Correspondence, 2019-10-14

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FEDERAL PUBLIC DEFENDER¶

DISTRICT OF OREGON¶

101 SW Main Street, Suite 1700 Portland OR 97204 503-326-2123 / Fax 503-326-5524¶

LISA C. HAY

Federal Public Defender

STEPHEN R. SADY

Chief Deputy Defender

Gerald M. Needham

Thomas J. Hester

Ruben L. Iñiguez

Anthony D. Bornstein

Susan Russell

Francesca Freccero

C. Renée Manes

Nell Brown

Kristina Hellman

Fidel Cassino-DuCloux

Alison M. Clark

Brian Butler◆

Thomas E. Price

Michelle Sweet

Mark Ahlemeyer

Branch Offices:¶

859 Willamette Street

Suite 200

Eugene, OR 97401

541-465-6937

Fax 541-465-6975

Susan Wilk

Oliver W. Loewy

Elizabeth G. Daily

Conor Huseby

Robert Hamilton

Bryan Francesconi

Ryan Costello

Laura E. Coffin▲

Irina Hughes▲

Kurt D. Hermansen▲

Jessica Snyder★

15 Newtown Street¶

Medford, OR 97501¶

541-776-3630¶

Fax 541-776-3624¶

In memoriam¶

Nancy Bergeson¶

1951 - 2009¶

October 14, 2019¶

▲ Eugene Office¶

◆ Medford Office¶

★ Research/Writing Attorney¶

Kathleen Hawk Sawyer¶

Director¶

Federal Bureau of Prisons¶

320 First Street, NW¶

Washington, DC 20534¶

Re: Request for Assistance to Avert Further Reentry Center Closures¶

Dear Ms. Sawyer:¶

This letter is to express the deep concern of the Oregon Federal Public Defender and other federal defender organizations over the collapsing infrastructure necessary to implement statutorily-approved expansions of pre-release custody for federal inmates in residential reentry centers. As a result of Bureau of Prisons’ policies and practices, at least 20 reentry centers have closed or ceased accepting federal inmates since 2017, and more closures appear likely. This loss of resources cripples efforts to enhance successful reentry of incarcerated citizens, undermines the criminal justice goal of rehabilitation, and consequently threatens community safety. As a public defender and a board member of the reentry center in Portland, I have seen first-hand how reentry centers provide the opportunity, in a less structured setting than prison, for inmates to engage in needed treatment, find employment, and continue reconnecting with their family and community. Once lost, these precious resources are difficult to replace. I am requesting your urgent assistance to end Bureau of Prisons’ practices that have undermined and caused closure of reentry centers and to ameliorate harm already caused.¶

The background for this request is grounded in the Second Chance Act of 2007, which doubled the amount of sentenced time that federal prisoners were eligible to spend in reentry centers (also called “community corrections”) from six months to up to one year. 18 U.S.C. §3624(c). During this “prerelease time,” the prisoner is not released from his or her federal sentence but is serving the sentence in an alternative setting. Defenders were cheered by this congressional recognition that our clients and their communities both benefited when people reentering society were given more time, in a gradually less structured setting, to engage in treatment, employment counselling, parenting classes, and other programs designed to ensure the¶

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safety of the community and the success of the resident after incarceration. Despite this mandate from Congress, however, the Bureau was slow to change, and the amount of prerelease time that prisoners were awarded to spend in reentry centers remained low. In 2011, Defenders wrote to then Director Thomas Kane to express concern about this failure to implement the Second Chance Act. $ ^{1} $ In 2012, the General Accountability Office issued a report that similarly noted the Bureau’s failure to adequately implement Congressional mandated alternative options to incarceration, including use of reentry centers. $ ^{2} $¶

After the GAO report, the Bureau did begin to utilize reentry centers more fully, awarding greater prerelease time to inmates. Defender knowledge of this change comes from interactions with federal prisoners and from conversations with reentry centers. $ ^{3} $ Reentry centers report that during this period, the Bureau encouraged reentry centers to expand capacity in order to serve the greater number of prisoners needing placement. For example, the long-established reentry centers in Bangor, Maine, and Portland, Oregon, took out mortgages to remodel their facilities and to expand bed capacity.¶

