Monitoring Efforts to Implement COVID-19 Recommendations and Examining First Step Act Implementation (GAO-22-105691)

Summary

GAO testimony, GAO-22-105691, before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary on January 21, 2022, the statement of Gretta L. Goodwin, Director, Homeland Security and Justice, on federal prisons. It summarizes GAO's July 2021 report on the Bureau of Prisons' (BOP) response to the COVID-19 pandemic, which found that BOP developed and updated COVID-19 guidance. The testimony covers efforts to monitor implementation of GAO's COVID-19 recommendations and GAO's examination of First Step Act implementation.

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United States Government Accountability Office
Testimony Before the Subcommittee
on Crime, Terrorism, and Homeland
Security, Committee on the Judiciary,
House of Representatives

FEDERAL PRISONS
For Release on Delivery
Expected at 10 a.m. ET
Friday, January 21, 2022

Monitoring Efforts to
Implement COVID-19
Recommendations and
Examining First Step Act
Implementation
Statement of Gretta L. Goodwin, Director,
Homeland Security and Justice

GAO-22-105691
January 21, 2022

FEDERAL PRISONS
Monitoring Efforts to Implement COVID-19
Recommendations and Examining First Step Act
Highlights of GAO-22-105691, a testimony
Implementation
before the Subcommittee on Crime,
Terrorism, and Homeland Security, Committee
on the Judiciary, House of Representatives

Why GAO Did This Study What GAO Found
BOP is responsible not only for the GAO’s July 2021 report on the Bureau of Prison’s (BOP) response to the COVID-
supervision and custody of more than 19 pandemic found that, while BOP developed and updated COVID-19 guidance
157,000 federal inmates, but also for with input from the Centers for Disease Control and Prevention (CDC), BOP staff
their health care, safety, and reported confusion about how to implement the guidance. In response, GAO
rehabilitation. The COVID-19 recommended that BOP routinely evaluate how it communicates its COVID-19
pandemic has strained BOP’s guidance to facility staff and modify its approach, as needed, to ensure more
institutions, yet BOP’s obligation to clear communication about BOP protocols. Since GAO issued the report, BOP
provide inmates with programs to has developed two questions on its annual feedback survey to BOP staff about
advance their education and
its COVID-19 guidance and deployed the survey in December 2021. This is a
development remains. Further, BOP
promising step; however, the recommendation remains only partially addressed,
has ongoing challenges with
leadership instability and staff
as BOP still needs to review and assess staff feedback to determine whether
shortages. In response, GAO raised modifications to its guidance are needed. GAO will continue to monitor BOP’s
federal prison management as an efforts.
emerging issue on its High-Risk List. In addition, BOP has processes, such as teleconferences among BOP officials
This statement discusses (1) three and facility inspections, to identify best practices and lessons learned related to
recommendations GAO made in July BOP’s COVID-19 response. However, BOP does not capture or share, bureau-
2021 to enhance BOP’s COVID-19 wide, the lessons and practices discussed at its teleconferences, or have an
response and efforts to date to address approach for ensuring that facilities apply them, as appropriate. In response,
them, and (2) GAO’s ongoing review of GAO recommended that BOP develop and implement an approach to (1) capture
DOJ’s and BOP’s implementation of and share best practices and lessons learned for responding to COVID-19 and
FSA requirements related to inmate future public health emergencies; and (2) ensure its facilities are applying, as
assessments and programming. appropriate, these best practices and lessons learned. At the time of GAO’s
GAO updated information on BOP’s report issuance, BOP indicated that it planned to conduct an after-action
activities in response to GAO assessment of its pandemic response to help ensure preparedness for any future
recommendations, reviewed FSA public health emergencies. BOP has yet to implement these two
requirements, and conducted recommendations, and GAO will continue to coordinate with BOP for updates on
preliminary research to design its audit BOP’s progress.
work
The First Step Act (FSA) requires the Attorney General, in consultation with an
What GAO Recommends Independent Review Committee, to develop and release publicly on the
Department of Justice (DOJ) website a risk and needs assessment system. This
In July 2021, GAO recommended that system is to be used to determine the recidivism risk of each federal inmate as
BOP evaluate communication of part of the intake process. It is also to be used to help determine and assign the
COVID-19 guidance, develop an type and amount of evidence-based recidivism reduction (EBRR) programming—
approach to capture and share best activities designed to help inmates succeed upon release from prison—
practices and lessons learned, and
appropriate for each inmate. Generally, eligible inmates who successfully
ensure that facilities apply these
complete EBRR programming may earn time credits that will allow them to be
practices as appropriate. BOP
concurred with these placed in prerelease custody or supervised release earlier than they were
recommendations and is planning or previously allowed.
taking actions to implement them. GAO is currently reviewing DOJ’s and BOP’s implementation of certain FSA
requirements related to the risk and needs assessment and has a number of
audit steps planned. These include examining BOP data and documentation on
progress, and conducting interviews with DOJ and BOP officials, as well as
View GAO-22-105691. For more information,
selected stakeholders knowledgeable in the area of recidivism. GAO expects to
contact Gretta L. Goodwin at (202) 512-8777 publish the findings of its work, and any related recommendations that may stem
or goodwing@gao.gov. from its findings, later in 2022.

