Time Frame: N/A
START Categories: Accountability, Treatment of Inmates
Now that the START Transformation Plan has the BOP focused on launching three major initiatives in the next 12 months, per my recent blogs, its time to lay out three near term activities for Congress and the DOJ. And they’re big ones!
To frame this,it seems in some ways we are still dealing with the United States 1970’s and 1980’s “Get tough on Crime” philosophy that permeated sentencing guidelines which we wrestle with today. I personally get that, and for the START Plan purposes, suggest we leave violent offenders subject to existing laws/BOP regulations and out of START for now. Rather, I’d suggest we focus on the 60% of the inmates(low and minimum security) many of whom are first time and nonviolent offenders, and also exclude undocumented illegal aliens from this post.
For many, many years, crime has traditionally been punished with a sentence for time to be served. As the “Western Countries” have evolved these past 100 years, many are now more focused on inmate treatment, rehabilitation, shorter sentences, and successful reentry into society. While there has been a cultural shift in the U.S., these changes are not a unanimously held view socially or politically, and certainly not well implemented in the US.Today I’d suggest the BOP is a victim of this slow and evolving transition, its ambiguous rules and laws written by Congress, partial acceptance by both prison guards and society, and limited follow thru by Congress, DOJ or the President to address required improvements. While Congress proposes many “fixes” from time to time(two this month for example), not many become law, and then they are still fixes/patches, not systemic solutions in my view.
Furthermore, my view having lived with and observed 4000 inmates over the past year is that time served is not a decent metric for a system striving for low recidivism, rehabilitation and successful reentry into society, especially for first time offenders. Philosophically we need to get much more granular in our approach, treating drug offenders differently from sex offenders,and sex offenders differently from white collar, the three main categories of non violent first time offenders. General , same treatment/benefits for everyone, same education for everyone, and job/education for everyone is ineffective and costly to boot. There is also a lack of effort by inmates and accountability for inmates that I find shocking, that needs to be addressed if most are to have real world skills and rehabilitated mental health issues. More detail to follow on specific recommendations, but this is foundational to effective BOP transformation.
Technically the BOP is part of DOJ, but I have yet to see anything the Attorney General does to manage it. Congress through its Oversite Committees in the Senate and House, are continually extremely frustrated with the BOP leadership. Furthermore, the OIG , which is part of the DOJ, has documented for many years and with reams of very critical reports, enterprise wide BOP issues that seem to never get resolved. But for some reason the Attorney General does little to nothing to transform BOP. Now in exasperation, Congress recently passed another new law, Federal Prison Oversight Act , creating a BOP Board of Directors to oversee it, an Ombudsman role for inmates/families to contact for assistance, and increased OIG Inspection role, because clearly the Attorney General won’t. Having said that, I’m sure hopeful the new Attorney General nominee, Pam Bondi, will finally bring leadership to all facets of this BOP START Plan. And I’d be honored to assist, especially if I can get a PC like P Diddy somehow did!
One of the additional initiatives Congress and the DOJ need to focus on are sentencing guidelines. Not the high level changes Congress or even the Sentencing commission are working on, but real reform from the bottom up. The crime PLUS type of criminal, first time, second time non violent offender, etc. Additionally, its well documented our sentencing guidelines are not consistently implemented by judges for similar offenses or damages to victims. This in part, creates an overall sense of unfairness of our judicial system, which is not healthy. In my opinion, we now have too many laws created by so many legislators(many are attorneys themselves) and too many case precedents(some contradicting each other!).
As such, literally every American could be charged with a crime of some sort if the local DA chose to, State or Federal. And as we see on TV all the time, many do so for career and other reasons. This has become a human toll on society and further erodes public confidence in our judicial system, especially as it applies to first time offenders. I’ve come to see first hand how first time non violent offenders like drug offenders get 20 year sentences. I get a second or third time offender, but first time? How does that square with the First Step Act(FSA) and its emphasis on home confinement and rehabilitation philosophy? After 20 years, even a first time offender will be ruined financially, estranged from family and kids, and have no relevant work skills. So what did society accomplish here besides paying $1mm for the opportunity to confine/punish him/her?
