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

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

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

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

For those convicted of drug distribution:

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

Even Drug Possessors were covered:

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

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

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

For those with prior offenses:

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

Exclusions to the Denial of Benefits to Drug Offenders

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

On a more positive note, This sounds promising:

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

It's a four step strategy:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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