AG Holder Convenes Prisoner Re-Entry Cabinet Level Council

Attorney General Eric Holder yesterday convened the inaugural meeting of the Cabinet-level "Reentry Council." Established with grant money from the Second Chance Act, the council will focus on:

  • making communities safer by reducing recidivism and victimization;
  • assisting those returning from prison and jail in becoming productive, tax paying citizens; and
  • saving taxpayer dollars by lowering the direct and collateral costs of incarceration.

The goals:

The Reentry Council will meet semi-annually to leverage resources across agencies to reduce recidivism and victimization; identify evidence-based practices that advance the council’s mission; promote changes to federal statutes, policies and practices that focus on reducing crime; and identify federal policy opportunities and barriers to improve outcomes for the reentry community.

According to Attorney General Holder: [More...]

Reentry provides a major opportunity to reduce recidivism, save taxpayer dollars and make our communities safer....More than two million people are behind bars, and 95 percent of them will be released back into their communities. By developing effective, evidence-based reentry programs, we can improve public safety and community well-being.

Sixteen federal agencies and offices are supporting and participating in the effort. Their first step was creating a map of "Inventory of Federal Resources Focusing on Prisoner Reentry at the State and Local Levels". You can view the map of initiatives across the country here. They lay the issue out quite clearly, suggesting the guidelines be lowered for non-citizen defendants:

The Second Change Act (SCA) authorizes federal grants to government agencies and nonprofit organizations to provide employment assistance, substance abuse treatment, housing, family programming, mentoring, victims support, and other services that can help reduce recidivism. It is administered by Bureau of Justice Assistance, U.S. Department of Justice. you can read more about it here. The Justice Reinvention Project is here.

Denial of federal benefits is a big issue to former offenders. A law that came in around 1988, had as a component the denial of benefits for those with convictions on or after September 1, 1989, for offenses that occurred on or after November 18, 1988. It's a dumb law, especially as applied to drug offenders.

For those convicted of drug distribution:

  • At the discretion of the court, upon the first conviction for such an offense, be ineligible for any or all federal benefits for up to 5 years after such conviction.
  • At the discretion of the court, upon a second conviction for such an offense, be ineligible for any or all federal benefits for up to 10 years after such conviction.
  • Upon a third or subsequent conviction for such an offense, be permanently ineligible for all federal benefits. This provision is mandatory.

Even Drug Possessors were covered:

Any individual who is convicted of any state or federal offense involving the possession of a controlled substance (as defined in the Controlled Substances Act (21 U.S.C. 802(6) et seq.) shall:

Upon the first conviction for such an offense and at the discretion of the court:

1. be ineligible for any or all federal benefits for up to 1 year,
2. be required to complete successfully an approved drug treatment program that includes periodic testing to insure that the individual remains drug free,
3. be required to perform appropriate community service, or
4. any combination of the above clauses.

For those with prior offenses:

Upon a second or subsequent conviction for such an offense, be ineligible for all federal benefits for up to 5 years after such conviction as determined by the court. The court shall continue to have the discretion in subparagraph a in imposing penalties and conditions. The court may require that the completion of the conditions imposed by clause a.2 or a.3 be a requirement for the reinstatement of benefits under clause a1.

Exclusions to the Denial of Benefits to Drug Offenders

The benefits that are denied under the DFP Program (Section 5301 of the Anti-Drug Abuse Act of 1988) shall not include benefits relating to long-term drug treatment programs for addiction for any person who, if a reasonable body of evidence exists to substantiate such declaration, declares himself to be an addict and submits himself to a long-term treatment program for addiction or is deemed to be rehabilitated pursuant to rules established by the Secretary of Health and Human Services.

On a more positive note, This sounds promising:

The corrections community not only works to keep criminals off our streets, but also to prepare offenders for their return to their communities. Correctional agencies know that they must do their best to give inmates opportunities to develop life and work skills that will help their return be successful. Increasingly, correctional facilities are using treatment, work, education, and mental health programs to build these skills.

It's a four step strategy:

  • Step 1: Analyze the prison population and spending in the communities to which people in prison often return.
  • Step 2: Provide policymakers with options to generate savings and increase public safety.
  • Step 3 : Quantify savings and reinvest in select high-stakes communities.and
  • Step 4: Measure the Impact and accountability:

The website for the council, which already has a lot of material on the initiative, is here.

