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Excerpted From: Scott Anders and Jay Whetzel , The Reconstruction of Federal Reentry, 34 Federal Sentencing Reporter 5 (June, 2022) (38 Footnotes) (Full Document)


AndersWhetzelAwareness of the racially disproportionate harms of mass incarceration, including the excesses wrought by the federal criminal justice system, is perhaps at an all-time high. Meanwhile, the men and women exiting federal prisons continue to be rearrested at an unacceptable rate. This Article explores how, for a host of reasons, current federal reentry practices are largely ineffective, delivering neither the level of support and assistance needed nor the level of monitoring adequate to mitigate the risk of recidivism that some individuals present.

We contend that there is no comprehensive federal reentry “system” or strategy at all, and that, absent congressional action, there likely will not be. It has been said that “every system is perfectly designed to get the results it gets.” Regrettably, this is the case for federal reentry; there are significant structural, cultural, and bureaucratic obstacles in the delivery of reentry services. Absent a major realignment of authorities and resources, unsatisfactory outcomes will likely continue. We propose that current structures be dismantled, and then reconstructed, in a fashion that might reverse mass incarceration and better ensure community safety.

Before unpacking the specific shortcomings of federal reentry, it is important to first acknowledge three aspects of its current context. First, the American overreliance on and acceptance of incarceration has been driven in large part by our country's racist history. Our nation incarcerates people at a higher rate than any other country in the world, and the patterns of arrest, conviction, and sentencing disparately impact different racial groups, especially African American and other communities of color, with concomitant negative impacts on their families and communities. This has been the reality within federal criminal justice for decades.

Second, this overreliance persists despite evidence that incarceration is iatrogenic (i.e., it makes people worse than when they entered). Notwithstanding its incapacitation and punitive effects, incarceration exacerbates the risks (criminogenic needs) and increases the barriers (responsivity factors) that contribute to criminal conduct in the first place.

Third, what currently occurs within federal criminal justice is not working. The men and women leaving federal prison are reoffending and being arrested at an unacceptable rate. Now, fully aware of the drivers of disparities in federal criminal justice and of the damage done by our overreliance on incarceration, the federal government has an opportunity to dismantle current reentry practices and to reconstruct a more just, holistic, heavily resourced, and cohesive reentry system, fully informed by social science. We agree with James Oleson, who has written that

within the boundaries of the federal criminal justice system, the uncoordinated and decoupled structure of federal agencies, in which no one group of stakeholders claim responsibility for the whole, limits the potential of these [evidence based] innovations. In all likelihood, without restructuring and adoption of a truly reentry-centered vision of criminal justice, the federal criminal justice system will continue to deliver what it has delivered for the past thirty years: a glut of imprisonment that is inefficient, unsustainable, and ultimately criminogenic.

Below, we dig deeply into the current challenges of federal reentry. In Part II, we consider the iatrogenic nature of incarceration and consider how the organization and culture of the Federal Bureau of Prisons (BOP) prioritize security above all else. We suggest that perhaps the BOP is not best positioned for some of its current reentry responsibilities. In Part III, we explore the discontinuity that men and women currently face as they proceed from sentencing courts to incarceration within the BOP, and then return to supervision by the judiciary. In Part IV, we argue that U.S. Probation's supervision function, particularly regarding its oversight and the funding of its law enforcement function, is perhaps not best suited to reside within the judiciary. In Part V, however, we provide an example of how one federal probation office, on its own accord, operated with a “truly reentry-centered vision.” Finally, in Part VI, we offer recommendations for an alternative approach that has the potential to reduce recidivism and to improve outcomes for the men and women reentering free society.

[. . .]

The federal government has provided significant funding to the states to reimagine how they organize their criminal justice systems, in order to both reduce incarceration and save money. Is it not curious, then, that the federal government has not turned a broader lens on itself? The BOP has received most of the attention, mostly unwelcome, in recent years. But any real possibility of improving outcomes requires a more open mind, informed by a detailed knowledge of current dysfunction across branches of government. Consider the recent comments of a former acting BOP director, Hugh Hurwitz:

[We] need to rebuild our criminal justice system so that it is smaller, less punitive, more humane, and safer for all. With political will, independent oversight, and an unwavering commitment, we can make holistic change to a system long in need of it. U.S. prisons are in crisis, riddled with deep and systemic ills that won't be cured by simply replacing the BOP chief

Neither the BOP nor the judiciary—as they currently function—is structured to effectively meet the needs of individuals under supervision and improve critical public safety outcomes upon release. Could the BOP's reentry efforts— which have been significantly augmented by the FSA—be integrated with U.S. Probation's post-conviction operations into a new separate agency? Do the harms of mass incarceration warrant the creation of an agency truly committed to minimizing unnecessary incarceration, expanding noncustodial options, and improving outcomes for individuals upon release? Such an agency could be independent from the current constraints of both the judiciary and the BOP. To quote Hurwitz again:

We also continue to over-incarcerate people with mental health disorders, and troubling racial disparities in the system persist. How do we move forward? We must rethink our overall approach to incarceration to ensure that only the right people—those who need to be separated from society or require intensive reentry programming—are confined for the appropriate amount of time. Shuttering these aging lock-ups, some of which are more than a century old, would allow the BOP to reallocate staff and resources to the remaining facilities, improving safety and security while strengthening programs and services.

Such an agency could be built on a foundation of evidence-based practices and could prioritize the skills and abilities necessary for the profession. This agency could operate under the premise that, because the federal government bears the responsibility for incarceration, it bears an equivalent responsibility to the people under its care during and after incarceration. We will close with some recommended tasks that such an agency might assume. Adopting these changes would mark a major step forward in reconstructing federal reentry.

• Assist the BOP with downsizing prison infrastructure, including retrofitting some aging facilities into state-of-the-art job training centers, with vocational programs informed by the real labor needs in the communities to which people will return. This programming would then be coordinated with community-based training upon the commencement of supervised release, and funded under SCA authority.

• Establish and staff government-owned halfway house facilities built upon evidence-based practices that would incrementally replace the system's current reliance on for-profit entities. These would include intensive programming and comprehensive wraparound services (e.g., securing identification, health care benefits) in their local communities, assuring the best chance of post-release success.

• Ensure that RRCs' time frames are maximized for all, consistent with the statutory changes brought by the SCA.

• Require that those convicted of some charges (e.g., sex offenses) participate in programming while still in a quasi-custodial environment.

• Assume supervision of all those under community-based home confinement and leverage private-sector technologies that can both make programming available remotely and track an individual's whereabouts in real time.

• Assist the BOP with FSA implementation, particularly the delivery of rehabilitative programming within RRCs and for those on home confinement, and management of FSA credits.

• integrate all relevant personal data held by the BOP and U.S. Probation to ensure continuity of care, include consolidation of disparate risk assessment tools built on shared data, and track outcomes through the completion of supervised release and beyond.

• Assist the judiciary with systematically revisiting the custodial sentences of men and women whose risks have been reduced, for whom there appears to be no further benefit to imprisonment.

• Provide balanced, field-based supervision for post-conviction, higher-risk men and women, with standardized practices across the country, particularly reentry resources and intensive monitoring.

• Ensure continuity of treatment providers as men and women progress to supervised release.

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