    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                    OVERSIGHT HEARING ON THE FEDERAL BUREAU
                      OF PRISONS AND IMPLEMENTATION OF THE
                                 FIRST STEP ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           THURSDAY, OCTOBER 17, 2019

                                   __________

                               Serial No. 116-58

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
    45-882               WASHINGTON : 2021

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                   MARY GAY SCANLON, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California                 DOUG COLLINS, Georgia, Ranking
    SHEILA JACKSON LEE, Texas                Member STEVE COHEN, Tennessee
    HENRY C. ``HANK'' JOHNSON, Jr.,         F. JAMES SENSENBRENNER, Jr.,
        Georgia                                     Wisconsin
    THEORDORE E. DEUTCH, Florida            STEVE CHABOT, Ohio
    KAREN BASS, California                  LOUIE GOHMERT, Texas
    CEDRIC L. RICHMOND, Louisiana           JIM JORDAN, Ohio
    HAKEEM S. JEFFRIES, New York            KEN BUCK, Colorado
    DAVID N. CICILLINE, Rhode Island        JOHN RATCLIFFE, Texas
    ERIC SWALWELL, California               MARTHA ROBY, Alabama
    TED LIEU, California                    MATT GAETZ, Florida
    JAMIE RASKIN, Maryland                  MIKE JOHNSON, Louisiana
    PRAMILA JAYAPAL, Washington             ANDY BIGGS, Arizona
    VAL BUTLER DEMINGS, Florida             TOM McCLINTOCK, California
    J. LUIS CORREA, California              DEBBIE LESKO, Arizona
    SYLVIA R. GARCIA, Texas                 GUY RESCHENTHALER, Pennsylvania
    JOE NEGUSE, Colorado                    BEN CLINE, Virginia
    LUCY McBATH, Georgia                    KELLY ARMSTRONG, North Dakota
    GREG STANTON, Arizona                   W. GREGORY STEUBE, Florida
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            PERRY APELBAUM, Majority Staff Director & Chief of Staff
                    BRENDAN BELAIR, Minority Staff Director
                                     ------

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                         KAREN BASS, California, Chair
                        VAL DEMINGS, Florida, Vice-Chair

    SHEILA JACKSON LEE, Texas            JOHN RATCLIFFE, Texas, Ranking
    LUCY McBATH, Georgia                     Member
    THEORDORE E. DEUTCH, Florida         F. JAMES SENSENBRENNER, Jr.,
    CEDRIC RICHMOND, Louisiana               Wisconsin
    HAKEEM JEFFRIES, New York            STEVE CHABOT, Ohio
    DAVID N. CICILLINE, Rhode Island     LOUIE GOHMERT, Texas
    TED LIEU, California                 TOM McCLINTOCK, California
    MADELEINE DEAN, Pennsylvania         DEBBIE LESKO, Arizona
    DEBBIE MUCARSEL-POWELL, Florida      GUY RESCHENTHALER, Pennsylvania
    STEVEN COHEN, Tennessee              BEN CLINE, Virginia
                                         W. GREGORY STEUBE, Florida

                       JOE GRAUPENSPERGER, Chief Counsel
                        JASON CERVENAK, Minority Counsel

                                C O N T E N T S

                                  ----------

                           Thursday, October 17, 2019

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Karen Bass, Chair of the Subcommittee on Crime,
      Terrorism, and Homeland Security from the State of California..     1
    The Honorable Guy Reschenthaler, a Member of the Subcommittee on
      Crime, Terrorism, and Homeland Security from the State of
      Pennsylvania...................................................     3
    The Honorable Doug Collins, Ranking Member of the Committee on
      the Judiciary from the State of Georgia........................     3

                                   WITNESSES
                                   Panel One

    Kathleen Hawk Sawyer, Director, Federal Bureau of Prisons
      Oral Testimony.................................................     5
      Prepared Statement.............................................     8
    Antoinette T. Bacon, Associate Deputy Attorney General,
      Department of Justice
      Oral Testimony.................................................    17
      Prepared Statement.............................................    19

                                   Panel Two

    David Patton, Executive Director, Federal Defenders of New York
      Oral Testimony.................................................    82
      Prepared Statement.............................................    84
      Supplemental Statement.........................................   161
    Melissa Hamilton, Reader of Law & Criminal Justice, University of
      Surrey School of Law
      Oral Testimony.................................................   167
      Prepared Statement.............................................   169
    John P. Walters, Chief Operating Officer, Director, Hudson
      Institute Political Studies and Co-Director, Center for
      Substance Abuse Policy Research, Hudson Institute
      Oral Testimony.................................................   188
      Prepared Statement.............................................   190
    Andrea James, Founder and Executive Director, National Council on
      Incarcerated and Formerly Incarcerated Women
      Oral Testimony.................................................   195
      Prepared Statement.............................................   197

       STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED FOR THE RECORD

    Statement submitted by the Honorable Jerrold Nadler, Chair of the
      Committee on the Judiciary from the State of New York for the
      record.........................................................    30
    Statement from Jay Chattelle, submitted by the Honorable Hakeem
      Jeffries, a Member of the Subcommittee on Crime, Terrorism, and
      Homeland Security from the State of New York for the record....    42
    Statement from the Brennan Center for Justice at NYU School of
      Law, submitted by the Honorable David Cicilline, a Member of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Rhode Island for the record..................    58
    Statement from Norman Reimer, Executive Director on behalf of the
      National Association of Criminal Defense Lawyers, submitted by
      the Honorable David Cicilline, a Member of the Subcommittee on
      Crime, Terrorism, and Homeland Security from the State of Rhode
      Island for the record..........................................    69

                                    APPENDIX

    An article entitled ``As new U.S. law frees inmates, prosecutors
      seek to lock someback up,'' Reuters, submitted by Dr. Melissa
      Hamilton for the record........................................   206
    A letter to Hugh Hurwitz, Acting Director, Bureau of Prisons,
      February 6, 2019, addressing heating and electrical issues,
      submitted by the signed Members of Congress and Members of the
      Senate for the record..........................................   215
    A letter to Hugh Hurwitz, Acting Director, Bureau of Prisons,
      February 6, 2019, addressing treatment of detainees, submitted
      by the signed Members of Congress and Members of the Senate for
      the record.....................................................   219
    A letter to Attorney General Barr and Hugh Hurwitz, Acting
      Director, Bureau of Prisons, April 8, 2019, addressing good
      time credits, submitted by the Honorable Karen Bass, Chair of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of California for the record....................   224
    A letter to Hugh J. Hurwitz, Acting Director, Bureau of Prisons,
      March 19, 2019, addressing concerns of deadlines has lapsed to
      implement the First Step Act, submitted by the signed Members
      of the Committee on the Judiciary for the record...............   235

                      QUESTIONS AND ANSWERS FOR THE RECORD

    Questions for the record from the Honorable Jerrold Nadler, Chair
      of the Committee on the Judiciary from the State of New York
      for the record.................................................   238
    Answer to question and report from Kathleen Hawk Sawyer to the
      Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York for the record............   240

                        OVERSIGHT HEARING ON THE FEDERAL

           BUREAU OF PRISONS AND IMPLEMENTATION OF THE FIRST STEP ACT

                                  ----------

                           Thursday, October 17, 2019

                            House of Representatives

            Subcommittee on Crime, Terrorism, and Homeland Security

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 3:15 p.m., in
    Room 2141, Rayburn Office Building, Hon. Karen Bass [Chair of
    the Subcommittee] presiding.
        Present: Representatives Bass, Nadler, Jackson Lee,
    Jeffries, Cicilline, Dean, Mucarsel-Powell, Cohen,
    Reschenthaler, Collins, Chabot, McClintock, Lesko, Cline, and
    Steube.
        Staff present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma,
    Member Services and Outreach Advisor; Julian Gerson, Staff
    Assistant; Ben Hernandez-Stern, Counsel; Joe Graupensperger,
    Chief Counsel; Milagros Cisneros, Detailee; Monalisa Dugue,
    Deputy Chief Counsel; Veronica Eligan, Professional Staff
    Member; Jason Cervenak, Minority Counsel; Andrea Woodard,
    Minority Professional Staff.
        Ms. Bass. The Subcommittee will come to order. Without
    objection, the chair is authorized to declare recesses of the
    Subcommittee at any time.
        We welcome everyone in this afternoon's oversight hearing
    on the Federal Bureau of Prisons and the implementation of the
    First Step Act.
        I now recognize myself for an opening statement.
        I first want to acknowledge the loss of a great giant and
    champion for criminal justice reform, our colleague, Mr. Elijah
    Cummings. We were all by his passing this morning, and our
    hearing was a little bit delayed as we took the opportunity to
    acknowledge him on the floor of the House a few minutes ago.
        As he recently stated, the American people demanded that
    their representatives in Washington fight for them and for what
    affects their lives on a day-to-day basis. That is precisely
    what is being done when we hold oversight hearings such as
    these, and today, of course, we will hold it in his memory.
        The First Step Act is a bipartisan measure signed into law
    on December 2018. Since its enactment, we have been monitoring
    its implementation. The process has generated a series of
    questions and raised valid concerns. Today's hearing is an
    opportunity to have an open discussion about the status of the
    First Step Act. We will evaluate how the law has progressed in
    the past 10 months, with the goal of ensuring that it meets its
    intended purpose to be a legitimate first step toward reforming
    our criminal justice system.
        The First Step Act is the result of years of discussion,
    vigorous debates, and a reflection of both the dedication and
    determination of all those involved. The bill doesn't attempt
    to address all the ills within our current system. As the title
    reflects, we are just at the beginning of a very long process.
    It has established Federal prisons reforms and generated
    important but modest improvements to our sentencing laws.
        Specifically, it allowed the 2010 Fair Sentencing Act to
    apply retroactively. It scaled back certain harsh and unjust
    sentencing practices and is helping to ensure that we address
    mass incarceration at the front end rather than simply at the
    back end. The law expands the eligibility of defendants for
    safety valve relief, which allows for judicial discretion to
    depart from a mandatory minimum sentence, in certain instances.
    A provision in this law eliminated the ability to stack firearm
    enhancements within the same indictment, which has historically
    resulted in excessive sentences. These are just some of the
    sentencing reform provisions in this law, and we should
    continue to build upon them.
        As for the prison reform efforts, this law addresses a
    number of issues related to conditions and places of
    confinement in our Federal Bureau of Prisons, including, for
    instance, a ban on the shacking of pregnant prisoners during
    labor and delivery. The law also provides for a significant
    expansion of recidivism reduction programming as part of the
    earned time credit system, and I am pleased that we were able
    to get some of the major issues addressed.
        However, like every new program, there are trials and
    error. Where we applaud the many positive things about this
    law, we must honestly address any shortcomings early in the
    process to ensure this law lives up to its intended purpose.
    This is why Congress routinely conducts oversight hearings to
    provide transparency to ensure well-intentioned laws are
    functioning as we intended them to, and to provide solutions
    for any unintended consequences.
        I know one unintended consequence that has received a great
    deal of media attention is the fact that one of the individuals
    who was released because of First Step then was involved in a
    horrific crime that resulted in the death of someone. I know
    that there will be other weaknesses that we determine in the
    law, but I hope that this does not detract from the need in our
    country to really examine our criminal justice system.
        In addition to discussing the progress made thus far with
    the First Step Act implementation, I would also like to hear
    about the overall conditions of BOP. For example, the problem
    that happened with some of the conditions in the Metropolitan
    Detention Center in Brooklyn, the problem that they had with
    extremely cold temperatures during a seven-day partial power
    outage in New York.
        We have a lot to discuss, and therefore I want to thank
    both panels of witnesses for coming, and I look forward to your
    testimony.
        It is now my pleasure to recognize the Ranking Member for
    his comments.
        Mr. Reschenthaler. Thank you, Madam Chair, and I want to
    thank you for holding this important hearing today on oversight
    of the Bureau of Prisons.
        Last year, Congress passed, and the President signed into
    law, one of the most sweeping criminal justice reform measures
    in recent history. The First Step Act was the product of
    lengthy bipartisan and bicameral negotiations. Today, we are
    again working in a bipartisan fashion to ensure that the First
    Step Act is properly and effectively implemented. If the First
    Step Act is not implemented correctly there will be no
    subsequent steps, and as the Republican sponsor of bipartisan
    legislation that would seal criminal records for certain
    nonviolent offenders, I want to make sure that we see more done
    on criminal justice reform.
        My first elected office was that of a district judge, which
    is really the front lines of the criminal justice system. In
    that position, I handled everything from traffic issues to
    truancy to even preliminary hearings on murder cases, and
    sometimes all in the same day. It was truly an eye-opening
    experience, and it helped me understand that ultimately, we can
    reduce crime by ending the revolving door between prison and
    the streets. You can be strong on crime while also being smart
    on crime.
        I would like to examine the issues affecting our
    correctional officers' safety, including new methods for
    bringing contraband into prisons, understaffing, and
    prosecution for assaulting officers. Just a few weeks ago I
    heard first-hand from CEOs at USP Hazelton about threats that
    they face every day. We must do more to keep these men and
    women safe, both on the job and at home with their families.
        I look forward to hearing from our witnesses and about the
    issues and so much more as we move forward with criminal
    justice reform.
        Thank you, and I yield back the remainder of my time.
        Ms. Bass. We will now hear from the Ranking Member of the
    full committee.
        Mr. Collins. Thank you, Madam Chair. I appreciate that.
        Welcome, Director Hawk Sawyer and Associate Deputy Attorney
    Bacon. I want to thank both of you for your service and we are
    happy you are here with us today, and I also want to thank Ms.
    Bass. This hearing is one that I have waited for since
    basically we started this session. I am glad to have it and
    thank you for finally coming, and the full Committee chairman
    as well.
        The Bureau of Prisons is tasked with protecting society by
    confining offenders in the controlled environments of prisons,
    community-based facilities that are safe, humane, cost-
    efficient, appropriately secure, and that provide work and
    other self-improvement opportunities to assist offenders in
    becoming law-abiding citizens. It is the duty of the BOP not to
    merely provide housing, food, and security for Federal inmates
    but to assist those inmates in becoming law-abiding citizens
    upon their release. All Americans have an interest in that,
    because we all know the vast majority of Federal inmates, well
    above 90 percent, will someday be released, regardless of what
    efforts have been done to reduce recidivism.
        I don't think think anything happens in random chance. I
    believe, frankly, and from my faith perspective, God has his
    hand upon everything. Today is an amazing day in which we
    celebrate the home-going of Elijah Cummings, one who influenced
    this body in amazing ways. As I spoke earlier today, and I will
    not reflect on those words from earlier today, but he had an
    amazing way to connect with people that other people didn't
    connect with, from an amazing position of power, and he did so
    with a heart and compassion.
        Today is also a day, with this hearing, after being,
    hopefully, rescheduled for so many times in the previous
    months, we get to it today, our celebration of the First Step
    Act. With my friend, Hakeem Jeffries, who is not here right
    now, I think Elijah would be very pleased with what has come,
    with a bill that he and I introduced this year, the FAIR Act,
    which we actually take this a step further in gaining
    employment for those who have been incarcerated and removing
    barriers to that.
        In this room today, from several of the rows back that I
    see the faces, there are those who have benefitted from the
    First Step Act. You are here today because of what happened
    when a body came together and saw beyond our differences and
    saw what we could do together. I see the advocates who have
    been here, and which we have laughed, we have cried, we have
    struggled, and we see something actually come.
        Today's hearing is one that is long overdue, but it is also
    one that is welcomed in the environment in which we have today.
    We understand that when we see the Bureau of Prisons, we see
    the Department of Justice coming together and taking seriously
    what this Congress said that we want to see happen here and
    giving us good input. I am so glad to see, Director, you are
    back, and we have talked about this before. This is what we are
    supposed to be about.
        So, for those who are here today who have benefitted from
    something from Congress, consider yourself lucky. Most of what
    we do seems to not benefit a lot of people, but for you it
    benefitted. This Committee can do this. As Elijah Cummings was
    so fond of saying, ``We are better than where we are. We are
    better than this.'' This is a good day for this hearing. It is
    a good day to show what we can do when we understand that
    people and policy are what we are about, not what we talk
    about.
        Thank you for being here, and Madam Chair, thank you for
    holding this hearing. I yield back.
        Ms. Bass. Thank you very much, Representative Collins. I
    appreciate you mentioning our colleague, Hakeem Jeffries. I am
    sure he will be with us shortly, and between the two of you
    played the leading role in making sure that First Step got to
    the finish line.
        You also mentioned and acknowledged the audience, and I
    just would like to take a moment and ask for those people that
    benefited by First Step if you would please stand.
        [Applause.]
        Ms. Bass. In another setting, perhaps in a more informal
    briefing, I think that it would be very helpful and important
    to hear some of your stories. There is nothing like putting a
    face and a story to policy that we attempt to develop and
    implement here.
        Now, I want to introduce our witnesses. We will now hear
    from our first panel, Dr. Kathleen Hawk Sawyer is the Director
    of the Bureau of Prisons and Antoinette Bacon, who is an
    Associate Deputy Attorney General with the Department of
    Justice and is steering the implementation of the FSA and the
    risk assessment tool developed to implement it, the prisoner
    assessment tool targeting estimated risk and needs, our
    PATTERN. Thank you both for joining us today. We welcome our
    witnesses and thank them for participating in today's hearing.
        Now, if you would please rise I will begin by swearing you
    in.
        Raise your right hand. Do you swear or affirm, under
    penalty of perjury, that the testimony you are about to give is
    true and correct to the best of your knowledge, information,
    and belief, so help you God?
        Ms. Sawyer. I do.
        Ms. Bacon. I do.
        Ms. Bass. Thank you. Let the record show the witnesses
    answered in the affirmative. Thank you, and please be seated.
        Please note that your written statements will be entered
    into the record in their entirety. Accordingly, I ask that you
    summarize your testimony in five minutes. To help you stay
    within that time there is a timing light on your table. When
    the light switches from green to yellow you will have one
    minute to conclude your testimony. When the light turns red it
    signals that your five minutes have expired.
        Thank you, Dr. Sawyer and Dr. Bacon. We will now proceed
    with your testimony.

