Body cams aren’t just good for police. They are needed inside prisons, too
Federal prisons are hidden in rural areas behind thick walls. Body cams could assure much-needed transparency and accountability.
Collective Punishment on Steroids
Recently, it has become clear that sanctions normally designed to penalize the negative behavior of an individual are being imposed on an entire unit, or even facility. For example, an individual assaults an officer, or a fight breaks out between a couple of AICs, and the entire unit of 120 men is locked down for weeks. Or contraband comes in through the mail and the entire prison is shut down. A few cases in point:
- On Aug. 9, the mailroom supervisor at USP Atwater (CA), died after opening a letter containing pages that appeared to be “soaked” with a substance. Although one individual inside and two in the community were pretty quickly indicted in connection with the alleged drug smuggling, the entire prison of 1,078 men were immediately locked down 24/7 until they began being gradually let out on Sept. 30.
- On Aug. 14, FCI McKean (PA) reported contraband coming in through the mail and locked down all 930 AICs. Around Aug. 20, an AIC-on-staff assault occurred, and the lockdown was extended. In a memo sent outside by an AIC on Sept. 19, the warden said, “…the timeline for transition back to normal operations will be dictated by inmate behavior.” It was not until Oct. 7 that the lockdown was gradually lifted.
- Since Atwater, concerns about drugs coming in via AIC smuggling have spiked, along with seemingly kneejerk reactions. At FCI Thomson (a low-security institution!), a memo was issued saying, “…possession and/or distribution of hard contraband will not be tolerated and (AICs) will be held responsible. Due to recent events, the following restrictions will be in place effective Tuesday September 17, until further notice:
- Monthly commissary spending limits reduced to $50 (from $350).
- Inmate telephone privileges reduced to two 5-minute calls per day (from 15 minutes, unlimited).
- Inmate emails reduced to five per day.
- Outside recreation yard is closed.
- And then this week, we received this report from FCI Sheridan (OR): “Everyone in our unit lost our commissary privileges because we didn’t score high enough in the sanitation inspection. No, it was not because our unit was dirty. They scored us low because some people had gotten a second mattress somehow to make their beds more comfortable. Why penalize us all? And why this way? This is the only place I have been in where they do not want us to spend money in the commissary.”
The BOP has always used collective punishment as a tool, albeit on a limited, tempered scale. For instance, a messy TV room in a particular unit might be closed for a few days to send a message that good sanitation is important. The belief is that peer pressure just might solve the problem. And when a larger-scale fight or other disturbance occurs, it is often practical to lock down the facility for mass interviews and cell checks for weapons. But that process typically only requires a few days (although there are rare exceptions, like when one gang targets another, even causing threats at other facilities). And in the case of the death at Atwater, closing down the prison for maybe a week or two allowed the staff to work through their grief and anger without allowing an opportunity for those emotions to spill over into altercations with AICs.
However, mass lockdowns should be used sparingly and lifted as soon as possible – with special attention paid to impact on family visits. The negative impact of lockdowns should be considered along with any immediate benefit. These adverse ripple effects were documented in this analysis of a suicide that occurred this summer at USP Victorville (CA).
And some of these actions, such as revocation of commissary privileges, are supposed to be sanctions imposed on individuals by a disciplinary hearing officer (DHO) – not as a generic action imposed on a collective basis.
And when it comes to contraband, it also seems that the fact that contraband is also introduced into a facility by staff members who repeatedly circumvent the metal detectors. Yet no actions appear to have been taken to control this elephant in the room.
These are dangerous management practices that can themselves trigger assaults, which jeopardize the safety of both staff members and AICs – especially in higher-security facilities. Regional directors seem to have little accountability for their wardens’ decisions, and it does not appear that the central office is providing the necessary guidance for fairness and consistency. A centralized policy governing what types of collective punishment is acceptable and when, with a specific focus on lockdowns, is needed. Some facilities appear to be trying to avoid acknowledging their increased use of lockdowns by resorting to “modified” schedules, in which AICs are let out for small portions of the day, then sent back into their cells. This used to be a way to ease off of lockdowns and transition back to normal practice. But now such lockdowns have become an independent practice of their own. What is lacking is specific, nationwide standard procedures, and data that allows transparency and accountability. While there are individual, institutional contingency plans that include lockdowns for emergencies, they are not policy documents in the public domain.
