Time Frame: Years 1 and 2 then ongoing
START: Staffing, Accountability, Treatment of Inmates
Statute and DOJ Reform
For some reason, this post has been a hard one for me to write, so I’ve taken an extra 2 weeks to try and get it right. This fourth and last blog for this part of the series is on what Congress and the DOJ can do as part of the START Transformation Plan, and is all about reform. Specifically I mean statute/laws and how the DOJ attorney’s & prosecutors/Judges operate in terms of oversight and independence. Think DOGE(eliminating regulations and poor case law precedents) for the DOJ, Judges, and Prosecutors , case law that’s evolved over the past 70 years and regulations! In my view we need a massive RESET, and while I’m no expert on HOW to fix certain issues, I will be highlighting some that need to be addressed if we are to see permanent results for society and specifically inmates.
Also focusing again on the non violent areas for now like illegal drugs, sex offenders, and white collar. Remember, prosecutors and judges are arguably one of the most powerful positions in our government, and today are highly mistrusted by the American people which is why I’m focused on them as part of the START Plan.
Reform needs fall into several general categories:
– checks and balances with accountability for Federal employees-DOJ, prosecutors and judges included
– simplification of laws and regulations consistent with Congress’s Intent
– fixing unclear, contradictory, outdated laws, case law precedents, guidelines,etc.
– specific intentional behavioral rehabilitation required for release, not just time of 5, 10 or 20 years served
FEDERAL EMPLOYEE CHECKS AND BALANCES
I really can’t think of any organization of 1000 or more employees, where there isn’t some structure, oversight, performance measurement, and accountability of employees and leadership. For some reason the DOJ and Judiciary are one as far as I can tell. We have over 6000 prosecutors, Lord knows how many additional attorneys in the DOJ, Federal Judges of some type or other, and can’t even imagine the number when including state, county, city prosecutors and related judges as well. What is the oversight structure and who is their supervisor/boss , who approves what cases prosecutors choose to take? What happens when prosecutors lose a higher than average number of cases or worse, when judges have higher than average over turned on appeal? Those questions are just for starters.
Just because concepts like “independence” or “deference” are applied to these prosecutors and judges, that shouldn’t make them exempt from oversight and performance management. Does anyone really think every judge is an expert on each and every aspect of the law or type of crime, and should be a trier of ALL crimes? Especially given the technicalities of case law, precedents and so forth? Of course not, and not me that’s for sure. I get we don’t want “Big Brother” in D.C. micro managing each case/prosecutor’s decision, but zero accountability isn’t the answer either. We need a balance. Plus we need TRANSPARENCY. There are legal websites tracking key metrics on judges for comparison purposes, information such as above average cases overturned (judges, not sure about prosecutors). Overturned verdicts are a key indicator of incompetence in the law, non compliance with court rules or evidentiary rules, or just plain bias. What happens today if a judge is above average with lost appeals? Or if in the top 10% of overturned cases? Or otherwise incompetent? I recently reviewed the Administrative Procedures Act to find out, and unless I missed it, NOTHING is the answer! The closest is a concept of a fellow Chief Judge or panel of judges reviewing allegations of conflict of interest or mental incompetence, nothing on a Judges performance itself. That’s my point!
I’m blogging to raise this issue, frankly not one I have ever spent time thinking or worrying about. Same can be said for most Americans. As much as I’m hopeful Pam Bondi will be highly effective, these issues like independence, lack of oversight structure were determined years ago when the DOJ was 5% of its present size today. I’m not sure these principles and oversight controls have been reassessed ever since. It’s not just the culture or political bias within the DOJ, its these very points I make which are a big part of the DOJ problem in my view. Recently at year end 2024, Supreme Court Chief Justice John Roberts, wrote in his annual report his concern that one of the biggest challenges for the Judiciary is the lack of respect for judges rule of law by many, and now even their physical safety( I haven’t read the full report as I’m in the BOP, just what the Wall Street Journal reports). I am disappointed he chose this topic, which is an outcome/result of the “Justice System as perceived by many” as opposed to addressing the underlying issues, some of which I identify above. Even the Chief justice is hamstrung in his ability in addressing incompetence.
Ultimately all this is to say we need a RETHINK and RESET of the DOJ, just like DOGE is doing as part of it mission. So that’s Topic #1 the START Plan needs addressed to dramatically help with its success and help address the perceived “Injustice” so many believe impacts them or their family member. Seems Congress and Ms. Bondi have a lot of thinking and then work to do! Sitting here I wish I could help!