                   TESTIMONY OF KATHLEEN HAWK SAWYER

        Ms. Sawyer. Good afternoon, Chair Bass and Congressman
    Reschenthaler. I appreciate the opportunity to discuss with you
    today the mission and the operations of the Bureau of Prisons
    and our progress in implementing the First Step Act. I thank
    the Judiciary Committee for their work over the many years in
    support of the Bureau of Prisons. This subcommittee, in
    particular, has been integral to our operations for many
    decades, including years of tremendous population growth, rapid
    expansion, and the opening of many new institutions.
        I thank you and your colleagues for your groundbreaking
    criminal justice reform work through the bipartisan support of
    the First Step Act. Programming to assist inmates in returning
    to their communities as law-abiding citizens has always been a
    cornerstone of our mission. In fact, we have long held that an
    inmate's reentry journey begins the very day they enter our
    custody, and with the First Step Act we look forward to further
    enriching those offerings to help improve the lives of our
    inmates, and thereby help keep our communities safer.
        I was honored, two months ago, to be selected by the
    attorney general to return to lead the Bureau of Prisons and to
    work alongside the finest corrections professionals in the
    world. I began my career as a psychology intern at one of our
    prisons and held positions of increasing responsibility, from
    associate warden to warden, and before my original appointment
    as the bureau's sixth director, in 1992, a position I held
    until my retirement in 2003.
        While much has changed since my last term as director, the
    foundation of the Bureau is sound. We have been challenged by
    the dramatic growth that we experienced commensurate with the
    budget cuts that followed the tragedy of 9/11, and the shift of
    focus from crime to terrorism. These factors have seriously
    strained the Bureau.
        Our over 35,000 staff play a critical role in the criminal
    justice system, yet the great work our staff does every day
    goes largely unseen by the American public. This inherently
    dangerous work, particularly at our high-security facilities
    where we house our most dangerous inmates, is a responsibility
    we take very seriously. Unfortunately, we have experienced
    significant staff shortages that make our job even more
    difficult. In my first eight weeks as director I have placed
    great emphasis on filling the almost 3,700 vacancies
    nationwide.
        Also in my first eight weeks, I have mobilized a thorough
    systems overview to identify areas of strengths and weaknesses
    and have identified three initial areas of emphasis. One is
    staffing, one is training, and one is an emphasis on the basics
    of sound correctional practice. Our system is the largest in
    the nation, housing over 176,000 inmates across the United
    States, and this return to the bedrock of sound corrections is
    critical to ensure that staff nationwide are following the
    policies and procedures that keep staff, inmates, and the
    public safe.
        The Bureau, like corrections nationwide, also continues to
    face dangerous security threats from the introduction of
    contraband. Synthetic drugs, illicit narcotics, and contraband
    cell phones are some of the chief threats. The use of drones to
    drop contraband onto prison grounds is an ongoing problem that
    continues to evolve. We have deployed contraband-detecting
    technologies and we continue to leverage new technology and
    cutting-edge solutions to effectively detect and interdict
    prison contraband.
        Our aging infrastructure is another area of concern. Almost
    half of our prisons are over 30 years old, and some, like
    Leavenworth, Atlanta, and Lewisburg date back over 80 years to
    the very beginnings of the Bureau of Prisons. Prison facilities
    are subjected to much heavier than normal wear, since they are
    continuously used, 24 hours a day, 365 days a year. This aging
    infrastructure affects institutional security, as critical
    systems sustain extensive wear and tear, as well as premature
    deterioration. We are focusing on repairing and/or replacing
    key systems but require significant funding to ensure that all
    facilities can be maintained as continued infrastructure
    decline occurs.
        The implementation of the First Step Act is a priority for
    the Bureau, and I am pleased to report that we have made great
    progress. We have updated policies, are implementing the many
    requirements of the act. We are working closely with the
    Department of Justice and the Independent Review Committee on
    new risk and needs assessment that the Act requires. We have
    listened to the important comments of the many interested
    stakeholders, from crime victims to a broad array of advocacy
    groups.
        The statutory timelines in the Act were formidable, but I
    am proud to say that the Bureau and the Department have met key
    deadlines, particularly the release of the new risk and needs
    assessment system, and we continue to remain focused on a full
    and balanced implementation of the First Step Act.
        That concludes my formal statement, and I would be happy to
    answer any questions that you might have.
        [The statement of Ms. Sawyer follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Bass. Thank you. Ms. Bacon?

                    TESTIMONY OF ANTOINETTE T. BACON

        Ms. Bacon. Good afternoon, Chair Bass, Mr. Reschenthaler,
    and Members of the committee. I am Antoinette Bacon, Associate
    Deputy Attorney General, and I appreciate the opportunity to be
    here today to discuss the Department of Justice's ongoing
    efforts to fully implement the first Step Act.
        Both the attorney general and the deputy attorney general
    have consistently and emphatically stated that the Department
    will work diligently to implement the First Step Act, and they
    both have been actively engaged in these efforts. For example,
    both have met with the Independent Review Committee to learn
    from this group of highly esteemed experts, and each visited a
    BOP facility to see firsthand the quality, education, and
    vocational programs, and to speak with inmates and staff who
    participate in these programs and deliver these programs.
        Following their lead, our team has worked tirelessly to
    ensure that the act's many reforms are implemented in a way
    that reduces recidivism, that provides opportunities to
    offenders, and that protects our communities. The written
    testimony contains greater detail on this, but in my remarks, I
    would like to highlight several ways in which the Department
    has been demonstrating its commitment to the act.
        First, we met the very ambitious July 19th deadline to
    publish a new risk and needs assessment system called PATTERN.
    PATTERN obtains the highest level of predictability of any
    current system. It contains 17 different factors, 11 of which
    are dynamic, which means that they can change during a period
    of incarceration. PATTERN was validated for males and female
    inmates separately.
        Importantly, DOJ did not create PATTERN in a vacuum.
    Instead, we consulted with the Independent Review Committee,
    the Administrative Office for U.S. Courts, the National
    Institute of Corrections, and over two dozen diverse
    stakeholder groups. Then, once announced, we opened PATTERN to
    a 45-day study period, to solicit additional input, including
    input from BOP's union. We are currently reviewing all this
    feedback and are working in collaboration with the Independent
    Review Committee to identify appropriate changes to the tool.
        Going forward, the Department is committed to studying
    PATTERN's effectiveness. We want to know if it is working. To
    that end, the National Institute of Justice has just announced
    an intention to release a solicitation to evaluate and to
    validate the tool. Based on that research, along with other
    data, we fully intend to refine and make appropriate changes to
    the tool going forward.
        Developing PATTERN was only one part of the First Step Act.
    The Department has had equally robust implementation with the
    act's other requirements, which include, for example, reduced
    sentences. On July 19th, the deputy attorney general announced
    that approximately 3,100 Federal prison inmates were released
    from BOP custody as a result of the increase in good conduct
    time that the Act allowed. As of last week, approximately 2,139
    inmates have received sentencing reductions, pursuant to the
    retroactive application of the Fair Sentencing Act of 2010,
    which closed that gap or narrowed that gap between crack and
    powder cocaine sentencing.
        The second key area is effective reentry programming.
    Helping offenders successfully reintegrate into the community
    is a key factor in preventing and reducing recidivism and
    really finding gainful employment. Getting a good job is part
    of that process. To further that goal, BOP has launched a
    ready-to-work initiative which connects private employers
    looking to hire returning citizens with inmates nearing
    release.
        To further assist with reentry, the deputy attorney general
    announced that the Department of Justice has prioritized $75
    million in order to fully fund the First Step Act to its
    authorized fiscal year 2019 level, and that funding is being
    used in a variety of ways, including helping with job readiness
    by increasing vocational opportunities, by expanding education
    programs, including providing English as a second language
    workbooks and textbooks, and helping the female inmate
    population by expanding access to programs that are targeted
    specifically to females' needs.
        These are just some of the ways we are working to
    faithfully implement the First Step Act, and I look forward to
    working with you as we seek to provide opportunities, reduce
    recidivism, and protect our communities.
        Thank you.
        [The statement of Ms. Bacon follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Bass. Thank you very much. We will now begin our five
    minutes of questioning, and I will begin.
        I would like to ask the Honorable Hawk Sawyer, in terms of
    the implementation, and specifically the provisions in the
    First Step Act that addressed pregnant women. So, my question
    is what has changed in the BOP in regard to pregnant women?
        Ms. Sawyer. A couple of things have changed, some we really
    did not need to change. We did not historically really use
    shacking of female pregnant inmates to any extent. If we had an
    inmate that was acting out in some way to where it threatened
    the life of the inmate themselves, and especially their unborn
    child, we would, at times, have to restrain them. So, we put
    clearly into--
        Ms. Bass. What does acting out mean?
        Ms. Sawyer. Some of our pregnant women have mental health
    issues also, the typical issues that some of our inmates have.
        Ms. Bass. Right.
        Ms. Sawyer. So, when they are flailing about, fighting our
    staff, resisting any kind of--
        Ms. Bass. Right.
        Ms. Sawyer. --calmer interaction, then we feel that we do
    have to subdue them, and we do it as gently as we possibly can,
    and when necessary, restrain them. To tell you, since--
        Ms. Bass. How would be they be restrained?
        Ms. Sawyer. They could have handcuffs placed on them. They
    could have their arms attached to a chair, until we calm them
    down. To the chair's concern, this has occurred once in the
    last year. It is not something that we do, except when it is
    absolutely necessary.
        The way in which the change that has occurred, though, is
    we have defined this even more explicitly in our policy. We
    have instituted a reporting system where if it ever occurs it
    needs to be notified up through the ranks, so we find out about
    it. The part we did change, though, is we were never as clear
    on postpartum inmates.
        Ms. Bass. So, also, during pregnancy--I am not talking
    about labor and delivery but I am talking about pregnancy--
        Ms. Sawyer. Right.
        Ms. Bass. --women then do not routinely have chains around
    their waists? They don't routinely have chains on their feet?
        Ms. Sawyer. We don't handcuff them, use chains--
        Ms. Bass. You don't have handcuffs when they are being
    transported around the facility?
        Ms. Sawyer. Exactly. When a woman first comes to our
    institution, we automatically do a pregnancy check, because
    sometimes they come in and don't even realize they are
    pregnant.
        Ms. Bass. Right.
        Ms. Sawyer. So, we make them very aware of their condition,
    if they are pregnant. We put it very clearly in their file so
    that any staff interacting with them knows that they are
    pregnant, and we are very cautious to make sure we do not
    restrain pregnant women in any way. As I indicated, the real
    change for us has been in the postpartum women. We were not as
    clear and explicit. We now have it clearly in policy that for
    12 weeks after delivery we are utilizing the same--treating
    them in the same way we do during the course of their
    pregnancy.
        Ms. Bass. Wonderful. Thank you very much. I would like to
    ask Ms. Bacon about the assessment tool. I think there was a
    request made from the Committee to see the assessment tool, and
    I was wondering if you have it available for us to look at.
        Ms. Bacon. Yes. So, currently the Department is taking
    under consideration the approximately 170 comments we received
    during the 45-day study period, and working in close
    collaboration with the Independent Review Committee.
        Ms. Bass. Let me ask you something about those comments.
    So, people were commenting--they saw the tool and they were
    commenting on the tool?
        Ms. Bacon. They saw the tool as described in the report
    that the Department of Justice issued on July 19th.
        Ms. Bass. They didn't actually see the tool itself?
        Ms. Bacon. That is correct.
        Ms. Bass. So, do you have the tool available so that we can
    see it? I understand you are reviewing it and all of that, but
    I would like to see what the instrument is.
        Ms. Bacon. The tool is not yet complete, because we are
    still taking into account not only the approximately 170
    comments but also the Independent Review Committee had a series
    of--
        Ms. Bass. So, it is not actually being used right now
    because it is not finished?
        Ms. Bacon. It is not being used right now.
        Ms. Bass. Okay. So, when part of the criticism of First
    Step, the release of a couple of individuals who have committed
    crimes, I think there was the assumption that they were
    assessed, and something happened. So, how are people released
    if there is not a risk assessment tool available?
        Ms. Bacon. Currently they are being assessed under the
    existing BOP system, which is called BRAVO, and that tool was
    designed many years ago to assess risk of prison misconduct,
    and to try to determine what is the risk level while
    incarcerated.
        Ms. Bass. Do you have that instrument I could see?
        Ms. Bacon. Yes. That instrument is available.
        Ms. Bass. The older instrument?
        I would like to see that. Then also, when are you going to
    finish the feedback and when will the RFP be available?
        Ms. Bacon. We are working very diligently to update the
    tool and to make any necessary updates from the listening
    session and from the Independent Review Committee's
    suggestions, train all of the BOP employees, work with the BOP
    union, if necessary and appropriate, on any changes, and have
    everybody screened.
        Ms. Bass. So, we'd like to see that, as well, in terms of
    formal comments. Then when you do have an RFP it will be, who
    are you looking for to evaluate it?
        Ms. Bacon. The RFP will be issued through the National
    Institute of Justice, open to anyone who qualifies under the
    terms of the RFP. What we are really trying to--
        Ms. Bass. When do you think it will be available?
        Ms. Bacon. My understanding is in the very near future.
        Ms. Bass. Okay.
        Ms. Bacon. Because the goal is to have not only the BOP and
    not only the Independent Review Committee and not only the
    experts that NIJ hired but another group who all will have
    access to the data and can each independently verify and test
    and work with each other to make sure--
        Ms. Bass. That's good. I am about ready to run out of time.
    That is very helpful, and I would like to be notified when that
    RFP, before it is going to be released, because when you look
    at evaluation, who evaluates it is very critical, and what
    their experience is with different populations, their cultural
    awareness, et cetera, is critical to an evaluation. So, making
    sure that the RFP is widely available to different groups is
    very important. Thank you.
        Mr. Reschenthaler. Thank you, Madam Chair. This question is
    for both witnesses.
        I know that the President is deeply committed to the First
    Step Act and AG Barr has stated that he is in lockstep with the
    President in ensuring swift implementation. Can you just
    broadly address what you are doing to ensure that this
    bipartisan measure is successful, and if you could provide a
    timetable on when those in prison will be able to take
    advantage of the recidivism reduction programming in the First
    Step Act?
        Ms. Bacon. Yes. The attorney general is deeply committed to
    ensuring that the First Step Act is fully and fairly
    implemented and has been personally involved since the
    beginning in ensuring that we were on pace to meet the
    deadlines, as evidenced by our ability to meet the July 19th
    deadline, which was quite ambitious.
        We did not stop at July 19th. In fact, we saw that as the
    work just beginning. From July 19th to today, we have been
    laser-focused on working on building up the needs part of the
    needs assessment system, and also in really taking the feedback
    we have received and challenging ourselves to see how we can
    improve the system, PATTERN, as drafted. We are currently on
    pace to meet all of the deadlines that are in the statute.
        Mr. Reschenthaler. Do you have anything to add?
        Ms. Sawyer. Well, I would just say that we have already
    begun training our staff. Even though we do not have the final
    needs assessment, yet we are already starting up the training
    for our staff, to have them prepared to move forward once the
    risk assessment is completed, and to actually move forward on
    the needs assessment portion of it also, to identify the needs.
        We are also looking at the program offerings that we have
    available in the Bureau of Prisons, and we have received some
    funding during this past fiscal year to increase the program
    offerings in a number of our education vocational training
    areas and our specific program areas. We are kind of planning
    out the year ahead with monies we requested into next year of
    additional programs we will be able to add, to have available
    to the inmates also.
        Mr. Reschenthaler. Thank you. My next question is about
    COs. A correctional officer can be responsible for, as you
    know, supervising as many as 150 inmates at once, and the COs
    are unarmed inside the facilities. It is my understanding that
    insufficient staffing levels in a more aggressive inmate
    population have led to a spike in violence. What is the BOP
    doing to prevent violence against staff, and if you have these
    statistics, how many assaults took place last year? How many of
    these assaults led to criminal prosecutions?
        Ms. Sawyer. Okay. I do not have the information here today
    on the numbers of assaults and prosecutions, but we will be
    very happy to get those for you.
        Staff safety is our most critical concern, absolutely, and
    the vacancies we have in staffing right now are just
    unacceptable. They have come about because of several years of
    uncertainty about our budgets, uncertainty about the number of
    positions we were allowed to fill. There has just been a lot of
    concern with how much money we were going to have and how many
    positions we were going to have each year. It has caused us to
    fall back in terms of filling positions.
        Now, we are ramping up absolutely dramatically and trying
    to fill these positions. Since I have become the director, we
    have initiated a number of new things. We are getting some new
    authorities from OPM. We are trying to get direct-hire
    authority at the institutions. We have hired up like two dozen
    more staff in our staffing area, just to help process the new
    employees coming on board. We have ramped up our recruiting. We
    are doing everything we can to get the right bodies coming on
    board, get them through the very slow hiring process in the
    Federal Government, and getting them into our institutions as
    quickly as possible.
        Some of the things we have done in terms of protecting our
    staff, we have gone, the last few years, to providing stab-
    proof vests for our employees, because that was an issue of
    concern for some years where some of our employees were
    actually being stabbed by the inmates. We have stab-proof vests
    for everyone. They are required in all our higher-security
    institutions. They do not carry weapons but they carry like a
    pepper spray canister with them, which enables them to break
    down any disruptive inmates very quickly and stop any
    aggressive action. We do everything we can to try to keep our
    staff safe but filling up these positions is critical.
        As you know, from Hazelton, the new warden there has done a
    wonderful job of getting his staffing level up almost to full
    complement. So, it is just a matter of us getting all of our
    institutions up to that level of staffing.
        Mr. Reschenthaler. Just one follow-up question on staffing.
    I am being told that nurses and administrative personnel are
    being used to supervise inmates. One, is this true, and two, is
    there anything being done to curb this augmentation of staff?
        Ms. Sawyer. Augmentation is an integral part of how we do
    business. I started as a psychology intern at the Bureau of
    Prisons. I had to cover posts for correctional officers. We all
    are trained as correctional workers first. We all have the same
    basic correctional training. So, when a teacher is teaching,
    they don't have a correctional officer in that classroom to
    guard the inmates while the teacher is responsible for
    overseeing those inmates. When I did therapy groups as a
    psychologist, I was responsible for providing security. Our
    work detail supervisors, they are responsible. We are all
    trained as correctional officers first.
        So, what has happened, though, more recently, with the
    lower staffing, we have had to use augmentation more than we
    would like to. So, we need to get us back to a level where
    augmenting is good, because, I went from a psychology intern to
    a warden. Had I not had all those experiences along the way of
    working other posts and details, I would have been ill-prepared
    to move into those jobs. So, it is a way we develop and train
    our staff.
        Our problem today is we are using augmentation too much
    because our staffing levels are too low. So, we need to get it
    up to a level of appropriate augmentation, but not overly so.
        Mr. Reschenthaler. Thank you.
        Ms. Bass. Thank you, and we have been joined by the chair
    of the full committee, Mr. Nadler.
        Chair Nadler. Thank you, Madam Chair. I ask unanimous
    consent that my opening statement be placed in the record.
        Ms. Bass. Without objection.
        [The statement of Chair Nadler follows:]