When drafting the necessary policies, the BOP would benefit from following the example of the Environmental Protection Agency, conducting an impact assessments that look at both benefits and risks of its proposed actions.
Lockdowns, cancellation of visiting, limiting contact with loved ones through phone and email, and mass commissary restrictions are not reform-minded practices with rehabilitation as a mission equal to security.
BOP FSA Missteps Continue
In early September, the BOP’s FSA time-credit assessment tool was updated to incorporate future pre-release credits. However, a few days later, BOP case managers were told by the central office to stop sharing the assessments, amid rumors of a “glitch.” I did some calculations using a couple of the new assessments and they were all off substantially. One assessment produced an “FSA conditional placement date” that was two years earlier than the person’s actual eligibility. It’s disturbing that the FSA was passed in 2018, the time-credit application went live in 2022, and yet the government still can’t get it right. Earlier this month, the application was reportedly corrected once again but we are getting reports of case managers refusing to provide copies.
A few things to keep in mind regarding the BOP’s calculation of FSA time credits: An average of 27 months is required for AICs to earn the maximum 365 days of time credits. This advances the projected release date from GCT REL (good conduct time, or 15%) to FSA REL. Be aware that a person’s release date on the BOP website updates monthly but stops when the maximum 365 days of credits are earned. At that point, pre-release credits can be calculated by adding the monthly awards going forward while subtracting the same amount of days from the FSA release date at the back end. The point at which they meet is the FSA conditional placement date (CPD). The CPD is the date when a person can be transferred to an RRC (halfway house) or home detention.
It is very important that pre-release credits are calculated and applied! PERA is supporting the New York ACLU, which is collecting information on cases in which AICs are past their CPD but remain in prison. This issue is not going away.
Meanwhile, on Oct. 4, the BOP published this statement:
The BOP is updating its FSA time credit system to better support AICs as they engage in pre-release planning. Under the FSA, AICs earn time credits for completing approved programs while in custody, which can reduce the time before they are placed in community settings such as Residential Reentry Centers (RRCs) or home confinement.
AICs will now see three key dates in their records to help them plan their release:
- FTC conditional placement date: The date when an AIC may be eligible for pre-release placement based on earned FSA time credits.
- Second Chance Act (SCA) conditional placement date: The date when an AIC may be eligible for release under the SCA. SCA eligibility requires an individualized assessment and is not guaranteed.
- Conditional transition to community date: The earliest possible release date, based on a combination of FTCs and SCA eligibility.
FBOP employees will use these dates to make release decisions, beginning the process 17-19 months before the date for conditional transition to community. For eligible individuals, this could include recommendations for direct home confinement, bypassing RRC placement when appropriate.
It is essential for AICs to continue participating in FTC-earning programs, as any suspension in their participation due to misconduct could delay their release. The FSA conditional release date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.
The BOP will prioritize processing referrals based on placement dates, with unit teams initiating referral packets for pre-release placement at least 12 months, but no later than 60 days, prior to the conditional transition to community date. The Residential Reentry Management Office will work to ensure that AICs are placed in the community according to these recommendations, provided there are adequate resources in the community.
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We’ll be monitoring implementation. Stay tuned.
Confusion over FSA Implementation Continues to Reign Within BOP
BOP Director Colette Peters testified to the House Judiciary Committee in July that the tool developed by the agency to calculate release dates under the First Step Act has been updated to incorporate credits expected to be earned in the future toward transition into a halfway house (residential reentry management centers, or RRCs) or home confinement. However, we’ve checked with a few people inside the federal system and no one we spoke to said that that has happened. Rather, Director Peters likely was referring to the initial 365 days of early release credits available to eligible FSA recipients, over and above the 15% good-conduct credits federal prisoners already receive. What is still missing from the agency’s calculator is the accumulation of future pre-release credits for home confinement or RRCs.
