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

Letter

Background

Key Stakeholders in the Federal Criminal Justice Process

Various DOJ and federal judiciary stakeholders play key roles in the federal criminal justice process, and as such, they can also have key roles in considering whether to use incarceration alternatives for a given offender or inmate. For example, in the course of the federal criminal justice process, a U.S. attorney is involved in the process of investigating, charging and prosecuting an offender, among other responsibilities. Federal defenders are called upon to represent defendants who are unable to financially retain counsel in federal criminal proceedings. PPSO, an office within the judiciary, also has responsibilities including supervising an offender pretrial or after conviction. Likewise, federal judges are responsible for determining an offender’s sentence, and, in the case of incarceration, BOP is responsible for caring for the inmate while in custody. Table 1 describes these roles in more detail.

Federal Criminal Justice Process

Federal laws and guidelines determine what, if any, incarceration is appropriate for offenders. Prior to passage of the Sentencing Reform Act of 1984, federal judges generally had broad discretion in sentencing. Most criminal statutes provided only broad maximum terms of imprisonment. Federal law outlined the maximum sentence, federal judges imposed a sentence within a statutory range, and the federal parole official eventually determined the actual duration of incarceration. The Sentencing Reform Act of 1984 changed the federal sentencing structure by abolishing parole for federal offenders sentenced after its effective date, and subsequent legislation established mandatory minimum sentences for many federal offenses.

The Sentencing Reform Act of 1984 also established the independent USSC within the judicial branch and charged it with, among other things, developing federal sentencing guidelines. The guidelines specify sentencing guideline ranges—a range of time (in months) that offenders should serve given the nature of their offense and other factors—but also permit sentences to depart upward or downward from guideline ranges because of aggravating or mitigating circumstances. In 2005, the Supreme Court found the Sentencing Guidelines, which had previously been binding for federal judges to follow in sentencing criminal defendants, to be advisory in nature. Regardless of the guidelines’ advisory nature, judges are still required to calculate them properly and to consider the guideline ranges as well as the nature and circumstances of the offense, the defendant’s history, and the need for deterrence, among other sentencing goals.

However, sentencing and, if appropriate, incarceration, are two of multiple potential steps in the federal criminal justice process. There are also opportunities to use alternatives to incarceration for certain offenders throughout the process, as illustrated in figure 1.

As figure 1 shows, alternatives to incarceration are available at various steps in the federal criminal justice process from charging and prosecution through incarceration—the steps in the process included in the scope of our review. Multiple DOJ components, as well as the federal judiciary, have specific roles and responsibilities in providing these alternatives. Of the various incarceration alternatives that can be exercised at the charging and prosecution or at sentencing and incarceration stages, the use of court-involved pretrial diversion practices, specifically, can be exercised solely in those districts that have decided to adopt such practices.

Tables 2 and 3 provide details on the pretrial alternatives to incarceration and those available at sentencing and after incarceration, respectively, as well as the federal stakeholders or entities involved, and their role.

Overview of BOP’s Population and Institutions

BOP is responsible for the custody and care of federal inmates. According to BOP data, eighty-one percent of these inmates are confined in BOP-operated correctional institutions or detention centers. The remainder are confined in secure privately managed or community-based facilities, local jails or in home confinement. BOP itself houses inmates in its 122 federal institutions and about 180 RRCs. The institutions operate at different security-level designations—minimum, low, medium, and high for institutions housing male inmates, and minimum, low, and high for institutions housing female inmates. Of BOP’s 122 facilities, 39 are minimum and low-security institutions. The security-level designation of a facility depends on the level of security and staff supervision that the institution is able to provide, such as the presence of security towers; perimeter barriers; the type of inmate housing, including dormitory, cubicle, or cell-type housing; and inmate-to-staff ratio. Additionally, BOP designates some of its institutions as administrative facilities, which house male and female inmates and specifically serve inmates awaiting trial, those with intensive medical or mental health conditions, or those who are deemed extremely dangerous, violent, or escape-prone, regardless of the level of supervision these inmates require.

Table 4 depicts the number and percentage of inmates in the custody of BOP, by security level of the institution, as of February 27, 2016. As table 4 shows, more than half of BOP’s inmates are incarcerated in low and medium security institutions.

Selected Stakeholders Reported Considering a Number of Factors When Using Alternatives at or before Sentencing, but DOJ Does Not Track the Use of Some Alternatives

Selected Stakeholders Reported Considering Presence of Violence and Offender’s Role in the Crime, Among Other Factors, When Determining Use of Alternatives to Incarceration

DOJ and court officials we interviewed told us they consider various factors when deciding whether to use an alternative to incarceration for certain federal offenders in the early stages of the federal criminal justice process. Across all the alternatives available at or before sentencing, the 63 federal stakeholders in the 11 selected districts with whom we spoke (11 federal prosecutors, 25 judges, 12 defense counsel, and officials in 15 PPSOs) most commonly reported that they considered whether the crime involved any acts of violence and the offender’s role in the crime. These stakeholders reported that such alternatives are generally targeted to non-violent, low-level offenders. These stakeholders also reported that other factors, such as the nature of the crime, offender’s criminal history, and mental health or drug abuse issues influenced their decisions, but the extent to which these specific factors were considered varied by the type of alternative under consideration. Table 5 below and the discussion that follows identify and describe the most commonly considered factors among the federal stakeholders we interviewed, by type of alternative.

Case referral to state and local prosecutors: Eleven federal prosecutors in 11 districts with whom we spoke reported that they consider the seriousness of the offense, as federal prosecution is typically reserved for cases that are considered higher level or more serious cases, such as those involving drug cartels, racketeering, and conspiracy. Prosecutorial guidelines establish the thresholds for prosecution which are set at the district level; therefore, thresholds may vary from district to district. Some prosecutors also reported considering the amount of time and resources that would have been required to prosecute these low- level, nonviolent cases. For example, four federal prosecutors noted that the amount of time used to prepare for a trial can be time-consuming, so referrals to state prosecutors can help reserve resources for the higher level or more serious cases.

Pretrial Release: The 12 magistrate judges with whom we spoke most frequently reported considering the nature of the crime when considering whether to release an offender before trial. Magistrate judges also frequently reported factors such as offender’s criminal history (11 of 12), supporting ties of family and community (11 of 12), past conduct while on supervised release, such as probation (11 of 12), offender’s employment status (10 of 12), and offender’s drug addiction or abuse and mental health issues (9 of 12). For example, 2 of these 9 judges indicated that if the offender has a drug or mental health problem, they consider alternatives such as a drug or mental health treatment program instead of incarceration, or they establish conditions such that the offender is regularly tested for drugs or counseling while on pretrial release. Some magistrate judges (6 of 12) also stated they rely on recommendations from the PPSO officer in making their decision related to pretrial release. For example, 4 magistrate judges with whom we spoke stated that they rely heavily on these recommendations when deciding to release or detain an offender because the PPSO officer generally conducts a thorough pretrial investigation of the offender. Three magistrate judges also reported using information provided by others, such as the USAO or federal defenders, on the nature and severity of the crime or any extenuating circumstances, such as mental illness or drug addiction, in their decisions.

