Proposed Incentive Pre-release Community Custody Program - Draft

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PROPOSAL TO AMEND:
TITLE 18, UNITED STATES CODE, SECTION 3624 [c]
TO INCLUDE PROVISIONS FOR AN INCENTIVE PRE-RELEASE COMMUNITY CUSTODY PROGRAM

AN ACT TO REDUCE FEDERAL PRISON OVERCROWDING AND CONSTRUCTION OF COSTLY NEW FACILITIES

Serving the twin goals of providing an incentive for exemplary behavior -- deterring violence and drug activity -- while protecting the public from violent criminals

Submitted by Jim D. Helms, Prisoner of the Drug War

Jim D. Helms 23139-077
FCI Seagoville
PO Box 9000
Seagoville, TX 75159

Incentive Pre-Release Community Custody Program Act

This Act will amend Title 18 of the United States Code, Section 3624 [c], to include provisions for an incentive, pre-release community-custody program for nonviolent prisoners. The amendment increases the percentage of a sentence to be served in community correction centers and/or under home confinement for qualifying individuals. The strict program criteria serves twin goals in providing an incentive for exemplary behavior -- deterring violence and drug activity while protecting the public from violent criminals. The program would dramatically reduce construction of new prison facilities -- a saving to taxpayers of hundreds of millions of dollars.

Problematic Concerns Of Prolonged Imprisonment

The Incentive Pre-Release Community Custody Program redresses several major areas of concern in the federal prison system:

The Federal Bureau of Prisons cannot keep pace with the exponential increase in prison population. The construction of at least one new facility every 30 days is required just to accommodate the rapid overcrowding, a problem acknowledged by a Department of Justice Executive Summary as far back as 1994, which also concluded that longer incarceration periods have no deterrent effect on crime or recidivism.(1)

The situation is far more acute in 2002 with nearly one thousand new beds required every month. A significant portion of these beds is committed to housing nonviolent offenders at an estimated annual cost of $25,000 per prisoner. The prison population is aging, and these costs are rising steadily.

Currently, the federal prison system is operating at 150% above rated capacity. The abuses created by America's overcrowded prisons have drawn fire from international human rights organizations.(2) The congregate institutional environment is a breeding ground for infectious diseases, and compressing human beings into prisons beyond their designed capacity increases the risk to inmates and staff alike.(3) Overcrowded prisons create high-tension, dangerous environments for inmates and the staff who must manage them, contributing to a record number of violent assaults on both staff and prisoners.

Prolonged exposure to these conditions can have the effect of turning nonviolent people into violent individuals. There are more mentally unstable prisoners and less ability among staff to offer special attention. There are few programs to encourage rehabilitation or to provide prisoners the educational or technical job skills necessary to reintegrate them into a rapidly changing society that seems alien to them upon release.

Drugs are a major problem in prisons. Even the highest security institutions cannot keep drugs out. Both inmates and staff, many of whom have been caught, dismissed and/or prosecuted over the last two decades, do the smuggling. It has been amply documented that a correlation exists between drug use and criminal activity.(4) In fact, many people come to prison with drug and alcohol addictions. The easy accessibility of drugs in most prisons only perpetuates the cycle of use, abuse and addiction.

It is not uncommon for non-users to acquire an addiction while in prison as a means to cope with a seemingly hopeless and bleak situation. The earning of 54 days/year as good conduct credit offers little incentive to deter drug use, particularly for addicts who must modify long-standing habits.

