[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

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

[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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
       
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
        
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
   
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
        
    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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






      

                  QUESTIONS AND ANSWERS FOR THE RECORD

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