EFTA00064961 # FEDERAL PUBLIC DEFENDER Western District of Washington Thomas W. Hillier, II Federal Public Defender November 16, 2011 Thomas R. Kane Acting Director, Federal Bureau of Prisons c/o Rules Unit Office of General Counsel, Bureau of Prisons 320 First Street, NW Washington, DC 20534 Re: Comment On Proposed Regulations Pre-Release Community Confinement 76 Fed. Reg. 58197-01 (Sept. 20, 2011) Dear Director Kane: This letter is to provide comment on behalf of the Federal Public and Community Defenders regarding the proposed regulation implementing the pre-release community confinement provision of the Second Chance Act (SCA). The Defenders represent the indigent accused in almost every judicial district of the United States pursuant to authorization in 18 U.S.C. §3006A. The Defenders viewed as a very favorable development the bipartisan support for the SCA’s increase of available pre-release community corrections from six to twelve months in 18 U.S.C. §3624(c). We anticipated that the increased utilization of halfway houses and home detention would promote our clients’ more successful reintegration into the community through earlier family reunification, establishment of employment, treatment in the community, and separation from the negative aspects – and dangers – of prison life. The increased length of reentry programming would also reduce prison over-crowding, resulting in safer prisons and lower prison costs. In contrast to the optimism generated by the SCA’s statutory shift in favor of more pre-release community confinement, the Defenders have been disappointed in the Bureau of Prisons (BOP)’s failure to implement meaningful change by continuing the informal rule that effectively limits pre-release community confinement to six months. The proposed regulation does nothing to correct the BOP’s failure to effectuate Congress’s directive that the optimum duration of community corrections should be addressed by regulation and that the available period of community corrections for individual prisoners should be doubled from six to twelve months. Our comments address three aspects of the new regulation. First, the regulation appears to violate Congress’s requirement that the BOP “shall” promulgate regulations to ensure that the length of community corrections is “of sufficient duration to provide the greatest likelihood of successful reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). Second, the regulation should presume that the maximum period of community corrections should be provided, absent individualized factors disfavoring community corrections for a particular prisoner. Third, the regulation implementing the SCA should reject the 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 55 of 61 EFTA00064962 Thomas R. Kane November 16, 2011 Page 2 current informal limitation to six months of community corrections, absent extraordinary circumstances, which is unsupported by empirical evidence and, in effect, nullifies the SCA's increase in the available time in community corrections. ## A. The Proposed Regulation Does Not Comply With The Congressional Instruction To Address The Optimal Duration Of Pre-Release Community Corrections. An essential component of the SCA’s change in reentry policy was the doubling of the available pre-release community corrections – halfway houses and home detention – from six to twelve months. 18 U.S.C. § 3624(c). The same statute required that, within 90 days of enactment, the BOP “shall” implement the reforms to the pre-release community placement statute through the formal procedures provided under the Administrative Procedure Act (APA). 18 U.S.C. § 3624(c)(6) (“The Director of the Bureau of Prisons shall issue regulations” regarding the “sufficient duration” of community corrections) (emphasis added)). “[D]iscretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Bennett v. Spear, 520 U.S. 154, 172 (1997). Here, Congress used the mandatory word “shall.” The BOP must follow procedural requirements for an exercise of discretion to be lawful: “[T]he promulgation of [the] regulations must conform with any procedural requirements imposed by Congress” because “agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which ‘assure fairness and mature consideration of rules of general application.’” Chrysler Corp. v. Brown, 441 U.S. 281, 303 (1979) (citations omitted). The SCA explicitly refers to the need for reentry policies to be empirically based. 