Title 9 Pretrial Diversion Program: Ten of the11 federal prosecutors with whom we spoke—who have discretion over whether to use Title 9 pretrial diversion for offenders—noted that they most frequently consider the offender’s criminal history and the nature or seriousness of the offense. In particular, they reported that, generally, the program is used for first-time offenders and offenders who have committed low-level, nonviolent offenses or white collar crimes such as Social Security or mail fraud. In districts that have other alternatives, such as court-involved pretrial diversion practices, 2 of the 6 prosecutors we interviewed stated that they prefer to use these other alternatives because they provide more intensive services and supervision compared to Title 9 Pretrial Diversion. For example, a prosecutor with whom we spoke indicated that Title 9 Pretrial Diversion is not widely used because the court-involved practice provides more rigorous supervision such as weekly contacts with offenders.

What is a court-involved pretrial diversion practice? In addition to Title 9 Pretrial Diversion, federal criminal justice stakeholders within some judicial districts have voluntarily established court-involved pretrial diversion practices or specialty courts that handle specific offender populations such as veterans, or those with specific problems such as substance abuse or mental health issues that appear to be the root cause of their criminal activity. Unlike traditional diversion, court-involved pretrial diversion practices vary in structure and do not uniformly result in the avoidance of a federal conviction upon successful completion. While some provide for a full dismissal of charges, others may provide for a sentence of probation or little to no incarceration. Also, unlike Title 9 Pretrial Diversion, courts are primary actors in these practices and must participate in their creation.

Court-Involved Pretrial Diversion Practices: As described earlier, to obtain perspectives on court-involved pretrial diversion practices, we spoke with stakeholders in 6 districts that use such practices, and 5 districts that do not. Within the 6 selected districts that use court-involved pretrial diversion practices, the 13 judges, 6 prosecutors, 6 defense counsel, and officials in 9 PPSOs with whom we spoke identified a number of factors that led their districts to adopt such practices. Most frequently, they reported that three particular factors influenced their decision to adopt such alternatives. First, they reported that an awareness of effective state-level pretrial alternative programs influenced their decision. For example, 5 judicial branch officials (3 judges, 1 federal defender, and 1 PPSO officer) with whom we spoke in 3 of the 6 districts explained that their awareness of state-level pretrial diversion programs helped them understand how to replicate a similar program at the federal level. Further, 4 of the stakeholders with whom we spoke in 2 districts indicated that some federal judges who were former state judges involved in state pretrial diversion programs brought their past experience to the federal judicial system. Second, 11 stakeholders representing a mix of judges, federal defenders, PPSO, and USAO staff with whom we spoke in 5 of the 6 districts indicated there is a perception that offenders may commit crimes as a result of addiction to drugs, and that if the addiction were addressed, they would be unlikely to continue to commit crimes. For instance, among the judges with whom we spoke in the 6 districts, 3 indicated that many of the offenders they see in court have a substance abuse problem, which is generally linked to the crimes they commit. Given this, these judges explained that they believe that incarcerating these offenders would probably not resolve that problem. Third, 3 defenders and 3 prosecutors with whom we spoke identified a perception that continuing to prosecute and incarcerate low-level, nonviolent repeat offenders drains limited federal resources as a factor influencing their decision to establish a pretrial diversion program. These stakeholders explained that trial preparation for such prosecutions can be time- consuming and costly. Five of these 6 stakeholders noted that court- involved pretrial diversion practices can be mutually beneficial to the offender and the district by providing an opportunity for the offender to get help to change their lives for the better while helping the district to focus resources on the most serious crimes.

While stakeholders in our 6 selected districts that use court-involved pretrial diversion practices identified common reasons for adopting such practices, we found that the factors stakeholders in these districts consider when determining whether to use this alternative for a given offender may vary depending on the specific criteria and design of the respective practices. For example, in the Western District of Washington, stakeholders reported that they consider factors including whether the offender’s criminal behavior is motivated by substance abuse issues, whether the offender is a resident of the district, and the number of prior felony convictions they have had, but admission to the program is not limited to a specific type of crime. In contrast, stakeholders in the Southern District of California reported that they consider similar factors but their program is specifically targeted to young offenders charged with alien smuggling and drug trafficking offenses.

Within the 5 districts that have not adopted court-involved pretrial diversion programs, 3 judges, 2 prosecutors, 3 defense counsel, and officials in 2 PPSOs with whom we spoke most frequently identified a lack of interest or need for such programs as reasons why their districts have not adopted them. Some stakeholders also reported not having eligible or qualified offenders (5 prosecutors and 2 judges), a lack of resources to operate such programs (2 judges, 1 PPSO, and 2 prosecutors), or having other alternative programs available (2 prosecutors and 2 defenders). For example, stakeholders in all 5 districts explained that they do not have enough low-level, nonviolent offenders who would qualify for a court- involved pretrial diversion program to make operating a program worthwhile. Furthermore, according to 5 prosecutors and 2 judges we met with in these districts, their districts’ prosecutorial priorities focus on higher level offenders who would not qualify for this type of program. Additionally, 2 judges, 2 prosecutors, and 1 PPSO officer in 4 districts cited a lack of resources to operate a court-involved pretrial diversion program as current caseloads are already extensive.

Sentencing Alternatives: For those offenders who do not go through a pretrial diversion program and are instead convicted through the normal criminal justice process, district judges may hand down sentences that involve incarceration or alternatives to incarceration, such as probation. When asked about what factors they consider when determining sentencing for an offender, 8 of 13 district judges we spoke with in our selected districts stated that they consider the federal sentencing guidelines in their decisions. The sentencing guidelines generally take into account the seriousness of the offense and the offender’s criminal history, however, because the guidelines are advisory, 6 of 13 judges noted they may choose to deviate from the guidelines and instead consider other options for sentencing, such as probation. Other common factors the judges reported considering included the offender’s personal situation, such as family and community ties (8 of 13 judges), whether the offender had a drug addiction problem (7 of 13 judges), education level and employment status (6 of 13 judges); and the recommendation from PPSO officers (6 of 13 judges).

