Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison
Released: 2012-02-07T00:00:00

Letter

Background

BOP Population and Institutions

In fiscal year 2012, BOP had a budget of about $6.6 billion for salaries and expenses and as of December 2011, BOP had a staff of about 38,000, which includes administrative, program, and support staff responsible for all of BOP’s activities nationwide. BOP houses inmates across six geographic regions in 117 federal institutions, 15 privately managed prisons, 185 RRCs (also known as halfway houses), and home detention. At the close of fiscal year 2011, about 94 percent of BOP’s inmate population was incarcerated in either federal institutions or privately managed prisons, operating at four different security level designations: minimum, low, medium, and high. The designations depend on the level of security and staff supervision 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 the staff-to-inmate ratio. Some BOP institutions include multiple prison facilities with different security classifications under common management, in part to increase cost efficiencies. According to BOP, privately managed low-security facilities primarily house criminal aliens. Figure 1 shows the distribution of BOP institutions, privately managed prisons, and RRCs across BOP’s six geographic regions.

To house inmates in community corrections locations, BOP contracts with private organizations to manage 185 RRCs around the country. These RRCs allow BOP to house inmates outside of a prison environment to either serve out their full sentence or their remaining sentence prior to release in the community. Inmates are authorized to leave for approved activities, such as seeking employment, working, counseling, visiting, or recreation, but are monitored 24 hours a day through sign-out procedures, regular head counts, staff visits to the approved locations, and random phone contacts. Inmates in RRCs are also required to work, or be actively seeking work, and to pay a percentage of their salaries as a subsistence fee to cover some of their expenses at the RRC. Some federal inmates are placed on home detention at the end of their prison term, either directly from an institution, or following some time in an RRC. Home detention describes all circumstances under which an inmate is serving a portion of his or her sentence while residing in his or her home. Home detention inmates are held to strict schedules and curfews and are monitored by a nearby RRC or the U.S. Probation Office through random staff visits, phone contacts, and occasionally through the use of electronic monitoring.inmate population was housed in RRCs or home detention.

BOP Discretionary Authorities That Can Reduce a Prisoner’s Period of Incarceration or Time in BOP Custody

BOP has a number of discretionary authorities it can use to impact the period during which an inmate is incarcerated or remains in BOP custody. According to BOP officials, many of the programs that arise from these authorities are primarily intended to rehabilitate inmates and prepare them for reentry into society, as well as encourage good behavior while in BOP custody. The authorities can be classified into two main categories: (1) authorities that reduce the length of the inmate’s sentence, and (2) authorities that allow BOP to transfer an inmate out of prison to serve the remainder of his or her sentence in an RRC or home detention. Table 1 provides the statutory provisions allowing for BOP discretion to reduce a federal prisoner’s period of incarceration.

BOP’s Use of Authorities That Can Reduce a Federal Prisoner’s Period of Incarceration Varies

Eligible Prisoners Can Participate in RDAP in Time to Complete the Program; Few Receive the Maximum Sentence Reduction

BOP is required, subject to the availability of appropriations, to provide residential substance abuse treatment and make arrangements for appropriate aftercare for all eligible prisoners. Generally, the process to determine inmate eligibility for RDAP participation begins when inmates express interest in the program.nonviolent participants a sentence reduction incentive of up to 12 months In June 1995, BOP began offering for successful completion of the program. The amount of sentence reduction awarded upon completion is based on the length of an inmate’s sentence.complete RDAP, and receive a sentence reduction if eligible.

Earned GCT credit does not vest until an inmate’s release date, meaning that all credit is vulnerable to forfeiture for disciplinary cause. generally considered for departures.offenses and being taken advantage of as common mitigating circumstances. One DHO we spoke with reduced a newer inmate’s disallowance because the inmate was manipulated by a fellow inmate to make a prohibited phone call for him. DHOs cited repeated offenses, egregious acts, and violence against correctional officers as common aggravating circumstances. One DHO we spoke with recalled forfeiting over 300 days of an inmate’s earned GCT credit after the inmate was involved in a prison riot. The six DHOs we spoke with told us that the disallowance guidelines were clear, and that the discretion to depart from the guidelines offered them sufficient flexibility and latitude to successfully impact inmate behavior.