42 U.S.C. § 17541(d). Congress’s intention that the BOP engage in notice-and-comment rule-making effectuates this approach by giving the public and interested organizations, like the Defenders, the opportunity to provide input regarding the duration of community corrections. See Chrysler Corp., 441 U.S. at 316 (“In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment.”); see also Conf. Rep. to Consolidated Appropriations Act of 2010, 155 CONG. REC. H13631-03, *H13888 (daily ed. Dec. 8, 2009) (directing the BOP to consult with the public and experts regarding reentry issues). Congress also made the judgment that agencies must do more than simply repeat statutory language: agencies are required to articulate their rationale and explain the data upon which the rule is based. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-68 (1962). Nevertheless, the proposed regulation provides none of the material required for informed rule-making. Instead, the BOP issued the informal memoranda with no support in best practices, no social science studies, and no articulated rationale with any support in the literature. The proposed regulation appears to be unlawful because it fails to address a critical question that Congress determined should be addressed by fair and neutral rule-making, not by administrative fiat. 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 56 of 61 EFTA00064963 Thomas R. Kane November 16, 2011 Page 3 ## B. The Regulation Should Incorporate A Presumption of Maximum Community Corrections In Order To Promote Successful Reentry And To Save Taxpayer Money. The SCA’s amendment of § 3624(c) rests on three assumptions apparent from the legislation: the amount of available time in community corrections should be doubled; the likelihood of successful reentry will be enhanced by earlier reintegration through family reunification, employment, and treatment in the community; and the costs of incarceration can be ameliorated by greater utilization of community resources for those determined not to create substantial risks in the community. The proposed regulation does nothing to further these legislative goals. The BOP should promulgate a regulation that furthers the SCA’s reentry goals by presumptively permitting the maximum time available for community corrections, with less time depending on individualized safety factors and availability of facilities. Congress’s intent that placements be longer is reinforced by the Consolidated Appropriations Act of 2010, which provides: Because BOP has indicated that approximately $75,000,000 is required to implement fully its Second Chance Act responsibilities, the conferees expect the Department to propose significant additional funding for this purpose in the fiscal year 2011 budget request, including significant additional funding for the enhanced use of Residential Reentry Centers (RRC) as part of a comprehensive prisoner reentry strategy. The conferees also urge the BOP to make appropriate use of home confinement when considering how to provide reentering offenders with up to 12 months in community corrections. 155 CONG. REC. at H13887. Congress thus clearly expressed its continued intention that the BOP fully use its authority to place federal prisoners in the community for as long a period as appropriate to ensure the greatest likelihood of successful reintegration – including greater utilization of halfway houses and home confinement. Congress has indicated that funding considerations will not be tolerated as an excuse for failing to implement fully BOP’s responsibilities under the SCA. The six month limit is inconsistent with the statutory instruction to enhance and to improve utilization of community confinement for federal prisoners. By increasing pre-release community corrections, the BOP can substantially reduce prison over-crowding in facilities that are currently at about 137% of capacity. With greater over-crowding, the danger to both prisoners and correctional officers increases. At the same time, the agency can save scarce resources, redirecting them toward more effective rehabilitative programs. With the exception of foreign nationals, almost all of the 217,363 federal prisoners are eligible for community corrections under the SCA (about 26% of federal prisoners are aliens with immigration holds), with about 45,000 transferred to the community each year. 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 57 of 61 EFTA00064964 Thomas R. Kane November 16, 2011 Page 4 Besides the greater freedom at stake, enormous saving are available. For one year, incarceration in prison costs about $28,284.00; in a halfway house $25,838.00; and home detention about $3,000.00. $ ^1 $ So if prisoners were transferred from prison to home confinement even one month earlier, the BOP could save about $94.8 million each year. $ ^2 $ By increasing the average time in home detention by three months, the BOP would save about $284.4 million every year. Similarly, the cost to keep prisoners in halfway houses rather than in prison for an additional month would save about $9.2 million. $ ^3 $ The difference for