature and recency of findings within the Food Services and Residential Reentry Programs, the relevant Central Office divisions did not provide specifics or documentation for how they have monitored their corrective actions to assess their progress toward addressing these findings across BOP institutions. As a result, BOP does not have reasonable assurance that actions taken are preventing certain frequent and significant findings from reoccurring at other institutions, thus hindering BOP’s ability to achieve cost efficiencies in these two high- cost areas—accounting for spending of $408 million and $296.1 million in fiscal year 2013, respectively. By establishing a mechanism for relevant Central Office divisions to consistently monitor bureau-wide corrective actions and assess their progress in the presence of repeated frequent deficiencies or significant findings reported across multiple institutions, BOP could be better assured that it is resolving such deficiencies promptly and, ultimately, operating more efficiently. Further, although repeated frequent deficiencies and significant findings related to operational effectiveness and compliance-related issues were outside the scope of our review, such a mechanism would also better position BOP to resolve repeated deficiencies and significant findings in these areas.

Authorities within BOP’s Control to Reduce Costs Are Limited; Options outside of BOP’s Authority Could Have a Larger Impact on Costs

BOP’s Current Authority to Reduce Inmate Sentences Results in Limited Cost Savings Relative to Its Overall Budget

See 18 U.S.C. § 4102. reduce the length of the inmate’s sentence, based on inmate “good conduct time (GCT);” determine the eligibility of an offender for participation in a substance abuse program (which may result in a sentence reduction of up to 1 year); and transfer an inmate out of prison to serve the remainder of his or her sentence in a residential reentry center or in home detention.

Table 3 describes key statutory provisions in which BOP has a role in reducing a federal prisoner’s period of incarceration in a BOP institution.

Of these authorities, two—IPTP and Compassionate Release—are programs that can result in a direct reduction of BOP’s population and thus cost savings. The number of inmates released through these two programs annually is small, however, as are the estimated savings. For example, the estimated 2013 cost savings from these programs were about $2.6 million and $651,000, respectively, or about 0.04 and about 0.01 percent of BOP’s total fiscal year 2013 appropriations of $6.44 billion.

IPTP. As of June 28, 2014, BOP had about 54,000 foreign nationals in its custody. However, eligibility criteria constrain the number who can be transferred. Specifically, inmates must voluntarily request a transfer to their home countries to serve out the remainder of their sentences, the United States must have a treaty with the home country permitting repatriation, eligibility for transfer must be confirmed by BOP, the transfer request must be approved by DOJ’s Office of Enforcement Operations, and the home country must agree to receive the prisoner. Further, while the United States has treaties with 94 foreign countries to permit IPTP transfers, the DOJ Inspector General (IG) reported that, as of 2010, about 22 percent of the foreign nationals in BOP come from countries with which there is no transfer agreement. In addition, as of late June 2014, almost 37,400 (17.3 percent) of all BOP inmates were Mexican nationals (or about 70 percent of all BOP foreign nationals). However, since 2001, Mexico has restricted eligibility for transfer from the United States, according to a 2011 DOJ IG report.

In fiscal year 2013, DOJ approved 245 transfers out of BOP custody, representing less than 0.5 percent of BOP’s foreign national population. Through these transfers, BOP estimates that it avoided costs of approximately $2.6 million in fiscal year 2013, or about 0.04 percent of BOP’s fiscal year 2013 $6.44 billion appropriation.

Compassionate Release. We have previously reported on BOP’s discretionary authority to request compassionate release for certain offenders—termed “reduction in sentence” by BOP—and found that BOP used this authority infrequently because of, among other things, BOP’s eligibility criteria. Specifically, compassionate release of an inmate historically has been limited by BOP to terminally ill patients with an incurable disease and short life expectancy or to those who are elderly with a profoundly debilitating medical condition. In April 2013, the DOJ IG reported that the existing BOP compassionate release program had been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided. No cost savings estimate could be provided for earlier releases because, according to the IG report, BOP did not maintain cost data associated with the custody of inmates eligible for consideration under the program, and BOP had not conducted any analysis of cost savings achieved by releasing such inmates.

DOJ issued a revised program statement with less restrictive criteria for compassionate release in August 2013. The revisions included making terminally ill inmates with a life expectancy of up to 18 months eligible for consideration instead of maintaining the previous 12-month limit.

According to BOP data, total releases under compassionate release increased from 29 inmates in calendar year 2011 to 39 in calendar year 2012, and to 61 in calendar year 2013 (including 11 released under the expanded criteria). An additional 2 had been released as of July 2014 under expanded nonmedical criteria. However, as a percentage of BOP’s population and costs, the number of affected inmates and savings remains small given the numerous factors involved in determining eligibility. Inmates released under compassionate release in calendar year 2013 represented about 0.03 percent of the total BOP inmate population, and estimated savings from the releases amounted to about $651,000, or about 0.01 percent of BOP’s fiscal year 2013 $6.44 billion appropriation.

Funding and eligibility constraints also limit BOP’s use of RDAP and RRCs to affect costs related to the number of inmates in BOP custody. Some cost savings can result from inmates being able to reduce their sentences as a result of successfully completing the RDAP program; however, both RDAP and RRCs are types of rehabilitation programs intended to reduce recidivism rather than serving as cost-saving mechanisms. professional staff and resources, increasing the number of offender participants in either would require additional funding that could offset potential cost savings.

RDAP participation is limited to prisoners with a verifiable substance use disorder within the 12 months prior to their arrest. They must also voluntarily apply for participation and be approved by BOP for the program. RRCs are run by private contractors and cost more than minimum security institutions, and about the same as low- or medium-security BOP prisons on an annual basis per offender. We reported daily costs per prisoner previously in GAO-12-320 as follows: $70.79 for RRCs, $57.55 for minimum security, $69.53 for low security, and $71.91 for medium security. average participant reduced his or her sentence by about 10 months in fiscal year 2013.

As we have also previously concluded, increasing RDAP participation would cost more than the potential savings from reducing sentences by relatively small amounts. For example, if every eligible RDAP participant who completed the program in fiscal year 2011 had received his or her maximum sentence reduction, BOP would have been responsible for 15,729 fewer months of inmate incarceration, yielding an estimated cost savings of about $13.2 million. However, the fiscal year 2012 request for an additional $15 million to permit more offenders to enter RDAP “on time” and thereby to increase their allowable sentence reductions would not have been enough to achieve the full 12-month potential reduction, meaning that expanding RDAP would have cost at least $1.8 million more than it would have saved. Similarly, according to DOJ, BOP received an increase of $15 million in RDAP funding in fiscal year 2014 and this funding will, by fiscal year 2016, increase the average sentence reduction for RDAP participants from 10 months in fiscal year 2013 to an estimated 11.5 months. BOP reported that reaching the full potential 12-month sentence reduction for all participants in fiscal year 2013 would have resulted in about $11 million in cost avoidance savings, but it did not provide a calculation of the cost of providing additional spaces and staff to permit the full sentence reduction for all participants.

These cost savings estimates do not take into account potential long-term savings to society from reducing substance abuse and recidivism among released inmates. While RDAP may contribute to achieving such savings, expanding it above current levels requires an up-front cost that exceeds its potential cost savings for BOP in the short term.

RRCs. According to BOP, RRCs, or halfway houses, provide programs that are intended to help inmates rebuild their ties to the community and to thereby reduce the likelihood that they will recidivate. Run by private contractors, RRCs provide programs that help offenders find employment, and coordinate the provision of services to address substance abuse, medical, and mental health care with appropriate community providers. We have previously found that the use of RRCs is constrained by both eligibility criteria and funding. For example, inmates with detainers (other crimes for which they were charged but were not yet sentenced), with sentences of 6 months or less, or who are in civil commitment status are all ineligible for RRC placement. In addition, BOP officials stated that objections from local communities to halfway houses in residential neighborhoods have hindered expanding the RRC program, even when funds were available.

We have previously found that not all inmates are eligible to be sent to an RRC prior to their release from prison, and that for those who are eligible, some spend only a portion of the full 12 months’ allowable time in an RRC because of a lack of bed space and because of eligibility criteria. According to BOP, an increase in the number of offenders getting the full 12 months’ allowable time would necessitate additional bed space, which would require both additional funding and additional RRC contracts. For example, in fiscal year 2013, BOP reported that it had 9,455 RRC beds available nationwide, but would have required about 30,000 beds to provide the maximum allowable 12 months in RRCs to all participants, or an addition of more than 20,500 beds above its current capacity. As noted above, and as we have previously reported, BOP officials explained that such an expansion could be challenged by local zoning restrictions and the unwillingness of many communities to accept nearby RRCs. Moreover, if such an expansion were to take place, BOP would need additional funding to pay for the new RRC bed space. For fiscal year 2013, BOP reports that the average daily cost per offender in an RRC was about $73, or $26,645 per year. This means that an increase of the more than 20,500 beds that would be required to achieve the allowable 12 months for all participants (at current program levels) would cost about $546 million annually.but would require a substantial funding increase, equal to almost 8 percent of BOP’s entire $6.9 billion fiscal year 2015 budget request.

Potential Actions outside of BOP’s Authority Could Reduce Prison Populations and Costs, and Experts Say There Are Advantages and Disadvantages to These Options

We examined cost-saving options that are outside BOP’s authority and that are widely discussed among criminal justice policy experts, the USSC, and DOJ, such as instructing federal prosecutors to decline to charge certain defendants in certain drug cases in such a manner as to trigger mandatory minimum prison sentences, reducing the lengths of sentences specified by federal guidelines for drug offenders, or applying the provisions of the Fair Sentencing Act of 2010 retroactively in order to provide sentences for cocaine base (“crack”) offenders that are less Toward disparate from those applied for possession of powder cocaine.this end, we reviewed selected reports and analyses from entities chosen for their expertise in criminal justice issues, and had discussions with officials from DOJ, BOP, and the USSC. See appendix VI for more information on the entities we selected. Through this review, we identified eight options outside BOP’s authority that could reduce the size of the inmate population. These involve potential legislative actions by Congress, executive orders by the President, policy changes implemented by the Attorney General, or changes in sentencing guidelines that could be promulgated by the USSC. For each of these options, we asked the USSC to calculate the estimated impact on the size of BOP’s population and the potential savings that could result from implementation of each. See appendix VII for the USSC analyses of these options. For the purposes of our analysis, we determined that the USSC is an authoritative source for conducting such analysis; it has conducted similar analyses in recent years and published one on its For each option, the time frame (number of website on July 25, 2014.years) over which the option would take effect may vary, as well as the number and type of offenders who would be eligible for a changed sentence under the option. In general, the majority of the impact of most options was estimated by the USSC to occur within 5 or 6 years of implementation. However, the options are not all directly comparable; some would have a greater impact more quickly than would others, depending on the option and the number of potentially eligible offenders. For options that apply only prospectively (that is, only to future offenders)—such as the Attorney General’s August 2013 memorandum to U.S. Attorneys—the potential impact is typically less than for options that would apply to larger numbers of currently incarcerated offenders.

