Second Chance Act Guidelines

Second Chance Act/JATAA Guidelines

On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, was enacted. Section 253 of the Act amended 18 U.S.C. § 3672 to authorize the Director of the Administrative Office of the U.S. Courts (AO) to contract for “treatment, equipment and emergency housing, corrective and preventative guidance and training, and other rehabilitative services designed to protect the public and promote the successful reentry of the offender into the community.” In October of 2008, the Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110-406 (October 13, 2008) (JATAA), further amended 18 U.S.C. § 3672 to authorize the Director to directly expend funds for emergency reentry services. The Act also modified pretrial services contracting authority under 18 U.S.C. § 3154 in a fashion similar to the changes made to §3672.

At its June 2008 meeting, the Criminal Law Committee (CLC) directed the AO to develop guidelines and model contracting language before this authority would be delegated to the courts.

On October 7, 2008, the Director authorized the creation of the Reentry and Transitional Services (RTS) Working Group. Comprised of 13 officers from around the country, representing various officer and management functions, the RTS Working Group has developed the following guidelines for probation and pretrial services offices. These guidelines are organized in three Sections. Section I provides necessary background information. Section II explains the categories and types of services proposed by the RTS Working Group. Section III provides key points to the courts on how they should implement the newly amended authority.

Section I. Background

The Second Chance Act of 2007 aims to reduce recidivism, rebuild ties between offenders and their families, support evidence-based practices, protect the public, and assist offenders in establishing a self-sustaining life. The vast majority of its provisions are geared toward assisting state, local, and tribal authorities; however, Section 253 expands the Director’s contracting authority for post conviction supervision under 18 U.S.C. § 3672, authorizing the Director “to contract with any appropriate public or private agency or person to monitor and provide services to any offender in the community authorized by the Act …” Previously, the authority to contract for services had been limited to those offenders suffering from substance abuse or mental health disorders, and authorized services had to be specifically aimed at addressing their dependency or mental health problems.

The statute authorizes “providing necessary services to offenders … in a manner that does not confer luxuries or privileges upon such offenders” (42 U.S.C. § 17501(a)(4)). Additionally, “the Act shall not be construed as creating an entitlement or right to the assistance or services authorized” (42 U.S.C. § 17504). Congress intended the new authority to be exercised judiciously. Courts, as always, will need to be careful stewards of any resources used under this revised authority.

JATAA further amended 18 U.S.C. § 3672 to allow the Director to directly expend funds for reentry services. Additionally, the Act amended 18 U.S.C. § 3154(4) to include among pretrial services functions contracting or expending funds for services “necessary to protect the public and ensure that such persons appear in court as required.”

Given the new statutory provisions, the RTS Working Group identified three principles to structure the guidance provided to the courts:

  • Parsimony. The services provided under this authority should not supplant free services that officers have traditionally sought and obtained for defendants and offenders; the services should not be perceived to bestow a benefit upon the defendant or offender, and should be narrowly tailored to meet the purposes set forth in the statutes; and the services should be limited in duration.
  • Accountability. Probation and pretrial services officers contracting or expending funds for reentry services must abide by internal controls and contracting provisions established by the AO.
  • Evidence-based. The services provided must minimize the risks posed by the defendants and offenders reentering the community by addressing their criminogenic needs.

Building upon these principles and in consultation with a variety of stakeholders, the RTS Working Group developed the following categories of service:

Section II. Categories of Services

There are two categories of services: emergency services and transitional services.

Emergency Services

Emergency Services refer to defendants’ and offenders’ pressing, immediate needs.

These emergency services ensure the fair administration of justice by meeting the basic humanitarian needs of those under the court’s authority. Additionally, addressing these needs may decrease a defendant/offender’s likelihood of recidivism. Authorization to pay for such services should require that the defendant/offender has first exhausted all personal options and resources. Authorization should also require that the assigned officer has been unable to find free community resources. Emergency services require authorization procedures and payment mechanisms that are quick, efficient and flexible. See below for examples of emergency services.

Emergency Services

Services Principles Examples
Transportation
  • immediate need
  • one time only
  • offender just released in one district with no means to get to the district of his residence or to a local shelter
  • emergency taxi fare, bus ticket, gasoline
Identification
  • defendant/offender has inadequate personal identification
  • state identifications are NOT provided by the BOP
Shelter
  • traditional resources cannot be accessed
  • for offenders ineligible for community resources (e.g., sex offender, serious mental disorders, infectious diseases)
Medication / Healthcare
  • lack of medication may increase dangerousness and/or may result in an offender being unavailable for supervision
  • immediate needs
  • one time only
  • upon release, an offender lacks blood pressure medications
Food
  • may be linked to travel
  • immediate needs
  • offender has bus fare to cross the country to the district of residence, but no resources for meals
Clothing
  • not for professional clothing for interview; must first consider other mechanisms (e.g., district clothing closets)
  • offender released to probation in prison jump suit
  • defendant released during the middle of winter without a coat
Hygiene
  • linked to basic healthcare
Utilities
  • defendant relies on oxygen machine and loses electricity
  • offender loses power during life-threatening temperatures or conditions
Sex Offender Registration Fees
  • one time only
  • payment plans with local law enforcement

Emergency services are intended for any defendant/offender in crisis whose basic human needs cannot otherwise be met. They may experience such crises regardless of their risk level. These events are typically pressing, one-time only situations (See Appendix A: Principles and Eligibility Criteria).

