Johnson v United States: Three Years Later

The Supreme Court struck down a part of the Armed Career Criminal Act that permitted sentencing enhancements for repeat violent offenders in 2015. But the debate over its impact on public safety and recidivism continues, pitting Attorney General Jeff Sessions against proponents of sentencing reform.

In at least two speeches this August, Attorney General Jeff Sessions called the consequences of a three-year-old Supreme Court decision “devastating for Americans.”

He was referring to Johnson v. United States, a 2015 ruling in which the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA), finding it unconstitutionally vague.

ACCA imposes sentencing enhancements on repeat offenders who commit crimes with guns. Specifically, under ACCA, a defendant who is convicted of being a felon in possession of a firearm and who has three or more prior convictions for serious drug offenses or violent felonies is subject to an increased prison term of at least 15 years.

The residual clause had included under the definition of “violent felony” any crime punishable by imprisonment for a term exceeding one year that “involves conduct that presents a serious potential risk of physical injury to another.”

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences. Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.

For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes? If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?

This post looks at some of the different factors at play.

Recidivism and Reentry After Johnson

In his speeches, Sessions indicated that Johnson “has resulted” in more than 1,400 inmates obtaining early release from sentences originally enhanced for prior convictions under ACCA’s residual clause. Of this population, he said, 600 have been arrested again.

Sessions highlighted certain crimes. For instance, in a speech on Aug. 1, he discussed six individuals who allegedly went on to commit murder, rape and aggravated assault after their release.

“Releasing repeat offenders has consequences,” he said.

Sessions called this recidivism rate “staggering” and “likely an underrepresentation” of illegal activity. He also cited a 2016 U.S. Sentencing Commission report on recidivism that found a 69.5 percent recidivism rate for people sentenced as career offenders, including those sentenced under ACCA.

Sentencing-reform advocates question the conclusions Sessions drew from his data.

Priya Raghavan of the Brennan Center for Justice observes that it’s unclear from Sessions’ speech what offenses caused the rearrests. She also suggests that the individuals specifically mentioned by Sessions are not representative of the entire population of 1,400 released prisoners. She points to two studies by the U.S. Sentencing Commission, the one on recidivism mentioned by Sessions and one on career-offender sentencing enhancements.

The second report indicates that the most frequent “most serious” offense committed by people sentenced as career offenders who were rearrested was assault, not homicide or rape. The report also reveals that the percentage of rearrested career offenders who had assault as their most serious new charge (24.9 percent) was the same as for non-career offenders.

Raghavan clarifies that assaults are not all violent; simple assault “typically involves only a verbal threat against another person.”

The career-offender report does not include the percentages of rearrested career offenders who had homicide or rape as their “most serious” recidivism offense. However, the recidivism report shows that homicide and rape were the “most serious” post-release offenses committed by only 1.3 percent and 1.9 percent of all rearrested offenders, respectively. It’s not clear how many homicides and rapes were committed by people sentenced as career offenders, but Raghavan believes these low rates suggest that only a small percentage of the 600 rearrested prisoners released after Johnson committed such crimes.

Even for those who have recidivated, the extent to which being released early after Johnson contributed to their recidivism remains unclear. Amy Baron-Evans, the national sentencing resource counsel for Federal Public and Community Defenders, adds that the proper comparison for recidivism by those released early after Johnson would be with recidivism by those who served full sentences under ACCA’s enhancement.

It is “too early” for such an analysis after Johnson, but Baron-Evans points to a third U.S. Sentencing Commission report, “Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment.”

Although focused not on those sentenced as armed career criminals, but on drug offenders who received a sentence reduction after the Sentencing Commission gave retroactive effect to an FSA guideline amendment for certain drug offenses, the report reveals “no difference in the recidivism rates of offenders who were released” early and “similar offenders who served their full sentences.”

To confront recidivism, Sessions called on Congress to “fix the law so violent career criminals are not let out of jail early.” But Raghavan contests the implication that longer sentences will lower crime rates.