On the basis of analyses the USSC conducted of the potential results from implementing each of the eight options, which provided estimates of bed year savings, we then calculated the potential cost savings. Implementation of the options could range from about $8.7 million to almost $4.1 billion, with the potential savings varying based on the option implemented and the duration of the option. Cost savings or cost avoidance savings were calculated using BOP’s fiscal year 2014 estimated average annual marginal cost of approximately $11,000. Marginal costs covers such things as security, food, medical care, clothing, unit management, education, records, and maintenance associated with additional inmates entering existing BOP facilities. BOP officials stated that calculating cost savings using marginal cost was more appropriate than using per capita costs because BOP is about 36 percent overcrowded system-wide, and therefore BOP would have to reduce its existing population by that percentage (equal to about 78,000 offenders in July 2014) to eliminate overcrowding system-wide. Until that number is reached, BOP officials stated, they would not be closing existing prisons and therefore would expect savings only in marginal costs versus average per capita costs to be realized. However, the use of marginal cost in calculating savings does not take into account the possibility that reductions in BOP population could permit BOP to reduce the numbers of offenders sufficiently to reduce staff, close some existing facilities, or avoid opening additional ones that would otherwise have been required. If the options achieved population reductions resulting in reductions in fixed costs, such as reducing staff or closing existing prisons, calculating cost savings using average annual per capita costs—$29,291 in fiscal year 2013, according to BOP—would be appropriate. Three of the options could result in an estimated 78,000 or more offenders being eligible for release or eligible for sentence reductions over five years, which could greatly reduce or eliminate current overcrowding based on BOP’s estimate within the same 5 years. Given the size of these potential reductions in sentence lengths and the number of eligible offenders, we calculated per capita cost savings for three of these options, based on the USSC estimates for saved bed years. We did not calculate per capita savings for a fourth option—changing the way that BOP calculates the amount of “good conduct” time that offenders earn for each year served— because although the number of eligible inmates would be almost 180,000, the reduction in sentence for each inmate would be small in contrast to the other three options and would occur over 30 or more years. Therefore, this option may be less likely to allow BOP to reduce staffing levels or close facilities.

It is important to emphasize cost savings is one of many considerations. In particular, these options may have additional effects, such as on public safety. The expert entities we contacted identified potential advantages and disadvantages they believe could result from the implementation of each option, such as making sentences more commensurate with the crime or releasing inmates who may reoffend.

We are not taking a position on any of these options. We present the information we obtained from the USSC and the expert entities to inform policymakers as they weigh whether and how to address costs at BOP. Specifically, in table 4, we summarize each option we presented to the USSC, expert entities, and the four states selected because of their experience with criminal justice sentencing initiatives. For each option, we show the USSC estimate of the number of BOP offenders who would likely be eligible for release or for a reduced sentence (leading to release) as a result of implementation. The table also shows the USSC estimates, if available, of the bed year savings that would result from implementation of each option, and our calculation of the cost savings that would result.In addition, we summarize the comments from the responding states and the expert entities with regard to potential advantages and disadvantages that could result from implementing these options.

As the Attorney General has noted, without action to reduce the current size of BOP’s population, and projected future growth, BOP will continue to require an ever greater share of DOJ’s budget, having increased from about 14 percent of that budget in 1980 to nearly 25 percent in the fiscal year 2015 request. As table 4 shows, a number of options outside of BOP’s current authority exist by which the sentence lengths of prospective and incarcerated offenders could be reduced (producing bed year savings), as well as the number of offenders to be incarcerated, such as under the Attorney General’s August 2013 Smart on Crime direction (option 3). Hence, BOP’s costs could be reduced, but the range of potential savings from these options is great. As illustrated in table 4, actual savings are greater for options that apply to current offenders compared with those that apply only prospectively. For example, retroactively reducing drug sentences by about 44 percent (option 1) would have the greatest estimated cost savings: $4.1 billion using marginal cost savings, or $11.626 billion if per capita savings were to occur. Other options would have a lesser impact, such as avoiding charging future low-level, nonviolent drug offenders with charges that result in mandatory minimum sentences, which could be a savings of $8.7 million in marginal costs over 5 years (option 3). However, as discussed earlier, cost savings is one of many considerations in weighing which, if any, option could be adopted. Equally important is consideration of the advantages and disadvantages associated with each option.

Conclusions

According to BOP officials, BOP’s biggest challenges are managing the continually increasing federal inmate population while providing for inmates’ care and safety, as well as the safety of BOP staff and surrounding communities, within budgeted levels. BOP has made improvements in its effective use of resources a strategic goal. Toward that end, BOP has implemented mechanisms that allow it to identify opportunities for cost savings, such as an internal website through which BOP staff can view cost efficiency efforts being implemented across BOP, and undertaken cost-savings efforts, such as in energy conservation. However, establishing a mechanism for relevant Central Office divisions to consistently monitor bureau-wide corrective actions and assess their progress in the presence of repeated frequent or significant findings could help BOP better ensure that it is resolving such deficiencies promptly and, ultimately, operating more efficiently.

BOP’s inmate population is its primary cost driver; however, BOP’s ability to reduce its population, and thus its costs, are limited. Potential changes outside of BOP’s authority could substantially reduce both BOP’s population and its costs. Expert entities and states from which we obtained views reported that there are potential trade-offs to implementing these options. Some expert entities observed that release of offenders poses the risk of recidivism and that reductions in sentence length could reduce prosecutors’ leverage in extracting information from low-level criminals that is used to prosecute higher-level ones. At the same time, other expert entities reported potential advantages to these options, such as making sentence lengths more commensurate with the crime committed. These experts’ analyses of the possible savings and the potential advantages and disadvantages, beyond cost savings, of these options may be useful for policymakers to consider as they weigh whether and how to address BOP’s population and, ultimately, its costs.

Recommendation for Executive Action

To enable BOP to promptly address repeated frequent deficiencies and other significant findings it identifies through its program reviews in areas of high cost across multiple institutions, we recommend that the Director of the Bureau of Prisons establish a mechanism for relevant Central Office divisions to consistently monitor bureau-wide corrective actions.

Agency Comments and Our Evaluation

We requested comments on a draft of this report from DOJ. In an email received September 17, 2014, the DOJ liaison stated that DOJ concurred with our recommendation. The Department did not provide official written comments to include in our report, but did provide written technical comments, which we incorporated as appropriate. The U.S. Sentencing Commission also provided written technical comments, which we incorporated as appropriate.

We are sending copies of this report to selected congressional committees, the Attorney General, the Director of BOP, and other interested parties. In addition, this report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any further questions about this report, please contact me 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. Key contributors to this report are listed in appendix VIII.

Appendix I: Objectives, Scope, and Methodology

We addressed the following questions as part of this review: 1) What are the major costs for Bureau of Prisons (BOP) operations, and what actions has BOP taken to implement cost savings? 2) To what extent does BOP have mechanisms to identify opportunities for cost efficiencies and to take corrective actions that may improve cost efficiency? 3) What potential changes, both within and outside of BOP’s authority, could lead to cost reductions or improved efficiencies in BOP operations, and what might be the potential impact of these changes?

To address the first question, we obtained historical obligation data from BOP’s Financial Management Information System for fiscal years 2009- 2013—a 5-year time frame to provide us with an adequate understanding of trends in BOP obligation levels—to identify the major costs incurred by BOP for its Salaries and Expenses account, which generally represents 98 percent of BOP’s budget. We have assessed the reliability of these data and determined them to be reliable for the purposes of this report. This assessment included performing checks on the data received and interviewing officials responsible for compiling and maintaining these data. We also collected data (e.g., cost savings estimates prepared by BOP) and documentation, such as memos and concept papers approved by executive staff from fiscal years 2009 through 2013; through review of these data and documents and interviews with relevant agency officials, we determined that these data are also reliable for the purposes of this report. In addition, we interviewed Central Office-, regional-, and institutional-level officials to identify to the extent possible all existing cost efficiency and savings initiatives adopted by BOP and their impact on its overall budget.

To address the second question, we reviewed the processes and tools at BOP during the same time period (fiscal years 2009-2013) that identify, implement, and promote cost-efficiency and savings initiatives throughout its institutions, such as executive staff meetings and a catalog compiling cost-savings initiatives. With respect to identifying additional opportunities to realize cost efficiencies or reduce costs, using our financial analysis as context, we analyzed elements of BOP’s internal control system related to the control objective of achieving operational efficiencies and interviewed relevant officials to assess whether BOP has a management structure and processes to routinely assess its administrative and operational activities for possible corrective action. Specifically, we reviewed BOP’s mechanisms and processes leading to its internal review of operational and administrative functions, including its process for taking corrective action, related to high-cost areas and compared these characteristics with those called for in Standards for Internal Control in the Federal Government.

To address the third question, on potential policy changes both within and outside BOP’s authority that could lead to BOP cost savings, we collected analysis and documentation from the Department of Justice (DOJ), BOP, the U.S. Sentencing Commission (USSC), and entities selected for their expertise in criminal justice issues, and, in particular, potential changes to federal sentencing policies.several means, including (1) asking officials at both the USSC and the Urban Institute who have previously worked on analyses and reports relevant to prison population data and criminal justice to identify entities they considered as expert in the field of sentencing reform and criminal justice, (2) conducting a literature search to identify publications issued by some of the entities on sentencing reform or corrections, and (3) identifying entities with known expertise and authoritativeness (e.g., the ABA) in the criminal justice field through literature searches. These entities may not be representative of the universe of expert entities in the criminal justice field and therefore may not represent all views on this topic; however, their views provide insights. We obtained data from We identified these expert entities through calendar year 2011 through July 2014 from BOP on the impact on BOP’s population and costs resulting from changes implemented by BOP to broaden the criteria for compassionate release of offenders, as well as analyses from the USSC on the estimated impact of the memorandum accompanying the Attorney General’s August 2013 DOJ Smart on Crime initiative that instructed prosecutors to decline to charge certain defendants in certain types of drug cases in such a manner as to trigger mandatory minimum sentences. For data on efforts taken under BOP’s authority, we assessed the reliability by reviewing documentation and interviewing knowledgeable officials; we determined the data to be sufficiently reliable for the purposes of this report. For data on the impact of policy changes outside BOP’s authority, we obtained analyses from the USSC. According to our audit objectives, we determined based on its expertise that the evidence obtained from the USSC provides a reasonable basis for our findings and conclusions.

We reviewed sentencing reform options identified by the expert entities, as well as analyses of these options from these entities. We identified these entities on the basis of their demonstrated expertise as well as to ensure that a wide range of views on the advantages or disadvantages of potential changes to existing sentencing guidelines was covered. GAO is not taking a position on any of these options, but presents information on estimated cost savings and experts’ views of advantages and disadvantages for such options to inform policymakers as they weigh whether and how to address rising costs at BOP.

On the basis of the options we identified, we compiled a list of seven sentencing guideline and related changes that were being widely considered and discussed among expert entities at the time we began our review and during the course of the review. We also included one change resulting from a memorandum issued by the Attorney General in August 2013 to U.S. Attorneys instructing them to decline to charge certain defendants in certain types of drug cases in such a manner as to trigger mandatory minimum sentences. These selected options were based on our assessment of proposals put forward by several sources, including the Attorney General, expert entities, states with experience with criminal justice reform, and advocacy entities with a range of views on criminal justice reform. See appendix II for the letter sent to expert entities asking for their assessment of options, which provides a list of the proposals that were used to develop the selected options. During the course of our review, two of these options were approved by the USSC, with the amendment to the sentencing guidelines forwarded to Congress. This amendment will become effective on November 1, 2014, unless Congress acts to modify or disapprove the amendment. The two options approved are closely related—the first, approved by the USSC on April 10, 2014, reduces the sentences for future (federal) drug offenders, such that there would be an approximately 18 percent reduction in the average length of such sentences compared with sentences under current guidelines. The second was approved on July 18, 2014, by USSC, and applies the reduction retroactively—that is, to currently incarcerated drug offenders. After the USSC July 18 vote to make the drug sentence reductions retroactive (if eligibility criteria are met), the Attorney General issued a statement that, at his direction, BOP will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. Unless Congress modifies or disapproves the amendment to the sentencing guidelines submitted by the USSC, beginning November 1, 2014, eligible offenders can ask courts to reduce their sentences. Offenders whose requests are granted by the courts can be released no earlier than November 1, 2015, under the USSC provision. For the purposes of this report, we refer to these two changes by the USSC, and the Attorney General’s August 2013 directive to U.S. Attorneys, and to the other options collectively as eight options.

