Bureau of Prisons Ignores Legal Tools to Keep Up Numbers, Waste Money

A recent report by the General Accounting Office (GAO) of the federal government, a non-partisan invetigatory body that seeks to highlight waste in the U.S. budget, shows that the Bureau of Prisons (BOP) fails to take advantage of numerous methods by which it can legally lower its prisoner population and save the tax payers money. Their inability or unwillingness to do so shows that they are more interested in keeping their number of prisoners high than in releasing them back into the community and their families.

The BOP    was found to have two principal means by which it could shave months or years off sentences, based upon Congressional legislation: "good time", GED completion, and completion of the nine-month Residential Drug and Alcohol Treatment Program (RDAP).

"Good Time" refers to the number of days a year that prisoners can earn for good hehavior while incarcerated, which is set a 54 days a year. However, by their own method of "government arithmetic" this time actually amounts to approximately 47 days a year. Amazingly, this computational sleight-of-hand was upheld by a recent U.S. Supreme Court decision. Legislation is now pending in Congress to make 54 days mean 54 days.

GED studies, GED completion, or a high school diploma are still necessary for a prisoner to claim even the reduced amount of good time provided by the BOP. RDAP promises up to one year off for completion of its program, but the nationwide average is more like 8 or 9 months, according to the study.

The BOP fails to properly take advantage of the "Second Chance Act", which provides for up to one year of halfway house to ease prisoner reintegration into their community. The nationwide average of halfway house given is also around three months. The BOP blames a lack of halfway houses, but also admits that it cannot properly account for funds collected by these institutions.

In short, every action of the BOP frustrates taxpayer intent and serves to cost American taxpayers millions of dollars per year without contributing in any fashion to public safety or prisoner reentry programs that could reduce recidivism.

Ralph Nader Urges Obama and Romney to Discuss "Prison-Industrial Complex"

Well-known consumer advocate and one-time presidential candidate Ralph Nader has called for the Republican and Democratic parties to discuss the true costs of incarceration, calling for a campaign of public awareness to expose the "Prison-Industrial Complex."

Barron's financial weekly is bearish on the stock of Corrections Corporation of America, (CCA), pointing out that CCA has cost advantages over the public-prison sector, paying lower non-union wages and more automated technology. According to Barron's, CCA is counting on "the old standby of recidivism to keep prison head counts growing, filling its empty beds." for the communities where prisons are located, prisons are important job engines.

Thanks to the War on Drugs, there is a steady supply of non-violent drug offenders, estimated to be over half a million people nationwide, or 25% of confined prisoners.

The Harvard Business Review in its January-February 2012 issue has called for a solution to a problem that costs American taxpayers $68 billion a year: reducing recidivism.

The article by Eric Schmidt outlines how: government would float "social impact bonds" to investors, generally foundations, "who'd bet on the ability of (private) companies, community groups, and other qualified parties to provide services like education for the many inmates who are high school dropouts. The money raised would fund social programs...if, after...five years...the program had a significant positive impact...investors would get their money back with a premium.

Perhaps, with a little publicity from the likes of Nader and business experts such as Mr. Schmidt, American society would benefit, even if CCA shareholders did not.

Government Accountablity Office Study of BOP Released

The Government Accountability Office, or GAO, the non-partisan investigative arm of the federal government, in a recently-released study of the Bureau of Prisons' (BOP) methods for estimating community custody, or halfway house expenses. This recent report followed up on a February, 2012 study which revealed for the first time that the BOP has no way to account for their community custody costs accurately.

All halfway houses, where released prisoners are routinely sent after release from prison or a camp, are considered low custody facilities, with minimal supervision, and are all operated by contractors under the respective facility contracts, but despite that fact, the contracts provide for all individuals in them to pay 25% of their net income while they are in halfway house status, even if they are eventually placed in home confinement.

The inability of the BOP to properly estimate the true cost of these individuals prevents the public and Congress from knowing "the true costs of detention," according to the study, frustrating Congress' efforts to gauge the cost savings for encouraging home confinement instead of the costly halfway house alternative.

According to the study, "these limitations raise questions about the reliability of the BOP's evaluation for estimating future costs." Indeed. Hard to save money when you don't know what your costs are.

Additional links: www.gao.gov, news@fedlegalctr.com

ABA Report Seeks Stronger Oversight of Prisons

A report issued by the criminal justice section of the American Bar Association (ABA) to the ABA House of Delegates has called for independent, public entities to "regularly monitor and report publicly on the conditions in all prisons, jails, and other adult and juvenile correctional and detention facilities operating within their jurisdiction."

The ABA also issued an additional report, entitled,"Key Requirements for the Effective Monitoring of Correctional and Detention Facilities." The ABA suggested that the federal government require that jurisdictions receiving federal funding be monitored by at least one entity independent of the facility being monitored.

The ABA suggested that such oversight is necessary because "Prisoners still live in a netherworld with which few of us are familiar...the public is mostly oblivious about conditions in prisons, jails, and other correctional and detention facilities, even those within their own communities." The ABA compared this lack of transparency to the extensive oversight of public schools, and other government entities.

The report noted that public oversight should lead to rectification of problems, some of which could be overlooked by correctional officials. "External oversight...can be a cost-effective and proactive means to potentially avert lawsuits challenging the...conditions of confinement and treatment of prisoners."