The judges also reported that the manner in which they consider these factors are very case specific and individualized. For example, of the 8 judges that consider family support as a factor in deciding whether to use a sentencing alternative, 3 explained that if the offender has strong family ties, probation would probably be a better sentence than incarceration so that the offender could get the needed support from family. Additionally, when asked a general question about what factors they consider when deciding on a sentence for an offender, 7 district judges explained that they base decisions of whether to sentence offenders to incarceration alternatives on their professional judgment regarding whether the offenders seem receptive to changing their criminal ways and working toward a better life without crime. For example, one district judge explained that he considers whether imposing a minimum of 12 months of incarceration will help to rehabilitate or deter an offender from committing future crimes as compared to offering them greater leniency through an alternative, such as probation.

Use of Alternatives to Incarceration has Largely Remained Consistent, but DOJ Lacks Reliable Data on the Use of Pretrial Diversion

As figure 2 shows, based on data from AOUSC, DOJ, and the USSC on the use of alternatives to incarceration at or before sentencing, the overall use of these alternatives nationally and across the subset of districts that have adopted court-involved pretrial diversion practices has been largely consistent during the respective time periods for which they are available—from fiscal years 2009 to fiscal years 2015 for alternatives at sentencing; from fiscal years 2012 to 201 for pretrial release; and from fiscal years 2014 to 2015 for referrals to another jurisdiction.

However, in performing our analysis of the data on the use of alternatives over time, we found that DOJ’s data on pretrial diversions were unreliable for two reasons. First, DOJ’s pretrial diversion data do not distinguish between Title 9 pretrial diversions and diversions that were the result of a court-involved pretrial diversion practice. As previously described, Title 9 pretrial diversions are at the discretion of the U.S. Attorney, divert offenders from prosecution into a program of supervision by the PPSO, and, if successful completed, can result in the offender not being prosecuted or a dismissal of charges. Court-involved diversion practices involve additional stakeholders—including federal judges and defense counsel—with participation generally determined by all stakeholders. Unlike Title 9 pretrial diversions, participants in court-involved diversions generally meet regularly with court officials to discuss progress. Moreover, if successful, participants in court-involved diversions may avoid prosecution or have charges dismissed, like those in Title 9 pretrial diversion, but may also receive a reduced sentence. Therefore, given the differences between these types of diversion in terms of the stakeholders involved, the level of supervision provided to offenders, and the outcomes successful completion can lead to, they are each unique types of diversion. Given DOJ’s current data entry process, however, while DOJ has data on the counts of cases that were diverted pretrial overall, DOJ cannot determine whether the diversions were through Title 9 pretrial diversion or a court-involved pretrial diversion practice.

According to EOUSA officials, DOJ lacks detailed data on the type of pretrial diversion used because DOJ’s data entry processes do not allow for USAO staff to make entries according to the type of pretrial diversion used. According to EOUSA officials, the Legal Information Office Network System (LIONS)—EOUSA’s case management system—is set up so that only a single disposition code can be used by USAO staff when entering a diversion case into the system. Consequently, both Title 9 pretrial diversion cases and cases that have been diverted through court-involved pretrial diversion programs are recorded simply as pretrial diversion. EOUSA officials stated that given the volume of complex data that is already required to be entered into the system for any given case, it can be difficult to add new codes into the data entry process and ensure they are being entered correctly and consistently across all districts where the data is being entered. However, while the officials noted that they recognized the need to revise the system to improve the data and make it more specific and useful they did not identify any specific actions or plans to do so.

Second, DOJ’s pretrial diversion data has limited reliability due to potential variability as to when and whether the pretrial diversion code is entered into LIONS by a USAO. According to EOUSA officials, while DOJ has established some coding policies for pretrial diversion in LIONS, it has not provided specific guidance as to when in the process USAOs are to enter the cases under the pretrial diversion disposition code. Therefore, this could result in inconsistent and unreliable data on the use of pretrial diversion. For example, according to officials, some USAOs may enter the pretrial diversion code into the system for a case when the offender enters into a diversion program, while other USAOs may wait until the offender has completed the program. The officials noted that there may not be a record of all instances in which an offender enters a pretrial diversion program, but does not successfully complete it. For instance, if an offender does not successfully complete the pretrial diversion program and the USAO subsequently files charges against the offender, the USAO may solely enter the charges filed against the offender in LIONS, but never indicate that the offender first entered a pretrial diversion program, but then did not successfully complete it. As a result, EOUSA’s data may not consistently capture the total number of instances in which such diversion is offered. EOUSA officials stated that they have not provided specific guidance on when to enter pretrial diversion codes in LIONS because of the relatively small number of diversion cases relative to the total cases handled by USAOs that would require such coding and to mitigate the likelihood of further complicating the data entry process for USAO staff. However, EOUSA officials recognized the potential value in being able to comprehensively track the data to help it determine what types of pretrial diversion are being used and in what districts.

One of the key principles of the Smart on Crime Initiative is for DOJ to pursue alternatives to incarceration for low-level, nonviolent offenders, and DOJ has specifically recommended the use of court-involved pretrial diversion practices as a means of putting this principle into action. According to Standards for Internal Controls in the Federal Government, management should ensure that events are being recorded in an accurate and timely manner. Further, the standards also state that information should be recorded and communicated in a form and within a time frame that enables them to carry out their responsibilities. In addition, the recently updated standards that went into effect at the start of this fiscal year further clarify that agency management should use quality information to achieve the entity’s objectives, which can include obtaining relevant data from reliable sources that are reasonable, free from error and bias, and faithfully represent what they purport to represent. The updated standards also state that management should process the data into quality information, and use the information to make informed decisions and evaluate the entity’s performance in achieving key objectives.

By taking steps to revise its case management system to separately track the use of Title 9 diversion and court-involved pretrial diversion programs, and issuing guidance to USAOs as to how and when to use them—for instance, when the offender enters the program, completes the program, or both—-DOJ would have more reliable and complete data to determine what types of pretrial diversion are being used, in what districts, how frequently, and how successfully. In turn, DOJ would also be better positioned to revise its guidance and direction, as necessary, to USAOs on how they might use pretrial diversion alternatives to more effectively support the Smart on Crime initiative.

BOP Considers Statutory Requirements and Inmate Risk Levels when Deciding Whether to Use Incarceration Alternatives and Has Increased Use of Such Alternatives for Minimum and Low Security Inmates

BOP Guidance and Policy Identifies Key Statutory Requirements and Risk Levels when Deciding Whether to Place Inmates into Incarceration Alternatives

According to BOP officials, when placing inmates into incarceration alternatives they consider factors that are in accordance with BOP policy and guidance which also provides for the overall process for identifying and placing eligible and appropriate inmates into the incarceration alternatives of RRCs and home confinement. In particular, according to this policy and guidance, the eligibility requirements for an inmate’s placement into the alternatives have been set by the Second Chance Act of 2007. Moreover, according to BOP guidance, in addition to considering the basic eligibility requirements, BOP staff must consider the appropriateness of placing inmates into RRCs and home confinement as well as evaluate each inmate for their individual reentry needs, risk for recidivism, and risks posed to the community for placing them in RRCs or home confinement. For example, BOP guidance states that research has shown inmates with low reentry needs and a low risk of recidivating do not benefit from placement in a RRC and could become more likely to recidivate than if they were not placed. Therefore, according to BOP guidance, home confinement is BOP’s preferred option for inmates with low needs and of low risk.