For each of these eight options, we asked the USSC to estimate the impact on the size of the BOP inmate population. The USSC calculates such impact in bed years; 1 bed year is defined by the USSC as 12 months of prison time (e.g., one offender in prison for 1 year, or three offenders in prison for 4 months each, and so forth). Using the USSC bed years’ savings estimates, we then calculated cost savings or cost avoidance that could result from implementing a given option. analyses of these eight options are reproduced in appendix VII.

We calculated savings that would result from reductions in BOP population or cost avoidance savings resulting from increases below what would otherwise occur if an option was not implemented, by multiplying bed years saved by the annual marginal cost for a prisoner. BOP defines marginal costs as the cost of adding one offender for 1 year; these cover food, medical, clothing, and utilities. For fiscal year 2014, the average annual marginal cost per offender is about $11,000. For some options that could result in reduced sentences and earlier releases of about 78,000 or more offenders, we also calculated per capita savings, as such population reductions that could allow BOP to reduce its staff or close facilities.

In addition, we asked the 14 expert entities to comment on the options with regard to their view of the advantages or disadvantages of implementation of the eight options. We also identified 4 states (Texas, Louisiana, Ohio, and North Carolina) that have had at least 1 year’s experience in implementing state-level sentencing and criminal justice changes similar to the ones being discussed for federal offenders, and asked them to comment on the potential options for change. We selected Louisiana, Ohio, and North Carolina also because they are participants in the joint DOJ-Pew Charitable Trust Justice Reinvestment Initiative (JRI), which funds implementation of changes to state sentencing and criminal justice policies intended to reduce prison populations and recidivism, and these states were also the largest in terms of annual spending on corrections among the JRI states with at least 1 year’s experience in implementing JRI-related initiatives. We selected Texas because, as of 2012, it had both the largest state prison population in the United States and was cited by the Urban Institute as an early leader in criminal justice reform initiatives that DOJ used as a model for the Justice Reinvestment Initiative program. We received responses from 17 of the 18 entities (the 14 expert entities and 4 states) to which we sent the letter.

We conducted this performance audit from July 2013 to September 2014 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.

Appendix II: Letter Sent to Select States and Expert Entities

The U.S. Government Accountability Office (GAO), the investigative arm of the U.S. Congress, is carrying out a research engagement (GAO job #441173) on ways in which the Federal Bureau of Prisons (BOP) can achieve cost efficiencies. As part of this work, we will be listing select options that would require action by entities other than BOP—such as changes enacted by Congress and the President that could affect the size of the BOP prison population, or changes in sentencing guidelines that could be promulgated by the U.S. Sentencing Commission (USSC) and possibly also applied retroactively. These options include proposals identified by a number of experts or included in pending legislation that would likely help reduce costs at BOP. We are writing you to ask for your comments or observations on these select options.

These options are based on an assessment of varying proposals put forward by several sources:

Proposals and guidance from the U.S. Attorney General on sentencing reform, including changes to charging procedures ordered in August 2013 as part of the DOJ Smart on Crime Initiative to avoid incarceration of low-level, non-violent drug offenders.

Potential cost-saving changes or concepts identified by expert entities, including the USSC; the Pew Charitable Trusts; the Urban Institute; the Heritage Foundation; the Vera Institute of Justice; the Council of State Governments/Justice Center; and the American Bar Association, some of which are also included in pending legislation.

The experiences of various states in recent years with criminal justice reform, often intended to reduce prison populations and recidivism, including Texas and 17 states involved in the DOJ Justice Reinvestment Initiative (JRI) and as reported on in the January 2014 joint DOJ-Urban Institute report, Justice Reinvestment Initiative State Assessment Report.

Comments and analyses by several expert/advocacy entities with a range of views on criminal justice reform including the National Association of Assistant United States Attorneys; the National Association of Former United States Attorneys; the Brennan Center for Justice at New York University School of Law; Families Against Mandatory Minimums; and Right on Crime: A project of the Texas Public Policy Foundation in cooperation with Justice Fellowship.

Based on common policy themes assessed or reported by the aforementioned sources, the options listed below are grouped into three broad categories (in most cases, there are several related proposals or concepts that have been put forth by various expert entities or experts): 1) Sentencing Reform—Proposals to Reduce Length of Mandatory 2) Enhancement of “Good Conduct Time” reduction-in-sentence through good behavior by inmates and/or through participation in programs intended to reduce recidivism, enhance post-release employment chances, and/or reduce substance abuse; and 3) Proposals to expand the safety valve for offenders. A “safety valve” is a statutory exception to mandatory minimum sentencing laws that authorizes a judge to sentence a person below a mandatory minimum term if certain conditions are met. The current federal sentencing guidelines provide for a reduced sentence for persons who meet the current federal safety valve criteria (which apply only to drug trafficking cases) even in cases where a mandatory minimum penalty would not otherwise apply.

Instructions

For each option, we would like to ask you to briefly identify any potential “advantage” or “disadvantage”, based on your organization’s expertise or, for states, based on your experience in implementing some version of them (we recognize these vary considerably in detail). For example, an “advantage” for most of these proposals is sometimes stated to be to reduce overcrowding of prisons, or to reduce the waiting list for anti- recidivism educational or substance abuse programs. Alternatively, a “disadvantage” for some of these, as identified by some experts, is that a certain percentage of those released may commit crimes again and that, therefore, early release (v. serving the full sentence) may put someone back into society who may become a recidivist earlier than would otherwise have occurred.

GAO will generally present only the aggregate results of the responses to these questions in our report to Congress. Although in some cases individual responses may be discussed, the report will not include any information that could be used to identify individual respondents. Identifying information will not be released outside of GAO, unless compelled by law or pursuant to a Congressional request. See 31 U.S.C. §716.

Please start by saving the document as a Microsoft Word file to a hard drive before completing it, as your comments will otherwise not be saved. There are comment boxes below each of the options. Please type your responses in the space provided, which will expand automatically to accommodate your comments.

Group 1: Proposals to Reduce Length of Mandatory Sentences Option A: Reduce the length of mandatory minimum sentences for drug- related offenses –for example, reduce the mandatory minimum sentences in drug trafficking cases from 20 years to 10 years; 10 years to 5 years; and 5 years to 2 years. ❏ Please check box if Not Applicable or Not Enough Information to Comment Option B: Make the amendments to drug mandatory minimum penalties of the Fair Sentencing Act of 2010 retroactive to those offenders currently incarcerated for crack cocaine-related offenses. ❏ Please check box if Not Applicable or Not Enough Information to Comment Option C: Avoid charging low-level non-violent drug offenders with a charge which results in a mandatory sentence. ❏ Please check box if Not Applicable or Not Enough Information to Comment Option D: Amend sentencing guidelines for all drug offenders—for example, reduce such sentences by a given percentage below current lengths (e.g., by 20 percent; by 10 percent). ❏ Please check box if Not Applicable or Not Enough Information to Comment Option E: Apply the amendments to sentencing guidelines in Option D to both new drug offenders and retroactively to incarcerated drug offenders. ❏ Please check box if Not Applicable or Not Enough Information to Comment Group 2: Proposals to Reduce Sentence Time Based on Good Conduct and/or Participation in Anti-Recidivism and Substance Abuse Programs Option F: Increase good time credits for good conduct and/or participation in anti-recidivism programs, including substance abuse programs. ❏ Please check box if Not Applicable or Not Enough Information to Comment Group 3: Proposals to Expand the Safety Valve for Drug and/or Other Offenders Overview: The “safety valve” was created by the Violent Crime Control and Law Enforcement Act of 1994, which directed that lower-level defendants sentenced for certain drug offenses who meet specified criteria will not be subject to mandatory minimum penalties. Accordingly, only defendants sentenced after the guideline amendment’s November 1, 1995 effective date who satisfy the safety valve requirements are eligible for the reduced term of imprisonment.

Option G: Expand the current “safety valve” for drug offenders to make it available to offenders with more than one prior minor offense up to a certain limit (for instance, up to three criminal history points.) ❏ Please check box if Not Applicable or Not Enough Information to Comment Option H: Expand the safety valve as described in Option G to include both drug offenders and other non-violent offenders (this would not apply to any sex offenders). ❏ Please check box if Not Applicable or Not Enough Additional Comments or Suggested Options Finally, in the box below, please make any other comments or suggestions you may have, especially with regard to whether there are any other options for making cost effective changes to criminal justice rules or processes that you wish to bring to our attention.

Additional Comments or Observations: Other Options to Consider This completes the requested assessment of potential options we are considering. Thank you for your time in providing your input on these options with regard to the federal criminal justice system.

Appendix III: Data on the Federal Bureau of Prisons’ (BOP) Largest Cost Centers

Table 5 presents annual obligations data for fiscal years 2009 through 2013 for BOP’s 20 largest cost centers during fiscal year 2013.

Appendix IV: Data on the Federal Bureau of Prisons’ (BOP) Largest Subobject Class Expenses

Table 6 presents annual obligations data for fiscal years 2009 through 2013 for BOP’s 20 largest subobject classes in fiscal year 2013. Compensation for full-time permanent staff has consistently been the greatest area of expense; personnel compensation and benefits account for most of the subobject classes listed below.

Appendix V: Additional Federal Bureau of Prisons’ (BOP) Efforts to Achieve Cost Savings and Efficiencies

In addition to efforts discussed earlier, BOP also reports pursuing the following initiatives that could provide current and future cost savings, shown in Table 7.

Appendix VI: Expert Entities Providing Input on Prison Population Reduction Options

The expert sources that provided us with analysis or information on sentencing issues are listed in table 8.

Appendix VII: Analyses of Options Provided by the U.S. Sentencing Commission (USSC)

Appendix VII: Analyses of Options Provided by the U.S. Sentencing Commission (USSC)

This appendix reproduces the methodology and analyses prepared by the U.S. Sentencing Commission (USSC) in developing estimates of the impact on the Federal Bureau of Prisons (BOP) inmate population of eight options for cost saving that are outside BOP’s authority and that are widely discussed among criminal justice policy experts and entities. GAO identified these eight options based on our assessment of proposals put forward by several sources, including the Attorney General, expert entities, states with experience with criminal justice reform, and advocacy entities with a range of views on criminal justice reform. GAO is not taking a position on any of these options, but presents information on them to inform policymakers as they weigh whether and how to address rising costs at BOP. The USSC estimates on the inmate population are reported in the full report.

For options 1, 2, 5, 6, 7 and 8, the USSC prepared a written analysis describing its estimate of the impact of changes specified by the option. For options 3 and 4, the USSC provided tables showing estimated impact. A description of the option analyzed by the USSC and further information relevant to specific analyses are included with each analysis or table below.

1. USSC analysis of option 1: Reduce the length of mandatory minimum sentences for incarcerated drug offenders.

Under this option, the sentences of certain incarcerated drug offenders convicted of an offense carrying a mandatory minimum sentence would be reduced by an average of about 44 percent—for example, from 10 years to 5 years and from 5 years to 2 years. Incarcerated offenders who have completed their recalculated sentence (i.e., if the time served exceeded the new sentence length) would be released.

ONE COLUMBUS CIRCLE, N.E.

Dear Mr. Tumin:

The Government Accountability Office has asked the U.S. Sentencing Commission to assist it in connection with its engagement (number 441173). We understand that through this engagement the GAO is examining ways in which the operating costs of the Federal Bureau of Prisons (BoP) can be reduced. As we have previously discussed with you and your colleagues, the Commission has agreed to analyze on GAO's behalf several policy options which could reduce the overall size of the prison population that the BoP administers. Specifically, our analyses of these policy options will consider the effect on the federal prison population if the policies were implemented in such a way that the options would apply to inmates currently incarcerated in the BoP system.

