Federal Prison System:

Justice Has Used Alternatives to Incarceration, But Could Better Measure Program Outcomes

GAO-16-516: Published: Jun 23, 2016. Publicly Released: Jun 23, 2016.

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What GAO Found

Department of Justice (DOJ) and federal judiciary officials reported considering numerous factors when using alternatives to incarceration at or before an offender's sentencing, but DOJ does not reliably track the use of some alternatives. A variety of alternatives can be used for offenders at or before sentencing, such as referral to state and local prosecutors, pretrial release, and probation. Other such alternatives include pretrial diversion programs which divert certain offenders from the traditional criminal justice process into a program of supervision and services or into court-involved pretrial diversion practices, such as drug courts, that provide offenders an opportunity to avoid incarceration if they satisfy program requirements. DOJ and judiciary officials most commonly reported considering the presence of violence and the offender's role in the crime when determining use of an alternative at or before sentencing. Based on DOJ and judiciary data on referrals to other jurisdictions, pretrial release, and alternatives at sentencing, the overall use of such alternatives across districts was largely consistent during the periods for which data were available from fiscal years 2009 to 2015. However, DOJ data on the use of pretrial diversion is unreliable because DOJ's database does not distinguish between the types of pretrial diversions. Further, when and whether the use of the pretrial diversion is recorded into the database varies across DOJ staff responsible for entering the data. By revising its system to track the different types of pretrial diversion programs, and issuing guidance as to when staff are to enter their use into its database, DOJ would have more reliable and complete data.

DOJ's Bureau of Prisons (BOP) considers statutory requirements and risk levels when placing inmates into incarceration alternatives such as residential reentry centers (RRCs, also known as halfway houses) and home confinement, and has increased its use of alternatives, particularly home confinement, in the past seven years. In addition to the basic eligibility requirements, BOP evaluates inmates' needs for reentering society, risk for recidivism, and risks to the community if placed in RRCs or home confinement. For low-risk and low-need inmates, home confinement is the preferred alternative according to BOP and BOP increased its use by 67 percent for minimum security inmates and 58 percent for low security inmates from fiscal years 2009 through 2015. Relative to home confinement, use of RRCs grew at a slower pace for low security inmates and declined for minimum security inmates.

DOJ has tracked some data on the cost implications of using incarceration alternatives, but could better measure their outcomes. For example, DOJ conducted a survey in 2014 and 2015 of U.S. Attorneys to obtain district-level information about the use of court-involved pretrial diversion practices. However, the data collected do not measure the outcomes or cost implications of the alternatives. For alternatives used at the end of inmates' sentences, BOP maintains data on the costs, such as average daily costs, of placing inmates in RRCs and home confinement. While BOP has measures in its strategic plan to monitor the use of RRCs and home confinement and has contracted for an analysis of its use of RRCs and home confinement that is expected to be completed during the summer of 2016, BOP, does not currently track the information needed to help measure the outcomes of these alternatives. By taking steps to obtain outcome data and developing performance measures for the alternatives used, DOJ and BOP would be better able to determine the extent to which the alternatives are achieving their goals and objectives and what adjustments may be necessary to make them more effective.

Why GAO Did This Study

Since 1980, the federal prison population increased from about 25,000 to almost 200,000, as of March 2016. In part to help reduce the size and related costs of the federal prison population, DOJ has taken steps to slow its growth by pursuing alternatives to incarceration at various stages of the criminal justice process for nonviolent, low-level offenders. Senate Report 113-78 included a provision for GAO to review DOJ's management of the federal prison population.

This report (1) describes factors criminal justice stakeholders consider when using incarceration alternatives at or before sentencing and identifies the extent to which those alternatives are used, (2) describes factors BOP considers when using incarceration alternatives for inmates and the extent of their use, and (3) assesses the extent DOJ has measured the cost implications and outcomes of using the alternatives.

GAO analyzed DOJ and federal judiciary branch data and documents from fiscal years 2009 through 2015, and interviewed DOJ and judiciary officials at headquarters and in 11 selected nongeneralizable judicial districts about the use of alternatives. GAO selected districts to provide geographic diversity and a mix of districts using and not using the alternatives.

What GAO Recommends

GAO recommends that DOJ enhance its tracking of data on use of pretrial diversions and that DOJ and BOP obtain outcome data and develop measures for the alternatives used. DOJ concurred.

For more information, contact Diana C. Maurer at (202) 512-9627 or maurerd@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: We found that DOJ has used two types of pretrial diversion as alternatives to incarceration--Title 9 pretrial diversions, which are at the discretion of the U.S. Attorneys' Offices; and court-involved pretrial diversion practices, which involve additional stakeholders, including federal judges and defense counsel. However, we found that DOJ's data on the use of pretrial diversions were unreliable because DOJ had not issued guidance to attorneys in its U.S. Attorneys' Offices on when and whether to enter a pretrial diversion code into its data system, which could result in inconsistent and unreliable data. As a result, we recommended that DOJ's Executive Office for United States Attorneys (EOUSA) develop guidance on the appropriate way to enter data on the use of Title 9 and court-involved pretrial diversion alternatives, including the timing of entry and the use of revised codes. In September 2016, EOUSA provided guidance to staff in its U.S. Attorneys' Offices that outlines (1) the use of two new pretrial diversion codes--one for Title 9 pretrial diversion, and one for court-involved diversion, and (2) the appropriate entries to create and dispose of each type of pretrial diversion, including those successfully completed, unsuccessfully completed, and administratively terminated. As a result, DOJ will have more reliable and complete data to determine what types of pretrial diversion are being used, in what districts, how frequently, and how successfully. This guidance is consistent with our recommendation.

