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DOJ OIG Releases Management Advisory Memorandum on the Impact of the Failure to Conduct Formal Policy Negotiations on the BOP’s Implementation of the FIRST STEP Act and Closure of OIG Recommendations

Department of Justice (DOJ) Inspector General Michael E. Horowitz today released a Management Advisory Memorandum to the Director of the Federal Bureau of Prisons (BOP) concerning critical issues that the Office of the Inspector General (OIG) has identified during its ongoing Review of the BOP’s Policy Development Process. The OIG found that the BOP has not conducted formal policy negotiations with its national union for 20 months, which has disrupted aspects of the BOP’s implementation of the FIRST STEP Act of 2018 and further delayed policy changes to address OIG recommendations on systemic correctional and safety issues.

Under federal law, the BOP must negotiate policies with its national union when those policies affect the conditions of employment of the more than 30,000 BOP bargaining unit employees, and the BOP union contracts provide for in-person policy negotiations. However, BOP management has declined to meet in person with the national union during the COVID-19 pandemic and instead, has proposed remote video meetings. The BOP national union has insisted on in-person negotiations given that in-person negotiations are provided for in BOP union contracts and its membership has been reporting to work in person throughout the pandemic.

The OIG found that at the time of its fieldwork the lack of formal policy negotiations had stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FIRST STEP Act. Notably, the OIG found that the BOP has not applied earned time credits to any of the approximately 60,000 eligible inmates who may have completed evidence-based recidivism reduction programs or productive activities because a rule that would codify the BOP’s procedures for time credits has not been finalized and the BOP must complete policy negotiations on its time credits policy. The OIG is concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community.

In addition, the OIG found that the lack of formal negotiations has significantly delayed the BOP’s implementation of 27 policy-related recommendations from 7 OIG reports issued since 2015 that have remained open for an average of 3 years.

The OIG made two recommendations to help resume formal policy negotiations between the BOP and its national union. The BOP generally agreed with both recommendations and reported that it will be commencing in-person meetings with the national union in November 2021 and that it has informed the national union that it intends to resume formal in-person negotiations in December 2021.

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