On the issue of the undocumented inmates, I think it's great they will look into modifying some of the restrictions on participating in prison programs unless they have a good command of English. I've been using this as a grounds for a lower sentence, much of which I adapted from this letter sent by the National Immigration Project to the Sentencing Commission for example, :

The Probation Officer notes Defendant’s interest in participating in the RDAP (residential drug and alcohol) program. It appears Defendant is not eligible to participate in the RDAP program because he is a removable alien and cannot complete the mandatory community-based phase of the program and is therefore ineligible for the program's early-release benefits.1See 28 C.F.R. § 550.53(b)(3); id. § 550.55(b)(1); § 550.56; and generally,18 U.S.C. § 3621(e).

...The Probation Officer also states that Defendant may benefit from educational and vocational treatment while serving his sentence and notes that Defendant is interested in working in restaurants in Mexico. Defendant further requests the Court to recommend to the Bureau of Prisons that he be provided vocational training during his incarceration. He believes the recommendation will assist him in receiving such training because as a removable alien, although he is eligible to participate, he will only be selected to participate in an institution’s occupational education program if Bureau resources permit after meeting the needs of other eligible inmates. He would also like to learn English as a second language since completion of that course will render him eligible for participation in the non-residential drug program in place at every institution.

In addition to the early release drug program (RDAP)for which he is not eligible, there are two other programs. The Non-Residential Drug Abuse Treatment Services Program, 28 C.F.R. § 550.52, and a drug-abuse education course, id. at § 550.51. BOP asserts that these two options are currently available for 'non-U.S. citizen' inmates." See Drug Abuse Treatment Program, 74 Fed. Reg. 1892, 1893 (Jan. 14, 2009).

However, the non-residential treatment program is only available to those who can comprehend the English language. U.S. Dep't of Justice, Psychology Treatment Programs, Program Statement, § 2.4.5, at 6 (Mar. 16, 2009) [hereinafter BOP Program Statement]. While "limited English proficient inmates" are obligated to attend English as a Second Language courses to gain sufficient English competency to participate in the drug program, 28 C.F.R. § 544.40, "sentenced aliens with a deportation detainer" appear to be exempt, if not prohibited, from attending these classes. Id. § 544.41(a)(3). In essence, the regulations for non-residential drug program appear to preclude participation by non-citizen detainees who are not English proficient, such as this defendant.

The undocumented also serve their sentences under harsher conditions, which some judges are now acknowledging as a grounds to shave some time off the guideline sentence, or at least impose the bottom of the range rather than the middle or high end. A typical defense request:

Defendant asks the court to consider the more onerous conditions that will be imposed on him; the fewer educational and vocational opportunities available to him during his imprisonment; and the increased amount of actual time he will serve on his sentence, due to his status as a removable alien, including:

1. As a result of the Bureau of Prisons’ treatment of alienage as a public safety factor (PSF) in classifying a prisoner’s security status, a noncitizen has a higher security classification than does a citizen. This higher classification results in the non-citizen inmate’s ineligibility to serve his or her sentence in a minimum security facility, even though he is a first-time,non-violent felony offender. U.S. Bureau of Prisons Program Statement 5100.08, Inmate Security Designation and Custody.

2. The higher security classification based on alienage prevents noncitizen inmates from working beyond the perimeter of the institution, receiving furloughs or serving the last ten percent of his or her sentence in a halfway house or Community Corrections Center. See, 28 C.F.R. § 550.55(b); Federal Bureau of Prisons, Program Statement 5100.04: Security Designation and Custody Classification Manual, Chs. 7-9, 7-10,10-4, 10-29, 11-7, (June 15, 1991.)

3. Defendant’s non-citizen status also renders him unable to benefit from the early release provisions that permit participation in the Residential Drug Abuse Treatment Program (RDAP). 28 C.F.R. § 550.55(b); U.S. Bureau of Prisons Program Statements 5331.02 Early Release Procedures under 18 U.S.C. § 3621(e), at 3, §5(1) (3/19/2009) and 7310.04, Community Corrections Center(CCC) Utilization and Transfer Procedures, at11,§(10)(b)12/16/1998), available here and

4. Defendant will not have the same access to occupational and educational programs provided to inmates who are citizens. 28 C.F.R. §§ 544.51(b) www.bop.gov/policy/progstat/7310_004.pdf and 544.71(a)(3); U.S. Bureau of Prisons Program Statement 5353.01,Occupational Education Programs, at 3, §7(b) (12/17/2003), available at www.bop.gov/policy/progstat/5353_001.pdf; 28 C.F.R. §§ 523.20(d) and 544.41(a)(3); U.S. Bureau of Prisons Program Statement 5350.24, English asa-Second Language Program (ESL), at 3, §5(a)(3) (7/24/1997), available at www.bop.gov/policy/progstat/5350_024.pdf.

