Federal Judges Keep Sending Defendants To Prison Even As Agency Challenges Abound

Recently, U.S. District Judge Mark Wolf (District of Massachusetts) sentenced Rudolph "Rudy" Meredith, a former Yale University women's soccer coach, to five months in prison for accepting bribes to help parents get their children into the Ivy League school. Meredith was one of over fifty people charged in the investigation known as “Varsity Blues”. Prosecutors had recommended no prison time because of Meredith’s extensive cooperation, however, Judge Wolf believed otherwise.

Judge Wolf, like many federal judges, is very intelligent. He graduated from Yale University, B.A. (1968) and Harvard Law School, J.D. (1971). In fact, according to an American Bar Association Profile of the Legal Profession 2022, eight of the nine current Supreme Court justices have law degrees from Harvard or Yale as do three of the four retired justices. Among the rest of the federal judiciary, Harvard and Yale are the most common law schools, according to the Federal Judicial Center. As of March 25, 2022, there were 111 federal judges with juris doctor degrees from Harvard. Another 72 were from Yale. Three other Ivy League schools are represented on the federal bench: 22 federal judges have J.D.s from Columbia, 15 from the University of Pennsylvania and 12 from Cornell. That makes 232 judges with Ivy League law degrees or about 18% of the federal judiciary. The conclusion is that these judges are smart so it is fair to ask if the prison sentences they impose would be different if they knew more facts about the state of our federal prison system?

Federal judges consider a number of factors when they sentence a person to prison but their primary guide is the Federal Sentencing Guidelines. In considering those guidelines judges also have used the common tenants of deterrence, retribution, incapacitation, and rehabilitation as part of their decision making. Whether the prison system is even capable of meeting its responsibilities for care of the inmate is often an afterthought, something that is taken for granted. In fact, there is rarely a representative from the Federal Bureau of Prisons (BOP) at the sentencing of a defendant. However, the crisis that is facing the BOP should give judges pause in handing down a term of incarceration when other alternatives are available.

Federal defendants sometimes spend years on some sort of supervision while their case makes it way through the judicial process. Some wear ankle monitors, have GPS tracking devices, are subject to visits from U.S. Probation and have special curfews. Then, after sentencing, many arrange personal transportation to prison so that they can self surrender and begin serving their sentence. Typically these are minimum security inmates such as Meredith. After that, it is up to the BOP to care for and monitor inmates but the Agency is in such chaos and judges should be provided information on the challenges at the BOP so that they can consider whether some other form of punishment is more appropriate, and humane, particularly when it comes to shorter sentences (under two years).

In the BOP’s defense, sentences of under two years are so short that they cause spikes in work soon after the inmate arrives. Maureen Baird, a retired BOP Warden, was asked about those shorter sentences and she said, “the day that a short-time inmate walks into prison the BOP has to start making arrangements for them to return to society.” As Baird explained, arranging halfway house, a home visit to check out the place where they will live and coordination with US Probation all takes a considerable amount of time and paperwork that must be done prior to release from prison.

The BOP does not turn anyone away from prison once a judge imposes a sentence. As Baird told me, “The only way to get out of the BOP is that the person has to get into a facility.” Reentry programs like home confinement or living in the halfway house are of particular benefit to those who have been in prison many years as they reintegrate back into society. As a result, inmates with shorter sentences are less likely to get benefits of reentry programs and spend the majority of their sentence in prisons, a costly proposition especially for those who already have a home to back to. According to a recent posting in the Federal Register, in Fiscal Year (FY) 2019, the cost of incarceration for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. In contrast, according to the BOP, an inmate in home confinement costs an average of $55 per day—less than half of the cost of an inmate in secure custody in FY 2020.

Most all of those sentenced under federal law will be released, like Mr. Meredith, back to society within a short amount of time. Judges presume that the BOP has the ability to safely and humanely care for defendants sentenced to prison but there is significant data that states this is not so. In the case of one inmate in BOP care, Jimmy Monk was serving a 12 month sentence for a banking-related fraud but died in minimum security prison camp 60 days after arriving from COVID-19. In total, the BOP has had 309 COVID-19 related deaths of inmates and 11 of staff members.