For example, DHOs cited first-time Although most prisoners receive all of their potential GCT credit, BOP’s method of awarding GCT credit at the end of each year an inmate serves results in a maximum of 47 days of GCT credit earned per year of sentence imposed rather than the 54 days that inmates who have contested BOP’s method in court maintain was the original intent of the statute. sentence guidelines with the understanding that inmates would receive GCT credit so that their actual time served would be 85 percent of the length of the sentence imposed by the judge, assuming good behavior. BOP’s method of awarding GCT, however, results in inmates serving more than 85 percent of their imposed sentences, even after earning the maximum GCT credit, as can be seen in table 4, for a hypothetical sentence of 10 years imposed by the sentencing judge.

As authorized in statute, 18 U.S.C. § 3624(b), BOP awards “up to 54 days at the end of each year of the prisoner’s term of imprisonment,” or 54 days per year of sentence served. As applied by BOP, this results in 47 days earned per year of sentence imposed because inmates do not earn GCT credit for years they do not ultimately serve due to being released early.

Inmate released during 9th year, after completing 8 years and 260 days 38 (GCT for the remaining 298 days is prorated to conform to the ratio of 54 days per 365 served)

Total GCT days granted 470 Total GCT days granted per year of sentence imposed Total time served (days)

The U.S. Supreme Court upheld BOP’s methodology against a challenge brought by inmate petitioners. However, BOP officials told us that the agency was supportive of amending the statute, and had submitted a legislative proposal to Congress such that 54 days would be provided for each year of the term of imprisonment originally imposed by the judge, which would result in inmates serving 85 percent of their sentence.

BOP provided us estimates in December 2011 showing that if the GCT credit allowance was increased by 7 days, as proposed, BOP could save over $40 million in the first fiscal year after the policy change from the early release of about 3,900 inmates. As of December 2011, the legislative proposal had not been introduced on the floors of the House or Senate.

BOP Has Used Other Authorities Less Frequently to Reduce Federal Prisoners’ Periods of Incarceration

Modification of an imposed sentence: BOP has authority to motion the court to reduce an inmate’s sentence in certain statutorily authorized circumstances, but that authority is implemented infrequently, if at all.

The court, upon motion of the Director of BOP, may reduce the term of imprisonment after considering certain statutory factors to the extent that they are applicable, if it finds that “extraordinary and compelling reasons warrant such a reduction” (also known as “compassionate release”) and the reduction is consistent with applicable policy statements issued by the USSC. According to BOP officials, the Director has motioned sentencing judges for inmates’ early releases in a limited number of cases. For instance, BOP has historically interpreted “extraordinary and compelling circumstances” as limited to cases where the inmate has a terminal illness with a life expectancy of 1 year or less or has a profoundly debilitating medical condition. The USSC issued guidance that listed a number of additional circumstances, such as the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor child or children. As of December 2011, BOP had not revised its written policy to explicitly include all of the circumstances noted in the USSC guidance although, according to BOP officials, the agency is reviewing two cases that would fall within these circumstances. Where “extraordinary and compelling circumstances” may exist, inmates generally must submit a request explaining their circumstances and their plans for housing, financial support, and medical care if granted an early release. The request is to proceed through multiple layers of review, including the inmate’s warden, the Regional Director, BOP’s Office of General Counsel, and the BOP Director, who may ultimately motion the court. BOP officials recorded that from calendar years 2009 through 2011, 55 requests for early release were approved by the BOP Director and brought as motions to a sentencing judge out of 89 requests approved at lower levels and received at BOP headquarters.