Unfortunately, the Bureau apparently has now reversed its support for reentry centers, and as a result the system is losing bed capacity just when the First Step Act, enacted by a bipartisan congressional majority in December 2018, may require even greater use of reentry centers. Under the First Step Act, prisoners who complete certain programs in custody will soon begin earning credits that, in theory, they can exchange for greater prelease time in the community. But if reentry capacity decreases instead of expands, prisoners may find they have no way to use those credits. For all of these reasons, I urge you to take immediate action to end the Bureau practices that have resulted in reentry center closures.¶

1 Attachment A, Letter of FPD Thomas Hillier to Bureau of Prisons’ Director Thomas Kane, dated November 16, 2011.¶

$$ ^{2} \text{ Government Accountability Office, Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates’ Time in Prison (Feb.2012) available at: https://www.gao.gov/products/GAO-12-320 } $$¶

3 Actual utilization data was reported by the Bureau to Congress each year pursuant to the directive in 18 U.S.C. § 3624(c)(5), which requires an annual report to the House and Senate Judiciary Committees describing use of alternatives to incarceration and the average length of placements in community corrections facilities. The reports were not immediately available.¶

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A. As A Result Of Bureau Practices And Policies, Reentry Centers Have Closed, Ceased Accepting Federal Inmates, Or Are Critically Endangered.¶

Bureau of Prisons’ actions affect the functioning of reentry centers through many channels. This letter does not address the effects of ordinary, bureaucratic impediments such as late payments to reentry centers; outdated or overly technical audit requirements; or increased delays in processing referrals of residents, although each of these can pose significant hardships to reentry centers. Instead, this letter identifies three systemic practices – non-renewal of contracts; solicitation of contracts for fewer beds and with fewer guaranteed beds; and decreased length of stays for residents—that decrease reentry bed capacity and should be addressed from the highest level of the Bureau.¶

Practice 1: The Bureau of Prisons did not renew contracts with reentry centers and did so without consulting the chief judge of the judicial district affected.¶

In 2017 the Bureau chose not to renew contracts with 16 reentry centers around the country. The Bureau attributed the decision to the “fiscal environment” and budgetary considerations, and not to any study on the effect of reentry placement on inmates. Numerous states were affected, including Colorado, Kentucky, Illinois, Michigan, Minnesota, Montana, New York, Ohio, South Dakota, Texas, West Virginia, and Wisconsin. Although the Bureau reported that these closures involved only a small percentage of beds under contract nationwide, for the affected districts, the results were stark. For example, non-renewal of the contract for the Great Lakes Recovery Center in Marquette, Michigan, which had been in operation for 30 years, left the geographically isolated community in the Upper Peninsula without a reentry center for federal inmates. The federal judges in the affected judicial districts were not consulted, and apparently no provision was made for immediate alternative incarceration options within the districts. As a result, federal inmates either remained in prison rather than receiving reentry center services, or were sent to reentry centers far from their home towns and release addresses.¶

Practice 2: For contracts subject to renewal, the Bureau of Prisons is decreasing the number of reentry beds it seeks and significantly reducing the minimum number of beds for which it will guarantee payment.¶

In recent solicitations (“Requests for Proposals”) for bids for renewal of reentry center contracts, the Bureau of Prisons has reduced the number of beds it is seeking to use in reentry centers. In addition, the Bureau has sought to significantly reduce the minimum number of beds¶

4 Attachment B, list of reentry centers selected for non-renewal and related media articles.¶

$$ ^{5} \text{ Attachment C, Memorandum Of Bureau of Prisons’ Acting Assistant Director, Hugh Hurwitz, October 10, 2017.} $$¶

