Tuesday, January 30, 2007

BOP Update: kick the over-incarceration habit

Our society is addicted to over-incarceration. The signs are everywhere: we have the highest rates of incarceration in the world; racial disparities in incarceration rates are a national disgrace; and Justice Kennedy tells us that the prison guard union’s lobbying efforts for more incarceration is "sick." Yet more mandatory minimum sentences are proposed every time a politician needs a headline. What’s a Federal Defender to do?

As set out in the article -- Update On BOP Issues Affecting Clients Before And After Sentencing -- linked here, we can do our small part to address the cult of incarceration in two ways: sensitizing judges to the fact that their sentences are unreasonably bloated by Executive Branch policies that increase the actual time served; and, if administrative remedies and negotiation prove fruitless, litigating the Executive Branch's unlawful increases to our clients’ sentences.

Since the advent of the Guidelines, the Bureau of Prisons has systematically increased the actual time served by abandoning or distorting statutory authorizations for sentence reductions, good time credit, and community corrections. Judges have no way of knowing how the BOP is increasing actual incarceration -- and it's a one-way ratchet -- unless we tell them. The bureaucratic incentives for over-incarceration, at greater tax-payer expense, result in irrational sentences and gratuitous cruelty.

The article provides a number of potential ways to address over-incarceration. The best way is to anticipate problems at sentencing. We can request that judges trump BOP over-incarceration policies by structuring proposed sentences to accomplish what Congress authorized but the BOP won’t implement.

When the BOP abolishes boot camp for non-violent defendants with a sentence of 30 months or less, we propose a six month term of imprisonment, followed by six months in a halfway house as a condition of supervised release, followed by home detention, both conditioned on community service. When the BOP refuses to implement split sentences, we propose probation conditioned upon the split between a halfway house and home detention (or the same as a condition of supervised release after whatever time has been served). When the BOP eliminates the sentence reduction for DAP under 18 U.S.C. § 3621(e) based on mere gun possession, or for prior convictions, or for having an immigration detainer, the sentence without the potential for the incentive may be unreasonably long, especially where those factors already resulted in a longer sentence. And we can assure that issues are resolved at sentencing to avoid problems regarding concurrent/consecutive sentences and eligibility for programs.

But we must also continue to litigate against the many ways the BOP is extending sentences by always requiring more incarceration. The Criminal Justice Act provides discretionary appointment for litigating the BOP’s unlawful practices that increase the actual time in prison. Judges should be encouraged to recognize the many ways that the prison bureaucracy has arrogated to itself the power to over-punish rather than merely carrying out judicially crafted sentences within a legislatively limited statutory context. The BOP policies that result in sentences greater than necessary to accomplish the purposes of sentencing – including the abolition of boot camp, the disqualification of statutorily eligible DAP candidates, the misconstruction of the community corrections statute, and misconstruction of the good time statute – are part of an overall bureaucratic tendency to self-aggrandizement that has no effective check except where the prisoner has a trained advocate at his or her side.

In addition to sentencing and litigation strategies, the outline hits on several recently litigated issues where BOP policies that increased incarceration were judicially rejected:
  • Sanctions for failure to participate in the Inmate Financial Responsibility Program where the judgment did not incorporate in-prison restitution schedule;
  • Revocation of DAP eligibility after a determination of eligibility and participation in the in-prison residential treatment program;
  • Refusal to make a determination of DAP eligibility until the end of the sentence, thereby precluding the full potential sentence reduction;
  • Loss of good time and other sanctions for failure to exceed the BOP’s educational requirements;
  • Failure to award good time credits for the state portion of a term of imprisonment adjusted down under the Commentary to section 5G1.3.

To kick a nasty habit, you first have to recognize the problem. Federal Defenders need to guard against the creeping norms of over-incarceration: it does not take long for the elimination of a Congressionally-sanctioned program that introduced a touch of moderation to an extraordinarily harsh Guideline regimen to become old news. And the BOP's skewing of the Sentencing Table to be 2.2% longer than contemplated by the Sentencing Commission should make all sentences presumptively ureasonable (as blogged here). We need to educate ourselves about how sentences are being implemented, and act on our knowledge both at the time of sentencing and while the sentence is being carried out, to serve our clients by consistently advocating against their over-incarceration.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

1 Comments:

Blogger John Marlow, Ph.D. said...

Education reduces recidivism

The United States puts people in prison at a rate greater than any other nation. Two point one million, or one out of 138 Americans, are now serving time in prison.1 The U.S. is only five percent of the world’s population, but locks up more than one quarter of the world’s prisoners. In 2004, the U.S was locking up more than 900 persons per week. This is a sixty percent increase since 1990 and a six-fold increase since 1972.2 Currently, “127,677 men and women in the U.S. are serving life sentences, up eighty three percent since 1992, an increase attributed to stricter sentencing laws,”3 and “three strikes legislation”4 that places mandatory prison terms on all types of felony convictions including drug possession5 and eliminates the Pell Grant for those serving time 5,6



The conservative estimated cost of imprisoning a person for one year is thirty thousand dollars. Taxpayers currently spend sixty three billion annually for incarceration. This figure does not include the enforcement and judicial branches of the criminal justice system. Even greater is the true cost of incarceration that can never be measured in dollars. The damage to communities, families and children is considerable and demonstrated through the cyclical nature of incarceration. The children of incarcerated persons are four times more likely to become incarcerated then children whose parents are not incarcerated.7


Seven out of ten recently released offenders will return to prison (recidivism) within three years.8 Recidivism rates are directly correlated with offender’s level of income, family stability, type of offence and most dramatically, their level of education. 9,10 Offenders who have less than a high school education recidivate at a much greater rate than those who prepare for and pass the General Education Diploma (GED) examination or those who have earned an Associate’s Degree while in prison. The average recidivism rate for state and U.S. federal prison systems is seventy percent.11 However, only four out of ten GED graduates return to prison within three years, and less than one in ten who earns a two-year college degree while incarcerated will return to prison. Prisoner education is a politically sensitive and expensive subject that many state and federal legislative members avoid despite the evidence of its merits and ability to transform those incarcerated into productive members of society.12




Rehabilitative tools that have been effective, such as education, counseling and drug treatment, have been severely curbed or eliminated due to state and federal budget cutbacks.13 Consequently, novel and inexpensive methods of reaching offenders and getting them to examine and modify their attitudes and behaviors that bring them back to prison must be investigated.14 Therefore, recidivism’s detrimental strain on the criminal justice system, and the cuts in rehabilitative services within prisons nationwide, demonstrates that any inquiry into the incarcerated person’s experience that could provide some relevant information of how we can better understand those incarcerated can increase our chances of decreasing the number of prisons in the United States.



1 Bureau of Justice Statistics [BJS], 2005.

2 Brooks, 2000.

3 Time, 2004
4 Sorensen & Stemen, 2002
5 McKinley, 2002
6 Yarbro, 1996;
7 Welsh, 2002.
8 Vogel, 2004.
9 Visher & Travis, 2003.
10 Cassel, 2003;
11 Stevens & Ward, 1997
12 Hrabowski & Robbi, 2002.
13 C. F., 1995.

Saturday, March 24, 2007 10:56:00 AM  

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