The court, upon motion of the Director of BOP, may reduce a prison term after considering certain statutory factors to the extent that they are applicable, if (1) an inmate is over 70 years old, (2) has served at least 30 years in prison pursuant to certain sentences imposed by statute, (3) a determination has been made by the BOP Director that the inmate is not a danger to the safety of any other person or the community as provided by statute, and (4) such a reduction is consistent with applicable policy statements issued by the USSC. However, according to BOP officials, since the authority was enacted, BOP has had no inmates in its custody meeting these criteria and is considering how to implement this authority in the future if an inmate qualified.

Generally, where a term of imprisonment is based upon a sentencing range that has subsequently been lowered by the USSC, upon motion of the BOP Director, the court may reduce the term of imprisonment.

According to BOP officials the BOP Director does not directly motion the sentencing judge because this is generally accomplished by the U.S. Attorney’s Office as the litigating body of DOJ. In addition, BOP officials also stated that it is not necessary for the BOP Director to motion the judge because inmates and their counsel generally initiate the process. BOP supports the process in other ways, including educating inmates about the relevant guidelines changes, notifying the U.S. Attorneys Offices if inmates who appear to be eligible are missed, and processing inmate sentence reductions if granted by a sentencing judge. BOP has estimated that the retroactive change to the sentencing guidelines for crack cocaine offenses that went into effect on November 1, 2011, will result in 2,391 additional inmates being released from BOP custody from fiscal years 2012 through 2014, yielding an estimated cost savings of $160 million.

Early release prior to a weekend or holiday: BOP releases inmates on the last preceding weekday prior to a release date that falls on a Saturday, Sunday, or legal holiday.

Shock Incarceration Program: Although BOP retains the authority to operate the shock incarceration program, also known as boot camps, it discontinued the program in 2005 due to its cost and research showing that it was not effective in reducing inmate recidivism. Nonviolent, volunteer, minimum-security inmates serving sentences of more than 12 months but not more than 30 months were eligible for the program, which combined features of military basic training with traditional BOP correctional values to promote personal development, self-control, and discipline. Throughout the typical 6-month program, inmate participants were required to adhere to a highly regimented schedule of strict discipline, physical training, hard labor, drill, job training, educational programs, and substance abuse counseling. BOP provided inmates who successfully completed the program and were serving sentences of 12 to 30 months with a sentence reduction of up to 6 months. All inmates who successfully completed the program were eligible to serve the remainder of their sentences in community corrections locations, such as RRCs or home detention. A study of one of BOP’s shock incarceration programs, published in September 1996, found that the program had no effect on participants’ recidivism rates. According to BOP officials, those and other evaluation findings and the cost of the program led BOP to discontinue its use in 2005.

Elderly Offender Pilot Program: Authorization for BOP’s elderly offender home detention pilot program expired in September 2010. Generally, the 2-year pilot program enabled BOP to transfer to home detention inmates who were at least 65 years old, had served at least 10 years and 75 percent of their non-life sentences, had no history of violence, sexual offenses, or escape or attempted escape from a BOP institution, and who BOP determined would be of no substantial risk of engaging in criminal conduct or endangering any person or the public if released and with respect to whom BOP had determined that release to home detention will result in a substantial net reduction of costs to the During the program, 71 inmates were transferred to federal government. home detention. The statute requires the Attorney General to monitor and evaluate each eligible elderly offender placed on home detention, and report to Congress concerning the experience with the program. According to BOP officials, this report has not been completed. We have ongoing work looking at the results and costs of the pilot in more detail, which we will report on later this year.

42 U.S.C. § 17541(g)(5)(A). federal sentencing judge orders that they run concurrently. This includes cases when a federal judge has not stated whether a state and federal sentence should run concurrently or consecutively. However, BOP may review, or the inmates may petition BOP to review, their cases to determine a federal sentencing judge’s intent. BOP reviews the inmate’s sentencing documents and custody history, and may also contact the federal sentencing judge to determine whether the judge intended that the state and federal sentences should be served consecutively or concurrently. For example, of the 538 cases BOP reviewed in fiscal year 2011, 99 requests to serve sentences concurrently were granted, for a total of about 118,700 days of sentence credit, 386 were not granted, and 53 were still under review as of the end of fiscal year 2011.

