It’s time to say ‘no more impunity for the BOP’

When Michael Carvajal appears before the Senate Judiciary Committee, here’s what we want them to ask

In the Bureau of Prisons’ first oversight hearing since 2019, Barr appointee Michael Carvajal will face the Senate Judiciary Committee April 15. Politico reports that two major issues will be top-of-mind for the committee members: 1) how BOP has responded to the coronavirus pandemic and 2) how it’s implemented the First Step Act, a law adopted in 2018 designed in part to expand “evidence-based recidivism-reduction programs and productive activities” in federal prisons.

This is great, but we want the senators to go further than we think they will on those two issues, as well as to take on the practice of imposing lengthy lockdowns even in the absence of a deadly pandemic. (There are many more additional subjects worth raising, but the incarcerated members of our More Than Our Crimes network identified those as the top two. We gotta start somewhere! The main point: It’s time for the BOP’s impunity to end.) Below are the questions we have asked the senators to pose.

Prison- and unit-wide lockdowns

I understand that correctional institutions are “super spreaders” of the COVID virus almost by nature, since they are high-density congregate settings. Thus, some degree of social isolation for prisoners has been necessary. However, “lockdowns” are particularly harsh in the penitentiary setting, with documented effects on mental health when they are imposed too frequently and for too long. Amnesty International observed in a report last month that “measures introduced by governments to prevent the spread of the disease have led to human rights violations, including the use of excessive solitary confinement.”* U.S. prisons are among the violators.

But what is particularly worrying is that it appears that the BOP’s reliance on punitive isolation did not begin with the pandemic. The District of Columbia’s Corrections Information Council (CIC) regularly inspects federal prisons, since the District does not have its own prison and its residents are sent across the country into BOP institutions. And it has been finding since at least 2018 that U.S. penitentiaries are so frequently locked down that prisoners report loss of family connections and inability to participate in the programming that allows them to rehabilitate.

In February 2019, for example, the CIC visited USP Atwater in California and reported that, “In the year leading up to the inspection, there were frequent facility lockdowns that adversely affected inmates’ access to programming and communication [with family].”

Likewise, CIC visited USP Pollock (Louisiana) in July 2019, USP Lee (Virginia) the following September and USP Big Sandy (Kentucky) that October. It found in all three instances that, “by far the most common concern…was the frequency of lockdowns and their impact on visitation, programming and religious practice.” At Pollock, for example, 16 lockdowns were reported in a 12-month period. (Jessica Sandoval of the nonprofit Unlock the Box has gone on record as saying, “We believe that this is the manifestation of a trend to continue to institutionalize the practice of solitary confinement.”)

It is true that it appears that these lengthy and repetitive lockdowns are primarily occurring in higher-security facilities [penitentiaries]. However, in most cases, the CIC found that the lockdowns were not due to widespread misbehavior among the prisoners. Instead, as it noted in its Atwater report, “many were in response to fights between small numbers of people, as opposed to facility-wide incidents.” In other words, everyone is repeatedly punished for the actions of a few.

No matter what a prisoner’s original charge, programming and family connections are essential to their rehabilitation; most will, after all, eventually return to their communities. (Our note: And even for those who, tragically, do not, what kind of atmosphere does a total lack of hope create?) What kind of person do we want to send home?

So, my question is two-fold: What are you doing to assure that lockdowns are minimized as much as possible, or that alternatives are explored, during the pandemic?

And secondly, do you agree that lockdowns for entire units or institutions should not be the go-to disciplinary or management response to limited behavior problems or staffing shortages? What will you do to monitor and curb this practice?

Lack of programming

It’s widely accepted that participation in developmental programming is critical to rehabilitation. In fact, when parole petitions are denied, supplicants are told they can come back in a certain period of time based on such participation.

That’s why the First Step Act allows prisoners to receive “earned time credits” by participating in more vocational and rehabilitative programs. Those credits then allow them to be released early to halfway houses or home confinement. Not only does this mitigate prison overcrowding, but evidence indicates that education programs reduce the likelihood that returning citizens will commit another crime. Likewise, even for those committed for life without chance of parole, programming improves mental health and thus contributes to a safe, healthy prison environment.

However, a constellation of factors appear to be preventing many if not most prisoners in medium- to high-security federal institutions from accessing and benefitting from programming:

  • First, as just documented, there are the repeated and prolonged lockdowns. When prisoners are locked down, they cannot access programs.
  • Second, inspection reports from the CIC document numerous complaints about a very limited number of programs that are not designed to help the individuals once they return to their community. (See here, here and here.)
  • Third, it appears that prisoners assigned to higher-security institutions, as well as those with indeterminate (parole-eligible) sentences, are frequently excluded from educational programming altogether. Members of the More Than Our Crimes network (D.C. residents with long sentences who advocate for second chances) report that even though they are or will be eligible for parole, they are treated as “lifers” and thus not worth the investment.

Those citing this last line of reasoning can point for support to the First Step act, which excludes people convicted of a lengthy list of offenses (mostly violent). According to the Independent Review Committee set up to audit FSA implementation, more than half of all individuals incarcerated in federal prisons are thus disqualified. However, the IRC found no significant difference in the collective risk profiles of those who are eligible for time credits and those who are disqualified. This suggests, says the American Bar Association, “a lack of rationality.”

While it will take an act of Congress to amend the First Step Act, the BOP controls access to programming. Thus, my question:

What are you doing and what are you prepared to do to increase access to quality developmental programming across the entire prisoner population?

Rob Barton has been incarcerated for 25 years. Pam Bailey is his collaborator/editor. Learn more at MoreThanOurCrimes.org

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