SIMPLIFICATION AND FIXING LAWS
Frankly this should be an ongoing process by Congress where every 4-5 years they select the Top 5-10 crimes in terms of volume of criminal cases or variance from Congress’s intent and establish a “reform project”. Or DOGE it:) Similar to what I recall a recent project the DOJ, courts and others took on a few years ago to update and reform the bankruptcy laws. It was a multi year project, many participants involved from public and private sector, resulting in a whole new set of laws updating the code and superseding certain case law precedents as well. More specifically, the areas of focus for the Top 4 criminal laws in my area of focus(low and minimum non violent security) and what I see here inside the BOP for START are:
1. Illegal Drugs- special focus on 922(g) and 924(c) gun violations, and 841 (a) and 841(b) drug violations. There is so much confusion I see here everyday with inmates, getting improper charges based on the facts, but needing to plea due to the incredibly long sentences they otherwise face yet still receive in their plea anyways. Also narrowing of what constitutes each violation as I observe prosecutors just taking the higher charge each time when these defendants are accused of gun violations to leverage as part of plea deals, thus making them ineligible for the First Step Act(FSA). Sentence length is way out of balance as well as I’ve already blogged about, I’ve literally met first time offenders/ inmates here with second degree murder sentences shorter than drug/gun sentences. Its crazy. I note the U.S. Sentencing Commission recently proposed some shorter sentences as a step toward what I’m suggesting is a bigger overall project to address here.
I know that the public would be shocked at how these offenders live in the BOP on government paid suboxone at apparently $500-1000 per monthly treatment to prevent cravings, and then these same offenders do drugs while in prison on top of it. Sometimes arranged by the very guards the BOP has on payroll! You can take the addict off the streets and away from drug dealers and suppliers, but you can’t take drugs away from the addict without lots of treatment. No different than alcoholics. Long sentences are NO deterrent, which is why below I recommend changes to time based sentences with rehab, as well as the changes in specific types of treatment during incarceration by type of inmate- drugs, offenders, white collar,etc.
2. Search Warrants- The criteria for this area, including Frank’s hearings, continues to be litigated, misconstrued by magistrate justices(in my view), and the case law precedents have so many if and thens, its just a spaghetti noodle hot mess. The Supreme Court still hasn’t defined specific steps to determine yes/no for an eligible warrant, there’s all these “50 Shades of Grey” with all the rulings , case law, and statutes themselves. This area is also a huge time sink for the entire judicial/court universe as a result with extra hearings and then appeals, often times being totally unfair to the accused as well. If not unfair, still makes defendants feel like it was anyways.
3. Sex Offender Laws- In my view the same argument for search warrants applies here. Remember at the federal level these are primarily “digital” interstate illegal acts as opposed to purely physical acts, so lots of “grey” facts apply here as well. Worse, giving these offenders “time in prison” does nothing to address risks of repeating when they are released. We need to put into law what treatments and outcomes are required as a condition of pre custody release, not just a sentence length with no counseling etc., then go home and make sure you “register as an offender”.
4. Wire Fraud- This area especially needs to be addressed given the past 10 years of prosecutors trying to redefine what “property” is to justify their allegations. Congress needs to just state what it is, and the laundry list of everything else is not. Same can be said in the area of misrepresentation, omission, and half truths. There is also a big need to better coordinate/eliminate duplication between the SEC and State securities laws and criminal wire fraud laws, related case law, especially as it relates to all types of securities. I’m not sure why, for example, we tie up the courts with an SEC trial for civil damages, then do it again for criminal allegations. Why can’t we do it all at once and cut the impact on the courts in half? Plus then have civil penalties( who gets those?), criminal penalties, and then restitution? I could go on …..
A three year project on each of these would result in Congress once and for all putting into statute a modern statement of Intent plus clear statutes/law overriding out of sync case law and rulings by the Courts, etc. Then keep it an ongoing process!
MORE SOPHISTICATION JUST THAN TIME BASED SENTENCES
Having now been in prison over a year, it really brings to light how unfair and ineffective the justice is if just based on sentence length. I’m speaking about how victims, other similar sentenced offenders, and society are impacted. I never thought about it before, but just like different types of crimes( drug,sex offender) require different types of rehab(see prior blog VIII in this series), it holds other factors come into play for equal justice as well. I’ve seen inmates on both ends of this spectrum(A to B below) with the same sentence length, and, in my view, their resulting “justice or sacrifice from sentencing length ” varies greatly as a result:
A B
No Family Separation from Big Family
Few Friends Separation from many friends
No charitable History of many charitable
Activities activities
Need Ongoing Social Social Services not Needed
Services upon Release upon Release
Low Loss of Income Significant Loss of Income
Due to Prison Time Due to on Prison Time
Others as well Others as Well
Plus I’d argue the emotional and even financial ramifications of incarceration are not included in any equation of “justice” while determining sentence length or BOP classifications for recidivism or security risk. In addition, taking any inmate, especially an “A” type prisoner, and not measuring rehabilitation efforts or skill acquisition, mastering life skills to some standard, and other related issues, just “time in BOP”, is a double whammy of recipe for disaster upon release and injustice to those I mentioned above.
Bottom-line, without oversight and accountability for prosecutors and judges in some meaningful form, and the constant ongoing hard work by the DOJ and Judiciary Committee’s in the Senate and House working on these “projects” of statute reform/ simplification, thinking through “time served plus rehab/life skills, not just time served” the START Transformation Plan will struggle for all the reasons I stated at the beginning of this series, ‘Facts of Life in the BOP”. I sure hope DOGE and Ms. Bondi address the types of issues outlined above, our legal system’s life and the Start Transformation Project success depends on it in my view!