Faced with a burgeoning federal prison population of drug war prisoners, and evidence that prison substance abuse treatment programs sharply reduce recidivism, Congress developed the Crime Control Act of 1990. This Act required the Bureau of Prisons to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance abuse." (18 U.S.C., Section 3621 [b]) Concerned by an apparent lack of interest in the program, Congress amended the statute in 1994 to provide an incentive to prisoners to enter and participate in substance abuse treatment programs.(5)

The incentive that Congress provided allows the Bureau of Prisons to reduce by up to one year the period that a prisoner "convicted of a nonviolent offense remains in custody after successfully completing a treatment program." (18 U.S.C., Section 3621 [e] [2] [B])

The results of a study conducted by the Bureau of Prisons indicated that inmates who completed prison substance abuse treatment programs were 73% less likely to be re-arrested within the first six months after release than those who did not receive the treatment.(6) While substance abuse treatment is predominantly the reason for this lowered recidivism, it is nonetheless true that any violation during the first six months spent in community programs results in the prisoner's loss of the one-year sentence reduction and a one-way ticket back to prison. Thus, this study strongly indicates there is heightened deterrent value for substantive incentives.

The potential fruits of substance abuse treatment have never been fully realized as intended by Congress. Section 3621 [b] granted the Bureau of Prisons the discretion to determine if a prisoner has a treatable condition of substance abuse or addiction. Section 3621 [e] allows the Bureau to determine what constitutes successful completion of the treatment program and to make the decision to reduce the period of custody for a prisoner convicted of a nonviolent offense. However, the statute failed to define the term "convicted of a nonviolent offense" for determining eligibility for the sentencing reduction. It further failed to clarify if the disqualifying criteria should be extended to prior state or federal convictions.

Consequently, the Bureau of Prisons promulgated regulations that allowed its case management staff to determine whether an inmate has committed a "crime of violence." The Bureau, however, adopted an impermissible construction of the statute that converted nonviolent crimes into violent ones.(7) It further extended its disqualifying criteria to any previous state or federal conviction.(8) Prisoners clearly eligible by statute are denied the substantial incentive to seek beneficial treatment. Moreover, the Bureau's application of the statute to identically convicted offenders produced inconsistent and unequal results: eligibility was often determined by the offender's geographical location of confinement.

The Bureau's interpretation created an avalanche of burdensome and costly litigation. The majority of circuit courts concluded that the Bureau's definitions could not stand; they were contrary to long-standing judicial decisions defining a crime of violence, in addition to the U.S. Sentencing Commission's formulation of a "nonviolent offense" and judicial endorsement of that formulation.(9)

Substance abuse treatment is hampered even further where acceptance into the program is determined by a prisoner's release date. Prisoners in many lower security institutions are not eligible for the residential substance abuse treatment program until approximately 30 months prior to their release date. While many drug-addicted offenders come to prison with 10-, 15-, and 20-year sentences, they go untreated for years and even decades, and with little incentive to modify drug and alcohol habits.

The Incentive Pre-Release Community Custody Program should encourage and motivate prisoners to correct life-long habits or life styles, whether associated with substance abuse, abusive behavior, or both. It discourages misconduct and activity related to the use, introduction and distribution of controlled substances in federal prisons, and acts to deter and reduce the violence associated with drug debts and rival drug dealing prison groups.

The statute's amendment that provides for the incentive pre-release program is strictly constructed to avoid the problems related to statutory interpretation and eligibility criteria. The plain language of the statute speaks clearly and unambiguously. It includes a plain language definition entirely consistent with judicial rulings to assure its proper and uniformed application.

A crime of violence is a creature of statute. It is identified by the violent nature of the elements necessary to constitute the statutory offense as created by title and section of the United States Code. Those prisoners convicted of nonviolent statutory offenses shall qualify for the program if their postconviction conduct satisfied the program's additional criteria as established by statute.

Eligibility determinations shall be limited to the statutory offense of conviction under which current judgment the prisoner is committed to the custody of the Bureau of Prisons. The incentive component of the pre-release program provides a model for success and thus sets new conditions for discouraging those prisoners inclined to recidivism -- especially those with past histories of violent behavior.(10) Once imprisoned, an offender develops a keen understanding of the way various laws function and the intrinsic impact they have on the individual. Recidivists would quickly comprehend that any new acts of violence would disqualify them from the program, resulting in their serving the full and unmitigated sentence. These prisoners would logically be more able and likely to suppress violent tendencies during confinement: acts of violence perpetrated upon other prisoners and staff would likewise disqualify them from the program. Reducing preconviction and postconviction acts of violence is a valid, consistent goal of all penologists and criminologists.