A Brennan Center report, “How Many Americans Are Unnecessarily Incarcerated?,” reviews social science that “indicates that in the worst case scenario, longer lengths of stay produce higher recidivism rates, while the best case scenario points to diminishing returns of incarceration on public safety.”

John Seibler, a legal fellow at the Heritage Foundation, suggests that longer sentences can reduce recidivism somewhat because individuals “age out” of criminality. However, echoing Raghavan, Seibler reports “general consensus” among researchers about the importance of prison programming toward reducing recidivism.

And indeed, to the extent that inmates released after Johnson have recidivated, that may be in part because they did not receive re-entry programming, despite the existence of policies promoting such support.

According to a 2007 program statement, the Federal Bureau of Prisons claims that the reduction of inmate recidivism is an objective of its Release Preparation Program. This program includes classes on different topics, such as employment and personal finance. Inmates “should enroll” in the program “no later than 30 months prior” to release. Additionally, a “unit release preparation phase” provides inmates with individual assistance from staff, which “usually begins in earnest” 11 to 13 months before release. This phase includes a focus on concrete “release plans” that address aftercare, conditions of supervision, release destination, relocation, residence and employment.

Inmates bringing Johnson claims for shortened sentences were often not in the final 13 or even 30 months of their original sentences. As a result, they did not all receive adequate re-entry planning before they were released, according to Benji McMurray, an assistant federal public defender in Utah. McMurray adds that the bureau rebuffed his attempts to coordinate important late-stage programming for his Johnson clients.

Bureau policy does state that “inmates are encouraged to participate in RPP courses throughout their confinement,” but McMurray says his clients report that meaningful opportunities did not always exist or were not helpful. Todd Bussert, an attorney in private practice with more than 20 years’ experience addressing issues related to the bureau, including as a member of the Sentencing Commission’s Practitioners’ Advisory Group, says of the bureau’s re-entry services that “a chasm between policy and practice” exists, so that the stated policy is not a “true barometer” of what is available to prisoners.

McMurray’s and Bussert’s anecdotal concerns find support in the Office of the Inspector General’s 2016 Review of the Federal Bureau of Prisons’ Release Preparation Program. The report, which was not focused just on those released as a result of Johnson, indicates that the bureau “does not ensure that the RPP meets inmate needs” and “releases many inmates who have not completed the RPP.”

Despite recidivism by some after Johnson, there are success stories as well. McMurray reports that clients of his have gone to school and joined the work force. One now runs a mechanics business.

Congressional Response

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.

According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause. They disagree on how broadly the law would sweep. Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.

People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee. Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress.

Andrew Hamm

Andrew Hamm

At the same time, Seibler observes that “if there’s anything Congress can efficiently pass, it’s a criminal penalty, especially when law enforcement wants it.”

Andrew Hamm, a scholar and commentator on the Supreme Court, writes the SCOTUSblog. A 2012 graduate of Harvard University, where he studied archaeology and government, Hamm previously completed a fellowship at the American Constitution Society for Law and Policy and an internship with the Campaign for Youth Justice. The Crime Report is pleased to reprint this blog article with the permission of the author, and welcomes comments from readers.

from https://thecrimereport.org

Why America’s Prisons Need ‘Systemic Change’

On the 10th anniversary of the Second Chance Act, veteran corrections administrator and researcher Stefan LoBuglio says attitudes towards prisoner reentry have undergone a “sea change” since the 1990s. But in an extended chat with TCR, he warns of a retrenchment in programming that threatens the overall functioning of the U.S. corrections system.

Last month marked the 10th anniversary of the federal Second Chance Act, which has provided aid for state and federal prisoner reentry programs. President Trump declared April “Second Chance Month” to bring attention to programs that “provide opportunities for people with criminal records to earn an honest second chance.”

To assess the state of prisoner reentry in 2018, The Crime Report spoke to Stefan LoBuglio, who recently completed a three-year stint as director of the National Reentry Resource Center at the Council of State Governments Justice Center. LoBuglio, a former corrections administrator in Massachusetts and Maryland, will speak in Kigali, Rwanda, next week at the Eighth International Conference on Human Rights and Prison Reform.