In support of the First Step Act of 2018, which also renewed the Second Chance act of 2007, its clear Congress is philosophically messaging its intent and focus on shortening sentence times and inmate rehabilitation. My view is that Congress needs to broaden its philosophy to not just address the length of time for confinement at the end of the sentence, but the front end as well. Why do we have such long sentences so that we need not one but three programs( Good Time, Second Chance, First Step) focused on reducing length of sentence and increasing home confinement? The administration, conflict, litigation around all these is over the top for both BOP staff and our judicial system. More on that in a later post.
Furthermore, due to BOP’s self interested interpretation of these programs and other unclear precedents/statutes due to “Chevron Deference”, which the Supreme Court reversed last summer with the Loper ruling( 40+ years later), an incredible amount of BOP Administrative Remedy filings (BP8-BP-11) and 2241 Habeus Corpus court filings further absorb resources/manpower. These filings also result in case law, sometimes contradictory by individual District Courts or Circuits, further muddling Congress’s intent and their implementation and inmate benefits. I’ve literally read case law where a judge rules the FSA trumps a 1984 statute(3621), where bed availability is a criteria for transfer to a halfway house in 3621 but not for FSA, and FSA rules. And then another district court creating case law ruling that since the FSA doesn’t address cases where one sentence is eligible and one is not, FSA must be read with a 1984 statute(3584) requiring all sentences be treated as one by the BOP for “Administrative Purposes”. The FSA is silent on both points, but one judge interprets silence as something is allowed, and one judge claims its not on another topic! In my view this madness needs to be corrected by simplification of laws and stopped! This is crucial for START to be successful.
Another major problem area for Congress and the DOJ is statutory reform in the criminal area in general. These past 50 years have created so much case law and precedents, that when combined with today’s weaponization and politicization by our DOJ, Federal and State prosecutors, a major overhaul of statutes is required. The DOJ, together with Congress, needs to review, consolidate and eliminate interpretations with plain text, make the Administrative Procedures Act to be consistent with such interpretation, and ultimately ALL Agency Regulations as well related to this topic area. Pick a topic like Wire Fraud and totally refine, same with other most highly pursued non violent crime areas like drug offenses. This is so crucial, given we all see prosecutors weaponizing the law while attempting to further broaden the interpretation of a statute to obtain an indictment or even a sentencing. I wish I could say this needs to stop, but that’s a waste of my breath. Its also a waste of breath for all the TV pundits and Senators and Congressman to go on TV and state how abhorrent all this is. None of that will change ANTHING. There are too many judges willing to assist these prosecutors, so the fundamental check and balance in our system doesn’t work in many cases. Its the statutes that need to be better written and rewritten cleaning up all the bias and interpretation not intended.
From what I can tell, much like the BOP, there is zero accountability or consequences for wrongful actions, political weaponization, seeking excessive sentences and so forth in our judiciary. Both for judges with their “lifetime” appointments and prosecutors exploiting prosecutorial deference they receive. There is also no oversight by a boss/supervisor or accountability for a prosecutor or judge. Nothing for wrong rulings, cases being over turned for clear error, let alone several of them. I’ve never seen a situation in the real world where proper supervision and governance isn’t needed, so why do we think the justice system is immune? This is a whole area the DOJ also needs to tackle though I have no idea how or what can be done by Ms. Bondi and Congress.
All the above to say START isn’t just about BOP, but without addressing ALL the above, the BOP will continue to be the “hair on the tail being wagged by the dog” getting whipped around by competing forces. So these next 4 blogs will go into further specifics regarding:
* Simplification of Time Credits Administration
* Redefining Incarceration Experience for Inmates
– Accountability/results or consequences, not just time served
– Programming Specifics for 3 Main types of First Time/Non Violent Offenders
* Fairness/Reform in Sentencing
* Statute Reform
* DOJ Reform
Sure hope,for our Country’s sake, this will someday come to pass as we plow forward on specific solutions on the next few blogs!