Lengthy prison terms have alienated individuals to a shocking degree. Prisoners have lost jobs and careers, spouses and children, friends and often parents. An estimated two million children have been "orphaned" by the drug war alone where, in many cases, both parents are in prison. Factor in other nonviolent offenders, and that number rises significantly. Numerous studies conclude that children with one or both parents in prison are significantly more likely to become troubled or imprisoned than their peers who have responsible parents raising them.

Increasing the incarceration of nonviolent lawbreakers is having a deleterious and long-term effect on the family structure of vast numbers of Americans. Lengthy imprisonment is the primary reason for the dissolution of family ties -- links that are the most effective means to a successful reintegration of former prisoners into ordinary communities. When the head of most households is removed by incarceration, that family usually crashes quickly into poverty, its members becoming recipients of government welfare programs. This repeating and downward cycle has a tremendous negative impact upon any local community and, if left unchecked, ultimately corrupts the entire nation.

The Incentive Pre-Release Community Custody Program allows eligible nonviolent prisoners to serve a greater part of their sentences in community custody programs that are currently in place (see BOP Program Statement 7310.04, "Community Corrections Center," Appendix 1, and which includes definitions of home confinement). It has the collateral benefit of rescuing many families and reuniting them earlier, and with the added financial and invaluable emotional support such reunification entails. It provides "a light at the end of a prison tunnel" for prisoners and their families' goals.

A family member's or spouse's admonitions and encouragement can have a powerful influence on a prisoner and his or her behavior, greatly increasing the chances of successful reintegration into outside community life later.

There are few meaningful training programs in federal prisons -- and in state and private prisons throughout the country also -- resulting in a loss of a prisoner's work skills or a growth in indifference to work as a rewarding part of life. When United States' leaders in penology turned away from rehabilitation to retribution, that shift to indifference began creating an unskilled, embittered generation of labeled "losers."(11)

It is usually the case that by the time a prisoner is released from a long prison term, he or she has no resources, no family, no home, no job skills and thus very little chance of succeeding. This is why, of course, that the recidivism rates remain high consistently. The United States justice system has propagated an entire underclass of prisoners and ex-prisoners. Six hundred thousand people leave prisons every year in this country, vast numbers of nonviolent lawbreakers who served inordinately severe prison sentences. They are destitute, bereft of employment opportunities and embittered.

Former President Clinton publicly stated before he left office that many nonviolent offenders are sentenced too harshly.(12) This proposed amendment offers a prudent and practical means to ameliorate the rising incarceration crisis. It establishes a clear differentiation between treatment of violent and nonviolent behavior. This program can be implemented immediately.

Program Mechanics And Applicable Statutes

Title 18 U.S.C., Section 3621 [a] provides that a "person who has been sentenced to a term of imprisonment shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier release for satisfactory behavior pursuant to the provisions of Section 3624."(13) Section 3624 [b] provides that a prisoner may receive credit of up to 54 days at the end of each year towards service of the sentence for satisfactory behavior. The "good conduct credit" is earned by and awarded to a prisoner who displays exemplary compliance with institutional disciplinary regulations, in addition to having earned or to making satisfactory progress toward earning a high school, equivalent degree or other academic achievement.(14) Good conduct credit that has not been earned during any period may not be later awarded the prisoner.

Section 3624 [c] provides that a prisoner serving a term of imprisonment be allowed to spend a reasonable part, not to exceed six months, of the last 10% of the term to be served under conditions that will allow the prisoner to adjust to and prepare for his re-entry into the community. This section of the statute should be amended to include provisions for an incentive pre-release community custody program by increasing the percentage of the sentence that nonviolent prisoners may serve in community correction centers and/or under home confinement.

The program criteria requires that, first, a prisoner be convicted of a statutory nonviolent offense. Secondly, the prisoner must have an institutional record devoid of violence and other misconduct and, thirdly, has been awarded a predetermined amount of good conduct credit that establishes the prisoner's commitment to constructive activity and the rehabilitation regimen, the benchmark to measure future societal reintegration.