5. He will receive lower wages than a citizen inmate because removable inmates do not receive the release gratuity when released from prison. U.S. Bureau of Prisons Program Statement 5873.06, Release Gratuities, Transportation and Clothing, at 5, §7(e) (8/6/2003), available at www.bop.gov/policy/progstat/5873_006.pdf.

Why put all this detail in a blog post? Because I'm hoping some of those on the re-entry council will see the post come up on Google and maybe it will give them some ideas in this area to pursue in their new project.

Many of my ideas come from an excellent letter the ACLU wrote to the Sentencing Commission on these issues and on why the Commission should allow a downward departure from the guidelines for non-citizen inmates who will be deported at the conclusion of their sentence.. It's available here. Some snippets;

Non-citizen inmates thus consistently serve longer terms of imprisonment under harsher conditions of confinement than citizens guilty of the same crime and issued the same sentence Disparate treatment is not limited to the BOP term of incarceration, however. Non-citizens may be denied credit for pre-trial administrative detention. They will also be subject to mandatory detention in the custody of the Department of Homeland Security after their criminal sentence expires.11 This dual track is contrary to the principle expressed in 18 U.S.C. § 3553(a)(6), which identifies as a sentencing factor “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

A downward departure for collateral consequences is also justified because it would allow sentencing judges to consider the disparity for non-citizens whose convictions have severe immigration consequences following from the length of their sentences. It is a core judicial function to look at all the consequences of the sentence and judgment in a criminal case.

...downward departures in appropriate cases to avoid the immigration consequences of an aggravated felony designation would remedy a host of severe problems for non-citizens, ranging from whether they are eligible for discretionary relief from removal to whether they can ever return to the U.S.

....For these reasons, the ACLU supports adding to the guidelines a downward departure for
collateral consequences. The departure should apply when a sentence imposed on a non-citizen would lead to more severe incarceration consequences and/or disproportionately severe adverse immigration jeopardy as compared with a sentence of equal length imposed on a citizen defendant who is otherwise similarly situated.

This is exactly the kind of policy change AG Holder's new cabinet-level council should recommend to the U.S. Sentencing Commission and, if need be, to Congress.

If you have good ideas of your own, especially from your practice, don't hesitate to write one of the members of the council and ask that it be considered. This is a government endeavor, funded by grant money and taking place during the workday. We pay their salaries. The community is supposed to benefit from their work. We are the community. I think we should have the ability to provide input. I would hope they would welcome it.

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    Just got back from my sentencing (5.00 / 2) (#20)
    by Jeralyn on Thu Jan 06, 2011 at 05:51:18 PM EST
    hearing and while the plea agreement did not allow me to argue for a variance or departure based on non-documented status, the judge agreed to recommend to the BOP that my client be provided vocational training, educational opportunities and placement in an English as second language program so he would be eligible for the non-residential drug treatment program. She also agreed to recommend he be designated to a facility with an immigration court so his order for deportation could take place while he is serving his sentence, avoiding him having to go to an immigration detention center after he finishes his jail time.

    It used to be that if BOP did not follow the judge's recommendations, it had to write a letter explaining why not. That ended a few years ago, but I'll be curious to see where the client ends up, and if in fact he gets the drug treatment and vocational/educational training made available to everyone else.

    At $22,0000 a year per inmate, the U.S. is paying a fortune to incarcerate non-violent, undocumented offenders before sending them back to their home countries. What a waste for everyone.

    Another good decision by Obama (none / 0) (#1)
    by kdm251 on Thu Jan 06, 2011 at 08:01:44 AM EST
    One thing I really do like about Obama is that he seems to understand that it is not right to pick on the lowest rung of society, most politicians want to find a group that is easy to dislike and then exploit societies dislike for that group to get easy votes;  That is what all the tough on crime crap is all about.   The Obama administration seems to want to help people get back to society.

    Excuse me? (5.00 / 1) (#2)
    by Dadler on Thu Jan 06, 2011 at 09:25:12 AM EST
    Look at the tax disaster, er, deal. Guess who are the only people who are going to pay higher taxes? Those making poverty wages.

    Guess again.