In this memorandum, we provide to you another of these estimates. Here we provide our estimate of the impact on the federal prison population if the current statutory mandatory minimum penalties for drug offenses of 5, 10 and 20 years were reduced to 2, 5, and 10 years, respectively, and the courts were authorized to resentence all federal offenders convicted of an drug offense carrying one of these mandatory minimum penalties under a sentencing framework that incorporated the new minimum penalties.

As we discuss more fully below, we estimate that 78,106 offenders who are incarcerated and would still be in prison as of October 1, 2014 would be eligible for a sentence reduction. The average reduction in sentence for these offenders would be 57 months (44.2 percent). The estimated total savings to the BoP from such a policy change applied retroactively would be 370,985 bed years.

I.

The Policy Option We Considered One of the policy options that we have agreed to examine on behalf of the GAO is the impact of a policy change in current law whereby the current statutory mandatory minimum penalties for drug offenses of 5, 10 and 20 yeru:s were reduced t 2 5 and 10 years, respectively (the "Policy Option").! As part of o lIT analysis we have assumed that the courts would be authorized (most likely by statute2 ) to resentence aU federal offenders convicted of a drug offense carrying one of these mandatory minimum penalties under a sentencing framework that incorporated the new minimum penalties.

II.

Applying the Policy Option to offenders in the custody of the BoP, we estimate that there are 78,106 offenders who would be incarcerated on October 1,2014 who would be eligible for a reduction in their current sentence if the Policy Option were to be retroactively applied. Ifthe courts were to grant each of these offenders the full reduction in their sentence we estimate that the total savings to the BoP would be 370,985 bed years.3 Table 1 provides information on some ofthe demographic characteristic ofthe offenders eligible for a sentence reduction pursuant to the Policy Option. Table 2 provides an estimate of the number of offenders who would be released each year if the Policy Option was applied retroactively compared to the number of offenders who will be released each year pursuant to their current sentence. As can be seen on this table, if the Policy Option were fully retroactive on October 1,2014, more than 24,600 offenders would be eligible for immediate release. Within the first year of the effective date of the Policy Option, another 8,221 offenders would be eligible for release above the number who will be released under their current sentence. Table 3 provides information on selected sentencing guideline characteristics and the criminal history category of these offenders.

I See, e.g., 21 U.S.C. §§ 841 (b), 960(b) (2006) (establishing five-, ten-, and twenty-year minimum penalties in certain drug cases).

Another approach would be for the President to reduce the sentence for all offenders eligible for such a change using his clemency powers. See U.S. CONST., art. II, § 2, cl. 2.

A "bed year" is the cost to the BoP of incarcerating one inmate for one year. For example, one inmate who serves five years of imprisonment accounts for five bed years. would not be realized in any single year but is the cumulative savings realized over several years.

III.

How We Conducted This Analvsis A.

The methodology for this analysis is based on the Commission's Prison Impact Model, which has been in use in some form since the guidelines were first developed. This model is used to estimate the impact of proposed statutory and guideline amendments on newly sentenced offenders and to project the future impact those amendments will have on bed space in the BoP. For this analysis, those offenders who appear to be eligible to receive a reduced sentence were hypothetically "resentenced" with the computer program as ifthe proposed policy change had been in effect in the year in which they were sentenced. A new release date for each offender also was calculated in order to determine when the offender would be eligible for release if he or she were provided the full reduction in sentence provided by the proposed policy change.

B.

The Offender Population We Studied The Bureau of Prisons provided the Commission with a datafile of inmates who were in the custody of the BoP on Jan 25,2014. That file contained approximately 189,000 offenders. Approximately 184,000 of these offenders were sentenced between fiscal year 1992 and fiscal 2013.USSC staff was able to match 171,765 of these offenders to Commission records. Of these, 138,894 were estimated to remain incarcerated on October 1,2014.

In order to approximate the group of offenders who will be sentenced in fiscal year 2014, the Commission used the FY2013 datafile and moved all sentence dates forward by one year. Staff then determined which of these offenders would be incarcerated on October 1,2014. This process added another 40,178 offenders into the analysis. Between the two groups, the Commission's analysis included data on 179,072 offenders.

C.

In performing our analysis, we have been required to make some assumptions (set forth below) concerning the decisions that Congress and the courts (or the President) would make in determining whether, and to what extent, to reduce the sentences of offenders eligible to receive a modification of sentence pursuant to the Policy Option discussed above. These assumptions may not hold in every case. 1.

Specifically, we have assumed that Congress would authorize the courts (or the President would issue an order) to reduce the sentences of offenders incarcerated on or after a specific date (discussed below) in a manner consistent with the Guidelines Manual and bound only by any mandatory minimum penalties that might apply in current law or as modified through the Policy Option being discussed. We also assumed that the Commission would make no further changes to the Guidelines Manual in light of the Policy Option, so that the provisions of the 2013 Guidelines Manual would apply in these cases. Finally, we assumed that the effective date of any such Policy Option would be October 1,2014. Therefore, only offenders incarcerated as of that date would be eligible to seek a reduction in sentence pursuant to the Policy Option discussed in the memorandum. 2.

The policy we analyzed would have the effect of lowering the current statutory mandatory minimum penalties in drug cases from 5, 10, and 20 years to 2,5, and 10 years respectively. In fiscal year 2010, approximately 66 percent of all drug offenders were convicted of an offense carrying a mandatory minimum penalty.s Of those, approximately 46 percent remain subject to the penalty at the time of sentencing. Some offenders receive relief from the effect of any such penalty by providing substantial assistance to the government in the investigation or prosecution of another offender. Others receive relief from such a penalty through the statutory "safety valve" provision which authorizes courts to sentence drug offenders without regard to any mandatory minimum penalty provided the offender meets several criteria desirned to identify low level, non-violent offenders with little or no prior criminal history. Some offenders are eligible for both provisions.

In our analysis, we provide a full reduction for all offenders who remained subject to a mandatory minimum penalty at the time of sentencing. That is, we reduce sentences by 60 percent for all offenders convicted of a 5-year mandatory minimum who remained subject to that mandatory minimum at sentencing. Similarly, we reduce sentences by 50 percent for all offenders convicted of a 1 O-year or a 20-year mandatory minimum penalty and who remained subject to that penalty at sentencing.

See U.S. SENTENCING COMMISSION, MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 154 (2011).

See 18 U.S.c. § 3553(f); USSG §5K3.1.

Drug offenders who receive relief from a mandatory minimum penalty by providing substantial assistance to the government have sentences that are, in general, 46 percent below the arplicable guideline minimum sentence,9 which often is the mandatory minimum penalty. Drug offenders who receive relief from a mandatory minimum penalty through the statutory safety valve provision have sentences that are, in general, 39 percent below the applicable guideline minimum sentence. The extent of these reductions fluctuates somewhat each year. Because these offenders benefitted from substantial reductions in their sentence at the time of the original sentence, we have assumed that any benefit to them from the Policy Option would not be as great as it would be for those offenders who remained subject to a mandatory minimum penalty at sentencing. Therefore, for this analysis, we made additional assumptions for these offenders, as follows: -- offenders who were convicted of a drug offense carrying a 5-year mandatory minimum penalty, but who were not subject to any mandatory penalty at sentencing due to relief through substantial assistance or the safety valve would receive a further reduction of 30 percent under the Policy Option (i.e., 50% of the 60% reduction that offenders received if they remained subject to that mandatory minimum penalty at sentencing); -- offenders who were convicted of a drug offense carrying a 10-year or 20-year mandatory minimum penalty, but who were not subject to any mandatory penalty at sentencing due to relief through substantial assistance or the safety valve would receive a further reduction of25 percent under the Policy Option (i.e., 50% of the 50% reduction that offenders received if they remained subject to either ofthose mandatory minimum penalties at sentencing).

This analysis does not assume any change in sentence for offenders who were not convicted of a drug offense carrying a mandatory minimum penalty. It is possible, of course, that Congress (of the President) might authorize a reduction in sentence for drug offenders currently incarcerated but who were not convicted of an offense carrying a mandatory minimum penalty. Any such reduction would likely be tied to a change in the Guidelines Manual that incorporated the Policy Option. We are unable to model any change to the sentencing guidelines from a statutory enactment of the Policy Option, and so have excluded from this analysis any consideration of a change in sentence for drug offenders who were not convicted of an offense carrying a mandatory minimum penalty.

See 2013 Sourcebook of Federal Sentencing Statistics, Table 30 (2014).

See USSG §5G 1.1 (which provides that the minimum guideline sentence may not be lower than any mandatory minimum penalty).

II See 2013 Sourcebook of Federal Sentencing Statistics, Table 30A (2014). the Bureau of Prisons, and offenders would serve the lesser of the newly calculated sentence or their life expectancies.

If you have any questions about our analysis, please do not hesitate to contact the Commission. We continue to work to analyze the other policy options that we discussed with you and your colleagues. We will provide our analyses of these options as they are completed.

While Black Hispanic Other Total 14,773 27,512 34,096 1,590 77,971 19.0% 35.3% 43.7% 2.0% 100.0% 74.1% 25.9% 100.0% 92.5% 7.5% 100.0% (as of October 1, 2014) 'The analysis involves a total of78,106 cases in which the offender was identified as eligible to seek a sentence reduction if the drug mandatory minimum changes were made retroactive. Cases missing infonnation for any specific analysis are excluded irom that analysis.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Couunission, 1992 - 2013 Datafiles, USSCFY92 - USSCFY13 and projected 2014 Datafile. 'Of the 78,106 offenders who appear to be eligible for relief if the Polcy Option was applied retroactivly, Commission records contained sufficient infonnatioll to perfonn perfonTI this analysis for 78, I 02 offenders.

I .he analysis involves a total of78,106 cases in which the offender was identified as eligible to seek a sentence reduction if the drug mandatory minimum changes were made retroactive. Cases missing infonl1ation tor any specific analysis are excluded from that analysis. ~The average base offense level was excluded from this analysis due to missing guideline relevant statutory information lrom the new sentence.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Conunission, 1992 - 2012 Datafiles, USSCFY92 - USSCFY13 and projected 2014 Datafile.

2. USSC analysis of option 2: Retroactively apply the Fair Sentencing Act (FSA) of 2010 reductions in drug mandatory minimum penalties to offenders currently incarcerated for crack cocaine-related offenses.

This option would retroactively apply to eligible incarcerated offenders the reductions in mandatory minimum penalties for crack cocaine-related offenses that are provisions of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, which did not apply to offenders already sentenced under the original penalty guidelines.

ONE COLUMBUS CIRCLE, N.E.

Dear Mr. Tumin:

The Government Accountability Office has asked the U.S. Sentencing Commission to assist it in connection with its engagement (number 441173). We understand that through this engagement the GAO is examining ways in which the operating costs of the Federal Bureau of Prisons (BoP) can be reduced. As we have previously discussed with you and your colleagues, the Commission has agreed to provide to the GAO the results of our analyses of several policy options which could reduce the overall size of the prison population that the BoP administers. Specifically, our analyses of these policy options will consider the effect on the federal prison population if the policies were implemented in such a way that the options would apply to inmates currently incarcerated in the BoP system.

In this memorandum, we provide to you the first of these estimates. Here we provide our estimate of the impact on the federal prison population if the provisions of the Fair Sentencing Act of2010 I.

Statutory Changes in the FSA and the Conforming Guideline Amendment A.