The Three Program Criteria Explained

(1). Convicted of a statutory nonviolent offense:

A prisoner eligible for the incentive pre-release program must be convicted for a statutory nonviolent offense. The Bureau of Prisons shall make determinations based solely on the nature of the statutory elements constituting the count(s) of conviction under which judgment the prisoner is committed to their custody. The definition of a "statutory nonviolent offense" is derived from the definition of a "crime of violence" as defined in Title 18 U.S.C. Section 924[c] [3], a statute with a large body of interpretative case law. Title 18 U.S.C. Section 16 provides an identical definition.

As defined by these statutes, a "crime of violence" means an offense that is a felony defined by the use, attempted use, or threatened use of physical force against the person or property of another. A "crime of violence" by its nature may also involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. A prisoner not convicted for a statutory crime of violence shall be eligible for the program.

(2). Institutional record devoid of violence:

A prisoner's eligibility is also dependent on his or her institutional conduct record while in the custody of the Bureau of Prisons. There are two major violations that will bar a prisoner from participating in the incentive pre-release community program. The first is violent misconduct involving the aggressive use, attempted use, or threatened use of physical force against any person. Second is misconduct relating to the introduction or distribution of a controlled substance within the institution.

Also, an eligible prisoner must not have tested positive while incarcerated for the use of a controlled substance during the 36-month period preceding the incentive pre-release program. The 36-month period will provide a transition period for inmates coming into the system with a drug addiction and unable to seek immediate treatment. The incentive remains intact to deter further use. However, testing positive most always results in the loss of good conduct credit, which automatically retards the prisoner's eligibility date (as later explained).

Likewise, the prisoner's record must be devoid of any disciplinary action resulting in the loss of good conduct credit during the 12-month period preceding an incentive pre-release program. The Bureau of Prisons' Disciplinary System (detailed above) provides sanctions for committing prohibited acts, oftentimes providing for the loss and/or forfeiture of good conduct credits which automatically extends the prisoner's eligibility date.

(3). Good conduct credit and exemplary behavior:

When a prisoner is committed to the custody of the Bureau of Prisons, all information pertaining to the prisoner's conviction and sentence is entered into the Bureau's computerized "Sentencing Monitoring Computation Data" program. This program automatically computes and displays information pertaining to the prisoner's sentence, good conduct credits and release dates -- and including the "Six-month/10%" community release date. (See BOP "Sentencing Monitoring Computation Data" report, Appendix 2.) The data necessary to implement the incentive pre-release program is displayed as the "TOTAL GCT POSSIBLE" and the "TOTAL GCT AWARDED."

The "TOTAL GCT POSSIBLE" is the maximum possible good-conduct credit (time) that can possibly be awarded the prisoner over the full term of the sentence, based on awarding 54 days per year. For example, it is possible for a prisoner with an 18-year sentence to earn a "total" of 847 days of good conduct credit (time) while serving the full term of the sentence. (See case example at Appendix 2.)

The "TOTAL GCT AWARDED" is the total amount of good conduct credit (time) that has been awarded to the prisoner during service of the sentence. A nonviolent prisoner is eligible for the proposed incentive program when awarded a total of good conduct credit that is greater than, or equal to, 50% of the "TOTAL GCT POSSIBLE" to be awarded over the full term of the sentence.

In the above example, a total of 423.5 days (50% of the 847 TOTAL GCT POSSIBLE) of good conduct credit would have to be awarded the prisoner to be eligible. Largely, a prisoner's conduct and compliance with institutional disciplinary rules and regulations determine this figure. The eligibility date automatically adjusts according to the prisoner's exemplary behavior.

