Last week, Senator Jon Ossoff entered a major bi-partisan bill to overhaul federal prison oversight after a 10-month long investigation of the Federal Bureau of Prisons. It seemed like the ending to a perfect storm of prison reform measures beginning with the final implementation of the First Step Act, removal of the former federal prison director, Michael Carvajal and the selection of Colette Peters as his replacement who had the reputation as a prison “Reformer” within the Oregon Department of Corrections.
First, we shouldn’t forget that Director Peters is not the first outside director selected to the reform the troubled agency. General Mark Inch abruptly resigned from the agency in 2018 in less than a year after his appointment partly because he was undermined by administrators within the dysfunctional agency culture. I met with General Inch early on in his tenure and he had told me he was going to begin “taking out targets” as he put it, which included closing at least two regional offices. Director Peters who managed a system with twelve facilities and just over 4,450 employees (about half “security people”) inherits an agency of nearly 35,000 employees and one-hundred and twenty-two facilities. Recent prison horror stories such as prolonged solitary confinement, sexual assault and overall inhumane treatment are not new but have been exacerbated by poor leadership with zero accountability. The closer scrutiny the agency received during the pandemic put a small crack in the BOP window of transparency which resulted in a myriad of court cases regarding facility management that included disturbing depositions of prison staff and the incarcerated.
I have been exposed to the prison system trenches from both sides of the wall for over thirty-six years and have a micro, policy perspective not experienced by the average advocate, lawyer, politician or high-level BOP administrator. It is ironic to hear high level DC administrators opine after retirement about reforms when they had their head in the sand under the chaos that has insured since the 1990’s.
I am not a person to get caught up in the prison reform hype or tout legislative accomplishments because of my experiences at ground zero after the celebrated legislation becomes law. People in prison ordinarily benefit less that the politicians who gain votes and reform organizations that raise money on their self-reported accomplishments. Congressional hearings are mostly theatre with little impact and federal prison reform is an industry the fills the coffers or orgs at the expense of programs and services which is simply the world we live in today. The First Step Act was the most significant legislation in decades, and it should be applauded but now it is time for the “however”!
However, a deep dive into the First Step Act and recent BOP oversight legislation falls short in attacking the elephants in the room to accomplish needed reforms inherent in the prison system such as discrimination, inhumane treatment, transparency and accountability. These reforms can be better attacked when “unpaid/non-political) passionate prison reformers, incarcerated people and their families are truly heard and play more of active role in the process. Let’s face it, the incarcerated are mostly limited to being paraded as poster children in front of congress by organizations in an emotional event, then it is on to the next sad story, blue ribbon commission, fund raising gala, etc. The reality is there has been minimal federal prison reform in decades going as far back as the late 1980’s when most Lifers were eligible for parole after ten years and received mandatory parole after thirty years served. Parole eligibility for most crimes for ALL people occurred after serving thirty-three percent of the term and correctional treatment played nearly and equal role to incapacitation. While I am not advocating for a return to the parole system, I am providing an important context that has somehow been lost during the “Tough on Crime” era.
The most profound sentence in this article is that ALL people, yes people, should be treated equally once sentenced regardless of their crime and afforded the necessary respect as humans by prison officials and afforded treatment for the vast array of criminogenic factors such as trauma, addiction and socioeconomics. The sentence itself is the punishment and people should not continue to be punished further once institutionalized. The bottom line is that extra good time credits such as the federal time credits under the First Step Act should not be limited to the chosen few. Going forward, legislators must take advantage of political gain for being tough on crime and advocates should not hold their nose in supporting sub-standard legislation.
The highly celebrated First Step Act had significant “front-end” reforms and compassionate release measures worthy of praise, but this is more of a broader story about federal prison. The FSA law was discriminatory right out of the gate, not only for the PATTERN risk assessment issues, but it simply treats people differently regardless of their rehabilitation efforts. It gives far too much discretion to an agency that has proven it cannot accomplish even the fundamental aspects of corrections and allows a computer algorithm to play the role of gate keeper. Academics and politicians should have been more mindful of the systemic, cultural and policy impediments of the agency which could have been more proactively managed during the legislative process. The limited amount of people eligible for the federal time credits, discriminatory risk assessment algorithm and unattainable and disingenuous incentives are some of the issues that have recently come to light during implementation and will be ever present going forward unless corrected. I hesitate to mention The Second Step because the BOP has simply not even complied with the intents of the current law and existing policy.
I didn’t jump up on the table to dance when the Prison Oversight legislation was announced because a deeper dive into the language of the bill gave me pause to realize we are heading down the same path. Look no farther than the exclusion of privatization. While we applaud the current administration’s efforts to end privatization, we must not forget President Obama went down that same path before it was abruptly halted by the new administration. Even today with the federal government pulling out of private contracts, private companies are doing an end run by contracting with state and local jails who then contract directly with the federal government. In addition, most advocates do not realize people are transferred to private facilities (aka: RRC’s/halfway houses) prior to release and 100 % of them are private sector contracts. Residential Re-entry centers are critical to correctional treatment goals and re-entry, not to mention the provisions of the First Step Act will require a large build out of the re-entry infrastructure. Private contracts are not even subject to FOIA so we can only assume the millions of dollars of lobby money attributed to private correction companies has influenced this bill. Equally concerning is that the oversight “inspections” are going to be done by the DOJ-Inspector General by a broadening of their authority. This is disappointing because the IG has been auditing federal prison issues for decades that involves a cycle of identifying deficiencies, issuing a report, closing the report with minimal impact, then repeat! If you think about it, how has the BOP deteriorated to such dysfunction despite the current IG inspection process and whistleblower hotline plus extensive internal controls of the agency.
While I applaud oversight and the appointment of an Ombudsman, I would rather see an entity independent of the IG and made up of ad hoc review teams of trained unpaid prison reformers and the former and even currently incarcerated. In addition, any entity should not only have Ombudsman type abilities to deal with complaints, but it should include elements such as established communication channels between the agency, public and justice professionals and a training responsibility on BOP policy and processes for legislators and court officials including federal judges. The current oversight bill is limited in its current form so let’s hope the focus becomes more on an Ombudsman and it is improved to mandate the transparency, accountability and oversight that is so desperately needed to provide a humane, treatment-oriented system in a win/win situation for safer facilities and communities.