BOP’s policy and guidance lays out a multistep process for placing inmates into the alternatives once eligible inmates are identified. A variety of BOP and other officials are involved in the process such as BOP officials at the institution, Residential Reentry Managers (RRMs), contract staff at RRCs, and PPSO officials, depending on the type of alternative being considered. Figure 3 summarizes BOP’s process for placing inmates into RRCs and home confinement.

BOP officials and RRC contractors with whom we spoke reported that they consider factors identified in BOP policy and guidance when attempting to place inmates into incarceration alternatives. In addition to the eligibility and appropriateness of an inmate for placement in an alternative, staff with 3 of the 4 BOP institutions and three of the four RRM offices we spoke with stated that they take into account factors such as whether the inmate has committed a sexual offense because they must consider whether the locality of the RRC the inmate may be placed in has any zoning restrictions that prohibit sex offenders from locating there. Officials at 3 BOP institutions and two RRM offices we spoke with also mentioned that they consider whether an inmate has any medical issues that may be difficult to manage in an RRC environment. Staff at all four RRM offices we spoke with indicated that another key factor they consider when placing an inmate into an RRC is the availability of bedspace within their desired placement area. Officials at three of the four contracted RRCs we met with indicated that when reviewing referrals for possible placement they also pay attention to public safety factors such as whether the inmate is a sexual offender, a member of a gang, or might otherwise pose a threat to RRC staff in general.

In addition to placing home confinement eligible and appropriate inmates with contracted RRCs for monitoring, BOP’s process also allows RRMs the option to refer inmates into home confinement through a joint BOP - PPSO program known as the Federal Location Monitoring (FLM) Program. If accepted into the program by PPSO, the inmate is supervised by a PPSO officer instead of RRC staff while on home confinement. PPSO officials in six of the nine districts among our selected districts that were participating in the FLM program stated that they considered factors such as the inmate’s potential risks for public safety, such as whether the inmate is a sex offender, as well whether the inmate’s proposed living arrangement met program requirements when determining whether to accept the inmates into the program.

BOP Use of Incarceration Alternatives for Inmates Increased Overall from Fiscal Years 2009 through 2015, Particularly in Home Confinement for Minimum and Low Security Inmates

From fiscal years 2009 through 2015, BOP increasingly placed inmates into RRCs and home confinement, with inmates designated as minimum and low security making up the two largest groups of inmates in RRCs and home confinement. According to BOP data, the total number of inmates placed into RRCs or home confinement during this period increased by about 16 percent from about 28,400 in fiscal year 2009 to almost 33,000 in fiscal year 2015. As figure 4 illustrates, relative to inmates of other security levels, minimum security inmates represented the largest numbers of inmates being placed in RRCs and home confinement overall with low security inmates representing the second largest inmate group.

During the seven year period of our analysis, BOP significantly increased its use of home confinement among low and, especially, minimum security inmates. For instance, the placement of inmates into home confinement overall, either directly or subsequent to being in an RRC, increased by 67 percent—from 4,594 to 7,675—for minimum security inmates and 58 percent—from 2,060 to 3,247—for low security inmates from fiscal years 2009 through 2015. Relative to the increased use of home confinement, placement of minimum and low security inmates into RRCs grew more slowly or declined slightly. For example, in fiscal year 2009, 98 percent of minimum security inmates were placed in RRCs at some point, whereas by fiscal year 2015, the percentage had declined to 87 percent. Although the total number of low security inmates placed in an RRC at some point increased from about 8,000 in fiscal year 2009 to almost 9,100 in fiscal year 2015, the percentage overall of low security inmates placed into RRCs declined from 99 percent in fiscal year 2009 to 97 percent in fiscal year 2015. Figure 5 illustrates the relative changes in the use of RRCs and home confinement among minimum and low security inmates from fiscal years 2009 through 2015.

According to BOP officials, the increased use of RRCs and home confinement is consistent with the Second Chance Act, corresponding BOP implementing guidance, and BOP goals. For example, one of the objectives of the Second Chance Act was to expand the use of alternatives as a means to assist offenders overall in reentering society and establishing a self-sustaining and law-abiding life. Similarly, BOP officials also noted that BOP issued guidance in 2010 and 2013 specifically encouraging the use of direct home confinement for lower risk inmates, in order to provide bed space at RRCs for higher risk inmates. Consequently, the officials stated that while more inmates were placed in RRCs and home confinement overall, minimum and low security inmates were specifically targeted for placement in home confinement whenever possible.

Within its strategic plan, BOP has specified two measures to track placement of inmates into RRCs and home confinement. For its RRC measure, BOP aims for its institutions to place at least a certain percentage of their inmates into RRCs, with the specified target percentages varying according to their security level. For the first and second quarters of fiscal year 2015, both minimum and low security institutions exceeded the target set for them for this measure. For the second measure related to the use of home confinement, BOP aims for its Residential Reentry Management Branch to maintain 40 percent or more of home-confinement eligible inmates in home confinement. BOP has come close to—but not met—this goal. From April 2015 to September 2015, the most recent period for which data were available, the monthly percentage of home confinement eligible RRC inmates in home confinement fluctuated between 36.4 percent and 38.4 percent. According to BOP officials, it has not met its stated goal largely because of factors outside of its control, such as inmates lacking the resources and ability to locate and prepare an acceptable home location to be placed in home confinement in a timely manner.

BOP Increased Use of the Federal Location Monitoring Program

As with the increased use of home confinement in general, BOP has also increased utilization of the FLM program as a means to provide home confinement to inmates, especially for minimum security inmates, as shown in figure 6. For example, the number of minimum security inmates going into the FLM program increased from 281 in fiscal year 2009 to 592 in fiscal year 2015, a 111 percent increase. During this same time period, the total number of low security inmates going into the FLM program (both directly and subsequent to placement in an RRC) increased from 97 in fiscal year 2009 to 157 in fiscal year 2015, an increase of 62 percent.

The FLM program is currently available in over half of the federal judicial districts and BOP officials have encouraged the expansion of the program into additional districts, as they noted that the program can provide cost advantages relative to home confinement through an RRC. According to headquarters PPSO officials, approximately 51 out of the 94 federal judicial districts nationwide were participating in the FLM program in fiscal year 2015, nearly double the number of districts participating in 2010. To foster further expansion of the program, BOP headquarters officials stated that they continue to discuss and encourage the expansion of the program into additional districts where possible with probation officials both at the headquarters and district level. To encourage its use, in 2013 BOP issued an internal memo for BOP staff regarding RRC and home confinement placements that stated that RRMs should consider using the FLM program for home confinement to the maximum extent possible where it is available. In terms of cost, according to BOP headquarters officials, the average cost to BOP of PPSO supervising an inmate in home confinement under the FLM program is $15 per day, whereas the average cost for a RRC to supervise an inmate on home confinement is $40 per day. Consequently, because the daily cost of home confinement through the FLM program is less than half that of home confinement through an RRC, effective utilization of the FLM program can potentially yield cost savings according to the officials.