The Crime Report: Prisoner reentry became a public issue in the 1990s when then-Attorney General Janet Reno called attention to the fact that more than 600,000 prisoners are released back into society every year. What is your recollection of that era?

Stefan LoBuglio

Stefan LoBuglio

Stefan LoBuglio: There were earlier milestones in this field. One was the early-1970s publication of the review by sociologist Robert Martinson, declaring that “nothing works” in inmate rehabilitation. In the 1970s, we saw suspicion of the corrections system amid the large growth of in-prison population that continued roughly until the year 2000. There has been enormous energy, research and support of the prisoner reentry field, starting at least with Jeremy Travis at the National Institute of Justice near the end of the Clinton administration, and continuing through the George W. Bush and Barack Obama administrations. When I began working in corrections in 1992, the job was usually defined by the mantra “care, custody and control.” When you asked a corrections administrator about recidivism, you’d be told, “That is not my responsibility.”

In the 25-plus years since then, there has been a sea change. When you go to meetings of corrections administrators now, there is talk about adding “community” to the mantra, and there are hundreds of programs under the Second Chance Act and other laws to improve prisoner reentry. It was once called “reintegration,” but the lexicon did change to “reentry” in the 1990s. One question people were asking is why inmates should have the opportunity to get things like college degrees when people in free society didn’t have that access? Reentry was framed not as a question of what inmates deserved but of necessity—they were going to be released and we had to prepare them.

 TCR: Another, different, anniversary related to the issue of prisoner reentry was marked this year: the “Willie Horton episode,” which many observers at the time believed was a factor in Massachusetts Gov. Michael Dukakis’ loss to Vice President George W. Bush in the 1988 presidential contest.

Editor’s Note: William Horton, then serving a life sentence for murder, failed to return from a weekend furlough from Massachusetts during Dukakis’ term, and later was convicted of a 1987 rape, robbery and assault in Maryland, where he remains in prison. He was used then, and occasionally even now, as a potent symbol for those arguing that corrections reforms can endanger public safety.

LoBuglio: Horton was a violent and horrible case that had wide repercussions for the field and led to the retrenchment of programs and facilities that allowed individuals to be released gradually back into the community. There was widespread support at the time for such opportunities for people who were soon to be released. Horton was in a furlough program, but there were also many “work-release” programs that were very popular.

Inmates could get jobs, reengage with their families, and seek the support of those community institutions of interest to them. Those programs had become part of the corrections infrastructure, but they disappeared overnight in 1988, and even 30 years later, they are still absent. For 11 years, I worked in the corrections department of Montgomery County, Maryland,, where we ran such programs, and demonstrated the ability to transition violent and non-violent offenders back into the community for those who were soon-to-be released. In corrections, we are not making the sentencing decisions, but rather dealing with the reality that most individuals will leave at some point after serving their court imposed sentence.

campaign button

A campaign button from Michael Dukakis’ doomed 1988 presidential campaign. Photo by palemon escobio via flickr

More recently, in following this area for the Council of State Governments Justice Center, I was struck by how few jurisdictions maintain these release-transition programs. Thirty years after the Horton case, with our better technology and communications, we should be rethinking how to incorporate work-release for the people who are coming back to the community.

 TCR: Were laws like the one that allowed Horton’s furlough common?

LoBuglio: Such programs were not unusual back then. What was so dramatic about the Horton case was that he was a convicted first-degree murderer. After it happened, there were wholesale cancellations of prison systems’ contracts with halfway houses, and those programs that remained were tightly restricted. The debate shouldn’t be focused on transitioning the most heinous criminals but rather whether the vast majority of people in the corrections system have the opportunity to be housed in places like work-release centers.

In my three years at the Council of State Governments, it was clear that programs in prison to prepare inmates for release are not yet robust. Our national conversation on reentry is focused on community corrections, probation and parole. We haven’t really talked much about re-instituting work-release programs in prison. Remember that well over 90 percent of state and federal prisoners are released at some point, and between nine and 12 million people cycle in and out of jails each year.

