Using Bureau of Prisons’ Problems to Help Clients

The Federal Bureau of Prisons (BOP) has many challenges, and those very challenges could make the difference in a prison term imposed at sentencing.

Recently, U.S. District Judge Jesse M. Furman, Southern District of New York, stated in an order that defendant Gustavo Chavez should not be remanded until sentencing based on the problems at the BOP’s MDC Brooklyn facility, “... the only other way to mitigate the ongoing tragedy is to improve the ratio of correctional officers to prisoners by reducing — or at least not adding to — the prisoner population.”? Clearly, judges, even tough judges, have a sense of compassion and consideration of a prison term when it comes to the quality of prisoner care.

The BOP is on its sixth director in as many years.? While the current director, Colette Peters, seems to recognize the issues facing federal prisons and wants meaningful changes, but it may take years to right this crippled culture.? BOP staff are leaving at an unprecedented rate and hiring continues to not keep pace with those leaving.? The BOP ranks last in employee satisfaction among government agencies.

The Office of the Inspector General (OIG) recently issued a compendium of reports (117 in all) on the Federal Bureau of Prisons (BOP). The reports are organized around four primary themes: (1) Safety and Security of BOP Institutions, (2) Health and Welfare of Inmates, (3) Staffing and Inmate Management Programs, and (4) Cost Management. In releasing this series of reports, OIG stated that it had closed approximately 80 percent of the recommendations from prior reports and Management Advisory Memoranda. However, the BOP continues to face significant and serious issues that require the consistent and substantial attention of BOP and Department of Justice (DOJ) leadership.

In addressing contraband, OIG noted that BOP has issues with staff introducing drugs, cell phones and alcohol due to a lapse in security screening at higher security prisons. Prisons also face threats of delivery of contraband into prison yards from drones . Drones have been used to deliver contraband to inmates, but could also be used to surveil institutions, facilitate escape attempts, or transport explosives. The BOP's incident data showed that the number of reported drone incidents increased by over 50 percent from 2018 to 2019. While the BOP recorded 57 drone incidents in 2019, these figures likely underreport the full extent of the current threat.

One of the more challenging areas for the BOP is the upkeep of their aging facilities, which are estimated to cost over $2 billion to bring up to current code.?

Across the country, there are reports of the BOP using temporary water supplies, HVAC units and rented generators to keep institutions running. Budgets provided by Congress have come up far short, but OIG pointed toward BOP’s inability to fully present a plan for how to spend the money needed. OIG found that the BOP’s infrastructure planning efforts were negatively impacted by two major factors: the absence of a well-defined infrastructure strategy and a mismatch between available and needed funding.

Staffing shortages, OIG determined, played a role in concerns over overall inmate care, lack of programming, healthcare concerns and safety for the institution. The problem of staff shortages have led to the overuse of lockdowns at institutions, confinement of inmates to cells for long hours each day over many days. OIG looked at the BOP’s response to COVID-19 and determined that more could have been done. “While personnel shortages existed in the health care community before the pandemic, the pandemic exacerbated these shortages,” the report stated, “Maintaining an appropriate level of personnel in health care facilities is essential to providing a safe work environment for health care personnel and quality care to patients.”

Many of the issues facing the BOP were part of an extensive interview with BOP Director Colette Peters on CBS’ 60 Minutes . Director Peters, who is in her second full year of heading the BOP faced tough questions on staffing, staff corruption and upgrading existing facilities. The “Bureau of Prisons is so inadequately staffed it is struggling to fulfill its mission: rehabilitating inmates and keeping its prisons safe,” the news piece concluded.

Challenges remain and the BOP is on the high-risk list for the Government Accountability Office and on the OIG’s list of Management Challenges for the DOJ. Until improvements are made, readers will have a series of reports to reflect on just how bad things have gotten inside of federal prison. Attorneys should be incorporating these BOP challenges in their sentencing memorandums, particularly when health or mental health issues are present.