Despite BOP’s increased use of the FLM program in recent years, our interviews with BOP and PPSO officials at headquarters and within our selected districts suggest that usage may vary across districts. For example, the program may be less utilized in some areas depending on the terms of the contracts BOP has with RRC operators. Of the PPSOs in our 11 selected districts, 9 reported participating in the FLM program. Of those 9 districts, 1 reported moderate use of the program while 8 reported that the program was either underutilized relative to available capacity or that BOP had not made any referrals to the program, or if it had, BOP did not ultimately place the inmates in the FLM program. Officials in two of the four BOP RRM offices with whom we spoke noted that the program is generally used as more of a backup option to place inmates into home confinement whose desired home sites are more remote and not within the service area of an RRC. According to BOP headquarters officials, RRC contract terms may either require BOP to use the RRCs for home confinement within the RRCs’ service areas or they guarantee RRC operators a minimum quota of use of their home confinement services. The officials stated that, consequently, depending on the terms of RRC contracts in place in specific areas, RRMs may generally prefer to use RRCs for home confinement in order to first satisfy RRC contract requirements which may result in less utilization of the FLM program.

BOP has also faced some instances where inmates referred to the FLM program have been rejected by a PPSO. For instance, PPSO officers in 5 of the 9 districts with whom we spoke noted that they had rejected FLM referrals from BOP at some point. The reasons for the rejections varied— 2 of the districts noted they rejected referrals because the inmates were unable to secure acceptable living arrangements; 2 of the districts stated that BOP’s referrals were deemed to be too high risk to accept (e.g., sex offenders); and 1 district rejected BOP’s referrals because they were not made using the appropriate referral process—that is, BOP did not submit the referral through BOP’s RRM. Further, an official in one of the four RRMs with whom we spoke stated that he referred inmates to the FLM program, but most were subsequently rejected by the local PPSO which told them the inmates were not appropriate for the program—for instance, because the inmates referred were higher risk than acceptable. BOP headquarters officials stated that the rejection of referrals for risk reasons is likely due to the fact that BOP and PPSO use different risk assessment tools which may result in different risk scores of inmates. The officials also noted that regardless of risk scores, the Chief Probation Officer in each district has the final discretion to accept or reject inmates as he or she deems appropriate for the district.

The fiscal year 2015 interagency agreement between BOP and PPSO for the FLM program calls for BOP and PPSO to jointly develop additional plans for identifying and selecting inmates, which could help reduce rejections. According to BOP and PPSO officials, the interagency agreement itself identifies the basic criteria for identifying and selecting inmates into the FLM. Officials with BOP and PPSO at headquarters stated that they maintain an ongoing dialogue with each other about the FLM program and regularly discuss the referral process including any unique cases as well as any other related process issues or concerns. According to BOP headquarters officials, they have not issued additional formal guidance on the FLM program, beyond the interagency agreement, because the ability to participate in the FLM differs across districts depending on the workload and capacity of the PPSO. However, both BOP and PPSO officials at headquarters stated that they regularly communicate to promote use and understanding of the program across districts, as well as to help minimize and address any rejections from the program, as envisioned by the agreement.

DOJ Has Tracked Some Data on the Cost Implications of Alternatives to Incarceration, but Could Better Measure Outcomes

DOJ Has Not Measured the Outcomes and Cost Implications of Pretrial Diversion Programs, but the Judiciary Has Collected Some Data

DOJ has not measured the outcomes or identified the cost implications of the Title 9 and court-involved pretrial diversion programs DOJ has decision-making power and expends resources on these incarceration alternatives, which are carried out at or before sentencing. While the department has conducted a survey to identify which USAOs use court- involved pretrial diversion practices and obtain any evaluations that USAOs have conducted, in considering the information obtained, the survey did not result in meaningful information on program outcomes. According to the official, in late 2014, EOUSA surveyed the USAOs regarding the implementation of the department’s Smart on Crime initiative. The survey asked about their use of court-involved pretrial diversion practices, such as a presentence diversion court, and, if they used such a court, whether the court was evaluated or assessed.

According to the survey results, 16 out of 93 USAOs responded that their districts were using a court-involved pretrial diversion court practice and some respondents provided descriptive information on the number of participants and program operations. According to the EOUSA official, when responding to the survey question as to whether the court or practice was assessed or evaluated, only one office provided documentation—a 2013 summary that a PPSO officer compiled of the accomplishments of the district’s pretrial diversion court and the potential cost savings realized through the use of the court. EOUSA officials stated they conducted another survey of the USAOs in late 2015 that asked similar questions about the use of court-involved pretrial diversion practices, but did not include the question about whether the practice was evaluated. The officials stated that they expect to have results from the survey in the spring of 2016. According to DOJ officials, the information from these surveys is to inform a key indicator DOJ created for the Smart on Crime Initiative that tracks the number of diversion courts. However, while the data from survey responses may provide information on how many districts are using the practices, the data will not provide systematic information on the costs or outcomes associated with the use of those practices.

Beyond the descriptive information gathered from the survey, DOJ has not obtained data that would help it to measure the outcomes or cost implications of the use of Title 9 and court-involved pretrial diversion programs. According to an EOUSA official, DOJ has not yet measured the outcomes and cost implications of pretrial diversion programs because it lacks the resources that would be required to conduct a comprehensive evaluation. Specifically, the EOUSA official suggested that a third party, such as a research institute, would be best suited to conduct an in-depth evaluation and that hiring such a third party would require resources that are not presently available from DOJ.

Further, of our 6 selected districts that were using court-involved pretrial diversion practices, officials at the USAOs and PPSOs in 2 districts stated that they are in the process of attempting to use outside entities, such as graduate-level students or faculty at local universities, to conduct evaluations of those practices. For example, officials with the USAO in the Western District of Washington stated that they have requested grant funding to have the academic community work with them to evaluate their court-involved pretrial diversion program to determine how the program can expand. However, the funding had not yet been awarded. In the Central District of California, PPSO officials stated that they were in the process of selecting researchers from a local university to conduct a multi-year evaluation of their district’s practice, but they had not yet made the selection.