Statutory Changes in the FSA The FSA changed the quantities of crack cocaine that trigger the five- and ten year statutory mandatory minimum penalties. As a consequence, first-time trafficking offenses involving less than 28 grams of crack cocaine are subject to a statutory penalty range of zero to 20 years of imprisonment. First-time trafficking offenses involving between 28 and 280 grams of crack cocaine are subject to a statutory penalty range of five to 40 years of imprisonment.A first-time trafficking offense involving 280 or more grams of crack cocaine is subject to a statutory penalty range of 10 years to life imprisonment. The FSA did not make any of the statutory changes retroactive. Therefore, offenders sentenced before the effecti ve date of the FSA continue to be subject to the mandatory minimum penalties in effect on the date of sentencing.

B.

Temporary and Permanent Amendments to the Guidelines Manual in Response to the FSA On October 15,2010, the Commission promulgated a temporary, emergency amendment to the guidelines that implemented the emergency directive in section 8 of the FSA.(In this memorandum, the several modifications to the drug guidelines promulgated in response to the FSA are referred to collectively as the "FSA Guideline Amendment.")

USSG, 2011 Supp. to App. C, Amendment 748 (effective Nov. 1,2010).

FSA Guideline Amendment added both new mitigating and aggravating provisions to USSG §2D 1.1 for offenses involving drugs, regardless of drug type. Part C of the FSA Guideline Amendment eliminated a provision in the guidelines under which an offender who possessed more than 5 grams of crack cocaine was sentenced under the drug trafficking guideline.

C.

Retroactive Application of the FSA Guideline Amendment The Commission voted to authorize courts to retroactively arply Parts A and C of the FSA Guideline Amendment to offenders currently incarcerated. Pursuant to 18 U.S.C. § 3582(c)(2), courts were then authorized to reduce the sentences of those offenders consistent with the amended sentencing guidelines. To date, the courts have reduced the sentences of more than 7,500 offenders pursuant to retroactive application of the FSA Guideline Amendment. In more than 5,000 other cases, the courts have denied relief to offenders seeking a reduction in sentence under the FSA Guideline Amendment. The courts found that the offender was not eligible for any sentence reduction in more than 3,700 of those cases. For example, in 1,458 cases, the court found that the offender was ineligible because the applicable mandatory minimum penalty controlled the sentence and prevented the court from reducing the sentence.

In more than 1,045 other cases, the offender was found ineligible because the Career Offender guideline (USSG §4B1.1), and not the drug trafficking guideline (USSG §2D 1.1), determined the guideline range at sentencing. As discussed above, the mandatory minimum penalties applicable to offenders sentenced prior to the FSA were unchanged by the act. The Career Offender guideline is linked to statutory maximum penalties which, in drug cases, are also linked to statutory mandatory minimum penalties. Because neither the FSA nor the FSA Guideline Amendments had the effect of lowering the Career Offender guideline, the provisions of 18 U.S.C. § 3582(c)(2) allowing courts to reduce the sentences of incarcerated offenders when their sentencing guideline is lowered do not apply to offenders whose guideline range is determined under that proVISIOn.

Finally, in some additional cases, the offender received only a partial reduction in sentence under the FSA Guideline Amendment. This was because a mandatory minimum penalty prevented the court from lowering the sentence to a point within the amended guideline range.

The base offense level for some quantities of crack cocaine in the Drug Quantity Table did not change as a result of the FSA Guideline Amendment. Also, offenses involving quantities of less than 500 mg of crack cocaine were unaffected by the amendment and remained assigned to BOL 12.

USSG, 2011 Supp. to App. C, Amendment 759 (effective Nov. 1,2011).

B.

In performing our analysis, we have been required to make some assumptions (set forth below) concerning the decisions that Congress and the courts would make in determining whether, and to what extent, to reduce the sentences of offenders eligible to receive a modification of sentence pursuant to the FSA if it were retroactively applied. These assumptions may not hold in every case.

Specifically, we have assumed that Congress would authorize the courts by statute to reduce the sentences of offenders in accordance with the Guidelines Manual in effect on a specific date and bound only by the mandatory minimum penalties as they were amended by the FSA. We also assumed that the Commission would make no further changes to the Guidelines Manual regarding crack cocaine offenses in response to Congress' action, so that the provisions ofthe 2012 Guidelines Manual would apply in these cases. Finally, we assumed that the effective date of any such statutory change would be no earlier than January 1,2014.

Additional assumptions we have made for this analysis are as follows: (1) offenders sentenced within the applicable guideline range when they were first sentenced would be sentenced at the same point in the range under the Guidelines Manual in effect on January 1,2014; (2) offenders sentenced outside the applicable guideline range when they were first sentenced would be sentenced to a new position outside the guideline range under the Guidelines Manual in effect on January 1,2014 that is the same proportional distance above or below the amended guideline range as their original sentence was from the guideline range in effect at the original sentencing; (3) offenders for whom the new estimated sentence is below the applicable mandatory minimum (all cases in this analysis have five grams triggering a five-year mandatory minimum or 50 grams triggering a 10-year mandatory minimum), and where no safety valve or substantial assistance reduction was applied when the offender was originally sentenced, would be sentenced at the new applicable mandatory minimum; (4) offenders classified as Career Offenders would be sentenced pursuant to the Career Offender provision of the guidelines in accordance with the statutory maximums as amended by the FSA. (5) the "mitigating role cap" on the base offense level of the guidelines would be applied, if appropriate, based upon the new base offense level; (6) offenders originally receiving relief from a mandatory minimum penalty by operation of the safety valve provision would continue to receive relief but, if the applicable statutory minimum is at least five years, the offense level determined after applying Chapters Two (Offense Conduct) and Three (Adjustments) of the guidelines would not be less than level 17 (pursuant to USSG §5CI.2(b»; (7) for offenders with an original combined offense level (after application of Chapters Two and Three) of level 16 or greater but having a new combined offense level below level 16, the applicable reduction for Acceptance of Responsibility would be reduced from three levels to two levels in accordance with that guideline provision; (8) the sentence for each offender would be reduced based on the maximum good conduct credit allowed by the Bureau of Prisons; and (9) offenders would serve the lesser ofthe newly calculated sentence or their life expectancies.

C.

Limitation as to Application of New Mitigating Provisions of the FSA As discussed above, Part B of the FSA Guideline Amendment added both new mitigating and aggravating provisions to USSG §2DI.I for offenses involving drugs, regardless of drug type. The Commission did not vote to allow those provisions to be applied retroactively. We are unable to assess the extent to which the courts might apply these new mitigating provisions were the FSA to be applied retroactively as those provisions involve the consideration of facts that are not readily available in the sentencing documents provided to the Commission in all cases. To the extent that the courts might consider these provisions in resentencing offenders when applying the FSA retroactively, the sentences for some offenders could be reduced below the point determined in our estimate, which would accelerate the release of those offenders from incarceration.

D.

For some of these offenders, the guideline range that applied at sentencing was derived from either the Career Offender (USSG §4B 1.1) or Armed Career Criminal (USSG §4B 1.4) provision. However, for the purpose of this analysis these offenders are considered to have been sentenced under the drug trafficking guideline as the court is required to calculate a guideline range for them under USSG §2D 1.1 as well. in the offense, and 3) having sufficient infonnation for analysis by the Commission's prison and sentencing impact model.

The Commission's retroactivity analysis determined that of these 19,154 offenders, 10,325 would not experience a change in their sentence if the FSA were fully retroactive. These offenders were excluded from the analysis. The majority of the offenders (n = 9,741) were excluded because they would not experience the proposed statutory change - either because no statutory mandatory minimum penalty applied in their cases or the offender already was sentenced below the FSA mandatory minimum thresholds. IS Another 362 offenders were sentenced under the Career Offender provision and, despite a change to their drug statutory minimum penalty, their guideline range under the Career Offender provision did not change. In another 191 cases, the current sentence is greater than both the guideline minimum and the FSA statutory minimum, therefore no change in their sentence would result. A small number of offenders (n=30) were excluded because their guideline range was detennined under the Armed Career Criminal provision, which would be unaffected by the retroactive application of the FSA. Lastly, one offender had a base offense level of38, the top of the Drug Quantity Table, and the quantity of drugs involved in that case continued to place the offender at that level, so therefore no change in his or her guideline range would occur.

After these offenders were excluded, there remained 8,829 offenders who were projected to be incarcerated on January 1,2014 and who appeared eligible to seek a reduced sentence if the provisions of the FSA were to be made retroactive as described above.

If you have any questions about our analysis please do not hesitate to contact the Commission. We continue to work to analyze the other policy options that we discussed with you and your colleagues. We will provide our analyses ofthese options as they are completed.

Because many of the offenders currently incarcerated in the BoP for crack offenses were sentenced after August 3, 2010, the mandatory minimum penalty provisions applied by the courts in most of those cases were the lower penalties provided by the FSA. Some courts did continue to apply the pre-FSA minimum penalties to offenders sentenced after August 3,2010 but who committed their crime prior to that date. However, the Supreme Court's opinion in Dorsey clarified that this practice was in error.

IOfthe 8,829 offenders who appear to be eligible for relief if the Fair Sentencing Act of 201 0 were retroactive, Conunission records contained sufficient information to perform this analysis for 8,468 offenders.

SOURCE: U.S. Sentencing Commission, 1992 - 2012 Datafiles, USSCFY92 - USSCFYI2.

3. USSC table with data for impact of option 3: Instruct U.S. Attorneys to decline to charge certain defendants in certain types of drug cases in such a manner as to trigger mandatory minimum sentences.

For option 3, the USSC provided a table composed of six subtables that show the USSC’s analysis of the estimated impact of the changes discussed in option 3. According to the USSC, the total number of offenders estimated to be affected annually by option 3 can be found in line 1, column 2, of the first table (i.e., 620). For the first 5 years’ estimated impact, we multiplied 620 by 5. According to the USSC, the bed years saved over the first 5 years of implementation can be found by adding the numbers shown in the first line of the third table, which total 788.

Total Cases are those with a particular sentencing factor being analyzed.

Total Cases are those with a particular sentencing factor being analyzed.

4. USSC table with data for impact of option 4: Amend USSC sentencing guidelines for future drug offenders, reducing them two levels below current guidelines.

This option reduces the potential sentences for all future drug offenders by two levels below current guidelines, resulting in a roughly 18 percent reduction of sentence length below current lengths. It was approved by the USSC and forwarded to Congress on April 30, 2014; it will apply to future eligible drug offenders effective November 1, 2014, in connection with option 5 (see next option) unless amended or rejected by Congress.

For option 4, the USSC provided a table composed of 2 subtables; the overall table is labeled “Table 5” by the USSC and shows the USSC estimate of the changes discussed in option 4. According to the USSC, the number of offenders estimated to be affected annually by the option (17,457) can be found in line 1 of the first table. Some other data in the two subtables were updated as a result of USSC actions that made option 4 retroactive (i.e., option 5), but which also delayed implementation of retroactivity until November 1, 2015, unless amended or rejected by Congress.

1st Year

1st Year After Effective Date

5. USSC analysis of option 5: Apply the amendments to sentencing guidelines in option 4 also to incarcerated drug offenders—that is, to both new drug offenders and retroactively to incarcerated drug offenders.

This analysis (which also includes information relevant to option 4, to which it is closely related) was posted to the USSC website on July 25, 2014. (http://www.ussc.gov/research-and-publications/retroactivity-analyses-and- data-reports/retroactivity-analyses-and-data-reports)

Office of Research and Data

SUBJECT: Summary of Key Data Regarding Retroactive Application of the I.

On April 30, 2014, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the drug quantity tables in sections 2D 1.1 and 2D 1.11 of the Guidelines Manual! incorporate the statutory mandatory minimum penalties for drug trafficking offenses (Amendment 782).2 Specifically, the amendment would reduce by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties, and make conforming changes to section 2D2.11. On July 18, the Commission voted to give retroactive effect to Amendment 782 beginning on the effective date of the amendment, which will be November 1, 2014, unless Congress acts to modify or disapprove the amendment.