                          CHAIR NADLER FOR THE RECORD

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    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chair Nadler. Thank you.
        Ms. Sawyer, Nydia Velazquez and I were witnesses at the
    Brooklyn Metropolitan Detention Center in Brooklyn to the
    catastrophic conditions back in January or February. The
    inspector general's report recommends that the MDC upgrade its
    heating, ventilation, and cooling equipment and put in place a
    system to automatically monitor the temperatures throughout the
    facility.
        It has now been 10 months since the crisis. Have those
    upgrades been made?
        Ms. Sawyer. We have made most of them, Congressman. We have
    been working diligently to make all the improvements on both
    the electrical side and the heating and air conditioning side.
    On the heating side we have gone through all our heating
    equipment, done all the preventive maintenance, checked all the
    coils and the wires and everything you could possibly check.
        The thing we have not yet done, because we have to get the
    funding for it and then put it into place are the sensors that
    we would like to have located around the institution to tell us
    exactly what the temperature is in each area of the
    institution. Because as you know, during your visit, it was
    very warm in some parts of the institution and not warm enough
    in other parts of the institution, and controlling a large
    building is very difficult.
        So right now, we are doing it with handheld sensors. We are
    going around the institution with handheld sensors and checking
    the temperature all the time, very regularly, and having to
    convey that back to the powerhouse. The new sensors, which will
    be coming in the near future, will be permanently placed around
    the housing units and around the institution. They will
    immediately feed back, electronically, the information on the
    temperatures to the powerhouse so that it can be regulated very
    quickly and regularly. That we are still in the process of
    installing, but we have made significant improvements.
        Chair Nadler. When do you think they will be finished?
        Ms. Sawyer. I don't have a specific date. I would be very
    happy to get that to you.
        Chair Nadler. Well, I mean, two months? Two years?
        Ms. Sawyer. We are talking about months.
        Chair Nadler. Okay. One of the things that really shocked
    me was that they had no census or information as to which
    inmates required, let's say, CPAP machines or oxygen machines.
    When the power went out those people were helpless. They could
    have had strokes or whatever. What has been done about that?
        Ms. Sawyer. Well, at the time when this thing was
    occurring, Congressman, we offered those inmates who needed the
    CPAPs to move to the other housing--the one building had power
    and heat; it was okay. It was the west wing, the west building
    that had the power and the heating problems. We offered them to
    move, and they elected not to move over. Still, that is our
    responsibility. That was our fault for not having a backup plan
    for them right away.
        We now have, in our regulations there at the institution,
    what the plan is. The plan is we will not ask them if they want
    to move. We will move them over to where the power is available
    to them, and make sure that they can plug in their CPAP
    equipment, and make sure we know exactly who those inmates are.
    The officers there will know who they are, and we get they
    right back onto the CPAP immediately.
        Chair Nadler. Okay. Now, the IG report also says that until
    the upgrades we talked about a minute ago--the temperature
    monitors--are made, including the monitoring system, the
    inmates should be given long-sleeved clothing, thermal
    underwear, or other cold-weather clothing as part of their
    standard issue attire, rather than the short-sleeved attire
    they get now. With winter approaching, has that been done?
        Ms. Sawyer. Absolutely. In fact, we are giving them all
    coats as well, just in case. Just in case. We are giving them
    extra clothing. We make our own blankets a Federal Prison
    Industries so we should never be without enough blankets. So,
    we are giving them plenty of blankets, plenty of warm clothing,
    and we are actually giving every inmate a coat, just in case.
        Chair Nadler. Okay. Are you reviewing the status of all
    Federal correctional facilities to determine whether similar
    problems exist there, and take appropriate steps to ensure that
    what happened at MDC Brooklyn doesn't take place elsewhere?
        Ms. Sawyer. Yes, sir, we are. We have initiated--all these
    institutions should be reviewed within every one to three
    years, in terms of a complete relook at the heating and air
    conditioning and electrical systems. Again, because many of our
    institutions are so old, preventive maintenance and a lot of
    the money that we should be putting into this equipment has
    just not been forthcoming to do all the work we would like to
    do. But we are trying to target the ones that we think could be
    more vulnerable than others, and eventually get to all the
    institutions to make sure--
        Chair Nadler. I have two more questions in 45 seconds.
        Ms. Sawyer. Okay. I am sorry.
        Chair Nadler. One of the issues that took place at MDC was
    that visitation was cut off to families and attorneys. As a
    result, for a period that was too long no one on the outside
    knew what was going inside. Families, in particular, were very
    anxious and, frankly, terrified not to know what was going on
    with their loved ones. Has MDC taken any measures to ensure
    that families and attorneys are kept informed if anything like
    this ever, God forbid, happens again, and what specific
    measures have been taken?
        Ms. Sawyer. Right. One of our biggest failings at that
    institution, on that situation, was communication. They were so
    busy trying to fix the heating and air conditioning, the
    heating, and electrical problems, we forgot to be quite as
    aggressive at letting all of our stakeholders know--the family
    Members, the--
        Chair Nadler. You are doing that now?
        Ms. Sawyer. We have policy in place--
        Chair Nadler. You are doing that now?
        Ms. Sawyer. --we have made contacts to repair some of the
    damage.
        Chair Nadler. Thank you.
        Ms. Sawyer. Sorry.
        Chair Nadler. In the one second I have left, my last
    question is, one of the things that was shocking to me was that
    there didn't seem to be any emergency plan in place at that
    point. Has that been rectified?
        Ms. Sawyer. Yes. We had an emergency plan. We didn't an
    emergency plan authority. We didn't have the person in place
    that was supposed to be making sure that that emergency plan
    was activated right away. That person is now in place. The
    emergency plan is there. God forbid this occurs again, but if
    it does, we should be much better prepared to deal with it,
    sir.
        Chair Nadler. Thank you. My time has well expired.
        Ms. Bass. Representative Chabot.
        Mr. Chabot. Thank you very much, and Madam Chair, I would
    like to commend you on holding this hearing. I think this is a
    very important hearing. I would like to focus much of my
    attention to the Prison Industries program, UNICOR now. I have
    been a long-time big supporter of that group and trying to keep
    them going in the right direction. I would just note that most
    of the people that inhabit our Federal prisons will one day get
    out. There are exceptions. We have people that have obviously
    murdered multiple people, and the likelihood of them getting
    out may be somewhat slim. Most of these folks are going to get
    out.
        So, to the extent--and that is the case at the local level
    as well. So, to the extent that we are able to get these folks
    marketable skills that they can put to use when they get out
    makes it much less likely that they are going to revert back to
    crime. It is my understanding, for example, that you all have
    something called the post-release employment project, and if I
    have got my numbers straight, I believe that if they were in
    Federal Prison Industries and got a skill there is something
    like a 24 percent less of a chance that they will end up back
    in crime when they get out. Would you like to talk about that?
        Ms. Sawyer. That is absolutely true, Congressman, and I
    testified before you on Prison Industries issues 20 years ago,
    so I know you were a strong supporter of that program back
    then. It is one of our most powerful programs and it is
    evidence-based that it does have a significant impact upon
    recidivism. The 24 percent that you recall is exactly right,
    that it is a 24 percent less likely that an inmate is going to
    return to crime when they hit the streets, and it is also a 15
    percent increase in likelihood that they are going to be
    productively employed, a taxpaying citizen back in the
    community. It is a powerful program.
        At one time, when I was director before, 20 years ago, we
    had 28,000 inmates in Federal Prison Industries. We are now at
    only 11,000 inmates in Prison Industries. Our authorities and
    our ability to be a mandatory source purchase agent from all
    the Federal Government has been eroded a lot over the years,
    and it is harder and harder for us to get the kinds of work and
    orders that we need to employ the kind of inmates we did
    before.
        We still make 80-some different product lines. It was 122
    different product lines when I was here before. We are down to
    80-some product lines. We try to diversify as much as possible
    so that we don't impact any particular industry in this
    country.
        We have gotten some new authorities through the First Step
    Act which we are hopeful are going to help us raise those
    numbers a little bit, but we need all the help we can get to
    advance authorities. If we really want to impact inmates
    through the First Step Act, Federal Prison Industries is a
    critical, critical area that we can do that.
        Mr. Chabot. Great. Thank you. I certainly understand and I
    was, for the last two Congresses, Chair of the House Small
    Business Committee. I am now the Ranking Member of the House
    Small Business Committee. So, there are some folks, business
    folks, that are concerned about the competition, and I
    certainly understand. I think we can work through this, though,
    and I would like to see an expansion of the number of inmates
    that are qualified to be in the program so that we can get job
    skills for a lot more of these people, who again, will someday
    be out on the street. We don't want them preying on the public.
    We want them to have marketable skills and be able to obtain a
    job and be self-supporting.
        So, the First Step Act, it is my understanding that before
    last year only Federal Government agencies could buy products
    manufactured by Federal inmates, but with the enactment of the
    First Step Act, section 605, expanded potential purchasers to,
    for example, the District of Columbia, so the government of the
    District of Columbia here in Washington, some nonprofit
    entities, and in disaster relief and emergency response
    efforts. Is that correct?
        Ms. Sawyer. Yes, that is.
        Mr. Chabot. Okay. So, I would hope that is something else
    that we could work on.
        It is also my understanding, as far as the Federal
    Government, about 50 percent of the products go to the Defense
    Department. Is that right, approximately?
        Ms. Sawyer. I don't know if it is exactly 50 percent, but
    they are our biggest purchaser, yes.
        Mr. Chabot. Okay. Then some of the other agencies is
    Homeland Security, the Justice Department, Department of
    Transportation, Treasury, Veterans Administration, the Bureau
    of Prisons itself, the GSA, Social Security Administration, and
    the Postal Service.
        Ms. Sawyer. Yes. Yes.
        Mr. Chabot. Does that sound right?
        Ms. Sawyer. Yes.
        Mr. Chabot. The products we are talking about are textiles,
    office furniture, recycling, and a number of other things.
        So, let me just conclude with this because my time has
    almost expired. Anything that we can do to get marketable
    skills to those that are inhabiting our prisons, both at the
    local and especially at the Federal level, since we are here at
    the Federal level, I think we are doing incredible good for
    society overall. Because these people will come out some day
    and they ought to be working and supporting themselves, not
    preying on the public.
        Ms. Sawyer. Thank you, Congressman, for your support.
        Mr. Chabot. Thank you very much, and I yield back.
        Ms. Bass. Mr. Jeffries?
        Mr. Jeffries. Thank you, Madam Chair, for your leadership,
    and I also want to thank, of course, my good friend, Doug
    Collins, for his tremendous leadership of the First Step Act,
    and Chair Nadler, all distinguished Members of the committee.
        Before I begin my questioning, I just had a statement for
    the record that reads, in part--it is from Jay Chattelle, who
    is the nephew of Troy Pine, of course, who was the young man
    who was tragically killed on Wednesday, October 2nd, in
    Providence, Rhode Island, by someone who was released pursuant
    to the retroactive application of the Fair Sentencing Act of
    2010.
        The statement, in part, reads, ``My uncle was a truly great
    man and his loss has devastated my family. No family should
    have to go through this. But to blame President Trump or the
    First Step Act is 100 percent wrong. This bill was passed with
    good intentions. Way too many people are in jail for way too
    long. Nobody should use my family's name or pain for a
    political agenda. At the funeral, my brother spoke of the need
    for love and forgiveness, and I wish the world had heard it.
        ``Anyone who speaks my uncle's name, please speak it in a
    way that will draw people together and bring help to people in
    these communities, including human beings who have been locked
    up for too long. Speak it in a way that brings healing to
    people who need it. My family is about God's love and grace. I
    hope you will join us in this effort. God bless you all.''
        I just ask unanimous consent that this statement be entered
    into the record.
        Ms. Bass. Without objection.
        [The information follows:]