EOUSA and USAO officials with whom we spoke also reported that DOJ has not yet measured the outcomes and cost implications of pretrial diversion programs because of the lack of sufficient long-term data. According to an EOUSA official, most court-involved pretrial diversion practices are relatively new; consequently, most participants in practices across the districts have not completed the programs and any subsequent supervision period, making it difficult to accurately measure long term outcomes. For example, of the 17 districts using court-involved pretrial diversion practices, 5 districts reported using such practices for 5 years or more. According to an EOUSA official, considering the relatively short time most of these practices have been in operation, the length of time required for participants to complete pretrial diversion programs (usually one to two years), and any subsequent period of post- conviction supervision that may be required afterwards, the number of participants available to evaluate who have fully satisfied all of their obligations is relatively limited. Further, according to the USAO staff we met with in the 6 districts using court-involved pretrial diversion practices, they have a general awareness of how many offenders had been placed in the alternatives and how many have successfully completed them, but they do not track these data systematically because such data are not required by DOJ to maintain caseload counts and dispositions.

We recognize that tracking the data necessary and measuring the outcomes and cost implications of pretrial diversion programs would require resources and time. However, measuring and evaluating costs and outcomes would not necessarily require hiring a third party to conduct an assessment of diversion programs across all federal districts. For example, according to a PPSO official in the Eastern District of New York, judiciary officials in a number of districts that had implemented court- involved pretrial diversion programs have developed mechanisms to obtain data and measure some of the cost implications and outcomes of these programs, and were doing so without the use of a third party. For instance, judiciary officials in some districts have developed estimates of cost savings realized from the use of court-involved pretrial diversion programs, and PPSO officials in the Eastern District of New York compiled and publicly reported on these estimates in August 2015. See table 6 for the cost estimates reported by the Eastern District of New York.

Additionally, judiciary officials have also tracked data related to the outputs and outcomes of the court-involved pretrial diversion practices. For instance, officials in seven districts have tracked data on the number of offenders successfully completing the programs. This information was collected and compiled by the Eastern District of New York and reported in August 2015, as shown in table 7. We have previously reported that tracking successful completion can be a proxy measure for the effectiveness of deferred prosecution and non-prosecution agreements DOJ has used in lieu of prosecuting corporations for corporate crime. Such agreements are similar in function to the type of agreements used in diverting individual offenders through pretrial diversion.

In addition to these estimates and data, as another means of measuring outcomes, judiciary officials in 3 of our selected 6 districts that use court- involved pretrial diversion practices reported also informally tracking recidivism rates of participants who have successfully completed the practices. For instance, officials from the PPSO in the Southern District of California estimated a recidivism rate of 2.8 percent for individuals who successfully completed the program in their district, while PPSO officials in the Central District of California and the Central District of Illinois reported that individuals who completed the respective practices in their districts had not committed any new crimes to their knowledge.

According to DOJ’s current strategic plan, one of its objectives is to reform and strengthen the country’s criminal justice system by targeting the most serious offenses for federal prosecution, and expanding the use of diversion programs, among other things. Consistent with that objective, the Smart on Crime Initiative includes, as one of its key principles, the pursuit of alternatives to incarceration for low-level, non-violent crimes. As part of the Initiative, DOJ has encouraged its prosecutors to consider the use of alternatives to incarceration and specifically encouraged more widespread adoption of diversion programs and practices such as drug courts and other specialty courts across the districts. For example, DOJ issued a memorandum in August 2013 to its USAOs that cited as examples several existing court-involved pretrial diversion practices, stated that the use of such programs or practices can be part of an effective prosecution program, and identified the potential for cost savings from the use of these programs based on experiences at various districts.

Given that pretrial diversion programs can help DOJ achieve its strategic objectives and the Smart on Crime Initiative, it is important for DOJ to be able to track data related to their use and cost, and to measure their impacts. According to Standards for Internal Control in the Federal Government, among other things, agency management should establish and operate monitoring activities to evaluate results of its efforts and programs. We understand that some judicial districts may not have had pretrial diversion programs in place long enough to fully track or assess the outcomes of a large number of offenders who have completed the programs. However, according to a resource cited by the Office of Management and Budget on program evaluation, while activities such as performance measurement are useful at all stages of a program’s maturity, they can be particularly useful for providing evidence about how programs are working in the early years of a program’s history when impacts on program outcomes may not be detectable and rigorous, high- quality impact evaluations are not yet possible.

By obtaining data on the costs and outcomes of pretrial diversion programs and establishing performance measures, DOJ would gain multiple advantages in its ability to manage these programs and optimize their outcomes and cost implications. First, having such data and measures available would better position DOJ to determine if pretrial diversion programs are effectively contributing to the achievement of department goals and initiatives. Second, such data and measures would better position DOJ to manage and provide additional guidance to the districts using the programs and practices, as necessary, to make their use more effective. Third, with information on the outcomes and cost implications of the existing programs, DOJ would be better positioned to determine whether and how it should encourage the use of such programs. Finally, should DOJ decide to pursue a more in-depth evaluation by an outside entity of the long term impacts and outcomes of the programs and practices, having such data and measures in place would better position DOJ to inform and facilitate that evaluation.

BOP Measures the Costs of RRCs and Home Confinement, but Lacks Data and Measures to Identify Their Outcomes

BOP collects data on the costs of RRCs and can measure their costs, but it does not collect data that would help it to measure the outcomes of RRCs, nor does it measure their outcomes. In particular, through the contracts it has with RRC operators, BOP has data on and has the ability to track the cost of placing inmates in RRCs. According to BOP, the total cost of RRCs in fiscal year 2015 was almost $360 million. Further, BOP can calculate the average daily cost for placing an inmate into an RRC, and can compare the cost with the daily cost of housing inmates in minimum, low, medium, and high security institutions. Specifically, according to our review of BOP data, the daily cost for placing an inmate into an RRC is greater than the cost to incarcerate the inmate in a minimum security institution, but less than incarcerating an inmate in low, medium, or high security institutions. For example, in 2015, the daily per capita cost for placing an inmate in an RRC was about $71 per day. In comparison, as shown in figure 7, the daily cost in 2015 to house an inmate in minimum security was about $66 while for low, medium and high security institutions was about $80, $81, and $101, respectively.

According to BOP officials, RRCs are more costly than some BOP- operated institutions because RRCs tend to be located in more urbanized areas in which it is usually more expensive to operate. Locations for RRCs are selected after BOP RRM field offices identify a need for RRC services in a specific area. Factors BOP identified as taken into consideration when locating a RRC include the number of beds needed as determined by the number of inmates projected to release to the area, prosecution trends, new initiatives, and contacts with other federal law enforcement agencies. Based on our comparison of the locations of RRCs BOP used in 2015 with Census Bureau data on urbanized areas, we found that 173 of the 175 RRCs serving adult inmates were located in urbanized areas.

