BOP Update: kick the over-incarceration habit
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