More people should have the opportunity to use community resources before their release, under strict supervision. Even programs that purport to provide pre-release service don’t. Years ago, I visited the Baltimore pre-release center that housed about 300 people, but only about 30 or 35 were going out on a regular basis for jobs.

TCR: We hear about prisoners who finish their terms just being loaded on a bus. Is that what really happens?

LoBuglio: It used to be predominantly true, and it still is too often true. They might be given just $40 in “gate money.” Much of the support for better reentry procedures in the early 2000s came from reports that people in solitary confinement literally went from being in shackles and chains to being released into the community. In a good corrections system, you want people to be properly classified, for example starting in medium security general population and being able to have their security classifications “stepped-down” to minimum, and to be placed in work-release programs as they neared their release date.

The retrenchment in pre-release centers and the use of halfway-house beds has had an effect of constipating the overall functioning of the corrections system, and having too many individuals “stuck” at medium classification. There should be opportunities for people in prison to behave well, and that if they play by the rules, they should get commensurate privileges. Behavioral change is most likely to happen when you have a clear set of rules to go by.

Years ago, economist Anne Morrison Piehl of Rutgers University interviewed inmates at the Montgomery County Pre-Release Center and found that most all of them could recite from memory what actions they needed to perform to even receive small benefits. Her paper for the conservative think tank Manhattan Institute called the “Powers of Small Rewards” is a reminder that good corrections involves setting up a clear and fair system of rewards and sanctions to encourage behavioral change. If you have the possibility of getting work-release status for a person serving, say, five to seven years, that is a powerful inducement.

Studies of causes of disturbances in prisons have put lack of programming and lack of fairness for inmates at the top of the list. We’re not running correctional institutions as safely as we could. Doing it well provides an element of safety for corrections officers as well as for inmates.

TCR: We’ve mentioned the Second Chance Act. Some people may not realize that it was proposed and signed by President George W. Bush and was pushed by conservatives such as the late Charles Colson.

Editor’s Note: The late Charles Colson, an aide to President Richard Nixon, served seven months in prison in the Watergate scandal and later founded the Prison Fellowship.

LoBuglio: Yes, the Second Chance Act was a bipartisan measure that was co-sponsored by Vice President Mike Pence when he was in Congress in 2008. The main sponsors were Republican Rep. Rob Portman, later director of the Office of Management and Budget and now a U.S. Senator, and Senator Patrick Leahy from Vermont. There was a remarkable bipartisan consensus for Second Chance, supported also by faith-based organizations.

The law was an acknowledgement that the federal government has a role in determining what works to reduce recidivism. There was a recognition that recidivism rates of people who had been in prisons and jails was too high. Also, states and localities didn’t have the ability to do the research and development. The Second Chance Act helped establish research in this area. The correction system consumes an enormous part of state and local budgets, and almost all of that goes to staffing, building and health care.

The federal system used to be the gold standard in corrections systems, and one part of that was setting the bar high. The National Institute of Corrections [in the Justice Department] plays a role in raising the professionalism in the field. In 2008, there was a recognition that states and localities didn’t have enough information, knowledge and resources to do the experiments to figure out what works in corrections. The legislations provided the funding mechanism for the federal government to seed prisoner reentry of different types across the country. More than 800 programs have been funded.

About $500 million has been spent under the law since 2008. To help create and spread new knowledge, the National Reentry Resource Center was created in the Council of State Governments Justice Center, which has run it since 2009. The spending under the law is a relatively small figure, but it is significant because corrections is an $88 billion annual enterprise – this part of it represents the R&D. Without it, there would be nothing. The law plays the role of a catalyst in reentry. There are about 5,000 total correctional institutions in this country including 3,000 county and municipal jails. Not many states have had a major commitment to rehabilitation. In some states there has been a tradition of good corrections systems. Many states have not been able to keep up.