BOP policy is clear that case managers should calculate future FSA credits when they process halfway house referrals. It is not rocket science to add 10 or 15 days for each month until release. Yet the director’s testimony seems to communicate that the BOP views the initial 365-day advancement as a mandate, and release to community detention as discretionary. That thinking has led to the current shortage of RRC beds and a dearth of home detention placement. Don’t forget: FSA pre-release credits are in addition to halfway house placement days awarded according to the five factors outlined in the earlier Second Chance Act. The number of 2241 habeus corpus petitions filed on this issue are at a fever pitch right now as a result, and the ACLU is considering legal action on behalf of people in federal custody.
In the BOP’s defense, Congress did not properly fund the augmentation of RRC/home detention infrastructure needed to fulfill FSA requirements. This is indicative of legislators not grasping the unintended consequences of the back-end provisions of the laws they pass. One of our next blog posts will focus on the lack of funding for the ombudsman function in the Federal Prison Oversight Act.
End Carve-Outs and Everyone Benefits
In recent years there has been a trend toward exempting groups of people from the benefits of sentencing reforms. However, doing so bakes a degree of injustice into our justice system.
It is helpful to understand the historical context for this trend. Prior to the Sentencing Reform Act of 1984 (which created the U.S. Sentencing Commission and abolished parole), and the draconian “War on Drugs” bills that followed, all people were treated equally (from a sentencing perspective) once imprisoned. The length of sentence was the punishment, with the nature of the crime, the person’s history, etc. taken into consideration when the judge imposed the penalty. At that time, everyone had an equal opportunity to earn early release due to good behavior and rehabilitation (by statute or via good-time credits). Most individuals were eligible for parole consideration after completion of one-third of their sentences. The average person with a life sentence was eligible to petition for parole after 10 years, and most lifers received mandatory parole after 30 years (with exceptions being high-profile, “sensationalized” individuals like Mutulu Shakur).
How do we decide that some crimes are ‘worse’ than others?
Today, the use of “carve outs” that treat people differently after incarceration is on the rise, and isn’t getting the attention it deserves in the advocacy world. The most common used carve-out is the exemption of individuals who were charged with violent crimes or sex-related offenses. The white-collar lobby has some culpability in encouraging these carve-outs, by spreading a false narrative in which fraud, theft and graft are crimes whose perpetrators are more capable of rehabilitation and worthier of release.
These carve-outs are now enshrined in the psyche of the justice community, as reflected in the First Step Act (FSA) of 2018. Advocates should insist that this be fixed in any “second step” legislation. Incarceration is designed for rehabilitation as well as incapacitation, and every person who makes strides toward personal growth and change should benefit from early release into the community offered via FSA credits.
Consider punishment from a fairness and deterrence perspective: A young adult in an urban area commits one act labeled as violent (there are many degrees!) and must serve 85% of his federal prison term no matter what. Yet a person who commits repetitive white-collar crimes or a first-time offender who causes losses to other in the multi-millions can be back in the community after serving just over 35% of their terms due to FSA eligibility. This is discrimination, and some people will calculate this expected leniency into their future behavior, which may perversely result in an increase such “nonviolent” crimes. It’s difficult to understand why this disparity is not getting more attention.
Let’s go a step farther with FSA pre-release credits. The people who need programming and transitional placement in the community (halfway houses) the most – individuals still in high-security prisons, for example – are the ones who are not getting it because either they are not eligible for FSA incentives or are placed on the bottom of programming waiting lists, which give preference to those who are eligible or are closer to release. But how does that promote public safety in the long term? The medium- and high-risk people ineligible for the time credits are competing for halfway house beds with people who simply don’t need the transition. Behaviors that deviate from social norms are complicated issues, involving many criminogenic factors. Aside from the most egregious crimes, we should not automatically label white collar offenses as less harmful to society than so-called violent offenses or offenders. This violent/nonviolent narrative must end when considering legislation.
A prisoner’s perspective
A More Than Our Crimes member at FCI Atlanta, Christopher Cobb, wrote about this issue recently on the MTOC blog. Below is an excerpt:
I believe that society should prioritize the rehabilitation of people who committed what is often considered the “worst” offenses. The broader community is safer when more people take evidence-based recidivism reduction (EBRR) programs. Incentives are needed to push more people into these programs, because most individuals in prison – an emasculating experience – need “prompting” to begin the hard work of change.” Why? It takes a while, after entering prison, to recognize and accept the harm they caused and their responsibility for it. And yes, offering incentives often means that many people initially take programs for the wrong reasons – to get out earlier (not necessarily because they know they need to change).