three months would be $27.6 million. And these savings would multiply with each additional year that the SCA is fully implemented. The proposed regulation does not address either the financial or human costs associated with maintaining the status quo. The BOP should honor both the spirit and letter of the rule-making process. The regulation should be precise so that the public has a meaningful opportunity to comment. The Defenders suggest that the final regulation include, or at a minimum address, the following: - A presumption of maximum community confinement to facilitate reentry and to save money, with less time based on individual risk factors and resource availability; - A description of any studies and analyses considered in arriving at criteria for the exercise of discretion to maximize the duration for community confinement to achieve successful reintegration; - Early placement of prisoners in residential reentry facilities to maximize the home confinement component of community corrections. In times like these when prisoners are facing great obstacles to successful reintegration, the BOP, through its policies and regulations, should strive to make the difficult transition easier. The SCA provides a clear message that up to the full available year of community corrections should be 1 Annual Determination Of Average Cost Of Incarceration, 76 Fed. Reg. 57081 (Sept. 15, 2011); Memorandum from Matthew Rowland to Chief Probation Officers Cost of Incarceration (May 6, 2009). 2 With 1/12 of the $3000 yearly cost of home confinement equaling $250 for one month, subtracted from one month of prison at $2357(1/12 of the 28,284 annual costs), equals $2,107, multiplied by 45,000,the number of prisoners released each year to community corrections, equals $94,815,000. $ ^{3} $ The difference every month of $ 204.00, multiplied by the 45,000 prisoners released equals $ 9,180,000. 58 of 61 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 EFTA00064965 Thomas R. Kane November 16, 2011 Page 5 utilized to reach the greatest likelihood of success on supervised release. The BOP should promulgate a regulation to achieve the SCA’s goal by presuming that the prisoner should receive the maximum available community corrections, limited by individualized assessments regarding public safety and available community resources. ## C. The Six-Month Informal Rule Should Be Rejected. The need for a regulation regarding the duration of community corrections is especially acute because, in the absence of a regulation on the subject, the default directive is the BOP’s informal six-month rule under memorandums to staff and program statements. The only rationale for the six-month rule proffered by the BOP related to the supposed optimum time in a halfway house. In fact, the evidence presented in the case in which Judge Marsh invalidated the earlier regulation established that the six-month norm was based on erroneous assumptions. Most glaringly, the evidence disclosed that the Director of the BOP erroneously believed there were studies supporting the rule, but the BOP’s own records established that no such studies exist: - The Director claimed that “our research that we’ve done for many years reflects that many offenders who spend more than six months in a halfway house tend to do worse rather than better. The six months seems to be a limit for most of the folks, at which time if they go much beyond that, they tend to fail more often than offenders that serve up to six months.”4 - The BOP’s research department could not back up the Director’s claim, stating “I am trying to find out if there is any data to substantiate the length of time in a ‘halfway house’ placement is optimally x number of months. That is, was the ‘6-month’ period literally one of tradition, or was there some data-driven or empirical basis for that time frame? . . . I’ve done a lot of searching of the literature, but so far have not found anything to confirm that the ‘6-months’ was empirically based.”5 Because the BOP had no meaningful experience with community corrections greater than six months, the erroneous assumption regarding "research" was especially prejudicial. Rather than being 4 United States Sentencing Commission, Symposium On Alternatives To Incarceration, at 267 (July 15, 2008). 5 Sacora v. Thomas, CV 08-578-MA, CR 48-9 (D. Or. Mar. 1, 2010) (exhibit in support of memorandum of law). 