The federal prison system used to be known as the gold standard in corrections. It’s quite startling to see now how denuded the system has become. That has been true in state after state – a wholesale retrenchment in programming. We now have the ability to rebuild the programming infrastructure based on sound evidence. We are much smarter in 2018, knowing much better what we should see in corrections.

The Council of State Governments Justice Center held a “50-state summit” on corrections last November, when Georgia Supreme Court Justice Michael Boggs talked about significant reforms that the state has taken through Justice Reinvestment but he recognized that almost all of them to date dealt with nonviolent offenders. He explained that the next chapter of this work will need to address violent offenders. In 2018 we should be talking about what we can be doing regarding interventions with violent offenders who will be released. That subject needs a dramatic review. We are risk-averse because of Willie Horton-type cases.

As corrections populations nationwide have declined, we need better research to develop a full panoply of correctional innovations, especially because a large proportion of inmates in some correctional facilities are higher-risk people. Those people present generally more complex and more challenging cases.

TCR: The overall recidivism rate is often summarized as two-thirds to three-fourths of former inmates being rearrested in the three years after they are freed. Do we know if that general picture has changed?

LoBuglio: Some states have been able to reduce their recidivism rates. One way it happens is through changes in sanctioning policies so that there are intermediate steps before someone on probation winds up in custody. We have demonstrated that we’re able to reduce recidivism first and foremost through administrative action (changing revocation policy), but also through behavioral change.

Possibly the best study was done by the Urban Institute of Allegheny County, Pa., which found that participation by one group of inmates in a reentry program reduced recidivism by 30 percent.

What concerns me is that the national evaluations have not been very helpful in providing us with good advice. The challenge is to determine whether there are programs with sufficient quality and substance to make a difference. It is very challenging to maintain high quality programs with sufficient dosage. Some discussions with inmates, for example, may devolve into rap sessions. There are many implementation challenges. It’s difficult to give a probationer or parolee sufficient content to make a difference. People have many demands on them, such as maintaining a family. It’s much easier to help them if they are in a correctional setting.

TCR: Some experts have suggested that we should start preparing inmates to leave prison on the day they enter custody. Is that a worthy goal, and does any place actually try to do it?

LoBuglio: I agree with the theory. Some people even say that reentry preparation should begin when someone is arrested. Ideally, there should be a risk-need assessment of someone as soon as they enter custody and a programmatic plan developed. The best implementation of this that I’ve seen was done by Michael Ashe when he was sheriff of Hampden County, Massachusetts.

There used to be a belief that you can’t start the rehabilitation of individuals until 10 or 15 years down the line. Others say you can’t do much if the person is going to be in jail for only a week. What is the ideal period? This used to be referred as the Goldilocks problem: Is the period to short or too long for rehabilitation, and what is the “just right” period? Well, the answer is “do something” in every case, and recognize that it will be necessarily different based on resources and time remaining.The answer is an individualized treatment plan that takes into consideration sentence length and victims. Some people might have 10 years remaining to serve, but need lots of education and substance abuse treatment. You might have only 50 slots in a program and have to choose between a prisoner who has 20 years to serve and one with six months.

TCR: Where would you say that the U.S. stands generally on prisoner reentry?

LoBuglio: There has been dramatic change in some corrections systems that are paying attention and are focused on change. There have been great gains in the reduction of jail populations, but that can mean more challenges dealing with the people who remain in custody, who are much more difficult to deal with. We shouldn’t be surprised if those people have high rates of failure.

I think we need to look at systemic changes rather than programmatic ones.

We need to change the conditions of confinement, for example, so that some people don’t need to stay in prison so long on the front end, and we can focus on the high-risk individuals who remain there. We need a new type of facility that will wrap in medical and mental health treatment, and we must improve the collaboration between other agencies. We need more businesses as stakeholders. More businesses are rethinking their policies and hiring ex-offenders. It’s new and different to have them at the table—an important part of the conversation on reentry.

We also have more formerly incarcerated people taking part in reentry programs, bringing a level of reality to them.

There are many social service providers involved in prisoner reentry, but the quality of services is very uneven. If there were a rating service like “Yelp” in the social service area, that would be very helpful. It would be good to strengthen the social service community with a smaller number of providers with better quality services.