                          MR. JEFFRIES FOR THE RECORD

    =======================================================================

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        Mr. Jeffries. Certainly, our thoughts and prayers are with
    the family of Troy Pine.
        Director Sawyer, the First Step Act is designed to help
    currently incarcerated individuals successfully reenter
    society. Is that true?
        Ms. Sawyer. Yes, sir.
        Mr. Jeffries. According to the U.S. Sentencing Commission,
    almost one-third of Federal offenders are reconvicted in eight
    years after reentering the community. Is that correct?
        Ms. Sawyer. It is about 40 percent in the Federal system.
        Mr. Jeffries. The First Step Act was crafted to sort of
    reduce this recidivism by helping to bring to life programs
    that provide education, job training, substance abuse
    treatment, and mental health counseling. Is that correct?
        Ms. Sawyer. Yes, it is.
        Mr. Jeffries. The research shows that inmates who
    participate in correctional education programs, for instance,
    are significantly less likely to recidivate. Is that right?
        Ms. Sawyer. Yes.
        Mr. Jeffries. For example, I think there was a May 2018
    report that the White House Council of Economic Advisors issued
    that concluded that mental health programs reduce recidivism by
    approximately 21 percent and substance abuse programs by 17
    percent. Is that correct?
        Ms. Sawyer. I am not familiar with those numbers. They
    sound correct.
        Mr. Jeffries. That is consistent with the literature as it
    relates to the impact of similar programs on recidivism. Is
    that true?
        Ms. Sawyer. Yes.
        Mr. Jeffries. Would you agree that implementing the
        First Step Act is the right thing to do for individuals,
    families, and communities that have been devastated by what I
    would characterize as the failed war on drugs?
        Ms. Sawyer. I absolutely support the First Step Act.
    Absolutely, sir.
        Mr. Jeffries. Would you agree that reducing recidivism
    improves public safety in communities throughout the country?
        Ms. Sawyer. Yes, sir.
        Mr. Jeffries. Is it fair to say, also, that reducing
    recidivism saves taxpayer dollars as well by reducing the need
    for incarceration and the cost of prosecution and things of
    that nature? Is that correct?
        Ms. Sawyer. Yes, sir. We have often said that we would like
    to work ourselves out of business. We would like to reduce
    recidivism to the point that we didn't even need the prisons
    that we have today.
        Mr. Jeffries. So, we have a framework in place, of First
    Step, and as we worked on this legislation, we were very clear
    that to deal with mass incarceration as an epidemic we need
    sustained energy, sustained intensity, sustained effort, but we
    need it to start someplace, with a first step. We have to make
    sure that this first step, of course, is successful.
        So my question for you is, because I believe the commitment
    is there, as was articulated by the Department of Justice, is
    what are the resources that are necessary to make sure that we
    can bring this programming to life, to really help the people
    who can use this programming for them to bring their natural
    talents and abilities and their hopes and dreams and
    aspirations into reality?
        Ms. Sawyer. We have had outstanding programs in the Bureau
    of Prisons for years. Our residential drug treatment program,
    our education programs, our prison industry programs we
    discussed, many good programs. Our limitation, though, was we
    never had enough resources to make those adequately available
    to all the inmates, to have the positive impact on all the
    folks leaving our institutions.
        So, that is where we come to today. Resources is going to
    be our biggest challenge. We requested funding in the 2019
    budget. We got $75 million. We have ramped up, as I said
    earlier, our education programs, our vocational training
    programs, and some other programs, bringing in our necessary
    staff to add to our drug treatment programs and other model
    programs that can impact the needs of the inmates. We have
    requested funding again for 2020, to increase those even to a
    greater extent.
        We don't really know for sure what exactly our funding
    needs are going to be, because until we complete the needs
    assessment, apply that to all our inmates, we don't know for
    sure what all the needs are going to be and what other programs
    we may need to add to our operations.
        Resources are going to be our single only impediment to
    fully actualizing the First Step Act.
        Mr. Jeffries. Well, thank you, and I just want to thank--I
    know Chair Bass acknowledged some of the individuals who are
    present with us today who have been released pursuant to the
    First Step Act. We fight for you. We appreciate your continued
    engagement and involvement and your willingness to be amongst
    us today. I yield back.
        Ms. Bass. Thank you for your leadership.
        Representative Lesko?
        Ms. Lesko. Thank you, Madam Chair, and thank you, both of
    you, for coming here to testify. I have five questions and they
    are all for you, Director Sawyer, and so if you could answer
    them fairly fast that would be helpful, so I don't run out of
    time.
        On August 12th, our committee, Chair Nadler and Ranking
    Member Collins, wrote your office and department a letter
    asking about the Jeffrey Epstein death in the prison, and I was
    wondering what the status is of the AG's investigation into
    that.
        Ms. Sawyer. I am afraid that the situation is still under
    investigation, and so I am really not at liberty to say much
    about that just yet.
        Ms. Lesko. Okay. In the Department's response to the
    committee's letter there seemed to be a lot of blame on the
    suicide prevention program coordinator, a doctoral-level
    psychologist, for taking Epstein off the suicide watch. Do you
    think that is an accurate assessment, and if so, was there any
    disciplinary action?
        Ms. Sawyer. Again, I am not at liberty to discuss the
    Epstein case, in particular, but I would like to give a little
    more information on the suicide watch program, because I think
    it is very misunderstood.
        Ms. Lesko. Okay.
        Ms. Sawyer. I am a psychologist. I worked as a psychologist
    in the Bureau of Prisons with our inmates for many years. The
    suicide watch program is a very stark situation. If we deem you
    to be suicidal, imminently suicidal, we place you in a room
    with nothing in there except a mattress, a very thick, heavy
    kind of a gown that you would wear, so that you could not use
    it to strangle yourself with or hang yourself with. Even with
    your eating utensils you get kind of scoop so that you can't
    hurt yourself with that. It is a very stark and you are watched
    constantly--it is very stark environment. It can become
    depressive if you are in there too long.
        Our average length of time in that status is about 24
    hours. We then, though, have the option of moving an inmate to
    what we call psychological observation. They are still watched
    all the time, but they get clothes back, they get other reading
    materials and things in their room, they get more traditional
    bedding. It is a much different status. So, we do have the
    option of moving from one to the other. Suicide watch is not
    our only recourse.
        Ms. Lesko. Thank you. There were reports that there was no
    video footage of his room when he did. Is that like normal
    procedure?
        Ms. Sawyer. Again, I can't speak to the Epstein case, but I
    can say that a number of our camera systems are faulty and need
    to be repaired. In some of our institutions, especially our
    high-rises, we are working very diligently to upgrade, not only
    to replace the cameras but get digitized cameras, which give
    you a much clearer picture as to exactly what is going on. We
    are working to improve those in all our institutions.
        Ms. Lesko. Thank you. I am switching people now, to my last
    question, and this is about John Walker Lindh, who, 17 years
    ago, was convicted of a couple of things. He was first indicted
    of conspiracy to murder U.S. citizens, two counts of providing
    material support and resources to terrorist organizations, one
    count of supplying services to the Taliban, and I can go on and
    on. Basically, assumed to be a terrorist. Then he was released
    this year, after 17 years, so early, apparently on good time.
        Can you explain to me--there was reports that he is still
    professing in the belief of global jihad and a supporter of the
    Islamic State? How does somebody get released early if they are
    reportedly still professing those types of things?
        Ms. Sawyer. The good conduct time that currently existed in
    the regulations prior to the First Step Act required an inmate
    to serve 85 percent of their sentence, and if they had no
    misconduct issues within the institution, they followed the
    rules and regulations, then we had to release them. The Bureau
    of Prisons has really no control over when an inmate's sentence
    is up.
        Now, what we do with individuals who are terrorists in our
    system is we monitor them very carefully. Their mailings are
    monitored. Their interactions are monitored. We feed that
    intelligence out to our law enforcement communities so that
    when that individual is released the community to which he is
    going, all the law enforcement personnel know exactly what they
    are getting, what their thinking is, and what, if any,
    possibility there could be of them reoffending. So, that we see
    as our responsibility, is once we have to release them, we make
    sure whoever is receiving them has a much intelligence as they
    can possibly have as to the status of that offender.
        Ms. Lesko. Thank you. We did go on timing, so thank you for
    that. Also, I want to applaud--I think it is good that we do
    have programs that people that are doing a good job and can
    contribute to the society. So, I applaud this Committee for
    passing that type of legislation, and for you, I wish you all
    the success, the people in the audience. Thank you.
        Ms. Bass. Representative Jackson Lee?
        Ms. Jackson Lee. Thank you, Madam Chair, and to the Ranking
    Member for convening this important hearing, and welcome Madam
    Director. I think we have worked together in the past.
        Ms. Sawyer. Yes, we have.
        Ms. Jackson Lee. I am delighted, I believe, that you are
    making history, and that is something to take note of.
        In the hearings that I have had today, each one of them I
    mentioned our friend and colleague, the honorable Elijah
    Cummings, and I will do it here, and say that we will always be
    reminded of his seeking justice, and that is what we are doing
    here today.
        I would also like to associate myself with the words of
    Congressman Jeffries and the letter that he read, to not use
    and misuse a vitally important program of restoration to be
    against these kinds of programs.
        Let me start, as well, with a question about Mr. Epstein at
    the Metropolitan Correctional Center. I heard what you said so
    I am not asking for the details. What I am asking for is that
    the Congress--and I am saying this because the DOJ is
    represented here--have this committee, in particular, and I
    know our chairman certainly will have that done, but I want to
    be on the record that we want the full, unredacted report as to
    each action and response. So, I am making that request to you
    and I hope that you will adhere to it, Madam Director.
        Ms. Sawyer. Yes, ma'am.
        Ms. Jackson Lee. So, let me go to a more generic question.
    I visited the Metropolitan Correctional and in my
    responsibilities on this committee, I met with a lot of the
    corrections officers, dedicated that they were. There is
    certainly an alluding to the circumstances of overly exhausted,
    sleeping.
        What are you doing about the excessive overtime, shortage--
    I heard something that I wanted to be very pointed--because of
    overtime and the lack of time between days off and working? I
    understand, when I spoke to these leaders at Metropolitan, they
    were barely getting any time off to go home and come back. They
    were doing three shifts. I am just giving the kind of
    description. What are you doing about that, because that
    certainly impacts justice, it impacts those who are detained,
    and it impacts the workers?
        Ms. Sawyer. Right. One of our biggest challenges right now
    is filling the 3,000 positions that we have vacant, and since I
    came on board eight weeks ago, that has been a full court press
    of mine. We have hired 20-some new employees in our staffing
    offices to try to move the applicants much faster through this
    rather slow process of hiring. We have ramped up our recruiting
    process. We are getting new authorities from OPM to be able to
    give our institutions direct-hire authority so they can hire
    straight from the street.
        Ms. Jackson Lee. Are you responding, as well, to your
    present staff and then some relief as well?
        Ms. Sawyer. Right. Absolutely.
        Ms. Jackson Lee. I have a short period of time so we--
        Ms. Sawyer. Yeah, to our present staff we are trying to use
    only voluntary overtime, trying not to mandate overtime. That
    is what causes us to use staff from other locations.
        Ms. Jackson Lee. Thank you. Thank you very much.
        I am committed to a program that deals with addressing
    pregnant inmates, obviously women. It is SIMARRA legislation
    that I have included in some legislation that has made its way
    through the House and it is on to the Senate, and that is to be
    creative in dealing with women who are pregnant, that may give
    birth while they are in prison. There are many different--how
    should I say?--proposals. Mine deals with making sure that
    there is a bonding and that they are allowed to be with the
    child for a period of time. How open are you to that?
        Ms. Sawyer. Absolutely. We have six MIT programs right now.
    We call them Mother and Infants Together. Six months from the
    time the birth occurs to six months after, the mother can be
    placed in a halfway house with her child to create that bonding
    connection. Then we also contract with the State of Washington
    for an ongoing program. If a woman is within 30 month of
    release they can keep the baby with them for 30 months, but
    they have to be in Washington State, which is undesirable to
    some women.
        Ms. Jackson Lee. So excellent, and what I will say is, so
    you won't mind that being codified so they won't have to be
    move to Washington State. I need to get to my other questions.
        Though it is not your responsibility, my legislation, that
    was added to the First Step Act, had to do with the Independent
    Committee. I know that it has been housed somewhere. I would
    like you to comment on the value of having that oversight.
    Then, lastly, would you please describe, for the DOJ, the
    policies in place that will allow inmates to contact counsel or
    file complaints when facilities experience emergencies, such as
    at MDC?
        So, would you--the Committee--
        Ms. Sawyer. The Independent Review Committee on the First
    Step Act?
        Ms. Jackson Lee. Yes.
        Ms. Sawyer. I would defer to Toni.
        Ms. Bacon. The Independent Review Committee has been a
    valuable asset. We have appreciated an open working
    relationship with them, and they have provided very hopeful
    suggestions and guidance, not only on the tool, on developing
    PATTERN, but also on evidence-based recidivism reduction
    programs, needs assessment systems, and an overall
    implementation plan.
        Ms. Jackson Lee. Well, the counsel, can these inmates get
    to their counsel when these conditions are not working?
        Ms. Sawyer. I am not sure I understand your question,
    Congresswoman.
        Ms. Jackson Lee. Can you describe the policies in place
    that would allow inmates to contact counsel or file complaints
    when facilities experience emergencies like at MDC?
        Ms. Sawyer. Sure. They should have easy access to be able
    to contact an attorney. That is not a big concern for us. What
    happened--if you are talking about MDC at Brooklyn, when we had
    to shut down our attorney visits for a while because of the
    heating and air conditioning, and electrical problems, that was
    a temporary situation based upon our utilities problems, and we
    have put in place now ways to rectify that should, hopefully,
    never happen again, but should it happen again, ways that we
    can get them access to the attorneys that they wish to contact.
        Ms. Jackson Lee. I am yielding back. I just want to say we
    have a detention center in my district 20 years. I do want to
    give applause and praise to those staff persons there. I heard
    that the Independent Committee--just for the record; I am not
    asking for a response--it is not working, and so I want to
    follow that up at a later time.
        I yield back. Thank you, Madam Chair, for your courtesy.
        Ms. Bass. Representative Cline?
        Mr. Cline. Thank you, Madam Chair, for holding this
    hearing. Thank you to the witnesses for being here today.
        Federal Bureau of Prisons plans an important role in
    protecting society and confining offenders while they serve out
    their sentences. The First Step Act of 2018 includes three
    major components, as was discussed--correctional reform,
    sentencing reform, and reauthorization of the Second Chance
    Act.
        It is important to note that nationally and in my home
    State of Virginia, crime is at or near all-time lows, and this
    is a direct result of laws passed by Congress and by the
    States, that ensure violent and dangerous offenders receive
    appropriate punishments for their offenses. It is also
    important to remember, and keep as a goal, that victims of
    crime and their families, should never be robbed of justice,
    and violent offenders must be held accountable by our criminal
    justice system.
        The First Step Act appropriately prevents violent offenders
    from earning additional time credits to reduce their sentences.
    In my home State of Virginia, the practice of discretionary
    parole release was abolished in 1995, and our truth in
    sentencing laws require convicted felons to serve at least 85
    percent of the pronounced sentence, and they may earn, at most,
    15 percent off in sentence credits, regardless of whether their
    sentence is served in a State facility or a local jail.
        At 23.4 percent, Virginia has the lowest recidivism rate in
    the country, among the 43 states that report three-year
    reincarceration rates for felons. Of the 12,000 offenders
    released from incarceration in Virginia in fiscal year 2014,
    who had an opportunity to recidivate, 2,800 were reincarcerated
    within three years. Virginia's leading rate can be attributed
    to the effective reentry programs and treatments offered by
    Virginia Department of Corrections during an offender's
    incarceration and its effective supervision in the community
    after release.
        I did note with interest the Federal Law Enforcement
    Officers Association letter to Chair Bass and Ranking Member
    Ratcliffe asking for additional resources for probation
    officers and additional legislation to give them additional
    authorities to ensure their safety during their job of
    monitoring this increased number of prisoners who are being
    released.
        So, I would ask, Ms. Bacon, the First Step Act requires DOJ
    to develop a risk and needs assessment system to be used by BOP
    to assess the recidivism risk of all Federal prisoners and to
    place prisoners in programs and produce productive activities
    to reduce this risk. Prisoners who successfully complete
    recidivism reduction programming and productive activities can
    earn additional time credits toward pre-release custody.
        Can you describe how this is being implemented, and are
    there any early indicators of success regarding the release
    under provisions in the First Step Act?
        Ms. Bacon. Yes. So, step one is to develop the risk
    assessment tool called PATTERN, that we are in the final stages
    of updating, and we intend to publish in the very near future.
    Step two is then to screen every single inmate in the Bureau of
    Prisons by January 14, 2020, the statutory deadline, through
    the risk and needs assessment system, so we can identify what
    is the individualized need? What is the particular need of each
    person, to help reduce their recidivism risk?
        From there, the next step is to identify, from a menu of
    evidence-based recidivism reduction programs, what is the
    program that is best suited to meet that individual's need?
    Then from there, we intend to monitor, study, and validate the
    programs to see, one, which programs are working? Which should
    be expanded? Where should we go with those, and to identify and
    be honest about which ones aren't working, and that we might
    look to improve or that might need to be substituted with
    others.
        So that way, as we evolve and grow, we can maximize the
    number of beneficial programs that reduce recidivism and allow
    our communities to be safer.
        Mr. Cline. Are you going to be looking to States for
    examples of programs that may have worked in reducing
    recidivism as models for you to use?
        Ms. Bacon. Yes, absolutely. That has been part of our
    research, is to examine States. Also DOJ, in conjunction with
    the Independent Review Committee, recently took a trip to
    Canada to learn from our colleagues up north what programs they
    use, how effective they are, how they implement, how they
    measure. So, we are looking to multiple sources to determine
    what are the possibilities out there, where is the strongest
    evidence, and what programs give our inmate population, the
    Federal population, the best chance of success, yes.
        Mr. Cline. I was both a prosecutor and a defense attorney
    in Virginia, and on the Courts of Justice Committee there, so I
    would encourage you to look to Virginia for some of the
    examples of programs that we have used to success.
        With that, Madam Chair, I yield back.
        Ms. Bass. Thank you.
        Mr. Cicilline?
        Mr. Cicilline. Thank you, Madam Chair. I, too, want to
    acknowledge the loss of our extraordinary colleague, Elijah
    Cummings. We have lost a great champion for justice and a