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 59 of 61 EFTA00064966 Thomas R. Kane November 16, 2011 Page 6 based in empirical research, the six-month rule may simply be a vestige of litigation positions that have been superseded by the SCA. $ ^{6} $ Even if the erroneous belief regarding halfway house studies had not been debunked, the SCA could still have been implemented to make a difference: even with a six-month limit on the duration of halfway house placements, earlier placement would allow for up to six months of additional time in home detention under § 3624(c)(2). The SCA clearly permits such a change, which would result in significant savings. More importantly for prisoners, earlier community corrections would enable them to accelerate their reintegration into the community through family reunification, work, treatment, and other appropriate community-based programming. The proposed regulation fails to address this aspect of the SCA, leaving intact the informal and unsupported six-month rule. The six-month informal rule is also irrational because its "extraordinary justification" exception is indistinguishable from "extraordinary and compelling reasons" under 18 U.S.C. §3582(c). The informal rule states that pre-release community corrections exceeding six months may be permitted only with "extraordinary justification." Program Statement 7310.04 at 8(Dec. 16, 1998). But under §3582(c), the BOP is supposed to alert the district court by filing a motion to reduce the sentence for "extraordinary and compelling reasons." The informal rule, by using an indistinguishable standard, creates an irrational and unworkable system in which BOP personnel, instead of permitting more than six-months of community corrections, should be mooting the question by moving the district judge to reduce the sentence. ## Conclusion An essential component of the SCA is the doubling of the available time for pre-release community corrections. By essentially maintaining the pre-SCA status quo, and by failing to promulgate a regulation on the optimal duration for community corrections, the BOP misses the opportunity to implement Congress’s intent that reentry be eased by increased custody in the community, with its concomitant promotion of family unity, community-based treatment, and employment in the prisoner’s home region. The Defenders speak in one voice in encouraging the BOP to implement the SCA by promulgating a regulation on the duration of pre-release community 6 Starting in 2002, the BOP has argued that no community confinement could exceed six months. The pre-SCA litigation depended on two things: the discretion to place prisoners in community confinement under 18 U.S.C. §3621(b); and the six-month limitation on pre-release custody under the former §3624(c). With the SCA, Congress has reaffirmed the BOP's authority to place prisoners in community confinement at any time and expanded the pre-release custody to twelve months. Thus, the informal six-month rule no longer has any basis in the relevant statutes. 60 of 61 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 EFTA00064967 Thomas R. Kane November 16, 2011 Page 7 corrections that abandons the informal six-month limitation and presumes the maximum available community corrections, limited only by individualized safety and resource considerations. Very truly yours, Thomas W. Hillier, II Federal Public Defender TWH/mp 1601 Fifth Avenue, Room 700, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0120 61 of 61 EFTA00064968 ATTACHMENT B EFTA00064969 RRCs Expiring and/or Not Exercising Option Years
CONTRACTORLOCATIONBED NUMBERSNotes
COMCOR, INC.COLORADO SPRINGS, CO21CONTRACT WILL EXPIRE 10/31/2017
ARC COMMUNITY SERVICESMADISON, WI4CONTRACT WILL EXPIRE 10/31/2017
DAKOTA COUNSELING INSTITUTEMITCHELL, SD15CONTRACT WILL EXPIRE 12/31/2017
GREAT LAKES RECOVERY CENTERMARQUETTE, MI12NOT EXERCISING OPTION YEAR - CONTRACT WILL EXPIRE ON 1/31/2018
LARIMER COUNTY COMMUNITY CORR.FORT COLLINS, COIN HOUSE: 10 HC: 3NOT EXERCISING OPTION YEAR - CONTRACT WILL EXPIRE ON 11/30/2017
ORIANA HOUSE, INC.AKRON, OHIN HOUSE: 36 HC: 18NOT EXERCISING OPTION YEAR - CONTRACT WILL EXPIRE ON 10/31/2017
BANNUM, INC.WHEELING, WVGUARANTEE MINIMUM: 12 ESTIMATED MAXIMUM: 15CONTRACT EXPIRED 09/30/2017
ALVIS, INC.DAYTON, OH24NOT EXERCISING OPTION YEAR - CONTRACT EXPIRED 7/31/2017
REALITY HOUSE PROGRAM, INC.COLUMBIA, MO20CONTRACT EXPIRED 06/30/2017
VOLUNTEERS OF AMERICA, WESTERN NYBINGHAMTON, NY10CONTRACT EXPIRED 08/31/2017
TRANSITIONS, INC.ASHLAND, KYGUARANTEE MINIMUM: 8 AND ESTIMATED MAXIMUM: 20NOT EXERCISING OPTION YEAR - CONTRACT EXPIRED 06/30/2017
TRANSITIONS OF YOUTH, INC.DURHAM, NC16CONTRACT EXPIRED 05/31/2017
DULUTH BETHEL SOCIETYDULUTH, MN12CONTRACT EXPIRED 05/31/2017
PRAIRIE CENTER HEALTH SYSTEMSCHAMPAIGN, IL15CONTRACT WILL EXPIRE 10/31/2017
BANNUM, INC.BEAUMONT, TXGUARANTEE MINIMUM IN HOUSE: 21 ESTIMATED MAXIMUM IN HOUSE: 42 GUARANTEE MINIMUM HC: 4 ESTIMATED MAXIMUM HC: 9NOT EXERCISING OPTION YEAR - CONTRACT WILL EXPIRE ON 02/28/2018
COMMUNITY COUNSELING & CORRECTIONAL SERVICESBUTTE, MTIN HOUSE: 15 HC: 8NOT EXERCISING OPTION YEAR - CONTRACT WILL EXPIRE ON 02/28/2018
HC = Home Confinement