After entering the correctional facility, the prisoner is advised of his rights and responsibilities that include abiding by the rules and regulations (28 CFR Section 541.12). Under the Bureau of Prisons' Disciplinary System, each prohibited act is identified by a specific code number ranging from Code 100 to Code 499 and classified by its category of severity.(15) Each category authorizes specific sanctions for committing any of the prohibited acts thereunder. Sanctions include forfeiture of up to 100% of non-vested good-time credit and/or disallowing up to 75% of good-time credit available for the year. Other sanctions include disciplinary segregation, monetary restitution, change of job and living quarters, and loss of privileges (e.g., phone, visiting, movies, recreation and commissary), depending on the severity of the category of the prohibited act committed, as well as any behavior that is repetitious.

Once a prisoner is determined to have committed a prohibited act, a copy of the disciplinary action and disposition are recorded in the prisoner's central file. The specific code-violation, the prohibited act and sanctions -- including the forfeit or loss of good conduct credits -- is entered into the Bureau's computerized system. The prisoner's projected dates of release and community programs are automatically adjusted accordingly.

The computerized "Sentencing Monitoring Good Time Data" system tracks and displays the prisoner's 'earnings and losses' of good conduct credits for individual years, and also displays a computed current subtotal of 'good time earned.' (See Appendix 2.) The accumulation or loss of good-conduct credits creates a numerical profile of the prisoner's institutional adjustment -- his or her behavior, implied attitude, and general performance.

The utilization of awarded good-conduct credit allows the incentive pre-release community custody program to be easily implemented. It would apply retroactively to all prisoners convicted under the provisions of the Sentencing Reform Act of 1984, regardless of the date of conviction. It would require little modification to the Bureau of Prisons' current computerized system(16) , its regulations, policies, or existing community programs (See BOP Program State, Appendix 1). This proposed amendment is also compatible with related statutory provisions.

Title 18 U.S.C. Section 3624[C]: The Amendment

Title 18 of the United States Code, Section 3624[c], shall be amended as follows; the language to be added is italicized within brackets:

[c] Pre-release custody -- The Bureau of Prisons shall, to the extent practicable, [unless otherwise provided herein], assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10% of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement.

[In the case of a prisoner convicted of a statutory nonviolent offense whose satisfactory behavior has earned the prisoner sufficient credit towards service of the sentence as set forth in paragraph #1 below, the Bureau of Prisons shall, unless otherwise precluded by law, provide the prisoner the opportunity to spend the remainder of the term to be served, subject to paragraph #2, in an incentive pre-release program of community correction centers and home confinement.] The United States Probation Service shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.

[#1 -- A prisoner convicted of a statutory nonviolent offense, regardless of the date of conviction, shall be eligible for an incentive pre-release program, where the prisoner demonstrates satisfactory behavior as set forth in subsection [b] of Section 3624, and

One, the total good-conduct credits earned by the prisoner during service of the sentence is greater than, or equal to, 50% of the total good-conduct credits possible to be awarded the prisoner for the full term of the sentence. For the purposes of this paragraph, credit earned toward service of the sentence shall be prorated for any portion of a year that qualifies the prisoner to participate in the incentive pre-release program; and...

Two, the prisoner's post-conviction record, while in custody of the Bureau of Prisons, is devoid of:

I. violent misconduct involving the use, attempted use, or threatened use of physical force against any person;

II. misconduct relating to the introduction or distribution of a controlled substance;

III. the testing positive for the use of a controlled substance during the 36-month period preceding an incentive pre-release program;

IV. any disciplinary action resulting in the loss of good-conduct credit during the 12-month period preceding an incentive pre-release program.

#2 -- whereas a prisoner eligible for an incentive pre-release program has been legally determined a deportable alien, the Attorney General shall, upon request by the Director of the Bureau of Prisons, have the discretion to deport such prisoner.

#3 -- Definitions of terms used in this section:

The term "convicted of a statutory nonviolent offense" means the specific, proscribed characteristics of the statutory offense of conviction under which judgment the prisoner is committed to the custody of the Bureau of Prisons. This specific expression does not constitute a crime of violence as defined by 18 U.S.C. Section 924 [c] [3]. This expression is not an offense that is a
felony or that (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another or (b); that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The term "statutory offense" means the specific criminal offense created by statute, designated by Title, Section and Subsection under the United States Code, as stated in the prisoner's Judgment and Commitment order. Sentencing Guideline provisions do not constitute a statutory offense.