    Sounds like noble stuff... (none / 0) (#3)
    by kdog on Thu Jan 06, 2011 at 10:00:44 AM EST
    for the DOJ to be working on...I'll take these bones.  But what we really need to be working on is keeping those guilty of non-crime outta our cages to begin with...a federal criminal law repeal-apalooza.

    Prisoner re-entry problems would be greatly reduced if we stopped banishing so many from society who need not be, by any objective measure.

    Start with Marijuana laws (none / 0) (#6)
    by kdm251 on Thu Jan 06, 2011 at 10:38:20 AM EST
    If they would repeal most, if not all the laws having to deal with Marijuana the prisons would be much emptier and many non-criminals would not be facing the stigmatization that goes with a criminal conviction.

    Excellent idea... (none / 0) (#8)
    by kdog on Thu Jan 06, 2011 at 12:12:24 PM EST
    but that is not in the Holder/Obama vocabulary.

    Maybe, considering this severely limited vocab, the place to start is to first get an accurate tally on how many federal laws there are that carry criminal penalties...did you know there are literally too many to count?  Best we can do is a "reasonable estimate". I sh*t you not.


    The tough on crime crowd wouldnt allow it (none / 0) (#7)
    by republicratitarian on Thu Jan 06, 2011 at 11:27:04 AM EST
    A federal criminal law repeal-apalloza would take power away from the man, and the man ain't gonna let it happen.

    I know that prisoners' rights (none / 0) (#4)
    by sj on Thu Jan 06, 2011 at 10:25:32 AM EST
    Are right there at the bottom of most people's priority list, but it's a real problem.

    Their conviction and time served is already a major handicap in building a productive life.  I had no idea about the denial of federal benefits.  Whose crazy idea was that?  So the conviction is one hand tied behind their back, and the denial of benefits ties both feet together.   Cripes.  

    no kidding (none / 0) (#5)
    by CST on Thu Jan 06, 2011 at 10:38:10 AM EST
    especially if your goal is to keep people out of crime - rather than just punish for the sake of punishing.

    If someone is selling drugs, it's for the money.  So you put them in jail, and when they come out, they are a) handicapped by the fact they have a conviction so it's a lot harder to find work, and b) they can't get any federal benefits so if they are out of work they have no way of making a living while trying to get a job or back on their feet.

    Gee, I wonder if they'll go back to selling drugs.  Seems like a no brainer.


    I think the problem is (none / 0) (#9)
    by jbindc on Thu Jan 06, 2011 at 01:06:30 PM EST
    Especially in today's economy, with limited resources and more budget cuts looming, that it's very hard to make the argument of granting benefits to people who have 2 or more convictions on their record over paying benefits to people who have not committed crimes or for payng for things like teachers, firefighters, roads, bridges, etc.

    this has been going on (5.00 / 1) (#10)
    by CST on Thu Jan 06, 2011 at 01:12:59 PM EST
    since 1988 and doesn't just apply to those with multiple convictions.

    Every time someone is successfully rehabilitated - that is less crime that will be committed in the future.  And if they can go one to become a productive member of society, than they will start paying taxes, instead of wasting tax dollars sitting in a prison.


    I'm not arguing that (none / 0) (#11)
    by jbindc on Thu Jan 06, 2011 at 01:18:50 PM EST
    But your point was this "is a no brainer".  I'm saying it's very hard to make that argument to people who've never committed a crime or been in jail (which would be the majority of people in the country).

    If you have an argument that will convince the people who are at risk of losing unemployment benefits or a community that is losing firefighters because there is no more money because it's being diverted to pay for benefits for people with multiple convictions (as per Jeralyn's post, they lose benefits for 5 years), and that it is better for everyone in the long run, then I'm all ears.

    I don't think you can make that argument and actually have people buy it.


    actually (5.00 / 1) (#12)
    by CST on Thu Jan 06, 2011 at 01:26:51 PM EST
    the no brainer part of it was about people going back to crime if that's the only option you give them to survive.

    I'm pretty sure I just made that argument.  But I don't really expect you to ever be convinced at this point.  The best way to eliminate crime is to eliminate criminals (and I don't mean kill or lock up for life for minor crimes).

    That funding is currently being diverted to cut rich people's taxes.  Something like this would at least be productive.  You CAN have services for teachers, unemployment, etc... and fund this.  You just have to make better decisions elsewhere.


    When you lift people up (5.00 / 2) (#13)
    by Anne on Thu Jan 06, 2011 at 01:32:54 PM EST
    from the bottom, it benefits everyone, and society as a whole.