Credit for criminal custody: BOP has the authority to grant credit for time served in criminal custody (such as time spent awaiting trial), and according to BOP policy, it considers detention by Immigration and Customs Enforcement (ICE) for the purposes of deportation to be administrative custody until criminal charges are brought against a detainee. According to BOP officials, BOP reviews inmate records for any criminal custody time that could be credited towards an inmate’s federal sentence. BOP reviewers may contact ICE for clarification of an inmate’s custody record, but, according to BOP officials, the various ICE districts keep records differently and a clear determination of when a federal charge was filed and an inmate’s criminal custody began may be difficult to achieve.

Inmate Eligibility and Lack of Capacity Impact BOP’s Use of Certain Flexibilities

Certain Inmates’ Ineligibility for Community Corrections Impacts BOP’s Use of RRCs and RDAP

BOP officials cited inmate ineligibility for placement in community corrections as the number one reason that all inmates do not get released through RRCs and one of the chief reasons that some inmates are precluded from participating in RDAP. Specifically, BOP’s RRC program statement prohibits certain inmates from placement in an RRC. For example, inmates with detainers, with sentences of 6 months or less, who refuse to satisfy BOP’s Financial Responsibility Program, or who are in civil commitment status are all ineligible for RRC placement. According to BOP, inmates with detainers are deemed inappropriate for placement in community corrections due to the increased risk of escape and for those with immigration detainers, the likelihood of deportation. Moreover, all inmates who have financial obligations, whether court-ordered restitution, court fees, or tax liabilities, must comply with the Financial Responsibility Program to participate in programming including community corrections. This ineligibility for RRC placement also disqualifies an inmate from placement in home detention. Figure 4 shows the number of inmates ineligible for RRC placement from April 2008 to March 2011.

BOP officials stated that certain offenses committed by inmates may also make it difficult for BOP to place them in RRCs. For example, according to BOP officials, some RRCs are required to enter into agreements with communities regarding the type of inmates they will house and some communities have enacted local laws that prohibit the placement of certain inmates such as sex offenders and arsonists in a communal setting. Other reasons inmates may not be placed in RRCs include the inmate’s refusal to be placed or the inmate’s medical or mental health needs that could not be accommodated at the RRC. According to BOP officials, inmates may refuse RRC placement for a variety of reasons but the reasons for refusal cited most often by officials during our site visits to BOP facilities included: some RRC accommodations are perceived by some inmates to be subpar compared to prisons; some minimum-security and low-security inmates do not want to reside in RRCs with higher security inmates; and some inmates do not want to pay the 25 percent subsistence fee.

To participate in RDAP, inmates must be able to complete both the institution and the RRC components of the program. As a result, inmates who are prohibited from transferring to RRCs are excluded from RDAP. For instance, BOP estimates that 2,500 criminal aliens would participate in RDAP each year, but are ineligible due to immigration detainers. Prior to a 1996 BOP policy change, inmates with detainers could complete the program by participating in transitional treatment within a BOP institution. However, according to BOP officials, transitional treatment within an institution is ineffective because the inmate remains sheltered from the partial freedoms and outside pressures experienced during an RRC placement.

Realizing that potential cost savings could result from early releases of criminal aliens, among other reasons, BOP is considering changing its policy and allowing eligible nonviolent criminal aliens to complete the RDAP program without the RRC component and receive sentence reductions of up to 1 year for successful completion. According to BOP, this policy shift would require a rule change and the development of procedures to ensure that no U.S. citizen was displaced from participating in RDAP. BOP officials stated that decisions on this issue would not be made until expanded program capacity becomes available, which is currently uncertain.