The term "element" means the constituent parts or components of a statutory offense that must be proved to sustain the conviction.

The term "physical force" means any act other than one committed in self-defense.

The term "substantial risk" means a risk that is present to a significant degree, as distinguished from the mere potential for the presence of risk.]

Footnotes

1. U.S. Department of Justice: An Analysis of Nonviolent Drug Offenders with Minimal Criminal Histories, DOJ Executive Summary, dated February 4, 1994. ("Since the end of 1988, when the full impact of these new laws was realized, the prison population has grown by an average of more than 650 inmates per month, or enough to fill one medium size institution with each month.")

2. Amnesty International Report: "United States of America Rights for All," October 6, 1998 ("Record numbers of people in prison lead to widespread abuse of inmates by prison authorities."). Also, "The Cowboys, a renegade group of federal correctional officers employed at the Supermax ADX in Florence, Colorado currently under indictment for civil rights violations."

3. U.S. Department of Health & Human Services: "Controlling TB in correctional facilities," CDC 1999.

4. As of 1997, 63% of federal prisoners were imprisoned on drug-related offenses; more than a third admitted being under the influence of drugs or alcohol when they committed the crimes that caused their incarceration. See Christopher J. Mumola, U.S. Department of Justice, "Substance Abuse and Treatment, state and federal prisoners," 1997 at pages 1-2.

5. See "Violent Crime Control and Law Enforcement Act of 1994," Pub.L.No. 103-322, 108 Stat.1796. The legislative history devotes considerable attention to the connection between drug addiction and criminal activity, as well as the dramatic effect that substance abuse treatment can have on recidivism. The stated purpose for the incentive was to reduce recidivism, which in turn eases prison overcrowding and ultimately prevents crime. H.R. Rep. 103-320, 103rd Cong., 1st Sess. (1993).

6. See Federal Bureau of Prisons Office of Research and Evaluation, "TRIAD Drug Treatment Evaluation Project: six-month interim report," at 1, 1998. Earlier studies had reported similar results. See, for example, Dess A. Grangetto, "Reducing recidivism by substance abusers who commit drug and alcohol-related crimes," 10 J. Contemp. Legal Issues 383, 393 (1999).

7. See Roussos v. Menifee, 122 F.3d 159, 163 (3rd Cir. 1997) ("The BOP has attempted to transmogrify a 'nonviolent offense' into a 'crime of violence.' The BOP converted a nonviolent crime into a violent one by means of a program statement that is inconsistent with the language of the statute and its own regulations."); Fuller v. Moore, No. 97-6390, 133 F. 3d 914 (Table)(4th Cir. 1997)("BOP's interpretation is in conflict with the statute."); Bush v. Putzer, 133 F.3d 455 (7th Cir. 1997)("BOP's program statement adopts an overbroad definition of 'violent offense'"); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998)("The BOP exceeded its statutory authority because its interpretation of the statute is in conflict with the statute's plain meaning."); Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996)("BOP's interpretation of the statute was in error."); Ward v. Booker, 202 F.3d 1249 (10th Cir. 2000)("BOP exceeds its statutory authority."); Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998)("The BOP's interpretation of the 18 U.S.C. Section [e] [2] [B] is simply in conflict with the statute's plain meaning.")

8. The National Association of Criminal Defense Lawyers has argued that prior convictions may not be reliable, and have no predictive value and, thus, should not be used for eligibility purposes. (See Federal Register, Vol. 65, No. 247, 80748.) The BOP program statements permit the prisoner's case management staff to make, in effect, a quasi-judicial determination whether a particular state or federal conviction -- perhaps 10, 15, 30 years old -- constitutes a violent offense. There exists the problem of obtaining valid information pertaining to the prisoner's conduct and/or nature of the offense -- while the staff may show favoritism, be racially biased, or be incompetent and inexperienced to make such crucial determinations. In fact, a prisoner's disqualification may be based on charges where there was no actual conviction.