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for which it is contractually obligated to pay. As a result, some well-established reentry center vendors have determined that bidding on the contract with reduced beds and limited guarantee of payment is not financially viable, and have chosen not to bid. Other reentry centers have tendered bids, but the cost per bed has, necessarily, significantly increased in order to cover the overhead of a large facility now projected to be only partially used. Reentry centers are closing or threatened with closure as a result. A few examples make the point. $ ^{6} $¶

Honolulu, Hawaii: Closed¶

TJ Mahoney and Associates, a private non-profit company, operated “Mahoney Hale” (also called the “Mahoney House”) reentry center in Honolulu for many years. Approximately 30 beds were under contract for the Bureau of Prisons to use for reentry services for federal inmates, and more inmates in fact were often housed there. When the Bureau issued a Request for Proposals as part of the contract renewal process this year, however, it sought only 16 beds. TJ Mahoney did not bid for this contract and neither did any other company, because the 16-bed proposal was not financially feasible. By the time the Bureau changed its renewal proposal to offer more beds, it was too late for TJ Mahoney to bid. The facility in Honolulu had already notified its landlord that it would not renew its lease, and the property was lost. The facility closed September 30, 2019. The state of Hawaii is now without any federal reentry center. Lack of residential re-entry services in a whole state or large geographic area defeats the goal of assisting transition to a person’s home community. It does not allow for successful family reunification, undermines the work done to obtain and maintain employment, and as a result reduces the likelihood of success in transitioning back into society. And, not only do federal inmates in Hawaii have no option for in-state prerelease time at reentry centers, but federal inmates from Hawaii who are entitled to serve 4 months in a reentry center as part of the Residential Drug and Alcohol Treatment Program have no in-state reentry center option.¶

Bangor, Maine: No longer accepting federal prisoners¶

Volunteers of America long operated a successful reentry center for federal prisoners in Bangor, Maine. The facility was capable of serving about 32 inmates, and in the past had served that many, but the Bureau of Prisons’ contract only covered beds for 12 inmates. During the¶

6 Many individuals involved with currently operating reentry centers were unwilling to discuss their Bureau of Prisons’ contracts, both because the contracts restrict contact with the media and because reentry centers do not want to jeopardize their relationship the Bureau of Prisons. The examples offered here are compiled from interviews with judges, probation officers, residents at reentry centers, and former staff from reentry centers; review of documents; internet searches for federal contracts; and newspaper reports. Many numbers are approximate and based on the memory of persons formerly involved in the reentry centers.¶

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contract renewal process this year, the Bureau declined to increase the number of beds under contract, despite having encouraged the facility to expand and to increase capacity a few years earlier. Efforts to negotiate with the Bureau were fruitless, and the facility opted not to bid on the 12-bed contract. No other company bid either, and Bangor, Maine, now lacks a federal reentry center.¶

Charlotte, North Carolina: Closed¶

The McLeod Reentry Center served federal inmates in Charlotte, North Carolina. A few years ago, they invested in a new building that could serve 130 inmates. According to media reports, in 2018 the Bureau of Prisons abruptly stopped sending as many residents there. It is unclear if this decrease was part of a contract renewal, or merely enforcement of the prior contract cap. In either case, the sudden decrease in beds used by the Bureau of Prisons resulted in a fiscal crisis for the non-profit, and the center closed in May 2018. Other reentry centers have similarly reported that the Bureau recently began to strictly enforce the contract cap on beds, even though the facilities were able and willing to serve many more residents than the contract required. This change in practice has caused fiscal strain in reentry centers.¶

Sacramento, California: No longer accepting federal prisoners¶

The longtime reentry center operated in Sacramento stopped accepting federal inmates this year. According to a federal judge in the district, the loss of reentry beds came as a complete shock. The Bureau had not notified the court of any difficulties, and when asked for an explanation, the Bureau disclosed only that they “could not reach a deal” with the reentry center. It seems likely that this is one more example of a request for proposals that reduced the number of beds or the guaranteed minimum of beds and was not economically feasible.¶