However, the beauty of “evidence-based recidivism reduction” is that almost all these individuals change their way of thinking as they progress through the programs. For instance, I originally enrolled in a paralegal correspondence course to find a way out of my situation. And it gave me that, along with the ability to help others obtain shorter sentences. But it also helped me understand where the government is coming from when it outlaws something, and how the history of the body of law has shaped our current justice system. Now I understand better how to bridge the gap between government agents and their viewpoints and those of us in the carceral situation.
Other inmates who have taken cognitive-development and criminal-thinking courses (BOP-offered EBRRs), and participated in programs like Threshold and RDAP (Residential Drug Abuse Program) have had similar experiences. And here is the kicker: Not one of those individuals actually took these courses to improve themselves; they signed up to get time off. The self-improvement was unexpected and occurred sort of as a byproduct. I guess you could say that instead of “gaming the system,” the system gamed them (but in a good way).
There’s another reason why these individuals sign up: to ease the boredom that leads to anger and violence. When people are in prison (especially when staff can lock the cell doors), they spend a lot of time in forced idleness. For instance, here at FCI Atlanta, we spend an average of 13 hours a day locked in our cells. (Yes, we have tablets, but other than music, we can only download mostly old, childish movies.)
And when we are let out, if you’re not working or in classes, you spend the majority of the time watching TV. TV isn’t a bad thing (everyone needs time to chill), but when that is all you do, it doesn’t really contribute to reduction of recidivism.
What does all that idle time lead to? Many guys turn to drugs. And drug overdoses are a clear health and safety issue.
I was not immune to this “disease.” For the first four or so years of my sentence, looking at the next 15 years in prison, I was angry. I spent most of my time simply playing cards. My day was TV, cards, TV, bed, then do it all again.
That is why I think it is so important to get “the worst” offenders into these classes. And the strongest possible incentive is earlier release from the suffering that prison imposes.
The result: The prison itself is safer and the population is more manageable. It is, therefore, a win-win when all prisoners are incentivized to participate in programs designed to reduce the likelihood of re-offense.
Family and Legal Visits Increasingly Treated as Expendable
August 16: All visitation at FCI Cumberland has been suspended until further notice; however, officials for the facility did not provide a reason.
In response to a Cumberland Times-News request for information about a report of a lockdown at the prison, Emery Nelson at BOP’s public affairs office said that “for privacy, safety, and security reasons,” it does not comment on conditions of confinement for any incarcerated individual. He went on to say that the BOP also does not discuss internal guidance or security practices, such as reasons for suspending visitation or making changes to movement schedules at any specific facility. “The decision to limit or suspend visitation for a variety of reasons is made by the warden at each institution on a case-by-case basis.”
This is a recent news report. But based on the comments we are receiving from adults in custody, family members and attorneys, cancellation of visits (including legal calls/visits) seems to be on the rise at federal prisons around the country – sometimes with no notice until family members arrive.
During my 23 years in various case management capacities, administrators did everything possible to protect family visits because of the importance of social ties to mental health and institutional security. (In fact, one aspect of an AIC’s custody classification (degree of supervision needed) is their “efforts to build, maintain and strengthen family/community ties.”) Yet families of incarcerated people often have low incomes and must spend significant resources to travel out of state to remote locations, frequently an hour or more away from the nearest airport. So, visits can be a financial hardship. Forcing them to wait until the last minute to make their arrangements (thus forgoing the cheapest fares), due to the uncertainty of visits is bad enough. The frequent, last-minute cancellation of visitation is simply unacceptable and must be managed better by thee BOP.
Consider the recent experience of Pam Bailey, co-founder of More Than Our Crimes and PERA’s director of communications. In her words:
I had put off visiting my co-founder, Rob Barton, for several months because family members with loved ones at USP Coleman 1 (Florida) kept reporting cancellations. Finally, word was that visits were going to start being more stable. So, I waited until Wednesday of that week and booked a flight from DC, a hotel room and a rental car (total: ~$800). I arrived Friday evening and immediately checked the Facebook group for families. One of the women reported that at 7 p.m., prison staff had told her that “visits were on.” Staff said the same thing at 7:30 a.m. Saturday. (And yes, it’s necessary to keep checking in, because the answer often changes on a dime.) But at 8:30, when I arrived at the prison, we were told that visits were now cancelled. Why? Not enough staff had showed up to work.
