Federal prisoners now have more opportunities to participate in programs to reduce their sentence if ... [+]
Director Colette Peters told the Senate Judiciary Committee in September 2022 that “Our [Bureau of Prisons’] mission is to ensure safe prisons, humane correctional practices, and rehabilitation opportunities so that people reenter society as good neighbors.” However, the challenges within the Bureau of Prisons (BOP) are so overwhelming that it will take a concerted effort to right this ship.
Morale within the BOP is low. A recent survey by Partnership for Pubic Service, which ranks best places to work within the US government, ranked the BOP near last among 432 federal agencies. It ranked dead last in Effective Leadership category lowest among BOP staff as compared to other federal governmental agencies. Hiring new staff in this environment is difficult, or as National Council of Prison Locals president Shane Fousey called the hiring situation, “a staffing crisis of epic proportions.” It is one of the biggest challenges facing the BOP which leads to other problems of augmentation, shortage of staff for programming efforts, institutional safety and healthcare issues for inmates.
I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”
As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms.
“It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”
This year, the Biden Administration announced the nominations of bipartisan Commissioners at the USSC to continue its important work. The Commission has lacked a quorum since 2019, which has prevented it from doing critical business, including addressing issues that plague the BOP. Sady said this creates an opportunity for the USSC, which has the mandatory obligation to “make recommendations concerning any change or expansion in the nature or capacity of [correctional] facilities and services that might become necessary as a result of the guidelines promulgated.” As Sady told me, “It could be that the Sentencing Commission finally pushes the BOP to get its house in order.”
Community corrections has long been a problem for the BOP. Reentry centers, or halfway houses, many located in large metropolitan areas, provide an alternative to institutional life where inmates can serve their sentence under supervision but can integrate back into the community by working, engaging with family, and learning life skills so that they do not return. The issue has been funding and a lack of capacity for reentry center beds. Under the Second Chance Act, signed into law by George W. Bush, prisoners could be placed in a combination of reentry center and home confinement for up to a year. However, few inmates ever received such a long placement but instead languish in prison for months when they could be at home, or almost home. “Reentry centers are less expensive than prison and get many people back in the community with sufficient oversight and treatment opportunities,” Sady said.
The BOP’s RDAP program is consistently listed as one of the most effective programs at reducing recidivism. The 9-month long program segregates prisoners into cohort classes that delve into drug/alcohol abuse, triggers for abuse and development of critical thinking to overcome those triggers. The program allows for a reduction of up to a year off of a prisoner’s sentence However, the program is limited to a certain number of inmate population who have a demonstrated need. Sady told me that some inmates are simply not allowed into the program because they did not state they had a problem when doing their presentence investigation interview. Sady said, “Someone with a drug problem may be apprehensive about saying they do when they are about to be sentenced by a judge.”
Most importantly, needless prohibitions keep eligible prisoners from participating in RDAP, such as detainers or gun possession. Even though people with detainers are statutorily eligible, the BOP has categorically excluded them from the program. “Many defendants and their lawyers do not understand how pleading guilty to certain charges, or failing to clear detainers, can have such a detrimental effect,” Sady said. Given the success of RDAP in reducing recidivism, the USSC should be looking at removing obstacles to participation by statutorily-eligible inmates.
The BOP once had successful boot camp programs that were designed to address the needs of non-violent offenders with little criminal history. Qualified individuals benefited from structured treatment rather than lengthy time in prison while receiving a sentence reduction and longer placement time in prerelease custody outside of prison. The program now only exists in statute, regulation, and guideline, but not in reality, because boot camps have not been funded since 2004. Reinstituting the programs would be cost-effective and keep people from spending more time in prison than needed.
The other recommendation Sady had involves the continued implementation of the First Step Act, something the BOP has struggled with over four years after the law’s signing. Sady told me, “The BOP’s poor implementation this act of congress has led to unnecessary court cases where inmates are simply asking for the law to be followed.”
As the USSC heads into 2023, it can have a meaningful influence over the BOP be more fair to those under its care.