    passionate civil rights leader, and someone who was a fighter
    for truth in the Congress of the United States. We all remember
    him and honor his service.
        I also want to acknowledge the tremendous loss of the
    family of Troy Pine, and I know a number of my colleagues have
    already acknowledged that. While we all support criminal
    justice reform, the particular facts of this case I know the
    court is reviewing, and we want to be sure that we understand
    how that happened. Most importantly, extend our condolences to
    his family.
        Director Sawyer, I wanted to start with you. I met with the
    individuals in my State who run the residential reentry
    centers. One of the things that they raised with me is that
    very often they get inmates from the Federal Bureau of Prisons
    that have done a lot of things like prepared resumes, gotten
    their IDs, but that often doesn't get transmitted to the
    residential reentry center. There doesn't seem to be a lot of
    coordination between the Bureau of Prisons and the residential
    reentry centers, which is really undermining the ability of
    these individuals to reenter successfully.
        So, I am wondering what the Bureau of Prisons can do in
    partnership with the residential reentry centers to provide for
    a more seamless reentry for inmates, and what steps might be
    taken to ensure that some of the work that has been done on
    things like getting an ID and preparing a resume, travels with
    that inmate to the residential reentry center so they have a
    leg up on this reentry work, as they are getting back into the
    picture and they are going to reenter the community?
        Ms. Sawyer. To be honest, Congressman, I am little
    surprised to hear that being raised as a concern, because we
    have our staff from the central office in the local community
    corrections or reentry staff working directly with the halfway
    houses. So, if there is a breakdown in some type of
    communication at that level we will look specifically at those
    in your region and see what is happening, because--
        Mr. Cicilline. That would be great.
        Ms. Sawyer. --we felt we had a pretty good line of
    communication there, but we will check it.
        Mr. Cicilline. They have been involved in this work for
    quite a while in the whole New England region and have had the
    experience in various places. So, if you would look into it.
        Ms. Sawyer. Definitely. Absolutely, sir.
        Mr. Cicilline. Similarly, they also raised, during that
    meeting, that while the Bureau of Prisons has done a very good
    job in terms of moving people back into the community or
    entitled to some reduction in their sentence as a result of
    this historic legislation, that the kind of backfilling of
    those spots for people who now become eligible under the First
    Step Act for residential placement, those spots aren't getting
    refilled.
        So, I am wondering what is the status of the second part of
    this? The first part is obviously getting people's sentences
    reduced that get back into the community, but as a result of
    other sentence reductions they now become eligible for
    residential placement. That doesn't seem to be happening, and
    they know that because a lot of their folks are getting
    released but they are not having anybody refill them, and there
    are obviously people in the system who are eligible.
        So, what is the status of that second part?
        Ms. Sawyer. Well, we target all our eligible inmates to go
    out through a residential reentry program because we feel that
    is a good halfway step back for them. At least 75 percent of
    our inmates released go through the halfway houses.
        We can't, though, guarantee that the right number are going
    to release into a particular district at the right time. So,
    even if we contract for, say, 20 beds at this particular house,
    I can't guarantee we are going to release 20 inmates to that
    specific locality.
        Mr. Cicilline. No, no, I understand. Maybe I am not making
    myself clear.
        Ms. Sawyer. I am sorry.
        Mr. Cicilline. There are people, because of the First Step
    Act, now are within close enough time to be--they are at the
    end of their sentence, that they are now eligible to be at a
    residential reentry center.
        Ms. Sawyer. Right.
        Mr. Cicilline. They are still at the Bureau of Prisons.
        Ms. Sawyer. Right.
        Mr. Cicilline. So, is that process of calculating where
    those people are so that they get placed in residential reentry
    centers and not wait at the Bureau of Prisons?
        Ms. Sawyer. Yeah. That is an ongoing, like a revolving
    door, that we identify the inmates, we try to get them out
    within at least six months of their time. The average stay is
    about five months. We try to get them out there as quickly as
    we can.
        Mr. Cicilline. If you could look at the stats because my
    sense is the second half of that may be not happening.
        Ms. Sawyer. We will definitely look at that.
        We will look at that, for sure.
        Mr. Cicilline. My final question, Director, is, the First
    Step Act requires the Bureau of Prisons to assess an evidence-
    based recidivism reduction programming or productive activity
    to each person incarcerated. It is not clear that the Bureau of
    Prisons has enough programs to meet this requirement at every
    facility. For example, one of the most popular evidence-based
    recidivism reduction programs within Bureau of Prisons is the
    residential drug abuse program, and it frequently has a waiting
    list of 5,000 people. That was one in 2016. It sometimes
    requires individuals to transfer to a different facility,
    perhaps one with a higher security level than their previous
    facility.
        So, access to evidence-based recidivism reduction is
    crucial to the successful implementation of the First Step Act.
    Does the Bureau of Prisons and does every BOP facility have an
    evidence-based recidivism reduction program, as defined by the
    First Step Act? How many programs are in the BOP catalog? How
    many have wait lists? Is there more we need to do? Because that
    is a requirement, and if it just doesn't exist throughout the
    system, we have a problem.
        Ms. Sawyer. The wait list on the drug program is a
    misnomer. We identify the drug program for the latter part of a
    person's sentence because research shows that if you do it on
    the front end of their sentence then they sit without drugs
    available in the institution, and then they get out and we
    missed the point. So, we schedule it later in their time.
        So, the waiting list--we are going to need to change the
    name for that, because it is a misnomer. It really is--we have
    kind of targeted when we want them to enter the program. We are
    going to have to back that up a little bit because now they can
    earn the credits and get out a little bit earlier. They are
    really not waiting because we don't have beds. 80-six of our
    institutions have residential drug treatment programs. We
    should be able to accommodate all our inmates.
        If not, we mentioned earlier that funding is going to be an
    issue. With the new needs assessment coming, we are going to be
    able to identify, very clearly, what the needs of the inmates
    are, where we are short on programs in particular areas, and
    look to growing those programs as time goes on. Some money came
    to us in 2019, $75 million, and we are looking for at least
    another $75 million in the next one. We are targeting which
    programs we think we are going to need, but we won't know
    exactly what they are until this moves down the road a little
    bit and we can identify the needs and develop the programs to
    match those.
        Mr. Cicilline. Please let us know, because we want to
    advocate for that.
        Ms. Sawyer. Absolutely. Thank you, sir.
        Mr. Cicilline. Thank you, Madam Director, and I yield back.
        I am yielding to myself.
        Mr. Cicilline. [Presiding.] I now recognize the gentlelady
    from Pennsylvania, Ms. Dean, for five minutes.
        Ms. Dean. Thank you, Mr. Chair, and I thank Chair Bass for
    holding this hearing. I come from Pennsylvania. I was a State
    representative before being elected in 2018, and wanted to
    serve on this committee. I served on Judiciary there. Criminal
    justice reform is something I care deeply about. So, I wanted
    to ask you, in a couple of different areas.
        We know that criminal justice reform is an issue that we
    need to robustly address. According to a 2018 report by the
    Department of Justice, 83 percent of State prisoners released
    in 2005, across 30 States, were arrested at least once in the
    nine years following their release. That is five out of every
    six persons released. That numbers reveals to, I think,
    anybody, that the rehabilitation of inmates, at least at that
    data point, was not working for inmates, was not working for
    our communities.
        We have made some progress in the right direction with the
    passage of the First Step Act, which seeks to decrease
    recidivism rates through a number of the tools that you have
    been discussing today.
        One of those tools is earned time credits, that I would
    like to learn more about, earned by participating in recidivism
    reduction programming that could be used to decrease time spent
    in prison. Director Sawyer, could you briefly describe that
    programming, and who designs that programming?
        Ms. Sawyer. If I may, I would like to defer to the
    Department of Justice, because they are handling that part of
    it more robustly.
        Ms. Dean. Absolutely. Thank you.
        Ms. Bacon. Yes. We are in the process of identifying
    evidence-based recidivism reduction programs, whether those be
    programs that are currently offered at the Bureau of Prisons or
    maybe programs that are offered in States or in other
    locations. The next step is to then match the programs with the
    individualized need, and that is a very important step, because
    if someone's need is mental health and they are in a drug
    program, that is not necessarily going to reduce their
    likelihood of recidivism. So that matching is key, and that is
    where training of BOP staff and using the experience and the
    education of the high-quality staff we have is very important,
    because part of this will be the staff matching the program to
    the individualized need.
        Ms. Dean. Is that going on at this time?
        Ms. Bacon. Not yet. Where we are in the process now is
    identifying the menu of programs that have appropriate
    evidence, and this is an area where, in some cases, the
    research has been lacking. Part of the First Step Act, what we
    are excited about, is it is definitely an inspiration to
    research and study these programs so we can have a better
    understanding of which programs are working.
        Ms. Dean. I think that helps me bridge to the next
    conversation that I wanted to have. I want to focus on
    educational aspects of programming, because education for
    people in prisons has a clear public safety benefit, reducing
    recidivism.
        I, too, am heartbroken at the death of Chair, Elijah
    Cummings. I, as a little old freshman, had the honor of
    introducing legislation with him, so I feel quite sad in his
    absence. He and I--he, mostly, but I along with him, introduced
    the Promoting Reentry Through Education in Prisons Act, the
    PREP Act. The bill would standardize Bureau of Prisons
    educational programs, creating an office of correctional
    education within the agency. I was inspired by Elijah Cummings'
    leadership in this area.
        Are you familiar with that legislation, the PREP
    legislation, either of you?
        Ms. Sawyer. Somewhat, yes.
        Ms. Dean. Okay. I am eager to meet with you, meet with
    whomever, to try to get as much support as we possibly can for
    it. What we do know is if we could create a bureau and
    centralize the educational programming, best practices, meeting
    the assessment tools that are needed to identify the holes in
    the system in education and rehabilitation, and put it across
    the system instead of just here and there, we believe it would
    make a huge difference.
        Ms. Sawyer. Yeah. I was just going to say, we have
    education programs at every one of our institutions. We agree
    with every single thing that you are saying.
        One of the things First Step Act is going to help us with
    is it will incentivize inmates to take the programs. We require
    them to take education programs, literacy programs, and GED
    programs for 240 hours, when they first come into the
    institution. Some of them stay with it, and we have a lot of
    folks get their GEDs and become literate in our institutions.
    Some of them get tired of it and so they don't stay there,
    because there was, in their eyes, no benefit, no matter how
    much we tried to encourage them.
        Once we lost parole, we lost a lot of that incentive. Now,
    with the First Step Act, with the earned credits, we have got a
    new incentive there for them, that hopefully are going to keep
    those inmates in those programs much longer. So, we applaud
    that.
        Ms. Dean. I appreciate that and I see my time has run out.
    There is lots more to talk about, whether it is mandatory
    minimums or the programming around substance abuse disorder. I
    would love to talk with you more.
        Ms. Sawyer. Perfect.
        Ms. Dean. Thank you, Mr. Chair.
        Mr. Cicilline. I thank the gentlelady. I now recognize the
    gentlelady from Florida, Ms. Mucarsel-Powell, for five minutes.
        Ms. Mucarsel-Powell. Thank you, Mr. Chair, and thank you to
    the witnesses for coming here this afternoon. I think it is
    very important that we have the opportunity to discuss the
    First Step Act, which makes critical sentencing and prison
    reforms to the criminal justice system. It is so important that
    these reforms are implemented quickly and fairly, and those
    that are in the criminal justice system have that opportunity
    to have equal treatment.
        I think it is important to talk about the State of the
    Bureau of Prisons, because, as you have mentioned, it has a lot
    of issues. I think that you were hired just recently. How long
    have you been there now?
        Ms. Sawyer. Eight weeks.
        Ms. Mucarsel-Powell. Eight weeks. It didn't have a director
    for over a year. Is that correct?
        Ms. Sawyer. We had an acting director for 15 months.
        Ms. Mucarsel-Powell. Okay. You have lost about 12 percent
    of your total staff. Is that correct?
        Ms. Sawyer. Right now, we are down over 3,000 employees.
        Ms. Mucarsel-Powell. Is there a reason? You have only been
    there eight weeks, but is there anything that you have seen
    that can explain why there is such a shortage of staff right
    now in the Federal Bureau of Prisons?
        Ms. Sawyer. Well, we had very inconsistent budgets for
    several years and threats of losing positions. So, we were
    concerned about not hiring up too much and then risking having
    to riff them, because in some of the budgets we were threatened
    with losing positions. One year we kept our positions but lost
    the funding for like 1,500 positions. It has been very
    inconsistent in terms of both our position allotment and our
    budgets. So, a lot of that caused us to kind of get behind the
    curve with filling our positions, and now we find ourselves
    with a 3,000 backlog in empty positions.
        Ms. Mucarsel-Powell. Well, one of the reasons why I am
    asking that is because I know that there have been complaints
    in one of the Federal Bureau of Prisons in Miami because of the
    working conditions. They have actually had to file several OSHA
    complaints, and the union has stated that the working
    conditions are just very dire for them at this point. So, have
    you had a chance to look over those complaints?
        Ms. Sawyer. Yes. The issue at Miami, at least, was mold,
    and the climate down there is very conducive to mold. Once
    anyone identifies any mold--and we ask all of our staff to be
    vigilant all the time in terms of any life safety issues,
    whether it is with the inmates and staff or whether it is the
    facility, as soon as we identify the possibility of a mold
    concern we right away come in, we do the mold assessment, we
    bring in OSHA, we bring in the contractors to repair them.
        Ms. Mucarsel-Powell. They had to file it more than once.
    Now, that you are there--
        Ms. Sawyer. It recurred. It recurred, is what happened. We
    got the mold--the eradication was completed, we thought it was
    all taken care of, and then we found it occurring in another
    part of the institution. So, those things concern us very much,
    and we try--
        Ms. Mucarsel-Powell. Can you just give me an update, yes?
        Ms. Sawyer. We will do that. Thank you.
        Ms. Mucarsel-Powell. I know that you can't really get into
    details with the Jeffrey Epstein case, but as you can imagine--
    and I think it was the attorney general that stated that Mr.
    Epstein's death raised serious concerns that must be addressed.
        So, if you can just walk me through, what are the specific
    mental health and suicide prevention training that you provide
    the personnel that deal with these issues?
        Ms. Sawyer. All of our staff, when they come into the
    Bureau of Prisons, suicide prevention training is part of their
    training at the institution level, at our training academy in
    Glencoe, Georgia. We impress upon them suicide prevention. We
    also, every year in our annual training, repeat again suicide
    prevention training. One of our vulnerable areas are our
    special housing units, where inmates are kind of secluded from
    everyone else. We do quarterly training with the staff there to
    stay on top of suicide prevention issues.
        We do a lot of training with our staff, and the issue
    oftentimes is that the inmates, they understand the program
    too, and if the inmates truly want to die, they know how to,
    well, let me say it a little differently. We try to give every
    inmate a roommate so that they are never completely alone. Just
    the other day we had an inmate that died by suicide, and he
    waited until his roommate was taken out of the cell for
    recreation and took his life during that time frame.
        So, my only point--and again, I am a doctoral-level
    psychologist and I have worked suicide prevention in our
    institutions for years, it is very, very difficult for those
    who do not identify any likelihood--
        Ms. Mucarsel-Powell. I only have a few seconds.
        Ms. Sawyer. Sure. I am sorry.
        Ms. Mucarsel-Powell. Sorry, Ms. Sawyer. Really quickly, but
    it seems to be reported that there was a staffing issue in that
    particular prison, and because of the augmentation policy it
    was someone else that was actually on watch of Mr. Epstein. Is
    that correct?
        Ms. Sawyer. I cannot speak to anything specifically about
    Mr. Epstein. It is still under investigation.
        Ms. Mucarsel-Powell. Okay. Okay. Thank you.
        Ms. Sawyer. Okay.
        Ms. Mucarsel-Powell. I yield back.
        Mr. Cicilline. I thank the gentlelady, and I thank the
    Ranking Member for her accommodation.
        I just wanted to ask, one thing we really haven't touched
    on in this hearing, and it is one of the real purposes of it,
    is the Independent Review Commission's obligation to assist in
    reviewing and validating the risk and needs assessment system.
        So, my first question is what was the feedback and advice
    from the Independent Review Committee regarding the development
    of PATTERN, and what steps were taken to incorporate that
    advice, because that is a really central part of this act?
        Ms. Bacon. The Independent Review Committee engaged with us
    almost immediately on formation and was involved with the
    development of PATTERN really from the inception. The
    Independent Review Committee met not only with us at DOJ,
    working on the implementation, but also had a direct pipeline
    to the contractors, Doctors Hamilton and Duwe, who are actually
    developing the tool.
        So, along the way the Independent Review Committee provided
    advice to the contractors, gave suggestions on different ways
    the tool could be improved and developed, and that relationship
    has continued through July 19th, and as recently, I believe it
    was approximately two-weeks ago, we had another meeting with
    the Independent Review Committee where they again gave
    suggestions to us on how we could improve the tool.
        So, I would describe it as a collaborative working
    relationship, and we have certainly benefitted at the
    Department from their advice and their experience in the
    development of the tool.
        Mr. Cicilline. Will that information that you are
    developing and collecting in this process be shared with
    Members of this committee? Can we have that assurance?
        Ms. Bacon. In terms of what advice and--
        Mr. Cicilline. Well, whether or not the recommendations for
    changing it have been incorporated, what the error rate is,
    whether this system or this evaluation tool is working.
        Ms. Bacon. Yes, that is--
        Mr. Cicilline. That is the purpose of the Independent
    Review Committee, and we would like to know how the Bureau of
    Prisons is responding to that set of recommendations.
        Ms. Bacon. Yes. It is very important to us that the tool is
    working accurately. We share your concern there. We want a tool
    that is accurate and fair. That is the goal going in.
        Mr. Cicilline. No, and I understand that. My question is,
    will you share with the Committee the results of that analysis
    and assessment, both what the recommendation of the Independent
    Review Committee is and what the Bureau of Prisons, what
    actions you are taking or not taking with respect to their
    recommendations?
        Ms. Bacon. Yes. To the extent that is possible we intend to
    provide as much information as the Committee needs, yes.
        Mr. Cicilline. Great. Thank you very much. We will follow
    up with you on that. Thank you very much.
        With that, I will thank both of our witnesses for your
    testimony, and I know that our rules provide for an opportunity
    to provide some written questions, which we will do. I would,
    also, ask unanimous consent that a statement for the record
    from the Brennan Center for Justice be include as part of the
    record, without objection, and a statement from the National
    Association of Criminal Defense Lawyers.
        [The statement of the Brennan Center for Justice follows:]