Further, BOP can track and report the daily costs of individual RRCs, which can vary widely due to additional factors or features specific to the RRC. For example, according to BOP data in 2015, the daily costs to BOP for placing an inmate in an RRC averaged $89 but ranged from about $45 in Oklahoma City, Oklahoma to about $164 in Brawley, California. According to BOP officials, the variation in daily costs between RRCs is due to a variety of factors, such as facility sizes/inmate bed counts, variances in programming requirements, geographic location, and services offered for special populations such as mothers with infants. BOP officials also noted that while the RRCs may generally be more expensive than incarceration in minimum security facilities, the primary reason for using alternatives such as RRCs is not to reduce immediate operational costs, but to provide inmates with an opportunity to adjust to life outside of an institution and ease their transition back into society from incarceration.

Similarly, BOP can measure the costs to place inmates into home confinement. For inmates in home confinement under the FLM program, BOP officials stated that the average cost to BOP is about $15 per inmate per day. According to BOP, although the cost of home confinement varies depending on the contract terms and location, the daily cost to BOP of an inmate in home confinement is no more than 50 percent of the daily cost for an inmate placement into the supervising RRC. However, BOP officials stated they are in the process of updating their contracts to more precisely track home confinement costs through RRCs. As we reported in February 2012, BOP at the time did not require contractors who provide both RRC and home confinement services to separate out the price of home confinement services, and thus did not know the actual costs of home confinement. Consequently, we recommended that BOP establish a plan for requiring contractors to submit separate prices of RRC beds and home detention services. BOP concurred and determined that all new solicitations as of February 1, 2013, will have separate line items for RRC and home confinement services. BOP officials stated that at this time, current home confinement contracts are a mix of the two types, but that as the older contracts expire, new ones with separate line items for home confinement services will be implemented. Once all contracts have a separate line item, BOP officials stated they would be better able to identify its precise costs of home confinement going forward.

While BOP can measure the overall costs of RRCs and home confinement, it does not track the information needed to help measure their outcomes and does not have such measures in place. For example, one of the goals in BOP’s strategic plan calls for BOP to, among other things, provide services and programs to address inmate needs and facilitate the successful reentry of inmates into society. As mentioned previously, as part of its strategic plan, BOP has specified two measures to track placement of inmates into RCCs and home confinement—one measuring institutions’ placement of inmates into RRCs by security level, and the other measuring the Residential Reentry Division’s placement of home-confinement eligible inmates in home confinement. However, neither of these measures assesses the outcomes of RRCs and home confinement, such as how they relate to the recidivism rates of inmates.

The GPRAMA of 2010 requires agencies to have outcome-oriented goals for major functions and operations and an annual performance plan consistent with that strategic plan with measurable, quantifiable performance goals. Although GPRAMA requirements only apply at the DOJ-level, we have previously reported that they can serve as leading practices for performance planning and measurement at lower organizational levels, such as bureaus, offices, and individual programs. Specifically, the GPRAMA requires agencies to set performance goals and measures each year and measure progress against those goals. According to GPRAMA, performance measurement allows agencies to track progress in achieving their goals and provides information to identify gaps in program performance and plan any needed improvements.

According to BOP, RRCs provide programs that are intended to help inmates rebuild their ties to the community and to thereby reduce the likelihood that they will recidivate. The current measures BOP tracks are useful for monitoring the near term use of RRC bedspace and home confinement relative to targets and in planning for future RRC bedspace and home confinement capacity. However, they do not yield information or insight into the potential benefits they provide after the inmates use them, or potential areas for program improvement. While BOP headquarters officials also stated that they were aware of an effort by the Office of the Deputy Attorney General to solicit an outside contractor to evaluate and measure the outcomes provided by BOP’s use of RRCs and home confinement, DOJ was unable to provide any additional information or documentation on the details of this intended evaluation. Without data or measures to assess the outcomes of RRCs and home confinement, BOP does not know whether RRCs and home confinement—programs intended, in part, to help facilitate the successful reentry of inmates into society—are contributing to its strategic goal in this area.

Given the limitations of BOP’s current measures, taking additional steps to develop more outcome oriented measures could enable BOP to better track the outcomes of the alternatives in achieving BOP goals. BOP officials stated that measuring the outcomes of alternatives such as RRCs and home confinement is difficult due to methodological challenges, such as the need to designate a control group of inmates for comparison that fully accounts for the diverse characteristics and reentry needs of the inmates. We recognize the challenge in conducting such a rigorous study; however, other options are available to assess the outcomes of RRCs and home confinement that may pose fewer challenges, such as measuring how frequently offenders who have gone through RRCs or home confinement reoffend or find jobs. For example, in an August 2015 testimony, the former BOP Director cited statistics on the percentage of inmates released from federal prison who were rearrested, had their supervision revoked, or returned to federal prison within 3 years. Given that BOP has recidivism data available on former inmates, BOP may be able to develop similar statistics for inmates who had served time in an RRC or home confinement. As another approach to obtain data and develop performance measures, BOP could conduct surveys of inmates who have completed time in RRCs or home confinement to get their perspectives and feedback on the outcomes of RRCs and home confinement in helping them to transition back into the community.

Further, during the course of our review, BOP headquarters officials stated that under the direction and guidance of the Office of the Deputy Attorney General, a project was initiated to contract for an analysis of BOP's current RRC model and identify specific recommendations for improvement. Among other things, this analysis is to assess the degree to which current RRC programming addresses criminogenic needs, reduces recidivism, and meets the programmatic needs of the reentering population. In addition, the analysis is to provide recommendations for monitoring performance including identifying benchmarks, goals, and performance targets to measure and monitor outcomes. According to BOP officials, the contract was signed in April 2016 and the report is expected to be released during the summer of 2016. Given the scope and intent of this analysis, its results may provide BOP insights into its use of RRCs and home confinement. However, because this analysis is still in process, it is too early to determine the extent to which the results of this analysis will be helpful to BOP in identifying potential data and measures to monitor the outcomes of RRCs and home confinement. Regardless of the measure or method BOP determines to be most appropriate, by tracking data and developing performance measures to monitor the outcomes of RRCs and home confinement, BOP would be better positioned to determine how those alternatives are contributing to its goal of helping inmates successfully reenter society, and how to adjust its policies and procedures for the use of these alternatives, as necessary and within statutory requirements, to optimize the net benefits they can provide.