9. Violent crimes have historically been characterized by extreme physical force, exercised with the intent to harm. A "crime of violence" includes voluntary manslaughter, murder, rape, mayhem, robbery or housebreaking in the nighttime, extortion accompanied by threats of violence, assault with a dangerous weapon or assault with intent to commit any offense punishable by imprisonment for more than one year, arson punishable as a felony, or any attempt or conspiracy to commit any of the foregoing offenses. (Black's Law Dictionary, Sixth Edition, West Centennal Edition (1891-1991). For eligibility purposes for the incentive pre-release program, the BOP shall adopt and uniformly apply the definition of a crime of violence as so defined by 18 U.S.C. Section 924 [c] [3].

10. As it stands now, no such deterrent effect exists. Recidivists know they will serve 85% of their sentence regardless of the crime committed, whether violent or not. Reducing recidivism has, and must always be, a prime goal of penology in this society. Ironically, harsher, determinate sentencing has done nothing to lower the rate of recidivism, and may have even contributed to it -- the revolving door syndrome. The Italian jurist Cesare Beccaria, whose tome called "Crimes and Punishment" (1764), greatly influenced criminal justice reform in the West, gave specific warnings against making punishment for crimes equally harsh; it erodes the deterrent value of punishment, something the United States has forgotten in the last several decades. It is likewise true that once an individual is sentenced, there is real deterrent value in a comprehensive, fairly administered incentive program such as the proposed amendment herein which takes the rationale Beccaria cited in his work directly into the correctional setting, the prison population. The grapevine 'word' would soon spread widely among the different groups of prisoners: acts of criminal violence will result in serving the whole sentence in prison. Even for one who must inevitably serve the full term for a crime of violence, the lesson would be learned: the individual observes nonviolent acquaintances leaving prison while he stays behind, year after year. Such an experience would have a more lasting impression than the current schemes. It must also be remembered that the preponderance of offenders, even violent ones, will one day be released. A major goal of the criminal justice system should be to make them keenly aware that any future acts of violence will cost them dearly.

11. "America's Prison Generation," Newsweek magazine, November 13, 2000.

12. USA Today, December 21, 2000 ("The sentences in many cases are too long for nonviolent offenders.")

13. The Bureau of Prisons may reduce the period a prisoner convicted of a nonviolent offense remains in its custody, up to one year after successfully completing a residential substance abuse program. 18 U.S.C. Section 3621 [c] [2] [B]. The Bureau may also place any person who is sentenced to a term of more than 12, but no more than 30 months, in a shock incarceration program for a period not to exceed 6 months. Once completed, the Bureau may place the prisoner in a graduated program of community correction centers and home confinement to serve the remaining portion of the sentence, 18 U.S.C. Section 4046.

14. According to the U.S. Sentencing Commission's Datafile for the year of 1998, 50.4% of drug trafficking offenders held less than a high school degree when arrested, compared to only 2.9% having a college degree. The savings of reduced prison construction resultant from this proposed amendment, applied towards educational programs, would unequivocally benefit society.

15. There are four severity categories of prohibited acts: (1) Greatest severity, ranging from a killing (Code 100) to introduction of narcotics (Code 111) to conduct which disrupts or interferes with the security or orderly running of the institution (Code 199); (2) High severity, ranging from escape from unescorted community programs (Code 200) to threatening another with bodily harm (Code 203) to destroying, altering or damaging government property (Code 218) to interfering with a staff in the performance of duties (Code 298); (3) Moderate severity which can range from indecent exposure (Code 300) to unexcused absence from work or any assignment (Code 310) to being unsanitary or untidy (Code 330); and (4) Low Moderate severity which can range from possession of property belonging to another person (Code 400) to using abusive or obscene language (Code 404) to conducting a business (Code 407). See 28 CFR Section 541.13.

16. The Bureau of Prisons would be required to include an "INCENTIVE PRE-RELEASE DATE" within its computerized Sentencing Monitoring Computation Data similar to the "SIX MONTH/10% DATE" now computed and displayed.