Studies have shown that correctional oversight by an independent agency who reports to the public as a relative rarity, according to the ABA, citing a 2006 symposium at the University of Texas. Some monitoring does occur at the federal level by the Inspector General of the United States Department of Justice. However, this is contrasted with the independent monitoring of the forty-five European Union penal systems by the European Committee for the Prevention of Torture. (CPT).

ABA recommendations do not distinguish between facilities that house citizens or immigrants, or mental health facilities. they are seeking monitoring by "citizen's groups, accreditation legislature oversight, media access, and special mechanisms for the prosecution of crimes committed by correctional staff."

One of the key requirements would by that the monitoring entity not be dependent on the facility monitored for funding, space, staff support, or the meeting of other operational needs. They should be appointed for a fixed term by an elected official, be confirmed by a legislative body, and be subject to removal only for "just cause". they should also have "unhindered access" to the facility, the staff, prisoners, and records. All findings should be distributed to the media, the legislature, and the jurisdiction's top elected official.

Finally, the report suggested "adequate safeguards be put in place to protect individuals who transmit information to the monitoring entity from retaliation and threats of retaliation".

See: American Bar Association, Criminal Justice Section. Report to the House of Delegates (2011)

Few Surprises in New Bureau of Prisons Population Report

The July 13, 2012 population figures for the Federal Bureau of Prisons continues the recent trends of disproportionate numbers of minorities and drug offenders being incarcerated.

Almost half of all federal prisoners, or 48.2%, are categorized as drug offenders, the vast majority of which are nonviolent. More violent crimes, including weapons violations, explosives, arson, homicide, kidnapping and sex offenses comprise only 29 per cent.

Interestingly, 12% of those incarcerated are confined for immigration crimes, generally illegal re-entry. Why are these people in federal prison they are subject to immediate deportation, after notice and a hearing?

Blacks still comprise almost 38% of those in federal detention, three times greater than their percentage of the U.S. population, although those of Hispanic descent are closing in fast, with 34.7% of all prisoners of that ethnicity.

Approximately 40,000 prisoners are currently in private contract facilities, which includes halfway house residents, who are technically subject to the BOP but not under their direct custody or control.

On Mandatory Minimums

In a 645-page report prepared by the United States sentencing Commission for Congress, the Commission found that "mandatory minimum" sentencing penalties are excessively severe and unjust, especially in instances where there is no physical harm or threat of physical harm. "While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country," said Commission chairwoman Judge Patti Saris. The study comprised a review of 73,239 cases completed in 2010.

The study also showed that black convicted offenders are the group least likely to earn relief from mandatory minimum sentencing. this should come as no surprise to those familiar with the racial breakdown in the Federal Bureau of Prisons. In the BOP, a disproportionate number of prisoners are black, relative to the population of the U.S.

Blacks also received the lowest rate of relief under the "safety valve" provisions, either because of their criminal history or the usage of a dangerous weapon in the commission of a drug crime. "Safety valve" relief is a method by which low-level, non-violent, first-time offenders can be sentenced below the statutory minimum sentence.

The figures for relief from mandatory minimum sentencing for accused offenders cooperating with the government was broken down along racial lines as follows: Black, 34.9%; White, 46.5%; Hispanic, 55.7%; and other races, 58.9%. The figures for relief in "safety valve" in the BOP were as follows: Black, 11.1%; white, 26.7%; Hispanic, 53.8%; and other races, 36.6%.

The Sentencing Commission's study also made other key findings: 27% of offenders were convicted of mandatory minimum offenses; 75% if those sentenced under mandatory minimum were convicted of a drug trafficking offense; 14.5% received no relief from mandatory minimum sentencing; and those receiving a mandatory minimum sentence received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum sentence.

The study is just one of the many recent studies and public comments which share one common theme: the federal sentencing guidelines are not only too harsh, but are inequitably applied by judges. With most objective studies showing drug use by the general population holding steady among all racial groups, the policy of harsh drug sentencing given black offenders is not supportable. With population levels in the BOP at or near record highs, and most institutions holding at lest 20% more prisoners than their rated capacities, a review of federal sentencing practices is long overdue. As long as federal prosecutors can hold the threat of excessively long sentences over the heads of the accused if they choose to exercise their constitutional right of a jury of their peers, the nation's prisons will continue to be overcrowded.

SEE: "The National Law Journal," www.nlj.com, by Marcia Coyle, Oct. 31, 2011.

More Thoughts on Immigration

Publicity surrounding the "War on Terror" has resulted in increased concerns about border security, and spilled over into increased domestic pressure on undocumented aliens. This increased pressure and massive expenditure of federal dollars has taken place with little regard for its social or human rights consequences. Unlike criminally-charged U.S. citizens, who have an array of constitutional protections, guaranteed access to an attorney in all felony cases and many misdemeanor cases, the undocumented alien generally has much more limited sums and resources to defend themselves from harassment, arrest, and deportation. In many instances, the children of the undocumented, even if citizens by virtue of birth in the U.S., are at risk of losing one or both parents to deportation.

ICE's predecessor, the Immigration and Naturalization Service, (INS), came into being as part of the Justice Department in 1921, when the federal government realized that unfettered immigration was not in the country's best interest. INS was, at best, a poor stepchild of Justice, receiving minimal resources and manpower. It had massive responsibilities, at least on paper, but was not given the money to carry them out. Lost alien files and spotty enforcement were common. INS' best employees routinely sought transfers to other more respected areas of law enforcement.

All of this changed after 9/11, when the Homeland Security Act of 2002 opened the funding floodgates, and brought about the transfer of INS responsibilities into the Department of Homeland Security (DHS), in 2003.