    I guess you can get bogged down in this idea that some people deserve help and some don't, but here's the thing: I want those who have made mistakes - and paid for them - to learn how not to fall back into making them again.  I want fewer people resorting to making a living through crime and more people making that living honestly.  Less crime means better and safer neighborhoods, which places less stress on the law enforcement community.  Less crime, more gainful employment means better neighborhood environments and better family environments; better family environments are more conducive to learning and that makes it easier for teachers to teach.  

    I think investing in the people ultimately pays off for the community as a whole; you can decide to pay teachers and fire and police people more and more and more, but if they have to keep fighting a losing battle, what has been won?

    There's a lot more to the economics of this than who "deserves" the investment more, and there's a lot more to the humanity of it, as well.


    Wow! (none / 0) (#17)
    by jbindc on Thu Jan 06, 2011 at 04:19:19 PM EST
    It's amazing what people can read into a comment based on their own perceptions.  Especially reading into something I never said, but I guess that's what happen when people are loaded for bear. Reading should be made fundamental around here.

    I never said we shouldn't invest in people.  I said you will have a hard time making the argument to people (who have never committed a crime) that it's in their best interest to give up some benefits so that some benefits may be paid to repeat offenders.

    Because I live in the real world, where it would be really nice to say we will increase taxes on the rich to pay for these benefits, or cut defense spending to pay for these benefits, or whatever.  It would also be nice if we all get ponies too, but that isn't going to happen.

    I don't see any politician ever making this argument because it would not be a successful argument.

    But I guess it's easier to jump on me for what people think I meant than to actually read what I wrote. For all the mind readers around here, I wish they'd share the lottery numbers.


    people didn't support (5.00 / 1) (#19)
    by CST on Thu Jan 06, 2011 at 04:40:24 PM EST
    tax cuts for the wealthy but they passed anyway.

    You don't always need to make an argument, you just do it.  They absolutely could raise taxes to do this.  And no, it probably won't happen in the next two years, that doesn't mean it's not possible, or important to push for.

    And yea if you phrase it as "taking away benefits for firefighters" no one will support it.  But you don't have to do it like that.  The government funds tons of stuff that people would probably not trade "benefits for firefighters" for.  It's a seperate bill.


    I think you should take your own advice, (5.00 / 1) (#21)
    by Anne on Thu Jan 06, 2011 at 06:23:48 PM EST
    and do better reading of what others are writing.

    I made the argument for why this kind of investment makes sense, as a counter to why you said people would have a problem with it - that people with criminal records shouldn't get benefits at the expense of the more deserving members of society.

    For what it's worth, in the time I have been reading your comments in the area of crimes and the people who commit them, you generally have not been supportive of second chances - or third chances - almost always coming down on the side of the law and law enforcement, so getting all indignant that "some" people don't see much inconsistency in your own views v. the one you say you were making on behalf of "other" people, seems a little disingenuous.


    Not hard at all... (none / 0) (#14)
    by kdog on Thu Jan 06, 2011 at 01:40:00 PM EST
    when you consider the resources devoted to the uber-wealthy.

    And not for nothing, in this day and age of uber-criminalization, non-convict broked*cks can be grateful they aren't convicts if budget cuts got them down.  And they should look up to see where all the money goes, not down.


    Define uber wealthy (none / 0) (#15)
    by Wile ECoyote on Thu Jan 06, 2011 at 02:48:24 PM EST
    please.  Sounds nebulous.  I would consider anyone who owns both an iphone and an ipad a both redundant and uber wealthy.  $250,000 a year uber wealthy?  150,000?  A million?  

    Uber-wealthy... (none / 0) (#16)
    by kdog on Thu Jan 06, 2011 at 02:58:02 PM EST
    the top 1%....top 5% tops.  

    My first thought was: (none / 0) (#18)
    by sj on Thu Jan 06, 2011 at 04:30:18 PM EST
    My, such low expecations you have:  using iPad/iPhone as a standard or example.  But then I realized my own definition was just as nebulous.  

    Top 1% as kdog says, but then I got to thinking, how is that measured?  I was thinking billionaires, myself, but I was any more correct?  So I found this.  If you can take the time to read it all (or even some of it) it's pretty eye-opening.

    Let's just say that it's a pretty safe bet that neither you nor I know any of the uber wealthy.  And the only ones we may have seen (and know about it) are Bloomberg and Thomas Friedman.

    But at least now I feel more comfortable answering that the uber-wealthy are the billionaires.