                          MR. CICILLINE FOR THE RECORD

    =======================================================================

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        Mr. Cicilline. This reminds me of just one final question.
    On October 8th, it was a FOIA request from the National
    Association of Criminal Defense Lawyers, which, among other
    things, seeks specific information, including raw data, that
    was used to develop PATTERN. To the extent that such
    information is in your possession, will you commit to turn it
    over as part of that FOIA request?
        Ms. Bacon. We are in the process of reviewing that FOIA
    request and are processing it.
        Mr. Cicilline. Is that a yes--yes-ish?
        Ms. Bacon. I can say that we are processing the request.
        Mr. Cicilline. We look forward to receiving information
    from the committee, and we will go from there.
        Ms. Bacon. Thank you.
        Mr. Cicilline. We do thank you for your time and for the
    testimony before the committee.
        At this time, thank you again, Director Sawyer and Ms.
    Bacon--we will now proceed to our second panel, and I would ask
    our second panel of witnesses to please come forward.
        [Pause.]
        Mr. Cicilline. Thank you, and welcome to our witnesses.
        We are delighted today to be joined by David Patton. Mr.
    Patton is the head of the Federal Public Defender Offices for
    the Southern and Eastern Districts of New York. He oversees all
    aspects of office and employees, while also chairing the
    National Federal Defender Legislative Committee and the
    Southern District of New York Panel Review Committee, which
    makes recommendations about attorneys to be selected as
    appointed counsel on the CJA panel. Mr. Patton teaches evidence
    to all new Federal defenders at annual national training and
    represents individual clients in Federal criminal cases, and we
    welcome you, Mr. Patton.
        We are joined by Melissa Hamilton. Dr. Hamilton is an
    expert on risk assessments and holds a doctorate in
    criminology. She is a former judicial clerk on the United
    States Courts of Appeal for the Fifth Circuit and a former
    editor of the Texas Law Review. Today, Dr. Hamilton teaches at
    the University of Surrey School of Law in the UK. She is a
    member of the American Psychological Association and has
    published dozens of articles in law reviews and scientific
    journals on a variety of topics. Some of her main areas of
    focus are conducting interdisciplinary research on issues of
    risk assessment practices, policing sentencing, and
    corrections. Dr. Hamilton is a former police officer and a
    corrections officer. Welcome, Dr. Hamilton.
        John P. Walters--Mr. Walters is the chair of the
    Independent Review Committee designed to oversee the
    implementation of the First Step Act. He is also the Chief
    Operating Officer of the Hudson Institute, Director of the
    Hudson Institute Political Studies, and Co-Director of the
    Center for Substance Abuse Policy Research of the Hudson
    Institute. Welcome, Mr. Walters.
        Andrea James--Ms. James is the Founder and Executive
    Director of the National Council on Incarcerated and Formerly
    Incarcerated Women and Girls. She is also the Founder of
    Families for Justice as Healing and the author of Upper Bunkies
    Unite: And Other Thoughts on the Politics of Mass
    Incarceration. Ms. James is a 2015 Soros Justice Fellow and a
    recipient of the 2016 Robert F. Kennedy Human Rights Award,
    which is a very distinguished award, so congratulations. Her
    work is focused on ending incarceration of women and girls. We
    welcome you, Ms. James.
        We welcome all our distinguished witnesses and thank them
    for participation in today's hearing. Now, if you would all
    please rise I will begin by swearing you in.
        Please raise your right hands. Do you swear or affirm,
    under penalty of perjury, that the testimony you are about to
    give is true and correct to the best of your knowledge,
    information, and belief, so help you God?
        Mr. Patton. I do.
        Ms. Hamilton. I do.
        Mr. Walters. I do.
        Ms. James. I do.
        Mr. Cicilline. Thank you. Let the record show the witnesses
    answered in the affirmative. Thank you, and you may be seated.
        Please know that each of your written statements will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in five minutes. To help you
    stay within that time there is a timing light on your table.
    When the light switches from green to yellow you have one
    minute to conclude your testimony. When the light turns red it
    signals your five minutes is up.
        Mr. Patton, you will begin. You are recognized for five
    minutes.