The Office of Inspector General (OIG) cited the BOP for multiple failures in addressing the pandemic at FCC Butner, FCI Milan, and FCI Terminal Island, which was cited for a violation when one inmate was placed on a ventilator in a local hospital while his family was never even notified that he was ill from COVID-19. That inmate died in the hospital.

Staffing shortages were also cited in the OIG reports on the COVID-19 response but they are an ongoing problem with the BOP. Shane Fausey, the National President Council of Prison Locals, testified on September 29, 2022 before the Senate Judiciary Committee stating that it was no secret that the BOP is in the midst of a staffing crisis of “epic proportions”. Fausey further said, “Excessive overtime, abusive mandatory double shifts of forced overtime, and augmentation [the practice of moving management and speciality staff to correctional officer positions as a result of staff shortage] became by-products of insufficient number of correctional officers resulting in countless assaults on Bureau employees, inmate homicides and a deterioration of conditions within our federal prisons and penitentiaries.”

Prisons are also falling apart. Newly appointed BOP Director Colette Peters told the same Senate Judiciary Committee that of the 122 institutions operated by the BOP, almost one-third are more than 50 years old and about half are more than 30 years old. Peters’ predecessor, Michael Carvajal, summed up the problem when he testified in July 2022 to a Senate committee saying, “The current backlog of major modernization and repair projects throughout the BOP is approximately $2 billion. However, over the last 10 years, the Bureau has received an average of $95 million annually to address these projects.” USP Atlanta and MCC New York, both aging facilities, were closed last year for improvements after uncovering infrastructure issues and multiple instances of staff corruption.

Staff Corruption continues to be a problem for the BOP. An AP investigative report in 2021 stated that two-thirds of the criminal cases against Justice Department personnel in recent years have involved federal prison workers, who account for less than one-third of the department’s workforce. After the report, Senators Dick Durbin and Chuck Grassley asked Attorney General Merrick Garland to take action to reform the BOP.

The trial of former warden Ray J. Garcia who headed the women's prison FCI Dublin, is scheduled to go on trial later this month for sexually assaulting multiple inmates at the institution. Other staff members at FCI Dublin and the prison chaplain were also indicted as part of the investigation. The Department of Justice issued a report in November 2022 addressing the problem of sexual misconduct by employees in the BOP. The conclusion of the report was the BOP should do more to prevent sexual assaults and should also do more to prosecute those responsible. Perhaps this more recent report will get more attention in the BOP than the one OIG did on the same topic in 2005 when sexual assaults of inmates were on the rise.

The BOP is having difficulty implementing the First Step Act, sweeping legislation that was supposed to allow inmates an opportunity to participate in programs and productive activities so that their time in prison could be reduced. Those with short sentences are not even receiving credits and staying their entire time in prison because the Agency is unable to accurately calculate the credits. One inmate I interviewed served her entire 6 month sentence in prison, receiving no credit for First Step Act credits. She did not want her identity revealed for fear of retaliation. Prisoners across the country are complaining that a new auto-calculator implemented in October is not calculating their First Step Act credits, resulting in prisoners unnecessarily staying months longer in prison than need be. This is also resulting in additional cases being filed in federal court on matters that could more efficiently be addressed by the BOP.

Lastly, the BOP continues to excessively use solitary confinement despite President Joe Biden’s executive order to limit the practice, something Senator Dick Durbin has tried to address over many years. An NBC News analysis last month of BOP figures revealed that the number of inmates held in restrictive housing had gone up 7% since May 28, the same week Biden signed his executive order. The use of solitary confinement skyrocketed during COVID-19 as the BOP chose lockdowns despite having authority to release minimum security prisoners to home confinement under the CARES Act. While isolation is used for disciplinary infractions, it is also used for protective custody, pending investigations and minor infractions that could be punished with lesser measures.

Judges have the ability to send someone to home confinement instead of prison in many instances, particularly when the Federal Sentence Guidelines allow for such a sentence. The BOP has no such ability until the prisoner is in their facility. Even the BOP uses home confinement as part of its practices for those who are nearing the end of their sentence (the last 10% or capped at 6 months).

The BOP has a number of challenges it is facing and judges would better serve all of the criminal justice system by considering alternative sentences over sending defendants to overly stressed prisons.