Failure To Properly Administer the 2nd Chance Act of 2007
Posted: Tuesday, February 17, 2009
by TheMPMGroup
The MPM Group, Inc.
Has the U.S. Bureau of Prison Become Too Powerful?
An Opinion:
As of this writing, there are approximately 200,000 people being confined by the United States Bureau of Prisons (BOP), a component of the Department of Justice (DoJ). Their offenses span the spectrum from high treason, terrorism, or murder - to the more mundane like poaching deer on federal land. Interestingly, official government records will confirm that a majority of federal inmates are non-violent and non-weapon offenders that are incarcerated for comparatively low security violations, minor drug offenses, or white-collar related offenses. Nonetheless, the debate rages on how to reduce the federal prison population and, in turn, reduce the 5.53 billion (yes, that's a "B") dollar BOP budget that was approved for fiscal year (FY) 2009.
How did we get to where we are today? Arguably, it was precipitated by the knee-jerk reaction of a few elected officials in their politically motivated, albeit failed, attempt to address the rise in violent drug related crimes that were proliferating our city streets during an election year. (Why does the rush to pass The Patriot Act come to mind?) As a direct result, The Sentencing Reform Act of 1984 and The Comprehensive Crime Control Act of 1984 ( the Acts) overhauled the federal sentencing system and revised bail and forfeiture procedures along with other federal practices. They also abolished federal parole and mandated minimum-mandatory sentences for any federal offense. Consequently, this political faux pas took all sentencing discretion away from federal judges and began filling our federal prison system with a majority of non-violent offenders with no possible way for them to be prematurely released. Indeed, federal defendants could (and still can) be assured that they would serve at least 85% of any sentence they received - no matter how innocuous their offense might have been. Furthermore, should one consider that more than 94% of all infrastructure labor support (repair, landscaping, maintenance, kitchen, etc.) at BOP facilities is conducted by federal inmates, why would the BOP be in any hurry to release their 12-cents an hour labor force or tamper with their revenue generating UNICOR business interests? It might also explain why they refuse to honor the Congressionally mandated "good-time" provision for federal inmates and continue to drag that issue through the federal courts. We would suggest that you don't have to be a Wharton School graduate to conclude that the BOP currently enjoys the luxury of having a very large number of " not-so-bad" bad guys doing the lion's share of the work required to incarcerate a much smaller number of " truly-bad" bad guys.
From 1984 until today, the BOP has been demonstrating what can only be described as a consistent and conscious attempt to move farther and farther away from any accountability to Congress, federal judges, or anyone else for that matter. Initially supported by elected officials (who always seem to be working on their re-election), coupled with the oft-times well-deserved national hysteria of crime victims, the BOP has been allowed to create their own little fiefdom within the DoJ and appear to now be enjoying unprecedented powers and an autonomy ("Institutional Arrogance") that has traditionally been reserved for the Federal Bureau of Investigation (FBI), who coincidentally, also happen to be a component of the DoJ.
Although pretty much "neutered" in sentencing matters by the Acts of 1984, federal judges still believed that they remained in charge in their own courtrooms. In fact, some even had the temerity to suggest that judicial recommendations to the BOP on defendant designations, rehabilitation treatments, and other issues delineated within the court's Judgment & Commitment Orders should be honored. Several subsequent cases to include the First Circuit case, United States v. Dennis Guerette (District of Maine CR-03-95-B-W) nipped that presumptuous thought in the bud,
"...[d]ecisions to place a convicted defendant within a particular treatment program or a particular facility are decisions within the sole discretion of the Bureau of Prisons. United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (per curiam), cert. denied, 535 U.S. 1120 (2002) (quoting Thye v. United States, 109 F.3d 127, 130 (2d Cir. 1997)). A sentencing court's recommendation to the BOP is both "non-binding" and "non-reviewable" and its failure to recommend is similarly 'non-appealable.' Id."
In these days of ecomomic uncertainty and Congressional oversight into anything with a financial pulse, one can only imagine how far "below-the-radar" the BOP must be operating - or are they? Notwithstanding assorted credible and well-publicized complaints, multiple state/federal investigations, and subsequent contracting fraud indictments targeting various business associates, Keefe Group of St. Louis has consistently been awarded the extremely lucrative contract within the BOP to supply food stuffs to all the BOP prison commissaries throughout the United States. Contracts that stand to earn several million dollars in annual profits, yet when questioned about these well-documented contracting improprieties or, at the minimum, the appearence of an egregious conflict-of-interest, the consistently unflappable BOP continues business as usual. Interestingly, the same reaction they have when asked to explain why they charge indigent federal inmates and/or their families more than seven times the average cost of a telephone call from a federal penal facility. A long distance telephone service contract that is being awarded with about the same transparency as the Keefe Group contract. Little wonder why BOP Correctional Officers can find more cell phones in a minimum-security federal prison camp than a college sorority house.