    Recommendation: To help ensure that USAOs consistently track the extent of use of all pretrial diversion alternatives, the Attorney General should direct the EOUSA to develop guidance on the appropriate way to enter data on the use of Title 9 and court-involved pretrial diversion alternatives, including the timing of entry and use of revised codes.

    Agency Affected: Department of Justice

  2. Status: Open

    Comments: In a December 2017 update, DOJ stated that it is reviewing this recommendation and did not provide evidence that it has taken steps to implement it. We continue to believe that by obtaining data on the costs and outcomes of pretrial diversion programs, DOJ would gain multiple advantages in its ability to manage these programs and optimize their outcomes and cost implications.

    Recommendation: To help determine if pretrial diversion programs and practices are effectively contributing to the achievement of department goals and enhance DOJ's ability to better manage and encourage the use of such programs and practices, the Attorney General should identify, obtain, and track data on the outcomes and costs of pretrial diversion programs.

    Agency Affected: Department of Justice

  3. Status: Open

    Comments: In a December 2017 update, DOJ stated that it is reviewing this recommendation and did not provide evidence that it has taken steps to implement it. We continue to believe that by developing performance measures to help assess program outcomes, DOJ would gain multiple advantages in its ability to manage these programs and optimize their outcomes and cost implications.

    Recommendation: To help determine if pretrial diversion programs and practices are effectively contributing to the achievement of department goals and enhance DOJ's ability to better manage and encourage the use of such programs and practices, the Attorney General should develop performance measures by which to help assess program outcomes.

    Agency Affected: Department of Justice

  4. Status: Open

    Comments: As of November 2017, BOP had taken steps to implement our recommendation to identify, obtain, and track data on the outcomes of RRCs and home confinement. In particular, BOP reported that it has developed a revised Statement of Work for use with its RRC contractors that requires the contractors to track and report quarterly to BOP on, among other things, the number of placements into and releases from RRCs and home confinement; revocations from RRCs or home confinement; and RRC and home confinement residents that have secured full, part-time, or temporary employment. BOP plans to compile these data to track contractor performance and program outcomes. Further, BOP reported that it has developed a voluntary survey that asks RRC residents about their RRC experiences, including the amount of help they received in finding and keeping a job, and finding a place to live. These actions are in line with our recommendation and we will continue to monitor their implementation.

    Recommendation: To determine how the use of RRCs and home confinement contribute to its goal of helping inmates successfully reenter society, and to better enable BOP to adjust its policies and procedures for the optimal use of these alternatives, as necessary and within statutory requirements, the Director of BOP should identify, obtain, and track data on the outcomes of the programs.

    Agency Affected: Department of Justice: Bureau of Prisons

  5. Status: Open

    Comments: As of November 2017, BOP has not provided evidence to us that it has developed performance measures by which to help assess program outcomes. We continue to believe BOP should do so.

    Recommendation: To determine how the use of RRCs and home confinement contribute to its goal of helping inmates successfully reenter society, and to better enable BOP to adjust its policies and procedures for the optimal use of these alternatives, as necessary and within statutory requirements, the Director of BOP should develop performance measures by which to help assess program outcomes.

    Agency Affected: Department of Justice: Bureau of Prisons

  6. Status: Closed - Implemented

    Comments: We found that DOJ has used two types of pretrial diversion as alternatives to incarceration--Title 9 pretrial diversions, which are at the discretion of the U.S. Attorneys' Offices; and court-involved pretrial diversion practices, which involve additional stakeholders, including federal judges and defense counsel. However, we found that DOJ's data on the use of pretrial diversions were unreliable because the case management system used by its U.S. Attorneys' Offices does not distinguish between these two types of pretrial diversion. As a result, we recommended that DOJ's Executive Office for United States Attorneys (EOUSA) revise its data system to allow it to separately identify and track Title 9 and court-involved pretrial diversion alternatives. In September 2016, EOUSA notified staff in the U.S. Attorneys' Offices of new codes available in the case management system that would allow it to distinguish between the two types of pretrial diversion--one code for Title 9 Diversion and one for court involved diversion. Attorneys were instructed to use the codes beginning in fiscal year 2017, starting on October 1, 2016. As a result, DOJ will have more reliable and complete data to determine what types of pretrial diversion are being used, in what districts, how frequently, and how successfully. The establishment of these two codes is consistent with our recommendation.

    Recommendation: To help ensure that the U.S. Attorneys' Offices (USAO) consistently track the extent of use of all pretrial diversion alternatives, the Attorney General should direct the DOJ's Executive Office for United States Attorneys (EOUSA) to revise its data system to allow it to separately identify and track Title 9 and court-involved pretrial diversion alternatives.

    Agency Affected: Department of Justice

 

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