U.S. SENTENCfNG COMMISSION, GUIDELfNES MANUAL §2D 1.1 (Unlawful Manufacturing, Importing, Exporting or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) (2013) (hereinafter USSG); USSG §2D 1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy).

References in this memorandum to the "2014 drug guidelines amendment," "the amendment," or any similar references mean the amendment the Commission submitted to Congress on April 30, 2014, that would modify the drug quantity tables in USSG §§2Dl.1 and 201.11.

As part of the Commission's decision to retroactively apply Amendment 782, it required that no offender may be released pursuant to the retroactive application of the amendment until November 1, 2015 or later. This memorandum provides information concerning the effect of this limitation.

II.

FURTHER ANALYSES OF THE IMPACT OF RETROACTIVE APPLICATION OF THE 2014 DRUG GUIDELINES AMENDMENT A.

Summary of Data on the Eligible Offenders ORD previously estimated that 51,141 offenders sentenced between October 1, 1991 and October 31,2014,3 would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive. Of this group, there are 46,376 offenders who would not be released under their current sentence until on or after November 1,2015, and so could benefit from the Commission's decision to retroactively apply Amendment 782.

The current average sentence for the 46,376 offenders who could benefit under retroactive application of the amendment is 133 months. Applying the amendment retroactively to these offenders the new average sentence would be 108 months. This is a difference of 25 months, which represents an 18.8 percent reduction in the sentence. The number of bed years saved by this reduction is 79,740 bed years, which would be realized by the Bureau of Prisons over a period of years, of course.

The most common drug types involved in these cases are methamphetamine (28.8%), powder cocaine (27.8%), crack cocaine (19.3%), marijuana (11.6%), heroin (7.6%), and other drugs (5.0%). Attached to this memorandum is a summary of selected offender characteristics about these offenders as well as information about their criminal history.

B. Summary of Data on the Projected Release Dates of the Eligible Offenders We estimate that on November 1,2015 there would be 7,953 offenders eligible for immediate release. Another 8,550 offenders would be released during the year that begins on November 1, 2015 and ends on October 31, 2016. That is, a total of 16,503 offenders will be released during the first year in which offenders may be released pursuant to retroactive application of the amendment. If the Commission had not authorized the amendment to be applied retroactively, we estimate that 7,609 offenders would still have been released during that year, as their current terms of incarceration expired. Attached to this memorandum is a table that provides additional information concerning the release years of these offenders and the districts in which they were sentenced.

The analysis was limited to data from fiscal year 1992 and later because the Commission's data collection efforts prior to fiscal year 1992 were not as complete as in later years.

Selected Characteristics of Eligible Offenders Retroactive Application of Amendment 782 With Release On or After November 1, 2015 (FY1992 through FY2015)

November 1, 2015 within 1 yf within 2 yr within 3 yr within 4 yr within 5 yr more than 5 yr Total The analysis involves a total of 46,376 cases, however, cases missing infonnation for any specific analysis are excluded fi'om that analysis. Total percentages may not add to exactly 100% due to rounding. * A total of 16,503 offenders are estimated to be elgible for release during the first year in which offenders may be released under retroactive application of the amendment. This is 8,894 more than will be released upon expiration of their current sentence.

SOURCE: U.S. Sentencing Commission, 1992 - 2005 Datatlles, USSCFY92 - USSCFY13.

Possible Release Timing for Retroactive Eligible Offenders bv OistJict (FY1992 through FY2015) f:ligible ror Relensr 1:':ligiblc ro.· Release t:ligible for H.clease 10.8 18.1 14.9 17.7 9.1 16 . .1 17.0 7.2 12.1 11.3 17.9 22.6 17.6 22. 1 16.7 11.6 22.6 25.2 11.8 12.2 5.0 I::!.l 21.7 27.5 1).0 11.1 1S.:!

21.0 22.1 18.::! )

12.6 20.1 23 .1 14.1 10.0 8.4 9.7 11 .6 30.5 21 .8 21.1 28.0 '" For example, in (he District ofCc,llumbia. 62 offenders are eligible for relea~e between Novennber I. 2015 aIld OL1.ober 31,2016.

Possible Release Timing for Retroactive Eligible Offenders by District (FY1992 through FY2015)

E1it:iblc (or Releasc ~:tigibl(.' (or Release in Si .. or Mo~ in YearT",·o % IS.)

1::!.2.

21 .1 13. 1 14.8 13. 1 :!l.8 51::!

3::!

16.:! 21 .::!

7:!

2)

Possible Release Timing for Retroactive Eligible Offenders by District (FY1992 through FY2015)

Guam Hawaii Idaho Montana Nevada Northern Mariana Lslands Oregon 2)

Possible Release Timing for Retroactive Eligible Offenders bv District (FY1992 through FY2015)

EJigih1c (or Relc3!11l' ~. ~.

38:::! ~3 ,.

15. 7 13.0 10.8 Of the 46.376 offenders idcnriti~d :lS eligible [-Or relief under the amendment, Ct)lrunisi:iion records containcd :\lIllieicnt inftxm:l1ion to pcrtllml d,is anal)'sis ft)C 4S,~SO l,rrcnders.

E.,tiU~1ttJ n:1/:;;a.\(. dALd de1.::rmined using lht: Commission's prison and sentencing impact mood which !If)Prie,, f1~ l;."U&ldinc.' cltangl";'. to ulT~tc:d t,(ta:n&r!\:wld rc~ 11)(':<. olT~ in a propMi('lrcl munncr. Undc'~ rno&~ .ffct'tl:d oni"td~I'S: I J receive a 11(:\ ... · otlcnse level; 2) haw (~W scnl~nc:ing rang~ dcu:rm~d (d$ipg ,h;: r.lng~s from the Scnlc~--il\g r~bt. .\).J~ ~aI to the: s:tr'l'lC rel:t.tJ"c position wilhin (<W ~fdcl ,hc- \NigitW 1;U'idclinc mn~ (c.g., an ofTl:odt:r curn:mly sentenced at the lTlic.\p<.)im ~)r\hc ~wjgJntlllukh:afk.' f·:J~ ... ~thcn "i\1 b.! scntenced foJd\\: mi~po;r\l ,,(the ~\\ ~uich;tim; r.mg.~); lind 4) rcceive stalUl(\r:' aJld l:,"Uideiine trwnps wben applic~lnk. Other assumplil\flS incoI"(K\rntcd into the mood include: [) t\ft~rw:ier.-; eflfll lt~ maximum allowable good-time (clirrently 54 days per Yelr served H'f imposed sentences gre!lter than one year but not life ilTlp"isonlTII:l)t): aoo 2) ollerders sene the Ics~'fofA) the ,~ll!llCe im,>O!.Cd les ... the: maximum aUmvnble gO<'lCi cooduct time, or B}lhcir ... 'Slimal<:d rernniniog life C:<pc<::tallCY. ~dupoi'l an nduary table ino.lrporating age. (!lee. :md sex, SOURCE: US Sl!'nt'L'ncing Commis5kHl. 1992 - ~013 Dalt=1ll1es. USSCFY92 -lJSSCFY13.

6. USSC analysis of option 6: Increase good time credits for good conduct time (GCT).

Under this option, a credit for GCT would be awarded to current offenders using a formula that would result in 54 days’ credit per year of sentence, rather than the current BOP interpretation that limits the GCT credit to 47 days per served sentence year. This would result in eligible inmates serving 85 percent of their sentences, rather than the higher 87 percent average resulting from BOP’s current interpretation of 18 U.S.C. § 3624(b).

ONE COLUMBUS CIRCLE, N.E.

Dear Mr. Tumin:

The Government Accountability Office has asked the U.S. Sentencing Commission to assist it in connection with its engagement (number 441173). We understand that through this engagement the GAO is examining ways in which the operating costs of the Federal Bureau of Prisons (BoP) can be reduced. As we have previously discussed with you and your colleagues, the Commission has agreed to analyze on GAO's behalf several policy options which could reduce the overall size of the prison population that the BoP administers. Specifically, our analyses of these policy options will consider the effect on the federal prison population if the policies were implemented in such a way that the options would apply to inmates currently incarcerated in the BoP system.

In this memorandum, we provide to you another of these estimates. Here we provide our estimate of the impact on the federal prison population if the current method of determining "good time credit" were to be changed so that offenders could earn up to 54 days per year for good conduct and the BoP would be authorized to apply that expanded credit to all offenders currently incarcerated.

As we discuss more fully below, we estimate that 179,265 offenders who are incarcerated and would still be in prison on October 1,2014 would be eligible to receive additional good conduct credit under such a policy change. The average increase in good conduct credit for these offenders would be 2.3 months (2.2%). The estimated total savings to the BoP from such a policy change applied retroactively would be 34,359 bed years. 1.

The Policy Option We Considered Under current law, I a prisoner who is serving a term of imprison of more than one year may receive credit to the service of a sentence if they behave satisfactorily while incarcerated. Section 3 624(b) of title 18 provides: A prisoner may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term .... redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

The goal of this provision is, in essence, that offenders serve at least 85 percent of the sentence imposed. The BoP currently uses a formula to determine good conduct credit that results in a maximum of 47 days of credit being given for each year of incarceration served. The difference between the BoP approach and the 54 days described in the statute occurs because ofthe BoP's interpretation of when the good conduct credit is accrued (following the service of each year) and how the credit is to be applied to the partial year remaining at the end of an offender's sentence.

An alternate method of calculating the good conduct credit could be to simply award 54 days of credit for each year of sentence imposed at the beginning of the sentence. Although the BoP's current interpretation of the statute has been upheld by the Supreme Court,3 the Department of Justice has proposed to Congress that it amend the governing statute so as to allow the BoP to award up to 54 days per year.

You have asked us to consider a change to the statute whereby the calculation of the good conduct credit is changed to authorize 54 days per year to be awarded (the "Policy Option").

II.

Barber v. Thomas, 560 U.S. _ (2010).

imposed if the Policy Option were to be retroactively applied. If the BoP were to grant each ofthese offenders the full good time credit of the Policy Option we estimate that the total savings to the BoP would be 34,359 bed years.

Table 1 provides information on some of the demographic characteristic ofthe offenders eligible for a sentence reduction pursuant to the Policy Option. Table 2 provides an estimate of the number of offenders who would be released each year if the Policy Option was applied retroactively compared to the number of offenders who will be released each year pursuant to their current sentence. As can be seen on this table, if the Policy Option were fully retroactive on October 1,2014, there would be 819 offenders eligible for immediate release. Within the first year of the effective date of the Policy Option, another 25,918 offenders would be eligible for release. In total, the number of offenders eligible for release under the Policy Option in the first year is 2,878 more than the number who will be released under their current sentence. Table 3 provides information on selected sentencing guideline characteristics and the criminal history category of these offenders.

For the 179,265 offenders who would be eligible to receive additional good conduct credit under the Policy Option, the current average time served is 103.3 months. If the BoP were to award the maximum good time credit under the Policy Option, the projected average time served would be 101.0 months, a reduction of2.3 months (or 2.2%). Based on this reduction, the estimated total savings to the BoP from the retroactive application of the Policy Option would be 34,359 bed years. This savings would not be realized in any single year but is the cumulative savings realized over several years.

III.

How We Conducted This Analysis A.

The methodology for this analysis is based on the Commission's Prison Impact Model, which has been in use in some form since the guidelines were first developed. This model is used to estimate the impact of proposed statutory and guideline amendments on newly sentenced offenders and to project the future impact those amendments will have on bed space in the BoP. For this analysis, those offenders who appear to be eligible to receive a reduced sentence were hypothetically "resentenced" with the computer program as if the proposed policy change had been in effect in the year in which they were sentenced. A new release date for each offender also was calculated in order to determine when the offender would be eligible for release if he or she were provided the full reduction in sentence provided by the proposed policy change.