United States Government Accountability Office
Letter Letter

January 21, 2022

Chair Jackson Lee, Ranking Member Biggs, and Members of the
Subcommittee:

I am pleased to be here today to talk about the recommendations we
made to improve the Bureau of Prisons’ (BOP) pandemic response, 1—as
well as provide an update on our ongoing review of BOP’s
implementation of specific provisions in the First Step Act (FSA). 2

BOP is responsible not only for the supervision and custody of more than
157,000 federal inmates, but also for their health care, safety, and
rehabilitation. The Coronavirus Disease 2019 (COVID-19) pandemic has
placed great strain on institutions providing congregate care. Because
inmates and the staff working in prison facilities function in confined
spaces and in close proximity to each other, the prison population has
been particularly vulnerable during infectious disease outbreaks.

As of January 13, 2022, BOP reports 6,043 inmates and 939 staff were
currently positive for COVID-19; 42,678 inmates and 9,027 staff have
recovered, and 277 inmate deaths and seven staff member deaths were
attributed to COVID-19. While BOP has put COVID-19 protocols in place
to protect inmates and staff, BOP is still obligated to provide inmates with
programs to advance their education and development. Our ongoing work
to address FSA requirements that BOP conduct inmate risk and needs
assessments—and address those risks and needs through
programming—is both timely and relevant in light of COVID-19’s impact.

In addition, in March 2021, we issued our biennial High-Risk List, which
raised the management of the federal prison system as a challenge

1GAO. Bureau of Prisons: BOP Could Further Enhance its COVID-19 Response by
Capturing and Incorporating Lessons Learned, GAO-21-502, (Washington, D.C.: July 29,
2021).
2Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). In general, the First Step Act
requires the development and implementation of a risk and needs assessment system to
determine the recidivism risk of inmates and the type and amount of programming that is
appropriate for inmates; prohibits the use of certain restraints on inmates in the custody of
BOP and the United States Marshals Service during the period of pregnancy, labor, and
postpartum recovery with certain exceptions; and reauthorizes, expands, and amends
certain federal grant programs related to inmate reentry; among other things.

Page 1 GAO-22-105691
facing our nation that merits continuing close attention. 3 In particular, our
published and ongoing work has shown that BOP’s deficiencies can
generally be categorized into three themes: (1) inadequate management
of staff and resources, (2) inadequate planning for new programs or
initiatives that help inmates prepare for a successful return to the
community, including drug treatment programs; and (3) insufficient
monitoring and evaluation of these inmate programs, which has led to
imprudent spending. Furthermore, BOP has experienced significant
leadership instability, with five different acting or permanent directors from
2016 through 2020—as well as the January 2022 announcement of the
current BOP Director’s upcoming retirement.

Among our ongoing and planned studies reviewing BOP’s management
and operations, our work to assess BOP’s implementation of the FSA will
be critical to determining BOP’s progress in enhancing inmate programs
and reducing recidivism. As the primary agency responsible for the
safety, care, and rehabilitation of individuals sentenced for committing
federal crimes, BOP must demonstrate leadership commitment, capacity,
and action planning. We will determine whether strengthening
management of the federal prison system should be added to the High-
Risk List based on BOP’s implementation of certain FSA provisions and
once our relevant assessments are complete.

My statement today discusses (1) the three recommendations we made
to enhance BOP’s COVID-19 response and BOP’s efforts to date to
address them, and (2) the approach we plan to take to assess BOP’s
implementation of the FSA requirements related to inmate assessments
and programming—and the extent to which DOJ has fulfilled its related
FSA obligations.

To conduct our work on BOP’s COVID-19 response, we reviewed BOP
policies, data, and other documentation related to the impact of COVID-
19 and how BOP addressed this impact. We also conducted
nongeneralizable interviews of officials from five BOP facilities and one
private facility operating under contract with BOP, selected based on
inmate infection rates and other factors. More detailed information about
our scope and methodology can be found in our issued report. To design

3GAO’s High-Risk Series identifies government operations with vulnerabilities to fraud,
waste, abuse, and mismanagement, or in need of transformation to address economy,
efficiency, or effectiveness challenges. See GAO, High Risk Series: Dedicated Leadership
Needed to Address Limited Progress in Most High-Risk Areas, GAO-21-119SP,
(Washington, D.C.: March 2, 2021).