Lack of Available Capacity Impacts BOP’s Use of RRCs and RDAP

A lack of RRC beds limits BOP’s ability to further utilize RRC placements. Based on the most recently available data, in fiscal year 2010, about 29,000 inmates spent time in an RRC prior to release from BOP custody. Although BOP officials at institutions we visited stated that they assessed inmates on a case-by-case basis to determine the appropriate RRC placement length, the officials stated that referrals can be reduced due to RRC capacity constraints. According to BOP officials, in fiscal year 2010, about 2.7 percent of eligible inmates were denied placement due to a lack of bed space. BOP faces challenges in increasing its RRC bed space capacity, which limits its ability to increase the length of RRC placements. According to BOP community corrections officials, BOP has difficulty acquiring new RRC contracts and increasing its RRC capacity because of local zoning restrictions and the unwillingness of many communities to accept nearby RRCs.

Although the Second Chance Act increased BOP’s flexibility to place inmates in RRCs for up to 12 months, as reported by BOP officials, challenges facing the expansion of its RRC capacity limit the impact of this increased flexibility. As of November 2011, BOP reported that available contracted RRC bed space was 8,859 estimated beds. For each available RRC bed, BOP can transfer one inmate to the RRC for a maximum of 12 months, or BOP could send multiple inmates for shorter placements (e.g., three inmates for 4 months each). As such, for this increased flexibility to have an impact on the average length of RRC placements, RRC capacity would need to increase. To provide all eligible inmates with the maximum allowable 12 months in an RRC, BOP would require about 29,000 available beds annually.

Some inmates are more affected by capacity constraints than others, such as those with criminal records of sex offenses or those being released into urban areas with few RRCs. According to BOP, only a limited number of RRCs are able to accept sex offenders, and thus BOP, at the onset, has a limited number of RRC beds for sex offender placement. In addition, inmates releasing to urban areas may have their placement lengths reduced due to capacity constraints. For example, BOP staff we interviewed during our site visits identified shortages of RRC beds in Southern California, North Carolina, and the Washington, D.C. metropolitan area affecting the length of RRC placements. When referring inmates for RRC placements, BOP considers the inmate’s original sentencing location to facilitate transition and successful reentry. As such, BOP’s utilization of RRC placements is limited in geographical areas that do not have enough RRC beds to accommodate returning inmates.

According to BOP officials, systemwide program capacity similarly constrains BOP’s utilization of RDAP sentence reductions—specifically, BOP’s ability to admit RDAP participants early enough to earn their maximum allowable sentence reductions. BOP officials stated that the RDAP sentence reduction incentive caused a backlog for entry into the program. Long wait lists resulted in inmates entering RDAP with insufficient time to complete the program in time to receive the maximum sentence reduction. In fiscal years 2007 and 2008, BOP reported to Congress that long wait lists (over 7,600 systemwide) prevented some eligible inmates from participating in the program at all—20 percent and 7 percent unable to participate, respectively. RDAP capacity, as measured by the number of program slots open to inmates at one time throughout BOP (6,685 in fiscal year 2011), has grown at a relatively steady rate since the program began in fiscal year 1989, and increased by 400 slots from fiscal years 2009 to 2011. According to BOP officials, as program capacity has increased in recent years, wait lists have been reduced, even with continued growth in the inmate population. This has enabled inmates to enter the program sooner and resulted in an increase in the percentage of eligible inmates who complete RDAP and receive the maximum sentence reductions from 14 percent in fiscal year 2009 to 25 percent in fiscal year 2011. However, according to BOP officials, RDAP is still catching up to the increased demand and continues to have wait lists.

According to BOP officials, wait lists for entry into RDAP are currently prioritized in accordance with statute based on inmates’ proximity to their projected release dates which include GCT credit expected to be earned, but do not include the potential RDAP sentence reduction that eligible participants may earn. Two subject matter experts who advocate for inmate interests whom we spoke with stated that BOP could consider including the potential RDAP sentence reduction in inmates’ projected release date calculations. This could ensure that eligible inmates would enter the program sooner and in enough time to receive the maximum reduction. For example, if two inmates have the same projected release date, after accounting for GCT credit, but one inmate would be eligible for a 1-year sentence reduction on completion of RDAP while the other would not be eligible for a sentence reduction upon completion of RDAP, the inmate eligible for the sentence reduction would have a higher position on the wait list for entry into RDAP than the inmate ineligible for a sentence reduction. BOP has stated that if it were to prioritize RDAP entry in this way, some inmates who are not eligible for the sentence reduction would not be able to enter the program at all, as they would continually be displaced on the wait lists by inmates who are eligible for the sentence reduction. BOP is required by statute, subject to the availability of appropriations, to provide residential substance abuse treatment for all eligible inmates, regardless of their eligibility for the sentence reduction incentive, and thus must ensure that all eligible inmates are able to participate in the program prior to their release from custody. However, BOP was unable to provide documentation that including RDAP sentence reduction in computation of the projected release date would continually displace inmates eligible for RDAP but ineligible for the associated sentence reduction.