B.

The Offender Population We Studied The Bureau of Prisons provided the Commission with a datafile of inmates who were in the custody of the BoP on Jan 25,2014. That file contained approximately 189,000 offenders. Approximately 184,000 of these offenders were sentenced between fiscal year 1992 and fiscal 2013. USSC staffwas able to match 171,765 of these offenders to Commission records. Of these, 138,894 were estimated to remain incarcerated on October 1,2014.

In order to approximate the group of offenders who will be sentenced in fiscal year 2014, the Commission used the FY2013 datafile and moved all sentence dates forward by one year. Staffthen determined which of these offenders would be incarcerated on October 1,2014. This process added another 40,178 offenders into the analysis. Between the two groups, the Commission's analysis included data on 179,072 offenders.

C.

In performing our analysis, we have been required to make some assumptions (set forth below) concerning the decisions that Congress and the courts would make in determining whether, and to what extent, to reduce the sentences of offenders eligible to receive a modification of sentence pursuant to the Policy Option discussed above. These assumptions may not hold in every case. 1.

Specifically, we have assumed that Congress would amend the provisions of 18 U.S.c. § 3624(b) in such a way that the BoP would award a maximum of good conduct credit of 54 days per year of sentence imposed. We have also assumed that Congress would authorize the statutory change to be applied retroactively to offenders incarcerated in the BoP. 2.

We have assumed that the sentence for each offender would be reduced based on the maximum good conduct credit allowed under the Policy Option. This assumption may not hold for every offender, as some offenders lose a portion or all of their earned good conduct credit as a sanction for unacceptable behavior. As a result, our estimate of the impact of the Policy Options may be overbroad, but not to an extent we can determine. We have also assumed that offenders would serve the lesser ofthe newly calculated sentence or their life expectancies.

If you have any questions about this analysis, or any of our prior analyses that we have provided to the GAO, please do not hesitate to contact the Commission. This analysis completes the list of analyses we have agreed to provide to you. We hope that the information the Commission has provided has been useful to the GAO in its work.

Demographic Characteristics of Eligible Offenders

(FY1992 through FY2014)

White Black Hispanic Other Total 47,363 58,531 67,051 6,045 178,990 26.5% 32.7% 37.5% 3.4% 100.0% 74.3% 25.7% 100.0% 92.9% 7.1% 100.0% (as of November 1,2014) (at sentencing)

The analysis involves a total of 179,265 cases, however, cases missing information for any specific analysis are excluded from that analysis.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S . Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFYI3 .

Projected Y car of Release for Retroactive Eligible Offenders (FY1992 through FY2014)

Of the 179,265 offenders who appear to be eligible to benefit under the Policy Option, Commission records contained sufficient information to perform this analysis for 179,265 offenders.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFYI3.

Guideline Sentencing Characteristics, Crimina] History, and Position Relative to the Guideline Range of Eligible Offenders (FY1992 through FY2014)

The analysis involves a total of 179,265 cases, however, cases missing information for any specific analysis are excluded from that analysis.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFYI3 .

7. USSC analysis of option 7: Make the current “safety valve” available to any drug offender with no offenses that receive 3 points under the criminal history point system.

Federal law generally requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any number of federal offenses; however, there are two statutorily provided exceptions. One of these exceptions, commonly referred to as the “safety valve,” was created by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, and is available for certain types of defendants for certain offenses that carry minimum sentences. Under this option, the current statutory requirements for eligibility for safety valve relief in drug cases involving a mandatory minimum penalty would be expanded to cover incarcerated offenders with any number of criminal history points, provided that the offender does not have a conviction for which the sentence imposed was a 3-point offense under USSC sentencing guidelines. Under USSC sentencing guidelines, 3 criminal history points are assigned if an offender has been previously sentenced or is being sentenced to a prison term of 13 months or more.

ONE COLUMBUS CIRCLE, N.E.

Dear Mr. Tumin:

The Government Accountability Office has asked the U.S. Sentencing Commission to assist it in connection with its engagement (number 441173). We understand that through this engagement the GAO is examining ways in which the operating costs of the Federal Bureau of Prisons (BoP) can be reduced. As we have previously discussed with you and your colleagues, the Commission has agreed to analyze on GAO's behalf several policy options which could reduce the overall size of the prison popUlation that the BoP administers. Specifically, our analyses of these policy options will consider the effect on the federal prison population if the policies were implemented in such a way that the options would apply to inmates currently incarcerated in the BoP system.

In this memorandum, we provide to you another of these estimates. Here we provide our estimate of the impact on the federal prison population if the current statutory requirements for eligibility for "safety valve" relief in drug cases involving a mandatory minimum penalty! were to be expanded. Specifically, you have asked us to consider a change to current law whereby offenders with any criminal history not involving a conviction for which the sentence imposed exceeded 13 months would be eligible for such relief and the courts would be authorized to resentence all federal offenders convicted of a drug offense in a manner consistent with the revised statute.

I 18 U.S.c. § 3553(f); see also USSG §5C1.2. sentence reduction. The average reduction in sentence for these offenders would be 18 months (19.1 percent). The estimated total savings to the BoP from such a policy change applied retroactively would be 15,889 bed years. 1.

The Policy Option We Considered One of the policy options that we have agreed to examine on behalf of the GAO is the impact of a policy change in current law whereby the current statutory requirements for eligibility for "safety valve" relief from the application of mandatory minimum penalties in drug cases would be expanded. That provision currently requires courts to sentence offenders who have been convicted of a drug offense carrying a mandatory minimum penalty without regard for that penalty when all of several criteria are met. of the offender. Currently, offenders are eligible for safety valve relief only if they have been assessed no more than one criminal history point under the sentencing guidelines.You have asked us to consider a change to the statute whereby offenders would be eligible for safety valve relief regardless of their criminal history score provided that none of their criminal history involves a conviction for which the sentence imposed exceeded one year and one month,5 and further provided they meet the remaining safety valve criteria (the "Policy Option").

II.

Offenders convicted of an offense for which the sentence imposed exceeded one year and one month are assessed three points under the sentencing guidelines. See USSG §4A 1.1 (a). Therefore, this Policy Option would expand safety valve relief to any offender who did not have any conviction that was assigned three points under the criminal history provisions ofthe guidelines.

A "bed year" is the cost to the BoP of incarcerating one inmate for one year. For example, one inmate who serves five years of imprisonment accounts for five bed years. provides an estimate of the number of offenders who would be released each year if the Policy Option was applied retroactively compared to the number of offenders who will be released each year pursuant to their current sentence. As can be seen on this table, if the Policy Option were fully retroactive on October 1,2014, more than 1,123 offenders would be eligible for immediate release. Within the first year of the effective date of the Policy Option, another 865 offenders would be eligible for release above the number who will be released under their current sentence. Table 3 provides information on selected sentencing guideline characteristics and the criminal history category of these offenders.

For the 11,949 offenders who would be eligible to receive a sentence reduction under the Policy Option, the current average sentence is 94 months. If the courts were to grant the full reduction possible in each case, the projected new average sentence for these offenders would be 76 months, a reduction of 18 months (or 19.1 percent). Based on this reduction, the estimated total savings to the BoP from the retroactive application of the Policy Option would be 15,889 bed years. This savings would not be realized in any single year but is the cumulative savings realized over several years.

III.

How We Conducted This Analysis A.

The methodology for this analysis is based on the Commission's Prison Impact Model, which has been in use in some form since the guidelines were first developed. This model is used to estimate the impact of proposed statutory and guideline amendments on newly sentenced offenders and to project the future impact those amendments will have on bed space in the BoP. For this analysis, those offenders who appear to be eligible to receive a reduced sentence were hypothetically "resentenced" with the computer program as if the proposed policy change had been in effect in the year in which they were sentenced. A new release date for each offender also was calculated in order to determine when the offender would be eligible for release if he or she were provided the full reduction in sentence provided by the proposed policy change.

B.

The Offender Population We Studied The Bureau of Prisons provided the Commission with a datafile of inmates who were in the custody of the BoP on Jan 25,2014. That file contained approximately 189,000 offenders. Approximately 184,000 of these offenders were sentenced between fiscal year 1992 and fiscal 2013. USSC staff was able to match 171,765 of these offenders to Commission records. Of these, 138,894 were estimated to remain incarcerated on October 1,2014.

In order to approximate the group of offenders who will be sentenced in fiscal year 2014, the Commission used the FY2013 datafile and moved all sentence dates forward by one year. Staff then determined which of these offenders would be incarcerated on October 1,2014. This process added another 40,178 offenders into the analysis. Between the two groups, the Commission's analysis included data on 179,072 offenders.

C.

In performing our analysis, we have been required to make some assumptions (set forth below) concerning the decisions that Congress and the courts would make in determining whether, and to what extent, to reduce the sentences of offenders eligible to receive a modification of sentence pursuant to the Policy Option discussed above. These assumptions may not hold in every case. 1.

Specifically, we have assumed that Congress would amend the provisions of 18 U.S.C. § 3553(f)(1) to the effect that "the defendant does not have a criminal history score, as determined under the sentencing guidelines, that includes points added for any conviction for which the sentence imposed exceeded one year and one month." We have further assumed that the Commission would amend USSG §5C1.3 to conform it to the provisions of the amended statutory safety valve provisionbut make no further changes to the Guidelines Manual, so that the remaining provisions of the 2013 Guidelines Manual would apply in these cases. Further, we have assumed that Congress would authorize the statutory change to be applied retroactively to offenders incarcerated in the BoP and that the Commission would amend USSG §IBl.I0 to authorize courts to apply the amendment to USSG §5Cl.3 retroactively to those offenders on some specific date. We also assumed that the courts would resentence offenders in a manner that is consistent with the amended Guidelines Manual. Finally, we assumed that the effective date of any such Policy Option would be October 1,2014. Therefore, only offenders incarcerated as of that date would be eligible to seek a reduction in sentence pursuant to the Policy Option discussed in this memorandum. 2.

In fiscal year 2010 approximately 66 percent of all drug offenders were convicted of an offense carrying a mandatory minimum penalty. Of those approximately 46 percent remain subject to the penalty at the time f sentencing. S me offenders receive relief from the effect of any such penalty by providing substantial assistance to the government in the investigation or prosecution of another offender. Others receive relief from such a penalty through the statutory "safety valve" provision. Some offenders are eligible for both provisions.

Under the sentencing guidelines, drug offenders who meet the requirements of the statutory safety valve provision, which is incorporated into the guidelines at USSG SCI.3, are entitled to a two-level reduction in offense level. This provision applies regardless of whether the offender was convicted of an offense carrying a mandatory minimum penalty. That is, for offenders who are convicted of an offense carrying a mandatory minimum penalty, eligibility for the safety valve provides two benefits: 1) statutory relief from application of the mandatory minimum penalty, and 2) a two-level reduction in the offense level calculated under the sentencing guidelines. For drug offenders who were not convicted of an offense carrying a mandatory minimum penalty, eligibility for safety valve relief also results in the two-level reduction in offense level. For the analysis described in this memorandum, we have assumed that this structure would be unchanged, so that all drug offenders could benefit from the Policy Option if they meet the revised safety valve criteria and regardless of whether a mandatory minimum penalty had ever applied in the case.

Additional assumptions we have made for this analysis are that the sentence for each offender would be reduced based on the maximum good conduct credit allowed by the Bureau of Prisons, and offenders would serve the lesser of the newly calculated sentence or their life expectancies.

II See U.S. SENTENCING COMMISSION, MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JuSTICE SYSTEM 154 (2011).

If you have any questions about our analysis, please do not hesitate to contact the Commission. We continue to work to analyze the other policy options that we discussed with you and your colleagues. We will provide our analyses of these options as they are completed.