Page 2 GAO-22-105691
our work on FSA implementation, we reviewed the FSA requirements,
developed an audit plan to assess BOP’s and DOJ’s satisfaction of these
requirements, and identified stakeholder groups knowledgeable in the
area of recidivism who could provide perspectives to inform our work.

We conducted the work on which this statement is based in accordance
with generally accepted government auditing standards. Those standards
require that we plan and perform the audit to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and conclusions
based on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on
our audit objectives.

In our July 2021 report that examined BOP’s COVID-19 response, we
BOP Has Taken assessed, among other things, BOP’s efforts to develop and update its
Some Early Steps to COVID-19 guidance. We found that, while BOP developed and updated
guidance with input from the Centers for Disease Control and Prevention
Enhance Its COVID- (CDC), BOP staff reported confusion about how to implement the
19 Response guidance. For example, the DOJ Office of Inspector General (OIG) sent a
survey to all BOP employees in April 2020, in part to gather anonymous
staff perspectives on the adequacy of the guidance they received from
BOP about exposure to COVID-19. Of the 28 percent of employees who
responded, 59 percent of respondents thought the guidance was not clear
and 53 percent thought the guidance was not timely. 4 We also
interviewed BOP union officials during our review about BOP’s guidance
and they noted areas of confusion about BOP’s guidance, such as the
use of personal protective equipment (PPE).

In response, we recommended that BOP routinely evaluate how it
communicates its COVID-19 guidance to facility staff and to modify its
approach, as needed, based on the results to ensure that BOP protocols
are clearly communicated to staff. BOP concurred with our
recommendation, and, in its formal comment letter, noted that the
continuous evaluation of its efforts to communicate COVID-19 guidance is
necessary to help ensure that BOP institutions are provided the most
recent guidance in the most effective manner. The agency noted that it

4Specifically, the OIG invited 38,651 total employees to take the survey and received
10,735 responses, a 28 percent response rate. The scope and methodology of each
inspection, including a description of the survey, is located in each of the OIG’s individual
Pandemic Response Reports for remote inspections conducted with selected BOP
facilities (https://oig.justice.gov/reports/pandemic).Given the low response rate, the results
of this survey are not generalizable to the entire BOP staff population.

Page 3 GAO-22-105691
had established an email box for staff to submit questions on its COVID-
19 guidance. Since then, BOP has taken further action to implement our
recommendation. For example, it developed two questions on its annual
feedback survey to BOP staff that asked whether staff knew where to find
BOP’s COVID-19 guidance and whether staff knew where to get further
information on the guidance if they have any questions. BOP deployed
the survey in December 2021. These are promising steps and partially
address our recommendation. To fully implement our recommendation,
BOP still needs to review and assess the feedback it receives and make
a determination on whether any modifications to its COVID-19 guidance
are needed. We will continue to monitor BOP’s efforts.

In addition to assessing BOP’s COVID-19 guidance, we also examined
the extent to which BOP incorporated lessons learned into its COVID-19
response. We found that BOP has processes, such as teleconferences
among BOP officials and facilities’ inspections, to identify best practices
and lessons learned related to its COVID-19 response. However, BOP
does not capture or share, bureau-wide, the lessons and practices
discussed at its teleconferences, or have an approach for ensuring that
facilities apply them, as appropriate.

In response, we made two recommendations to BOP that it should
develop and implement an approach to (1) capture and share best
practices and lessons learned for responding to COVID-19 and future
public health emergencies; and (2) ensure that its facilities are applying,
as appropriate, best practices and lessons learned related to COVID-19
and future public health emergency response efforts. BOP concurred with
both of our recommendations. In commenting on our report, BOP noted
that capturing and sharing best practices is vital to ensure continuous
improvement in the current, and any future, pandemic. The agency also
noted that it will continue to identify lessons learned though its facilities
inspections and through teleconferences among BOP officials, and that it
also plans to conduct an after-action assessment of its pandemic
response to help ensure preparedness for any future public health
emergencies. BOP has yet to implement these two recommendations,
and GAO will continue to coordinate with BOP for updates on BOP’s
progress. We will continue to coordinate with BOP for updates on its
efforts and progress as it works to implement our recommendations.