 TCR: Have programs funded under the Second Chance Act been evaluated?

LoBuglio: The National Institute of Justice has published some, including one on recidivism last year, an October, an evaluation of seven programs.

TCR: What do you make of the Trump administration’s interest in prisoner reentry?

Ted Gest

Ted Gest

LoBuglio: They changed the name of the interagency council established during the Obama administration, to add the term “crime prevention.” It makes sense to have federal agencies working in concert on this issue. The important thing now is for Congress to reauthorize the Second Chance Act, which I’m hoping will happen with all of its bipartisan support.

Ted Gest is Washington bureau chief of The Crime Report and president of Criminal Justice Journalists. He welcomes readers’ comments.

from https://thecrimereport.org

The Painful Lessons of a Corrections Crisis

When the Washington Department of Corrections learned a software programming error led to the erroneous early release of 3,000 prisoners, it took three years to address the problem. That led to at least two deaths—and some hard lessons about the need to recognize non-traditional emergencies before they became crises, according to a case study published this month.

Correctional institutions are usually well prepared to address serious emergencies like prison riots, but what happens when they encounter a crisis that staff and authorities never imagined could occur?

That was the situation which confronted the Washington Department of Corrections (WDOC) when authorities learned a software programming error had led to the erroneous early release of over 3,000 inmates between 2002 and 2015.

According to a case study analyzing the WDOC’s belated response, the episode made clear that correctional and other public institutions need to develop the “situational awareness” to deal with crises for which they had little training.

The study, published this month in the Journal of Contingencies and Crisis Management, showed that authorities could have headed off the crisis earlier if they had responded to a 2012 inquiry from a father who believed the perpetrator of a crime against his son had been released too early.

A request for a “fix” was sent to the Information Technology Unit (IT), but the WDOC failed to address it until 2015. Meanwhile, several of the erroneously released inmates had committed crimes, and were responsible for at least two deaths.

The sentencing miscalculation arose in 2002 following a Washington Supreme Court decision, In re King, which ruled that the WDOC had not awarded “good time” to inmates for the time spent in jail awaiting trial and during trial. But a change in the software programming used to recalculate each inmate’s release date to accommodate the ruling unwittingly led to total earned- time credits that exceeded the statutory maximum.

This resulted in inmates being released, on average, 55 days early.

WDOC’s failure to deal in a timely manner with the error once it was pointed out turned an “emergency into a crisis,” said the study.

Two of the three authors of the study, “The Making of an Institutional Crisis,” were key players in the episode. Dan Pacholke, the state’s Secretary of Corrections, led the emergency response. Sandy Felkey Mullins served on the governor’s staff as his senior policy advisor on public safety and government operations. Bert Useem of Purdue University conducted many of the post-crisis interviews with WDOC staff who had to decide whether and how to bring the inmates back to prison.

The WDOC leadership decided that bringing back offenders post-release to serve additional time on their sentence after several years of liberty would be “fundamentally unfair,” unless the offender had committed a class-A felony.

Specialized WDOC community response units accompanied local law enforcement to arrest inmates who it was decided did need to return to prison to serve out the remainder of their sentence. Unsurprisingly, the legitimacy of the arrest was often challenged by the former inmates—who argued they were being asked to “bear the burden of WDOC’s error” of being released and returned again.

Specialty teams for disturbance control were placed in prison facilities around the state in the event of possible unrest, though no noticeable inmate response arose. And a public communications strategy was developed.

Following the crisis, the WDOC redeveloped its IT procedures and issued instructions requiring anyone on headquarters staff who identified an issue that impacted public safety or critical operations to immediately inform his or her supervisor.

If the issue was not addressed, they were to go directly to agency leadership.

The principal lesson drawn from the episode, according to the study, was that large public agencies must train senior staff to have the flexibility to deal with incidents that are not part of their normal crisis training.

An agency needs to “develop in its culture the alertness not to solve, but rather to recognize, a crisis emergency and quickly mobilize a non-traditional response,” authors concluded.