Demographic Characteristics of Drug Offenders Potentially Eligible for Retroactive Expanded Safety Valve (No 3-Point Events) 'The analysis involves a total of 11,949 cases in which the offender was identified as eligible to seek a sentence reduction if the drug mandatory minimum changes were made retroactive. Cases missing information for any specific analysis are Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFYI3 and projected 2014 Datafile.

Estimated Projected Year of Release for Drug Offenders l>otentially Eligible for Retroactive Expansion of Safety Valve eN 0 3-Point Events) 'Of the 11 ,949 offenders who appear to be eligible for relief if the Poley Option was applied retroactively, Commission records contained sufficient information to perform this analysis for 11 ,917 offenders.

Guideline Sentencing ChaTactel"istics and Criminal History of Drug Offenders Potentially Eligible for Retroactive Expanded Safety Valve (No 3-Point Events)

IThe analysis involves a total of 11,949 cases in which the offender was identified as eligible to seek a sentence reduction if the expanded safety valve changes were made retroactive. Cases missing information for any specific analysis are Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFY13 and projected 2014 Datafile.

8. USSC analysis of option 8: Expand the safety valve as described in option 7 to include both non-violent drug offenders and any nonviolent offenders provided that they do not have a 3-point offense.

Under this option, the current statutory requirements for eligibility for "safety valve" relief in drug cases involving a mandatory minimum penalty would be expanded to cover both drug offenders and other non-violent (non-drug) offenders. No offender could have a conviction for which the sentence imposed was a 3-point offense under USSC sentencing guidelines.

ONE COLUMBUS CIRCLE, N.E.

Dear Mr. Tumin:

The Government Accountability Office has asked the U.S. Sentencing Commission to assist it in connection with its engagement (number 441173). We understand that through this engagement the GAO is examining ways in which the operating costs of the Federal Bureau of Prisons (BoP) can be reduced. As we have previously discussed with you and your colleagues, the Commission has agreed to analyze on GAO's behalf several policy options which could reduce the overall size of the prison population that the BoP administers. Specifically, our analyses of these policy options will consider the effect on the federal prison population if the policies were implemented in such a way that the options would apply to inmates currently incarcerated in the BoP system.

In this memorandum, we provide to you another of these estimates. Here we provide our estimate of the impact on the federal prison population if the current statutory requirements for eligibility for "safety valve" relief in drug cases involving a mandatory minimum penalty) were to be expanded to all offenders regardless of the type of offense committed, subject to some limitations. Specifically, you have asked us to consider a change to current law whereby any non-violent offender would be eligible for safety valve relief regardless of the offender's criminal history, provided that the offender had not been convicted of any offense for which the sentence imposed exceeded 13 months, and the courts would be authorized to resentence those offenders in a manner consistent with the revised statute.

As we discuss more fully below, we estimate that 38,930 offenders who are incarcerated and would still be in prison as of October 1, 2014 would be eligible for a I 18 U.S.c. § 3553(f); see also USSG §5CI.2. sentence reduction under such a policy change. The average reduction in sentence for these offenders would be 15 months (20.5%). The estimated total savings to the BoP from such a policy change applied retroactively would be 40,552 bed years. 1.

The Policy Option We Considered One of the policy options that we have agreed to examine on behalf of the GAO is the impact of a policy change in current law whereby the current statutory requirements for eligibility for "safety valve" relief from the application of mandatory minimum penalties in drug cases would be expanded. That provision currently requires courts to sentence offenders who have been convicted of a drug offense carrying a mandatory minimum penalty without regard for that penalty when all of several criteria are met. One of those criteria involves the criminal history scoreof the offender. Currently, offenders are eligible for safety valve relief only if they have been assessed no more than one criminal history point under the sentencing guidelines.

You have asked us to consider a change to the statute whereby the safety valve would be available to all offenders, not just those committing drug offenses, provided that they offender was not a violent offender. You also asked us to consider a further change to the statute so that any such non-violent offender would be eligible regardless of their criminal history score, provided that none of their criminal history involves a conviction for which the sentence imposed exceeded one year and one month,and further provided they meet the remaining safety valve criteria (the "Policy Option").

II.

A "bed year" is the cost to the BoP of incarcerating one inmate for one year. For example, one inmate who serves five years of imprisonment accounts for five bed years.

2 provides an estimate of the number of offenders who would be released each year if the Policy Option was applied retroactively compared to the number of offenders who will be released each year pursuant to their current sentence. As can be seen on this table, if the Policy Option were fully retroactive on October 1, 2014, more than 5,623 offenders would be eligible for immediate release. Within the first year of the effective date of the Policy Option, another 12,067 offenders would be eligible for release. In total, the number of offenders eligible for release under the Policy Option in the first year is 6,321 more than the number who will be released under their current sentence. Table 3 provides information on selected sentencing guideline characteristics and the criminal history category of these offenders.

For the 38,931 offenders who would be eligible to receive a sentence reduction under the Policy Option, the current average sentence is 73 months. If the courts were to grant the full reduction possible in each case, the projected new average sentence for these offenders would be 58 months, a reduction of 15 months (or 20.5%). Based on this reduction, the estimated total savings to the BoP from the retroactive application of the Policy Option would be 40,552 bed years. This savings would not be realized in any single year but is the cumulative savings realized over several years.

III.

How We Conducted This Analysis A.

The methodology for this analysis is based on the Commission's Prison Impact Model, which has been in use in some form since the guidelines were first developed. This model is used to estimate the impact of proposed statutory and guideline amendments on newly sentenced offenders and to project the future impact those amendments will have on bed space in the BoP. For this analysis, those offenders who appear to be eligible to receive a reduced sentence were hypothetically "resentenced" with the computer program as if the proposed policy change had been in effect in the year in which they were sentenced. A new release date for each offender also was calculated in order to determine when the offender would be eligible for release if he or she were provided the full reduction in sentence provided by the proposed policy change.

B.

The Offender Population We Studied The Bureau of Prisons provided the Commission with a datafile of inmates who were in the custody of the BoP on Jan 25,2014. That file contained approximately 189,000 offenders. Approximately 184,000 of these offenders were sentenced between fiscal year 1992 and fiscal 2013. USSC staff was able to match 171,765 of these offenders to Commission records. Of these, 138,894 were estimated to remain incarcerated on October 1,2014.

In order to approximate the group of offenders who will be sentenced in fiscal year 2014, the Commission used the FY2013 datafile and moved all sentence dates forward by one year. Staff then determined which of these offenders would be incarcerated on October 1,2014. This process added another 40,178 offenders into the analysis. Between the two groups, the Commission's analysis included data on 179,072 offenders.

C.

In performing our analysis, we have been required to make some assumptions (set forth below) concerning the decisions that Congress and the courts would make in determining whether, and to what extent, to reduce the sentences of offenders eligible to receive a modification of sentence pursuant to the Policy Option discussed above. These assumptions may not hold in every case. 1.

Specifically, we have assumed that Congress would amend the provisions of 18 U.S.C. § 3553(f) to provide that the subsection would apply at sentencing in any case in which the offender was not convicted of a violent offense and had not used violence in the commission ofthe offense. We have also assumed that Congress would amend 18 U.S.C. § 3553(f)(1) to expand eligibility under that section to any federal offender to the extent that: "the defendant does not have a criminal history score, as determined under the sentencing guidelines, that includes points added for any conviction for which the sentence imposed exceeded one year and one month." We have further assumed that the Commission would amend USSG §5C1.3 to conform it to the provisions of the amended statutory safety valve provisionbut make no further changes to the Guidelines Manual, so that the remaining provisions of the 2013 Guidelines Manual would apply in these cases. Further, we have assumed that Congress would authorize the statutory change to be applied retroactively to offenders incarcerated in the BoP and that the Commission would amend USSG §IBl.I0 to authorize courts to apply the amendment to USSG §5C1.3 retroactively to those offenders on some specific date. We also assumed that the courts would resentence offenders in a manner that is consistent with the amended Guidelines Manual. Finally, we assumed that the effective date of any such Policy Option would be October 1, 2014. Therefore, only offenders incarcerated as of that date would be eligible to seek a reduction in sentence pursuant to the Policy Option discussed in this memorandum. 2.

In fiscal year 2010, approximately 66 percent of all drug offenders were convicted of an offense carrying a mandatory minimum penalty. I I Of those, approximately 46 percent remain subject to the penalty at the time of sentencing. Others receive relief from such a penalty through the statutory "safety valve" provision. Some offenders are eligible for both provisions.

Under the sentencing guidelines, drug offenders who meet the requirements of the statutory safety valve provision, which is incorporated into the guidelines at USSG 5Cl.3, are entitled to a two-level reduction in offense level. the guideline applied in the case was from Part A of Chapter 2 of the Guidelines Manual (which involves crimes against the person); the guideline applied was USSG §2B2.1 (burglary of a residence); the guideline applied was USSG §2B3.1 (robbery); the guideline applied was USSG §2B3.2 (extortion by force or threat of injury); the guideline applied was USSG §2Dl.9 (placing dangerous devices to protect the guideline applied was from Subpart 1 of Part E of Chapter 2 (racketeering); the guideline applied was from Subpart 1 of Part G of Chapter 2 (promoting commercial sex acts or other prohibited sexual conduct); the guideline applied was from Subpart 2 of Part G of Chapter 2 and the conduct involved the production of child pornography; the guideline applied was USSG §2H4.1 (peonage, slave trade); the guideline applied was from Part K of Chapter 2 (firearms); the guideline applied was from Subparts 1,2,3,5, or 6 of Part M of Chapter 2 (treason, sabotage, espionage, and cases involving nuclear, biological and chemical weapons and materials); the guideline applied was USSG §2Nl.l (tampering with consumer products with risk of death); the guideline applied was USSG §2P 1.3 (prison riot); the guideline applied was USSG §2Q 1.1 (knowing endangerment from the guideline applied was USSG §2Ql.4 (tampering with public water system); or the guideline applied was USSG §2X6.1 (use of a minor in a crime of violence).

Additional assumptions we have made for this analysis are that the sentence for each offender would be reduced based on the maximum good conduct credit allowed by the Bureau of Prisons, and offenders would serve the lesser of the newly calculated sentence or their life expectancies.

If you have any questions about our analysis, please do not hesitate to contact the Commission. We continue to work to analyze the other policy options that we discussed with you and your colleagues. We will provide our analyses of these options as they are completed.

Demographic Characteristics of Eligible Offenders

(FY1992 through FY2014)

45.4% 2.6% 100.0% 66.1% 33.9% 100.0% (as of November 1,2014) (at sentencing)

The analysis involves a total of38,931 cases, however, cases missing information for any specific analysis are excluded from that analysis.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFY13.

Projected Year of Release for Retroactive Eligible Offenders (FY1992 through FY2014)

Of the 38,931 offenders who appear to be eligible for relief under the amendment, Commission records contained sufficient information to perform this analysis for 38,930 offenders.

SOURCE: U.S. Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFY13.

Guideline Sentencing Characteristics, Criminal History, and Position Relative to the Guideline Range of Eligible Offenders (FY1992 through FY2014)

The analysis involves a total of 38,931 cases, however, cases missing information for any specific analysis are excluded from that analysis.

Total percentages may not add to exactly 100% due to rounding.

SOURCE: U.S . Sentencing Commission, 1992 - 2013 Datafiles, USSCFY92 - USSCFYI3 .

Appendix VIII: GAO Contact and Staff Acknowledgments

GAO Contact

David C. Maurer, (202) 512-9627 or MaurerD@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Jill Verret (Assistant Director), Pedro Almoguera, Billy Commons, Adam Couvillion, Michele Fejfar, Eric Hauswirth, Susan Hsu, Linda Miller, Michael Tropauer, and Jonathan R. Tumin made key contributions to this report.