Thursday, May 10, 2012

GAO Shows BOP How To Save Millions By Implementing Ameliorative Sentencing Statutes

Two recent reports provide a survey of sentencing statutes that the Bureau of Prisons (BOP) underutilizes, costing taxpayers millions and contributing to America's world leadership in incarceration rates. In February, the Government Accountability Office (GAO) issued a study on the Bureau of Prisons entitled Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates’ Time in Prison. The GAO identified a number of statutes that, if used to their full extent, could save huge amounts of money. The GAO's experts provided the research and data that support federal defender concerns regarding underutilization of ameliorative sentencing statutes previously expressed to the Sentencing Commission (here) and to the House of Representatives' subcommittee on crime (here). The GAO report analyzed the facts that demonstrate the systematic failure to make full use of congressionally approved sentencing programs.

The second report is from the federal defenders in which we respond to the GAO report with observations and recommendations based on our BOP experiences: GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Overincarceration. The detailed response begins with this summary:

“The Government Accountability Office (GAO) has performed an important service in its study on the Bureau of Prisons’ ability to reduce incarceration costs. The report can be used as a starting point for identifying ways to reduce prison over-crowding, reduce the risk of future recidivism, and save millions of taxpayer dollars every year. The BOP’s under-utilization of available programs that would reduce over-incarceration and future recidivism falls into several general categories.

“First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

*  The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

*  The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

*  The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

“Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

“Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’
time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.”

The hope from the GAO report and the federal defender response is that the people administering sentences will reassess policies based on costs and benefits, rejecting reflexive biases in favor of over-incarceration. The BOP has a new director who will be making decisions in a context that accentuates the need for frugality and safety in penal spending. The recommendations for full implementation of ameliorative statutes should provide a happy marriage between fiscal prudence and avoidance of greater incarceration rates than necessary to accomplish the purposes of sentencing. And in the meantime, the GAO report and the federal defender response provide defense advocates with data and other information to support the efforts on behalf of our clients described in The Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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