BOP’s fiscal year 2012 budget request included an increase of $15 million for RDAP, which was not funded. According to BOP, the funding would have reduced RDAP wait lists and enabled eligible inmates to enter the program early enough to earn their maximum allowable sentence reductions. BOP stated that the $15 million increase would have covered 125 new drug treatment staff positions and would have allowed an BOP officials also additional 4,000 inmates to complete RDAP annually.told us that if BOP changes its policy to allow criminal aliens to participate in RDAP, the funding increase for RDAP proposed in the 2012 budget request would have been sufficient to allow this additional inmate population to participate in RDAP without impacting the ability of U.S. citizens to participate and receive the maximum available sentence reductions.

Timely program admission would result in future cost savings through additional sentence reductions. For example, if every eligible RDAP participant who completed the program in fiscal year 2011 had received their 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. BOP estimated that allowing criminal aliens to participate in RDAP and earn sentence reductions could offer about $25 million of additional cost savings each year.

Conclusions

Federal inmate populations have been increasing and BOP is operating at more than a third over capacity. In addition, the absence of parole in the federal system and other federal statutes limit BOP’s authority to modify an inmate’s period of incarceration. Inmates, who earn their good conduct time, as most do, end up serving about 87 percent of their sentences. BOP’s housing of inmates in community-based facilities or home detention is a key flexibility it uses to affect a prisoner’s period of incarceration. However, BOP does not require its RRC contractors to separate the price of home detention services from the price of RRC beds. As a result, BOP lacks information on the price of home detention that could assist it in weighing the costs and benefits of alternative options for supervising inmates in home detention. While BOP is working to develop a process to require contractors to submit separate prices for the price of RRC beds and home detention services, without establishing a plan, including a time frame for development, BOP does not have a road map for how it will achieve this goal.

Recommendation for Executive Action

To determine the cost of home detention and potentially achieve cost savings, we recommend that the Director of BOP establish a plan, including time frames and milestones for completion, for requiring contractors to submit separate prices of RRC beds and home detention services.

Agency Comments and Our Evaluation

We provided a draft of this report to DOJ for its review and comment. BOP provided written comments on the draft report, which are reproduced in full in appendix I. BOP concurred with the findings in the report. Prior to receiving BOP’s comment letter, on January 20, 2012, BOP’s audit liaison requested that the wording of our recommendation be changed from “requiring contractors to identify RRC costs and home detention costs separately” to “requiring contractors to submit separate prices of RRC beds and home detention services.” He stated that BOP was requesting this change because contractors are not required to disclose financial information, such as the actual costs to them of providing services to inmates, to BOP. Furthermore, the liaison stated that obtaining separate prices of RRC and home detention services will enable BOP to determine the price reasonableness of these services. We believe that BOP’s proposed language addressed the intent of our recommendation, and thus we modified the recommendation language. BOP concurred with our recommendation, as revised, and also provided technical comments which we incorporated into the report, as appropriate.

We are sending copies of this report to the Attorney General, selected congressional committees, and other interested parties. In addition, this report will also be 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 II.

Appendix I: Comments from the Federal Bureau of Prisons

Appendix II: 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, Chris Currie, Assistant Director; Tom Jessor; Bintou Njie; Michael Kniss; Billy Commons, III; Pedro Almoguera; and Lara Miklozek made significant contributions to this report.