Oklahoma City, Oklahoma: in danger of closing¶

The Oklahoma City Halfway House is a non-profit that has served Oklahoma residents for over 30 years. Under their federal contract, they have housed over 100 inmates at times, although the contract only requires them to hold 54 beds available for the Bureau. Beginning in 2018, in accordance with the Memorandum of Hugh Hurwitz, the Bureau began to delay placements of residents at the Halfway House until the facility population was at the contract level of 54, even though the facility had capacity to serve more residents. The contract is now up for renewal. Rather than issue a request for proposals to serve 54 or more residents in Oklahoma City, the Bureau issued a request for one bidder to operate reentry centers in all three judicial districts. The Bureau proposes requiring that a total of 125 beds be available in the Northern, Western, and Eastern districts (70, 40, and 15 beds respectively), but agrees to guarantee placement in only 38 beds.¶

7 The contract summary is available on-line and in Attachment D.¶

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According to Oklahoma’s Federal Public Defender, it is not financially feasible for the current reentry center to bid for this contract with expanded obligations but reduced guarantees. The contract closing date is November 25, 2019. The deadline for bidding on a previous request for proposals, also requiring services in more than one location, has passed.¶

Portland, Oregon: in danger of closing¶

The Northwest Regional Reentry Center in Portland, Oregon, has served exclusively federal inmates for over 40 years, since 1976. In 2016, they undertook a major remodeling project and expanded bed capacity to 150, at the recommendation and encouragement of the Bureau of Prisons. The facility is highly regarded by the federal court and probation office. The facility’s current contract calls for 50-120 beds to be available for federal inmates, but the Bureau’s new contract solicitation (to take effect in 2020) calls for only 18-72 beds. The drastic decrease in the guaranteed minimum to 18, along with the overall decrease in expected resident population, makes operation of the facility as a federal reentry center financially impossible. The NWRRC nevertheless submitted a bid for the new contract, with the price per bed being necessarily higher than under the current contract. If the Bureau rejects this contract bid as “too costly,” this will have been a problem of its own making. The NWRRC would have bid to maintain the current number of beds at a significantly lower price, but the Bureau did not offer this option. Losing 120 reentry beds in Oregon would harm federal inmates and potentially increase risk to the community, as residents may return to the Portland area without the structured reintegration provided by the NWRRC.¶

Many Other States Have Reentry Centers Facing Contract Renewals¶

In addition to those described above, the Bureau currently has more than 30 published requests for proposals for reentry services at sites across the country, including Las Vegas, Nevada; Albuquerque, New Mexico; Clarksburg, West Virginia; Fort Myers, Florida; Boise, Idaho; Pittsburgh, Pennsylvania; among others. To the extent these renewal requests decrease the guaranteed minimum number of beds, or decrease the total beds required, or restructure the contract to include required reentry facilities in new locations, currently operating reentry centers in these states may also face financial insecurity that results in closure.¶

Practice 3: The Bureau of Prisons has decreased the amount of prerelease time it considers awarding to federal inmates, despite Congress’s directive that up to one year of community corrections be available.¶

Although Congress authorized the Bureau to allow inmates to spend up to a year of the last part of their sentence in reentry centers instead of prison, the amount of this pre-release time awarded by the Bureau is again declining. According to the most recent report submitted by the Bureau to the House and Senate Judiciary Committees pursuant to 18 U.S.C. § 3624(c)(5), the¶

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average length of placement in reentry centers decreased by almost 20% from the first quarter measured (April – June 2017) to the last quarter (January-March 2018), resulting in almost a full month less of reentry time by the last quarter (an average of 119 days compared to 146 at the start of the year). $ ^{8} $ Notably, even the high, 4-month average represents significantly less time than the one year authorized by Congress.¶

The Bureau acknowledged in a 2017 memorandum that “due to fiscal constraints,” the average length of stay was “likely to decline to about 120-125 days.” Anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, inmates reported seeing a printed sign on the counsellor’s wall reading: “We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says.” Numerous reentry centers confirm that lengths of stay have declined significantly over the last few years. The Bureau’s formal or informal restrictions on prelease time harm federal inmates by limiting their opportunity for structured reentry into the community. The limits also harm reentry centers because the declining lengths of stay mean that facilities are not being operated at full capacity. Many reentry centers increased capacity with the encouragement of the Bureau of Prisons and now find they are in difficult fiscal straits as inmates spend more time in prison and less time in reentry centers.¶