We are currently reviewing BOP’s implementation of certain FSA
Our Work to Address requirements related to the risk and needs assessment. The FSA
FSA Implementation requires the Attorney General, in consultation with an Independent

Page 4 GAO-22-105691
Review Committee, 5 to develop and release publicly on the DOJ website
a risk and needs assessment system, among other things. 6 BOP is to use
this system to determine the recidivism risk of each federal inmate as part
of the intake process and determine and assign the type and amount of
evidence-based recidivism reduction (EBRR) programming that is
appropriate for each federal inmate. 7 Generally, eligible inmates who
successfully complete EBRR programming or productive activities may
earn FSA time credits that will allow them to be placed in prerelease
custody (i.e., home confinement or a Residential Reentry Center) or
supervised release earlier than they were previously allowed. 8

Section 103 of the FSA requires GAO to review various actions taken by
BOP and DOJ to implement the risk and needs assessment system and
continually review and report on it. We are reviewing the extent to which
(1) BOP is fulfilling its requirements as described in section 103 of the
FSA and (2) DOJ is fulfilling the requirements of 18 U.S.C. § 3631(b) as
added by section 101(a) of the FSA. To carry out this work, we will:

• analyze BOP data to determine BOP’s frequency of risk and needs
assessments, BOP’s application of FSA time credits, and inmates’
participation in EBRR programs and productive activities, among
other things;

5Section 107 of the First Step Act, Pub. L. No. 115-391, § 107, 132 Stat. 5194, 5215-16,
requires DOJ’s National Institute of Justice (NIJ) to select a nonpartisan and nonprofit
organization with expertise in the study and development of risk and needs assessment
tools to host the Independent Review Committee. The organization that NIJ selects shall
appoint not fewer than six members to the Independent Review Committee whose
members shall all have expertise in risk and needs assessment systems.
6Pub. L. No. 115-391, § 101, 132 Stat. 5194, 5195-5208. See 18 U.S.C. § 3632.
7Pub. L. No. 115-391, § 101, 132 Stat. 5194, 5195-5208. See 18 U.S.C. § 3632(a)(1), (3).
Pursuant to 18 U.S.C. § 3635(3), “[t]he term ‘evidence-based recidivism reduction
program’ means either a group or individual activity that—(A) has been shown by
empirical evidence to reduce recidivism or is based on research indicating that it is likely
to be effective in reducing recidivism; (B) is designed to help prisoners succeed in their
communities upon release from prison; and (C) may include—(i) social learning and
communication, interpersonal, anti-bullying, rejection response, and other life skills; (ii)
family relationship building, structured parent-child interaction, and parenting skills; (iii)
classes on morals or ethics; (iv) academic classes; (v) cognitive behavioral treatment; (vi)
mentoring; (vii) substance abuse treatment; (viii) vocational training; (ix) faith-based
classes or services; (x) civic engagement and reintegrative community services; (xi) a
prison job, including through a prison work program; (xii) victim impact classes or other
restorative justice programs; and (xiii) trauma counseling and trauma-informed support
programs.”
818 U.S.C. § 3632(d)(4).

Page 5 GAO-22-105691
• analyze DOJ and BOP documentation on agencies’ efforts;
• interview DOJ, BOP, and BOP union officials about DOJ’s and BOP’s
actions to address the FSA requirements in regard to the risk and
needs assessment system;
• interview BOP officials from four BOP facilities, selected based on the
facility security level, region, population (male/female), and institution
type; and
• interview stakeholders knowledgeable in the area of recidivism and
members of the Independent Review Committee to obtain their
perspectives on BOP’s EBRR programs.

We expect to publish the findings of our work, and any related
recommendations that may stem from our findings, later in 2022.

In closing, our prior work illustrates the importance of BOP effectively
communicating its COVID-19 guidance to staff and ensuring that lessons
learned from the pandemic are captured, shared, and applied, as
appropriate. Our ongoing work will also highlight the progress that BOP
and DOJ have made in implementing FSA provisions and potentially
provide recommendations, should we note any areas that can be
strengthened.

Chair Jackson Lee, Ranking Member Biggs, and Members of the
Subcommittee, this completes my prepared statement. I would be
pleased to respond to any questions that you may have at this time.

If you or your staff have any questions about this testimony, please
GAO Contact and contact Gretta L. Goodwin, Director, Homeland Security and Justice, at
Staff (202) 512-8777 or GoodwinG@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last page
Acknowledgments of this statement. GAO staff who made key contributions to this testimony
are Joy A. Booth (Assistant Director), Tracey Cross (Assistant Director),
Billy Commons, Benjamin Crossley, Elizabeth Dretsch, Wendy Dye, Emily
Flores, Julia Vieweg, and Kellen Wartnow.

(105691)
Page 6 GAO-22-105691
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