[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 =======================================================================