“Agencies ….must develop situational awareness – thinking through the broad features of the situation and what must be done.”

TCR news intern Brian Edsall contributed to writing this summary. The full journal article is available for purchase only and can be downloaded here. Journalists can obtain free access by contacting TCR Deputy Editor Victoria Mckenzie at Victoria@thecrimereport.org

from https://thecrimereport.org

The Painful Lessons of a Corrections Crisis

When the Washington Department of Corrections learned a software programming error led to the erroneous early release of 3,000 prisoners, it took three years to address the problem. That led to at least two deaths—and some hard lessons about the need to recognize non-traditional emergencies before they became crises, according to a case study published this month.

Correctional institutions are usually well prepared to address serious emergencies like prison riots, but what happens when they encounter a crisis that staff and authorities never imagined could occur?

That was the situation which confronted the Washington Department of Corrections (WDOC) when authorities learned a software programming error had led to the erroneous early release of over 3,000 inmates between 2002 and 2015.

According to a case study analyzing the WDOC’s belated response, the episode made clear that correctional and other public institutions need to develop the “situational awareness” to deal with crises for which they had little training.

The study, published this month in the Journal of Contingencies and Crisis Management, showed that authorities could have headed off the crisis earlier if they had responded to an inquiry from the father of an victim in 2012 who believed his son’s perpetrator had been released too early.

A request for a “fix” was sent to the Information Technology Unit (IT), but the WDOC failed to address it until 2015. Meanwhile, several of the erroneously released inmates had committed crimes, and were responsible for at least two deaths.

The sentencing miscalculation arose in 2002 following a Washington Supreme Court decision, In re King, which ruled that the WDOC had not awarded “good time” to inmates for the time spent in jail awaiting trial and during trial. But a change in the software programming used to recalculate each inmate’s release date to accommodate the ruling unwittingly led to total earned- time credits that exceeded the statutory maximum.

This resulted in inmates being released, on average, 55 days early.

WDOC’s failure to deal in a timely manner with the error once it was pointed out turned an “emergency into a crisis,” said the study.

Two of the three authors of the study, “The Making of an Institutional Crisis,” were key players in the episode. Dan Pacholke, the state’s Secretary of Corrections, led the emergency response. Sandy Felkey Mullins served on the governor’s staff as his senior policy advisor on public safety and government operations. Bert Useem of Purdue University conducted many of the post-crisis interviews with WDOC staff who had to decide whether and how to bring the inmates back to prison.

The WDOC leadership decided that bringing back offenders post-release to serve additional time on their sentence after several years of liberty would be “fundamentally unfair,” unless the offender had committed a class-A felony.

Specialized WDOC community response units accompanied local law enforcement to arrest inmates who it was decided did need to return to prison to serve out the remainder of their sentence. Unsurprisingly, the legitimacy of the arrest was often challenged by the former inmates—who argued they were being asked to “bear the burden of WDOC’s error” of being released and returned again.

Specialty teams for disturbance control were placed in prison facilities around the state in the event of possible unrest, though no noticeable inmate response arose. And a public communications strategy was developed.

Following the crisis, the WDOC redeveloped its IT procedures and issued instructions requiring anyone on headquarters staff who identified an issue that impacted public safety or critical operations to immediately inform his or her supervisor.

If the issue was not addressed, they were to go directly to agency leadership.

The principal lesson drawn from the episode, according to the study, was that large public agencies must train senior staff to have the flexibility to deal with incidents that are not part of their normal crisis training.

An agency needs to “develop in its culture the alertness not to solve, but rather to recognize, a crisis emergency and quickly mobilize a non-traditional response,” authors concluded.

“Agencies ….must develop situational awareness – thinking through the broad features of the situation and what must be done.”

TCR news intern Brian Edsall contributed to writing this summary. The full journal article is available for purchase only and can be downloaded here. Journalists can obtain free access by contacting TCR Deputy Editor Victoria Mckenzie at Victoria@thecrimereport.org

from https://thecrimereport.org