Ever since BOP Director William Marshall terminated the agency’s collective bargaining contract with the union, I’ve been waiting for a barrage of policy updates. After all, the union allegedly was one of the most significant barriers to new and updated policies. However, there was minimal movement on the issue until early March, when 10 policies dated February 26 hit the agency’s public website. Another 23 were dropped several weeks later, all dated March 19.
Reintegration Units
Of the first 10 revised policies, there are only two of interest from a correctional programs perspective. The first is an update to PS 52801.01 Reintegration Units. Previously, there had only been an operations memorandum (which expired in 2017), not a formal policy. As one RU resident at USP Atwater told us, “The rules are now pretty much the same as how they were running it. But now it’s in black and white so they can’t just make up things as they go along. And if they don’t do something that’s in the rules, such as putting us in for transfers to medium-level facilities at 24 months, we can file and quote the program statement chapter and verse.” He added that he likes that the new program statement makes it clear that the captain and SIS officer are authorized to remove people removed from the RU if they repeatedly cause problems. “We had a guy that kept going to the SHU for having a knife but they would just let him come right back to the unit,” he wrote. “Now he’s being sent to another facility, so he won’t cause problems for the inmates here who are trying to do the right thing.”
Employee Misconduct
Another policy change that is significant, but in a potentially negative way, is PS 1210.06 Office of Internal Affairs. This one is a bit comical to read at first, since staff has always been required to report any misconduct by other staff members that they observe. Yet based on the nature of many emails sent to our organization, it does not appear most BOP staff members are adhering to the reporting rules. If they did, I’m certain augmentation would grow exponentially given the exodus of staff – both voluntarily and by termination.
What is worrisome is that a section labeled “Alternatives to Investigation” allows wardens the option to informally resolve Classification 3 allegations of staff misconduct themselves, without referring them to the OIA for investigation. [The new policy calls it a “misconduct diversion program.”] Although Class 3 allegations are considered as “ordinarily having a lesser impact on the institution,” these types of misconduct include failure to follow policy, inattention to duty and unprofessional conduct – all of which can be serious. While this change could mean that problems are resolved more quickly than under the previous policy, it also means that no public record or higher-office notice will exist for the issues reported and the employees involved may not be disciplined or learn the required lesson.
‘Director’s Discretion’ and FSA credits
In the most recent list of updated policies, I’m disappointed in PS 5162.06 Categorization of Offenses. The revised policy updates the list of statutory offenses considered violent, based on the First Step Act. Unfortunately, it also continues to include the controversial “Director’s Discretion” exemption, which – if used – will preclude early release from prison after completion of RDAP under 18 USC 3621(e). When “director’s discretion” is applied, the BOP is allowed to deny early-release benefits for uncharged behavior associated with an individual’s conviction. For example, if a person’s pre-sentence report states that someone possessed a gun at the time of his crime, but he was not charged with gun possession and his sentence wasn’t even enhanced, he could still be denied early release after completing RDAP.
Note that unlike the Second Chance Act, the FSA does not reference the director’s discretion authority. However, I have long been concerned that the BOP would invoke it to make it difficult for inmates with medium and high recidivism risk to receive FSA time credits. That concern led me to reach out to BOP staff; I received the disturbing email below on April 6. Be forewarned!
Mr. Donson:
It is our understanding that the section regarding “Director’s Discretion” MAY affect FSA credits. Once DSCC updates the FSA-disqualifying offenses, those deemed appropriate, based on Section 4, will be ineligible for FSA. FSA eligibility based on current offense utilizes offense codes for automatic exclusion. We will not know how this affects discretion cases until the ineligible offenses are updated. Currently, if an offense is ambiguous or does not match the exclusionary offense codes, it is sent for a second review by Legal. Our office expects this to continue, as well as to include the Director’s discretionary factors.
I hope I’m actually answering your question. This is as much as we know, at this point.
Other updated policies of interest included those for Secure Mental Health Units, Suicide Prevention Program, Sexually Abuse Behavior Prevention and Intervention Program, Life Connection and Threshold Programs, Records and Information Management Programs, Physical Capacity for Bureau Facilities and Request To Staff, Inmate.
The BOP actually has many sound policies that merely need an updated review and a public posting, for the sake of transparency. The real problem is for management to figure out a way to force staff to follow them! That can only happen with staff accountability, transparency and leadership. I’m not holding my breath.