Conclusions

To help reduce the overall size and costs of the federal prison population, DOJ components such as USAOs, in coordination with judicial branch stakeholders such as PPSO and federal judges, have utilized alternatives to incarceration for low-level offenders and minimum and low security inmates at various stages of the criminal justice process. DOJ has taken some initial steps to collect data and measure its efforts for several of these alternatives. However, DOJ’s data on the use of pretrial diversions is of limited usefulness and reliability because EOUSA’s case management system does not distinguish between the different types of diversion and DOJ has not provided guidance to USAOs as to when and how pretrial cases are to be entered into the system. Additionally, because DOJ does not track data on the outcomes and costs of its pretrial diversion programs, it does not have awareness about the overall outcomes of the programs in achieving the department’s goals. Tracking the use of Title 9 diversion and court-involved pretrial diversion programs using separate codes, and issuing guidance to USAOs as to what codes to use and when to use them, would provide DOJ more reliable and complete data on the overall use of pretrial diversion across districts.

Further, by taking steps to obtain and track data on the outcomes of the programs and developing performance measures for its use of pretrial diversion, DOJ would be better able to determine the extent to which the alternatives are contributing to the achievement of DOJ goals and objectives and what adjustments to policies and procedures, if necessary, may make them more effective. Moreover, for the alternatives at incarceration, because BOP has not assessed the outcomes of RRCs and home confinement, it does not know whether RRCs and home confinement, which are intended, in part, to help facilitate the successful reentry of inmates into society, are in fact doing so. By tracking data and developing performance measures for RRCs and home confinement, BOP would be better positioned to determine how these alternatives are contributing to its reentry goals, adjust policies and procedures, as needed, and optimize their benefits.

Recommendations for Executive Action

To help ensure that USAOs consistently track the extent of use of all pretrial diversion alternatives, the Attorney General should direct the EOUSA to take the following two actions: revise its data system to allow it to separately identify and track Title 9 and court-involved pretrial diversion alternatives; and develop guidance on the appropriate way to enter data on the use of Title 9 and court-involved pretrial diversion alternatives, including the timing of entry and use of revised codes.

To help determine if pretrial diversion programs and practices are effectively contributing to the achievement of department goals and enhance DOJ’s ability to better manage and encourage the use of such programs and practices, the Attorney General should take the following two actions: identify, obtain, and track data on the outcomes and costs of pretrial diversion programs; and develop performance measures by which to help assess program outcomes.

To determine how the use of RRCs and home confinement contribute to its goal of helping inmates successfully reenter society, and to better enable BOP to adjust its policies and procedures for the optimal use of these alternatives, as necessary and within statutory requirements, the Director of BOP should take the following two actions: develop performance measures by which to help assess program identify, obtain, and track data on the outcomes of the programs; and outcomes.

Agency Comments and our Evaluation

We provided a draft of this report to DOJ, the AOUSC, and the USSC for review and comment. The AOUSC provided written comments, which are reproduced in appendix I. The USSC did not provide comments. In an e- mail we received May 27, 2016, DOJ’s audit liaison stated that DOJ concurred with all of our recommendations and provided comments, which we incorporated as appropriate and have further addressed below.

In particular, in our draft report, we recommended that EOUSA identify, obtain, and track data on the outcomes and costs of pretrial diversion programs, and develop performance measures to help assess program outcomes. The DOJ liaison stated that implementing these two recommendations would be the responsibility of the department, not EOUSA exclusively. As a result, we directed these two recommendations to the Attorney General. In addition, the liaison provided information about efforts taken in April 2016, during the course of our review, by the Office of the Deputy Attorney General and BOP to solicit an outside contractor to evaluate and measure the outcomes provided by BOP’s use of RRCs and home confinement contracts. We reviewed and incorporated this information in this report, and will continue to monitor the implementation of this contract to identify whether it meets the spirit of our recommendation.

Moreover, the DOJ liaison stated that BOP does not view inmates’ placement in RRCs and home confinement as incarceration alternatives when it is done pursuant to BOP’s statutory authority. As noted earlier in the report, we acknowledge BOP’s position, but, for the purposes of this report, we consider RRCs and home confinement to be alternatives to incarceration because they allow inmates to serve a portion of their sentences outside of a prison environment.

Additionally, the liaison stated that BOP had concerns about our comparison of the daily cost to house an inmate in an RRC with the daily cost to house an inmate in a minimum, low, medium, and high security institution. Specifically, BOP believed our comparison was misleading because the costs shown for BOP institutions includes the additional support costs (e.g., staffing, food, medical services) that BOP incurs when housing an inmate at one of its facilities and that such costs are not incurred by BOP when an inmate is at an RRC. The cost information we presented was taken directly from a table prepared by BOP that presents the same information for public disclosure on BOP’s website. We believe our comparison accurately reflects the total out-of-pocket costs to BOP for placing inmates in its institutions and RRCs because for the RRCs, those additional support costs are either the RRCs’ responsibilities under its contract with BOP or, in the case of medical services, are the inmates’ responsibility while at an RRC. However, to help provide context, we revised our discussion to include additional information on the support costs BOP incurs at its institutions.

Further, we state in the report that one option available to BOP to assess the outcomes of RRCs and home confinement could be measuring how frequently offenders who have gone through RRCs or home confinement reoffend. In the emailed comments, the DOJ audit liaison stated that BOP does not believe recidivism data should be used as a performance measure for RRCs due to external and unique factors that may impact the likelihood an individual will recidivate, such as economic conditions. In addition, the DOJ liaison stated that recidivism indicators are a negative measurement of criminal actions that do not consider positive behavior or successful adjustment of the offender, while the re-integrative model and definition of RRC programs mandates a measure of positive behavior or adjustment which is very difficult to quantify or measure. We cited the potential use of recidivism or re-offense indicators as one example of using currently available data to attempt to assess outcomes of the use of RRCs and home confinement. In our report, we also offered other examples of potential positive outcomes or adjustments BOP could track and measure, such as tracking measures related to inmates’ ability to find jobs or the value of RRCs and home confinement to inmates in helping them to transition back into the community as shown through results of surveys of inmates who have completed time in RRCs or home confinement. We defer to BOP to determine which measures are most appropriate. While we acknowledge the challenge in establishing such measures, we continue to believe it is important for BOP to identify, obtain, and track data on the outcomes of the programs and develop appropriate performance measures in order to be better able to monitor its use of RRCs and home confinement as a means to achieve its goal of helping inmates successfully reenter society.

AOUSC and DOJ also provided technical comments, which we incorporated as appropriate.

We are sending copies of this report to the Department of Justice; Administrative Office of the U.S. Courts; U.S. Sentencing Commission; appropriate congressional committees and members, and other interested parties. In addition, this report is available at no charge on GAO’s website at http://www.gao.gov.

If you or your staff have any questions, please contact Diana Maurer at (202) 512-9627 or maurerd@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made significant contributions to this report are listed in appendix II.

Appendix I: Comments from the Administrative Office of the U.S. Courts

Appendix II: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Jill Verret (Assistant Director), Pedro Almoguera, Erin Butkowski, Willie Commons, William Egar, Sally Gilley, Christopher Hatscher, Susan Hsu, Amanda Miller, and Jeff Tessin made key contributions to this report.