The same steps repeated themselves the next day, Sunday. I was told by others to ‘enjoy your time in Florida.’ But I was not there for a vacation. If I had wanted a vacation – which I couldn’t really afford at the time – I would have gone someplace else, to be frank. And meanwhile, my disappointment was nothing compared to what Rob was experiencing. He literally had been longing for both human touch and real time to talk. (Phone calls are limited to 10 minutes; try conferring about nonprofit matters in 10-minute bursts, much less have intimate conversations with a spouse or try to rebuild a relationship with a child.) I couldn’t talk to him (they are always locked down on the weekends), but I didn’t have to. I knew that if he was the type who cried, he was doing so then.
Sunday afternoon, I called the prison, and after about five tries, I got through to someone. “If you can tell me there will be visits tomorrow,” I said, “I will pay the extra expense to change my arrangements, so I leave on Monday (the final day allocated to visits) instead.” But he replied, “You’ll have to call tomorrow morning to find out.” I couldn’t afford to stay for another day if visits were cancelled again. So, I went home.
And the next day, there were visits. (Update: However, now, Monday visits have been cancelled altogether.)
One cause of cancelled visits: staffing
As with Coleman, many lockdowns across the BOP system are imposed, at the warden’s discretion due to “short of staff.” In fact, a shortage of staff seems to be the go-to justification for most departures from normal operations. Yet a GAO report shows the BOP has nearly 3,000 more staff today than in 2005, when there were more people in federal prison. PERA believes the agency is top heavy, thus compromising the number of line correctional officers. Former BOP Director Mark Inch (who was, like the current agency director Colette Peters, came into his position as an “outsider”) realized this early in his tenure and was considering closing two regional offices when he abruptly resigned less than a year after his appointment. There was a time when the BOP didn’t have any regional offices; it is PERA’s contention that inefficiencies, redundancies and inconsistencies occur because of the six different bureaucracies that now exist.
PERA recently learned that a contractor for the BOP has developed an “automated staffing tool” to “determine the optimal number of positions required in each institution.” We have submitted a FOIA request for all analyses produced to date by the tool. Once received, we will conduct a deeper dive into the findings and report back to our subscribers.
Collective punishment
As for FCI Cumberland (Maryland), we do not know yet what caused the current lockdown. However, an individual who was just released reports that it was imposed when one of the officers was assaulted. If it’s true that the lockdown was imposed of an incident in one unit, then it is another example of collective punishment practices that also seem to be on the rise.
This type of collective punishment is wrong and unnecessary, and wardens should not have this degree of discretion. It is time for lockdowns, as well as abrupt cancellation of visits, to be documented for transparency and governed with clear guidance set at the central office level.
Legal communication
In a related vein, PERA also continues to receive complaints about difficulties and inconsistencies in securing legal calls and visits.
Aside from the usual inability of facility staff to answer the telephone, there has been an increase in complaints from attorneys who are ghosted after setting up legal calls, as well as a refusal of staff to leave the room once the call is connected. A few weeks ago, an attorney arranged a legal visit in advance and flew into Miami, only to be denied entrance due to cancellation of visits. PERA calls on the DOJ to broaden the scope of its Access to Justice initiative to include all BOP institutions rather than only administrative detention facilities , which do not have as many problems with legal communication due to their pre-trial focus.
There has been a lot of talk about reform during the past two years, but these issues and so many others could be alleviated simply with by stronger leadership, from the top.
What Makes Oversight Effective?
Is the new Federal Prison Oversight Act a reason for celebration? Yes, and no.
Courts Challenge BOP’s Interpretation of First Step Act
Two new court cases promise to facilitate quicker early release from prison for many individuals behind bars.
It’s Déjà SHU All Over Again
It’s time to stop studying how to improve the use of restrictive housing and make real changes.
Let the Sun Shine into the BOP
The BOP doesn’t seem to know how to fix a “sick” prison. It’s time for independent oversight.