B. Several Measures Should Be Immediately Implemented To Address The Crisis Facing Reentry Centers And The Federal Inmates Who Rely On These Key Resources.¶

In order to avoid additional loss of reentry centers, I urge you to immediately implement the following actions:¶

Regarding New and Pending Solicitations for Reentry Services:¶

1. Issue a temporary directive prohibiting any decrease in the number of reentry center beds sought within a judicial district in new contract negotiations or Requests For Proposals. Further mandate that, for any reentry Request For Proposals that has already issued, the Bureau of Prisons may not reject the bid of a current reentry center without first (1) offering an extension of the current contract for six months; (2) consulting with the Chief Judge of the judicial district or other designee identified by Congress; and (3) re-issuing the Request For Proposals with the goal of avoiding loss of reentry beds.

$$ ^{8} \text{ Attachment E, Utilization of Community Corrections Facilities: Report to Congress} $$(April 2017-March 2018).¶

9 Attachment C, Memorandum of Acting Assistant Director, Hugh Hurwitz, October 10, 2017.¶

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2. Establish a committee to review reentry center pricing mechanisms with the goal of developing alternatives to the current structure that uses a guaranteed minimum number of beds paired with a required maximum available. A sliding scale should be studied, for example, that would decrease or increase the price charged per bed based on the degree of occupancy. The committee should include delegates from the judiciary as well as small and larger reentry centers.

Regarding Length of Pre-Release Time:¶

3. Issue a directive that rescinds any Bureau policy (formal or informal) that restricts the amount of pre-release time that an inmate may serve in a reentry center to an amount less than authorized by Congress in 18 U.S.C. § 3624(c), unless an individualized determination establishes that for the specific inmate, less time is appropriate; and

4. Issue a directive that each Bureau facility should engage in an individualized assessment of inmate needs for reentry services with sufficient time in advance of the inmate’s release date to allow for awarding a full year of pre-release time in reentry centers or home confinement when supported by the inmate’s needs; and

5. Issue a directive that each Bureau facility should report monthly to you on the amount of pre-release time granted, and that your expectation is that this time should be increasing rather than decreasing.

These emergency directives may help avoid additional reentry center closures and thereby ensure that adequate reentry capacity exists for federal inmates eligible for pre-release time in the community.¶

C. The Bureau Should Formalize Policies And Practices That Support And Expand Utilization Of Reentry Centers.¶

In addition to doubling the available pre-release community corrections time from six to twelve months, 18 U.S.C. § 3624(c), the Second Chance Act required that, within 90 days of enactment, the Bureau “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 Bureau must follow procedural requirements for an exercise of discretion to be lawful: “[T]he promulgation of [the] regulations must conform with any procedural requirements¶

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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 Second Chance Act explicitly refers to the need for reentry policies to be empirically based. 42 U.S.C. §1754l(d). Congress’s intention that the Bureau 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. HI3631-03, *HI3888 (daily ed. Dec. 8, 2009) (directing the Bureau 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).¶

The Bureau has yet to issue adequate, evidence-based regulations addressing the appropriate length of reentry stays for federal prisoners. Implementing the requirements of the Second Chance Act through empirically-based research, consultation with interested parties through the notice-and-comment process, and issuance of regulations should rise to a top priority within the Bureau.¶

I appreciate your attention to these important issues that affect thousands of people who are preparing to reenter our communities.¶

Sincerely,¶

Lisa Hay¶

Federal Public Defender¶

LH;jll¶

cc: Senator Ron Wyden¶

Senator Jeff Merkley¶

Representative Earl Blumenauer¶

Chief Judge Michael Mosman, U.S. District Court of Oregon¶

Federal Public Defenders¶

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ATTACHMENT A¶