                       TESTIMONY OF DAVID PATTON

        Mr. Patton. Thank you, Mr. Chair, Members of the committee.
    Thank you very much for holding this hearing. As you said, I
    held the Federal Public Defender Office in New York City, and
    together with my colleagues around the country, fellow public
    defenders and appointed counsel, we represent anyone charged
    with a Federal crime too poor to afford a lawyer, and that
    means at any given time nationwide we represent 80 to 90
    percent of all Federal criminal defendants.
        I want to pause for a moment to join the expressions of
    sorrow about the loss of Representative Cummings. He was a
    great champion for our work and a great champion for our
    clients, and we are all going to miss him dearly.
        The First Step Act and the Department of Justice's
    implementation of it, and the Bureau of Prisons' implementation
    of it will impact the lives of our clients enormously. First,
    as has been discussed, the Act requires DOJ to develop an
    algorithm, a scoring system, to assess every incarcerated--
    every federally incarcerated person's risk of recidivism and
    needs for programming and treatment.
        That score that people receive will directly impact how
    much time they spend in prison. It is vital, because some
    people may receive no time off their sentence, others may
    receive many months or years off. It is vital that the scoring
    system, the development of it be transparent, that it is fair,
    valid, and that it is unbiased.
        I have to say, unfortunately, I have some serious concerns
    about those at the outset. First, there has not been as much
    transparency as there should be in the development of this
    system, and I think we are going to hear more about that.
        Secondly, what we do know about it suggests there is a real
    danger of very serious racial bias in the use of this system,
    and again, I think we are going to hear more about that.
        In addition to the scoring system, so much of the success
    of the First Step Act will depend on the Bureau of Prisons
    greatly increasing the programs and treatment offerings that it
    currently offers, and on much more robust reentry planning.
    Once again, I think there is a lot of reason for concern.
    First, for years the Bureau of Prisons has not had sufficient
    programming and treatment for the demand. Many of its programs
    really do work, and they ought to be improved, and they ought
    to be added to, but they haven't been. With the First Step Act,
    that demand is only going to increase. So, if we haven't been
    able to do it for years, pre-FSA, I think there is real cause
    for concern moving forward.
        Second, on reentry, the Bureau of Prisons has been moving
    in the wrong direction. They have been closing reentry centers
    for the past few years. Once again, the need is only going to
    grow under the First Step Act.
        Last, I will say this about reasons to be worried about the
    Bureau of Prisons' performance moving forward. It has a very
    troubling history, certainly in my jurisdiction, of not
    creating conditions in prison to help people succeed when they
    get out. I wrote, in my written submission, at some length,
    about some of the really horrific problems we have had at the
    Metropolitan Detention Center in Brooklyn and the Metropolitan
    Correctional Center in Manhattan, two very large pretrial
    Federal detention centers.
        In particular, last winter, during one of the coldest
    stretches in New York City's history, they lost power for a
    week and they had serious problems with their heating, and
    frankly, the MDC's response to that was disgraceful, and it
    included--and I don't use this word lightly--outright lies by
    MDC officials, minimizing what was going on, and providing
    incorrect information about what was going on, that did real
    harm to our clients. In the wake of that disaster, the warden
    of that prison, MDC, was promoted. He now oversees, to my
    understanding, three large institutions in Pennsylvania. So, I
    am very concerned about accountability at the Bureau of
    Prisons.
        I also hope I will get a chance to respond to some of
    Director Sawyer's responses to Chair Nadler, because some of
    them were just plain incorrect, I am afraid to say.
        I will conclude my opening remarks with this. The stakes
    for successful implementation of the First Step Act are very
    high. As everyone here has recognized, the overwhelming number
    of people who enter prison will be coming out and will become
    our neighbors again soon. If they are treated with harshness,
    neglect, and inhumanity while they are in prison they are much
    more likely to respond in kind when they get out. Robust
    programming, a fair assessment system, and real thoughtful
    reentry planning are key to making that happen. If history is a
    guide, without vigorous oversight it won't happen, and that is
    why I am grateful to this Committee for holding this year.
        Thank you.
        [The statement of Mr. Patton follows:]

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        Mr. Cicilline. Thank you, Mr. Patton.
        The chair now recognizes Dr. Hamilton for five minutes.

                     TESTIMONY OF MELISSA HAMILTON

        Ms. Hamilton. Thank you, Chair and Ranking Member, for this
    opportunity to speak on this important piece of legislation and
    to educate about this risk assessment tool.
        There is a bright side here whereby the PATTERN tool has
    been unveiled, at least so now I understand the initial
    version, despite the very short time frame given. Still, as
    with any newly developed risk tool there are many concerning
    issues that must be addressed in its implementation to achieve
    the well-intended goals of the First Step Act.
        I wish to address three key topics: Transparency, accuracy,
    and fairness.
        On transparency, an unfortunate problem with many risk
    tools is their black-box nature by which developers keep much
    information secret from the public and the users. This sort of
    secrecy plagues PATTERN as well. Even though the DOJ released a
    report that contains some interesting data about PATTERN, the
    document is conspicuously vague, while not disclosing a host of
    information that is necessary to fully understand PATTERN and
    its warts.
        Secrecy often undermines risk tool implementation because
    stakeholders just do not trust it. Confidence by stakeholders
    is a necessary condition for success. For example, the Brennan
    Center for Justice reports that it requested a document
    regarding BRAVO, which is the preexisting BOP-owned risk
    assessment tool on which PATTERN is based. Yet, Brennan reports
    they were rebuffed with a claim that it was proprietary.
        The issue of trust is further evidenced whereby the
    National Association of Criminal Defense Lawyers has an
    outstanding FOIA request for the datasets, which was presented
    a little bit earlier, that would allow independent researchers
    then to conduct a third-party audit about PATTERN's abilities
    and fairness, because of the gaps in transparency thus far. I
    urge the DOJ and NIJ to comply with what is a reasonable FOIA
    request.
        This leads me to the second point about accuracy. The
    report asserts the tool was validated, but for validation
    developers used a very limited definition, which simply
    signifies the tool's ability to rank recidivists better than a
    coin toss.
        The tool produces high error rates. By sort of reverse-
    engineering the numbers that DOJ has provided, I found high
    false positive rates, which means assessing individuals at
    higher risk when they actually did not reoffend. Overall,
    PATTERN produces a false positive rate for general recidivism
    of 32 percent. For violent recidivism, the false positive rate
    is at 46 percent. Indeed, the acceptance of a much higher false
    positive rate over false negatives appears contrary to the aims
    of the First Step Act to incentivize more prisoners to pursue
    rehabilitative programs and productive activity.
        The high number of false positives seems unnecessary
    considering the risk outcomes here are not meant to inform
    immediate release unless public safety is not compromised.
    Indeed, prisoners who committed the most serious offenses were
    already excluded from the First Step law in the first place.
        There is an easy fix here. Simply move the cut points
    higher so that a greater number of individuals have at least
    the opportunity to earn rewards for taking measures to reduce
    their risk profiles.
        My third point is fairness. PATTERN exhibits disparate
    impact, as evidenced by the DOJ report itself. PATTERN assesses
    as medium- and high-risk a substantially larger percentage of
    minorities. For instance, consider those in those higher-risk
    categories, and thus not able to gain the full benefits of the
    First Step Act. For males, the rates of higher-risk categories
    for whites are 43 percent, compared to Hispanics at 53 percent,
    and then African Americans at 73 percent, in the highest-risk
    categories.
        Further evidence of racial and ethnic disparities is that
    PATTERN, at least as it now stands, simply is not calibrated
    equally across racial and ethnic groups. In other words, a
    medium- or high-risk score is associated with different
    recidivism rates along racial lines, indicating either over- or
    under-prediction.
        A potential fix to this problem, though, is to limit what
    is counted to serious crimes, because as it currently stands,
    PATTERN counts any criminal act, even minor acts of deviance,
    in its criminal history measures and recidivism outcomes.
    Changing these definitions may well reduce the inequities for
    minorities.
        Overall, I believe PATTERN has some merit, yet improvements
    could better serve this reform.
        Thank you for your time.
        [The statement of Ms. Hamilton follows:]

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        Mr. Cicilline. Thank you, Dr. Hamilton.
        I now recognize Mr. Walters for five minutes.

                      TESTIMONY OF JOHN P. WALTERS

        Mr. Walters. Thank you, Mr. Chair. I just wanted to express
    my sympathy, as well, to you, the colleagues of Congressman
    Cummings. When I last served in the White House Drug Policy
    Office, he was Chair Cummings, my authorizing chairman. He was
    a steadfast partner and energetic, and most of all he was a
    good man. I know you miss him. I miss him as well.
        I am here representing as a Member of the Independent
    Review Committee. We didn't actually have a Chair. We worked as
    a group of six experts designed to give advice to the Justice
    Department, as specified under the act. We have a range or
    individuals, some of whom's qualifications are also specified
    in the act, but they have a broad array of backgrounds in risk
    and needs assessment and management of similar Federal programs
    and policies and in helping to run institutions of corrections
    at the Federal and State level, as well as broad published
    backgrounds in international journals and associations on these
    matters.
        We worked with the Justice Department since the beginning
    of the work on the PATTERN risk assessment tool. We have also
    been working on the needs assessment and the programming
    implementation with regard to the implementation of the First
    Step Act. This is a massive change in the structure and purpose
    and mission of the Bureau of Prisons and our corrections
    system. It is a first step obviously designed to convey change
    throughout the United States criminal justice system, from one
    that is just holding people as a part of a criminal sentence to
    giving them a chance to transform their lives and reenter
    society as productive individuals. That requires a great deal
    of work, some of which is detailed within the Act itself, as
    you know.
        We have worked on a couple of things since the release of
    the July 19th report. Prior to that report, we did work with
    the Department and the contractors designing the PATTERN
    system, as well as some of the initial work on the matching
    needs assessment and programming.
        Since the release of that report, we have worked
    extensively to advise on the refinement of the PATTERN system.
    Our goal has been to reduce bias in the PATTERN instrument,
    both perceived and real bias in the instrument's elements and
    the way in which the algorithm is formulated. We have been
    allowed, through the Department of Justice, to work directly
    with the contractors, and they run over 200 hours of analysis,
    at our direction, to test additional sensitivity and to test
    for bias within the instrument.
        We have made a series of recommendations to the Department
    of Justice about changing the PATTERN instrument, some of which
    would be somewhat substantial change to the structure of the
    instrument to remove any concern about bias while continuing to
    predict risk. Obviously, we all want the instrument to be
    valid, but we also want the instrument to capture real
    differences and not bias.
        In addition, we provided proposals on needs assessment. We
    haven't talked as much about that, but that is obviously a key
    part of the First Step Act and the need to match the
    programming in the Bureau of Prisons systems to the needs as
    determined by a fair assessment of the individuals coming into
    the Federal system.
        The range of programs here is somewhat limited in the
    current structure, and the evaluation of those programs is even
    more limited, we have found. So, the structure of both
    identifying the proper way of assessing individuals and
    matching the programs is critical, and that is ongoing.
        We have also provided additional advice on making this
    system more transparent, providing some of the information
    previous witnesses have asked, and also providing information
    on how the system is working now and what is happening to
    released individuals, and closer to real time, so we can see
    how the system is evolving.
        Finally, I would like to make one point about resources,
    which has been touched on earlier, but I think all of us on the
    Committee believe is critical. The $75 million that has been
    authorized and will be appropriated for the implementation of
    the First Step Act of course amounts to about $400 per
    individual in the Federal prison system. The $7 billion,
    roughly, fiscal year 2019 appropriation, it is a small drop in
    the bucket. It is not enough.
        I would estimate--just my personal estimate of what is
    going to be needed here for a fair implementation, training,
    staffing, building things like classrooms in prison
    institutions that now exist, is somewhere in the neighborhood
    of $300 million to begin with and then programming down the
    line at $500 million. I would also strongly urge that at least
    10 percent of those funds always go for evaluation and research
    and development of programs and refinement of the process of
    running these programs. If you don't do this, what you are
    going to have is a system that simply can't meet the
    expectations--the high expectations that have been stated,
    because it is just not going to have the resources that an
    institution, the Bureau of Prisons, which is already
    understaffed and can't meet its current staffing levels.
        Thank you.
        [The statement of Mr. Walters follows:]

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        Chair Nadler. [Presiding.] Ms. James.

                       TESTIMONY OF ANDREA JAMES

        Ms. James. Thank you, Mr. Chair. I would also like to thank
    Madam Chair Bass and Members of the subcommittee. Thank you for
    this opportunity. I also would like to, for the National
    Council, on behalf of the National Council, express our
    sympathy in the loss of Congressman Cummings, who was a huge
    champion for us, and always had an open-door policy for our
    concerns. So, we will truly miss him.
        Thank you again for this opportunity. Again, my name is
    Andrea James. I am the Executive Director of the National
    Council for Incarcerated and Formerly Incarcerated Women and
    Girls. The National Council is a Membership-based organization
    working to end the incarceration of women and girls. It is
    honor for me to share our views on implementation of the First
    Step Act and next steps Congress should take to transform the
    criminal legal system.
        Regarding the First Step Act implementation, reforming the
    criminal legal system is one of the most important issues of
    our time. This country incarcerates more people than any other
    developed Nation in the world, with over 2 million people
    incarcerated, and increasing number of whom are women and
    girls. At the Federal level, we incarcerate approximately
    177,000 people, 45 percent of whom are incarcerated for a
    Federal drug offense, and a disproportionate number of whom are
    Black and brown. This is a national crisis that Congress must
    address.
        With the passage of the First Step Act, Congress attempted
    to build on several important reforms that preceded it, the
    Second Chance Act of 2008, and the Fair Sentencing Act of 2010,
    to continue to move the ball forward.
        While there have been some modest but important
    improvements to the system as a result of the passage of the
    First Step Act--giving judges greater discretion to depart from
    mandatory minimum sentences, making the Fair Sentencing Act
    retroactive, reducing some mandatory minimum sentences for drug
    offenses, ending juvenile solitary confinement, expanding
    compassionate release, and increasing good-time credit to
    reduce sentence lengths for individuals currently
    incarcerated--there remain key issues with respect to its
    implementation and more work that needs to be done to transform
    the system.
        As a Membership organization with Members inside and
    outside of prisons, we receive dozens of emails a week from
    women who are confused about the First Step Act, having
    received conflicting information, making it difficult for many
    incarcerated people to take advantage of what the First Step
    Act has to offer.
        Much of the confusion has been the result of the exclusions
    that were included within the bill and completely bar far too
    many people from the act's benefits. Literally 68 categories of
    people may not receive earned time credits, despite their
    successful participation in educational programming,
    essentially closing the door on individuals who most need help
    in preparation for successful return to our communities. Also,
    excluded are people who are slated to be deported after their
    sentence is completed, denying them any chance to prepare in
    any way for their transition. As we look towards the future,
    Congress must work to avoid unnecessary exclusions that
    ultimately undermine efforts to rehabilitate people.
        Regarding the risk assessment tool, we are concerned that
    the tool will incorrectly identify women as likely to
    recidivate based on static measures such as the crime for which
    they were convicted. We therefore urge that the approach to
    developing the risk assessment tool be modified. The circle of
    people involved in developing the tool must be widened to
    include the expertise of qualified formerly incarcerated
    people. The Hudson Institute is hosting the development team
    and has selected academics who may have strong technical
    credentials, but none of whom have direct experience with the
    criminal legal system.
        Experiences of currently incarcerated people must also
    shape the development of the risk assessment tool. By
    definition, women serving decades-long sentences will be
    flagged as high risk. In fact, they are the opposite. Women who
    were serving long sentences are integral to the day-to-day
    functioning of the prisons. They teach other incarcerated women
    and prison staff the procedures of the prison, including
    training for industry jobs, such as UNICOR. Long-timer women
    counsel new women adjusting to life in prison, provide comfort
    and advice to those separated from their children, and mediate
    interpersonal conflicts. These contributions should be captured
    in the risk assessment tool.
        Women like those who have traveled here with me today--
    Virginia Douglas, Justine Moore, and Tiheba Bain, all having
    served decades in a Federal prison and now leading the movement
    to end incarceration of women and girls who could contribute
    significantly to the risk assessment discussion and
    development, in addition to the statisticians.
        Finally, credit for earned time must be assessed
    retroactively, taking into consideration the ways many
    incarcerated people already have made great strides in their
    personal transformation, against great odds, during years of
    incarceration. Ultimately, we recommend that Congress ensures
    the Department of Justice addresses all these issues before
    anyone is assessed by the PATTERN tool.
        Regarding next steps, directly impacted people must have a
    seat at the table. As experts in the field, our goal is to
    encourage meaningful reform, and we are entitled to ongoing,
    meaningful opportunity to explain why we don't believe
    something goes far enough and what else is possible. Such is
    our fight for inclusion of retroactivity.
        I was incarcerated at the Federal Prison for Women in
    Danbury, Connecticut, during the passage of the Fair Sentencing
    Act and the fix of the sentencing disparity between crack and
    powder cocaine. I will wrap up with it was painful to see how
    many deserving women could not benefit from its passage because
    two sentencing provisions were not applied retroactively, and
    it is why we fought to include retroactivity, not only for FSA
    but also for changes to Three Strikes, Two Strikes, and 924(c)
    offenses in the First Step Act.
        [The statement of Ms. James follows:]