Transitional Services

Transitional services are intended to mitigate a broad spectrum of longer-term offender needs and deficits that increase the likelihood of recidivism, other than substance abuse dependency and mental health disorders. By their nature, these needs often require significant intervention and greater expense than emergency services (See Appendix B: Interim Project Code Guidance). Justification for authorizing services is derived specifically from the nexus between the identified need(s) and the likelihood of re-offending. As with emergency services, authorization to use fee-based services depends upon the offenders’ lack of resources and the officers’ inability to secure free community resources or services. However, decisions regarding transitional services can be better informed and more systematic given the absence of any exigent circumstances. Payment mechanisms may vary, but should be based on factors such as the amounts to be paid and relevant procurement regulations. See below for examples of transitional services.

Transitional Services

Services Principles Examples
Transitional Housing
  • short term; no more than 90 days
  • used when traditional methods (e.g., BOP public law placement) are delayed
  • for offenders rejected by RRCs, shelters, etc.
  • should not run counter to legislation precluding felons from living in federally subsidized housing or other state and local restrictions
  • Oxford Houses, motels, community and faith-based housing programs, Single Residency Occupancy (SRO) programs
Vocational Services
  • should enable offenders to secure a sustainable income
  • soft skills training may be provided by officers, One-Stops, community and faith-based organizations at little to no cost
  • testing and application fees
  • training manuals and materials, CDL programs, pre-apprenticeships
Educational Services
  • should enable offenders to gain basic proficiency in reading, writing, and basic mathematics
  • GED, ESL

Any defendant/offender is eligible for transitional services. It is generally recommended, however, that a special condition first be imposed by the court. Additionally, the defendant/offender’s needs must, at a minimum, be formally assessed, preferably by an actuarial assessment tool. Evidence-based practices call for “prioritiz[ing] primary supervision and treatment resources for offenders who are at highest risk to re-offend…. Shifting … resources to higher risk offenders promotes harm-reduction and public safety because these offenders have greater need for pro-social skills and thinking, and are more likely to be frequent offenders” (NIC 2004).

While the Risk Prediction Index (RPI) only considers static factors, it has proven to be an excellent predictor of noncompliance among federal offenders. The RPI score should be a major factor in deciding who should be considered for transitional services. In the future, a validated actuarial tool (similar to the LSI-R or Compass) will be available for assessing the risks and dynamic needs of all federal offenders.

Special Conditions

United States probation officers have a statutory responsibility to “use all suitable methods, not inconsistent with the conditions specified by the court, to aid the offender and to bring about improvement in his condition and conduct” 18 U.S.C. § 3603(3) (emphasis added). Imposing a special condition for transitional services assures that the judicial officer has deemed the intervention both necessary and “not inconsistent” with any other conditions (In contrast, emergency services are for immediate humanitarian needs. Requiring a special condition under these circumstances would limit the potential benefit of the new authority).

A special condition for transitional services represents both an opportunity and an obligation for the defendant/offender. The special condition serves as the lynchpin that assures offenders are held accountable for participating in services and programming that mitigates the respective criminogenic needs. If transitional services are directed toward medium- and high risk offenders, consistent with the principles of evidence-based practices, it is likely some offenders will resist some or all aspects of the programming. This should be expected. Coerced substance abuse treatment has been shown to be effective (Anglin and Hser, 1990; Taxman 1998). Similarly, the special condition for transitional services provides the officer leverage to compel participation and to bring an offender’s failure to comply to the attention of the court.

Additional benefits of imposing a special condition include (1) improving the ability to track expenditures and to effectively measure program outcomes; (2) precluding legal challenges that services or conditions were not specifically authorized by the court; (3) confirming that expenditures had been authorized by the court; and (4) addressing officers’ liability concerns, e.g., if a defendant/offender were injured during on-the-job vocational training.

Under 18 U.S.C. § 3563(b), “The court may provide … further conditions … to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary….” While officers ordinarily recommend special conditions at sentencing, officers should refrain from recommending special conditions for transitional services for defendants who are facing lengthy periods of incarceration. It would typically be more appropriate to consider the need for such conditions during the course of pre-release planning. If, however, such conditions are imposed at sentencing, they should allow for the services to be delivered “as directed by the probation officer,” unless such a provision is inconsistent with case law. Officers continually reevaluate the adequacy and applicability of the special conditions during the course of supervision. Reevaluation may be prompted by changes in offender circumstances, by offender noncompliance, and by actuarial assessments of their risks, criminogenic needs, and responsivity issues. Officers must avoid presumptions on the use of a set package of conditions for groups of offenders. Officers must also determine that the circumstances of each case require such a deprivation of liberty or property to accomplish the relevant sentencing purpose (Monograph 109).

Special conditions for transitional services are intended generally to protect the community and to promote successful reentry. However, different transitional services should be authorized under specific circumstances with precise language. The following are four sample special conditions, each addressing the primary need areas (i.e., housing, vocation, education, and cognitive behavioral treatment).