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        Chair Nadler. Thank you. We will now proceed with
    questioning under the five-minute rule. I will recognize myself
    for the first questioning.
        Mr. Patton, I understand you had some problems with the
    answers that I got--in the questions I asked the director about
    the crisis at the MDC in Brooklyn and their response to it.
    Could you elaborate?
        Mr. Patton. I will. I don't mean to blame Director Sawyer.
    I know she has only been in the position for two months, so she
    wasn't around when the crisis happened.
        Chair Nadler. It is all her fault.
        [Laughter.]
        Mr. Patton. I think she has been misinformed about some of
    the things you asked her about. First, I just had a meeting
    with the associate warden of the MDC two days ago, because I am
    trying to follow-up with them on a number of these things. I
    asked the very same question you did about long-sleeved and
    thermal attire because they are not there yet on fixing the
    HVAC system, as Director Sawyer acknowledged, and we are coming
    up on winter. The answer I got was, no, we are not going to do
    that.
        Chair Nadler. Not going to get thermal?
        Mr. Patton. That will not become part of the standard
    issue. We will buy extra sets in case we have an emergency.
    That is not what the recommendation is, because there is an
    ongoing problem. It needs to be part of the standard issue.
        Now, that sounds like a small thing until you sit in a 60-
    degree cell in paper-thin, short-sleeved scrubs. It is a real
    issue and that was just wrong, at least as compared to what the
    MDC is telling us.
        She said that the people with the CPAP machines were
    offered to move. Now I know, Chair, you were present on one of
    these tours. I was personally there. I mean, that is news to
    me, is all I will say about that. Those people were terrified.
    They were terrified that their life was in danger. They were
    suffering. They were not given an option to move somewhere
    else.
        So, it is important to correct the record on that, because
    if there is not an acknowledgement that the problem existed, I
    am worried about a solution being put in place to solve it
    moving forward.
        Lastly, she said that there was a communication problem
    that the MDC officials forgot to communicate on some of these
    things. There was no forgetting to communicate. We were
    peppering them with questions, and we were getting demonstrably
    false answers back about what was going on there. That was no
    negligence. It was not a slip of the mind among the BOP
    officials there. It was intentionally misleading us about what
    was happening in the institution.
        Chair Nadler. To your knowledge, has anyone been
    disciplined or admonished for intentionally misleading?
        Mr. Patton. Quite the opposite. My understanding is that
    the warden at the time, Warden Quay, not long after this
    incident was promoted, and he now oversees multiple
    institutions. That is my understanding from press accounts.
        Chair Nadler. That is my understanding too, and I must say
    that he was, when I was there, completely unresponsive.
        Let me ask this, section 404 is a section of the First Step
    Act that made the Fair Sentencing Act of 2010, which addressed
    the crack/powder cocaine sentencing disparity retroactive.
    Although the text of the First Step Act presents a
    straightforward application, the Department of Justice, we
    understand, regularly takes the position that retroactivity is
    not appropriate.
        In your experience and for Federal defendants across the
    country, how is the retroactive application of the crack
    penalty reforms of section 404 being applied? Are they being
    applied?
        Mr. Patton. At the end of the day, the vast majority of
    judges are doing the right thing, but it is not because the
    Department of Justice is making it easy. In fact, they are
    taking very strained and aggressive litigation positions that
    have been highly criticized by judges.
        So, for instance, one example on the retroactive
    application of the Fair Sentencing Act, the crack quantities,
    they are saying our clients are not eligible for relief because
    we could have charged a higher quantity back then. So, the
    judge should take into account what we could have proven, or
    what we could have done.
        Chair Nadler. In the absence of a new trial, how can they
    do that?
        Mr. Patton. Exactly. It is unconstitutional, it is not
    fair, and perhaps, most significantly, it is just contrary to
    the language of the law and the statute, and what Congress
    intended.
        There are two separate aspects to the retroactive
    application of the Fair Sentencing Act. There is eligibility
    and then there is the discretion of the judge about whether to
    reduce the sentence. The law doesn't require judges to reduce a
    sentence, and for the Department of Justice to say people are--
        Chair Nadler. The law does not require it.
        Mr. Patton. The law does not require a reduced sentence. It
    imposes upon the judge a duty to decide whether somebody is
    eligible, and then if they are eligible the judge takes into
    account all of these usual sentencing factors and decides
    whether or not to reduce the sentence. For the Department of
    Justice to make really strained arguments on the eligibility
    side is disappointing. It means that even though thousands of
    judges are going--not thousands of judges, but in thousands of
    cases that are going our way on these arguments, a handful are
    not, and they are being selective about how they then appeal
    those, because they can be selective about what they appeal and
    what they don't. So, they are being very aggressive about
    trying to create bad law, from our perspective.
        Chair Nadler. Do you suggest the Department is trying to
    sabotage the retroactivity feature of section 404?
        Mr. Patton. They are doing their best, in my opinion.
        Chair Nadler. Thank you. I have one further question. You
    mentioned racial and ethnic disparity and disparate treatment
    in your testimony. How is PATTERN risk assessment tool still
    unfair with regard to race and ethnicity? Can you give us some
    specific examples?
        I am sorry. That is for Ms. Hamilton.
        Mr. Patton. Yeah.
        Chair Nadler. Dr. Hamilton.
        Mr. Patton. I'm glad it is for Ms. Hamilton.
        Chair Nadler. Dr. Hamilton, yes.
        Ms. Hamilton. Yes. So, I think I have some slides that can
    go up. First let us do, for example, Slide 4B.
        It is hard to see but what Slide 4B is doing is giving you
    an indication for males. These are the percentages based on
    race of those individuals who fall in the minimum and low
    category and therefore gain the best benefits of PATTERN. So,
    you can see significant differences, based on race, of this
    eligibility to earn early release and to be incentivized to go
    through a lot of programs.
        Then my next one, if we can go to 2B, please.
        So, this one is the idea, also, this is for females, 2B.
    Sorry, I know we are skipping around.
        Well, the next one will be about--I had talked about
    differences in calibration. I wanted to show you what it meant.
    For females this is going to be on the violent recidivism rate,
    and what you will notice on the bottom then is, on the left-
    hand side is those who were assessed females at minimum risk
    very low, medium, and then on the right-hand side is high. What
    you are seeing there in the bars are the recidivism rates of
    individuals who were categorized within those four risk
    categories.
        Notice, then, in each of those-- and I am sorry that it is
    very small, but what you are seeing is racial disparity. So, in
    any of the four groups where you are seeing differences in
    height, that is by race, meaning that, for example, a medium-
    risk outcome doesn't mean the same based on risk, or high, it
    just doesn't mean high risk means something different based on
    racial groups, for females, at least, in violent recidivism.
        I do want to say I am very happy to hear from Mr. Walters
    that they are correcting for, I would assume, something like
    this.
        Chair Nadler. Thank you very much. My time has expired.
        The gentlelady from Arizona?
        Ms. Lesko. Thank you, Mr. Chair, and thank you, all of you,
    for being here, first of all.
        My first question is for Ms. James, and I applaud your
    effort to reduce incarceration of women and children. A couple
    of times during your testimony you said your goal was to end,
    totally, incarceration for women and children, and I think in
    your written testimony you said you are committed to abolishing
    incarceration for women and girls.
        How are you going to do that? Aren't there some women that
    deserve to be in prison?
        Ms. James. Well, I think that it is a bold mission that we
    have taken on, but we also have been incarcerated women. We
    have all lived in prisons. We know for sure, after that
    experience, that the environment, as prisons currently exist in
    this country, will never help a woman to truly heal and advance
    her life.
        So we know, because we have been, for some years now,
    working on looking at what else is possible for women, what
    else is possible for girls, mostly things that are created
    within the communities that the women and girls come from, that
    could immediately significantly reduce the incarceration
    numbers of women and girls, and then help us to advance ideas
    about women who may be causing harm to other people, that will
    need some other source of resource other than just community-
    led programming.
        Ms. Lesko. Thank you.
        Ms. James. Certainly, a prison is not the place that will
    help us to do that.
        Ms. Lesko. Thank you. I was just curious, because I was
    like, there are some people, that can be released into society
    and it is good, but other people I am not so sure about. There
    are some people that need to be in prison, is what I am saying.
        Ms. James. May I just mention something?
        Ms. Lesko. Ma'am, if you don't mind, I have other questions
    and I only have five minutes, so thank you.
        Mr. Walters, I guess, there have been a few criticisms and
    concerns about the Review Committee and the tool and the
    assessment and that type of thing. Would you like to address
    anything that has been said?
        Mr. Walters. Well, I think there were some initial concerns
    about the Committee and the background of the people, but I
    included the backgrounds in my written testimony, and I won't
    take your time to read the backgrounds of the individuals. They
    have a diverse group of points of view, but they are highly
    professional in what they have done. The Justice Department has
    listened to us. We have sat with the attorney general, the
    deputy attorney general, as well as Ms. Bacon and some BOP
    officials. We have gone through a lot of these items, I think
    in a way that is intended by the law. I mean, our job is to
    advise, and our job is to advise, as under the law of the
    attorney general, and we have tried to address some of these
    issues about the structure of the instrument, but also the task
    that is involved here--the compression of time for
    implementation, the need to look at these programs.
        As I mentioned earlier, one factor here that has to be
    recognized is the Bureau of Prisons has not evaluated its
    programs. I mean, to bring some of these programs in, they are
    going to try to bring in programs that have links to programs
    that are evaluated or are in areas that we think will make a
    difference. They are going to have to go back and look at how
    to certify and make them effective. Otherwise, you are going to
    have people sitting in programs that really don't do a good job
    in helping them with the needs they have.
        The whole needs assessment system has limits, and we have
    suggested some ways of using some unconventional instruments to
    look at needs and to measure whether programs are meeting those
    needs, using things like functional improvement in people's
    behavior, so we are not just waiting until we look at what
    happens after they have been released for three years, after
    they have already been in the system.
        So, some of those things are more radical changes. They
    will, as I said, cost more money to train and implement these
    things in the Bureau of Prisons. If you want to meet the goals
    of the act, which I think everybody here wants to do, if you
    want to meet the goals of the act, our job is to kind of give
    our best opinions, and we have a range of them from different
    backgrounds, on what that takes. I have nothing negative to say
    about the Justice Department's willingness to listen to us.
    They have a tough job in implementing it. They implement it; we
    don't.
        Ms. Lesko. Thank you, Mr. Walters. I do have one more
    question, and this one is for Mr. Patton.
        Mr. Patton, I have some information that the Federal Prison
    Industries has struggled over the past number of years, and it
    was kind of surprising to me that there was a reduction--well,
    let me read what it says. Since 2009, Federal Prison Industries
    sales have dropped 47 percent and we have experienced financial
    losses totaling $182 million. During this time the FPI, or
    Federal Prison Industries, has closed or mothballed about 40
    factories. This reflects a reduction of more than two-thirds in
    the percentage of eligible inmates working in the program, from
    25 percent in 2000 to less than 8 percent in 2016.
        This was really surprising to me. I am from Arizona, and we
    have a fairly successful program, the Arizona Correctional
    Industries. At least in Arizona, I have heard from industries--
    everybody I talk to said they are in great need of workers,
    right? So, in Arizona we even have people working as mechanics
    on trucks and big semi-trucks. So, it is a good workforce. They
    come, they learn a skill, and then they are able to use that
    skill when they are released.
        So, do you have any idea why this is happening? I think it
    is part of this program that we are supposed to be getting more
    people to work. I don't understand what is happening here.
        Mr. Patton. I wish I had an answer for you. I think that is
    probably a good question for Director Sawyer. I agree with you.
    That is one of the programs that has really proven to reduce
    recidivism, and there is just not enough of it. There are other
    programs, similarly, whether it is drug treatment or mental
    health counseling, that we know would reduce recidivism,
    improve people's lives, and there is just not enough of it. It
    is why I mentioned in my opening statement that I have real
    concerns that the programming is there to really make the First
    Step Act a success.
        Ms. Lesko. Well, thank you. Yeah, I agree with you. In
    Arizona I was quite impressed with what they all do. You have a
    whole call center where people--this is in a women's prison--
    where people don't realize when they are getting answers on
    something that it is from a woman prisoner inside the prison.
    Obviously they are very dedicated and show up to work all the
    time.
        Anyway, thank you all for your testimony. I appreciate it.
        Chair Nadler. The gentlelady yields back.
        That concludes our hearing today. I want to thank our
    witnesses. I want to thank our Members for attending. I want to
    thank our witnesses. With that the hearing will stand
    adjourned.
        [Whereupon, at 5:25 p.m. the Subcommittee was adjourned.]

                                    APPENDIX

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                      QUESTIONS AND ANSWERS FOR THE RECORD

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