Speaking of bidding on contracts, how about the even more lucrative BOP medications contracts that have been consistently awarded to McKesson Corporation. A company that has been investigated by various U.S. Attorneys offices, the Drug Enforcement Administration, and has even led to high ranking executives being federally indicted. In fact, one May 2008, incident in the District of Maryland eventually required McKesson to pay the government a $13-million dollar fine for among other things, "..allegations that it violated federal reporting provisions relating to the sale of certain prescription medications." Sounds suspiciously like an articulate way of saying they were "selling dope." In any event, such minor indiscretions never dissuaded the BOP contracting officers from continuing to award extremely lucrative contracts for McKesson to provide "generic" medications for federal inmates - even while these various federal investigations were still being conducted by federal law enforcement agencies. Due to limited space here, we won't even open the "Pandora's Box" of BOP Government Purchase Orders (GPO)-Duraskin Gloves from Indonesia, T-shirts from Pakistan, Hypard products from China, Gildan merchandise from Honduras, cloth and other products from Vietnam and Mexico. Are we to understand, the American factory worker doesn't manufacture a single thing that the BOP can use or does the BOP simply not have any credible government contract oversight - Indeed, any oversight at all?
In addition to these head-scratchers, should the opportunity ever present itself, we would look forward for an opportunity to discuss the alleged mass removal of heretofore well-qualified contract medical officers from the BOP, many of whom were replaced by much lower paid graduates from "lesser known" medical schools or even Physician's Assistants; the deletion of any kind of effective pain medication from the BOP Formulary, the infamous and well-traveled BOP "spider" that has apparently bit every BOP inmate that has ever contracted MRSA inside a BOP facility, the recent unexplained deaths of incarcerated inmates in West Virginia and Texas from something other than prison violence, the recent riots in Texas BOP facilities. Of specific interest would be an accountability of revenues generated by the BOP from reduced inmate salaries, re-cycling contracts, UNICOR profits, inmate commissary & long distance telephone profits, monies saved from "low-bid" food purchases - all the while failing to backfill several vacant positions causing the understaffing of the more violent BOP facilities thus, exposing the remaining overworked and underpaid BOP Correctional Officers to more than usual violence that is usually encountered in those specific facilities. The list of "Talking Points" could go on and on, but we have limited time/space and we digress. Therefore, back to The 2nd Chance Act of 2007.
In order to comply with implementation requirements set forth in The 2nd Chance Act language, Federal Register, Volume 72, No. 204, pp. 62440-62443, the BOP set forth their policy to implement the 2nd Chance Act of 2007. Of specific interest was Section 570.21, wherein the BOP delineated the maximum of 12-months of RRC time a federal inmate was permitted under the Act. However, even a cursory review of the policy will confirm the BOP's usual practice of leaving enough policy "wiggle room" that the benefits afforded by the Act can neither be implemented uniformly throughout the BOP nor can the BOP ever be held legally accountable for their failure to do so. Indeed, as one Washington insider once opined about a similar situation, "It was one of those Washington assertions that is simultaneously accurate and deceptive and just confusing enough to defy opposition." Resultantly, every Warden and/or every Regional Director within the BOP appears to have unilateral authority to dictate how much Halfway House time an inmate in their facility should receive. Consequently, you have inmates receiving 10-months in one facility and another more deserving candidate receiving 3-months in another. We would respectfully suggest that this type of "selective" policy implementation was not what Congressman Davis intended when he drafted the Act in 2007.
That said, nobody can argue that the BOP rank and file do an outstanding job in a dangerous and thankless job. Indeed, given the nature of the mission and the type of dangerous individuals involved, the federal penal system is unquestionably one of the best in the world. Best selling author John Grisham confirmed as much when he suggested in his best selling novel The Brethren, " If you have to do time - do federal time." However, nothwithstanding our admiration for the work of the BOP correctional cadre, we will continue to encourage debate about the wisdom of our elected officials passing laws or policies and then delegating the authority to implement (and adhere to) that policy to the very agency management officials that the policies are designed to govern. Indeed, after The Patriot Act was passed, FBI agents, as well as other government entities, were admittedly monitoring privileged electronic communications and throwing around National Security Letters and Administrative Subpoenas with little (actually, none whatsoever) regard for the "spirit-of-the-Act" or individual civil rights. Today, with the BOP and The Second Chance Act of 2007, " It's Deja Vu all over again." Even last ditch Congressional inquiries from family members, friends, or lawyers are usually being handled by the lowest ranking aide in the Congressman's office and done so usually as a vexatious collateral duty. This 20-something intern will no doubt get a response back from a well-versed and politically savvy BOP Congressional liaison who appeases them (and their inexperience) with a some type of in-the-can generic form letter or email response marked "High Priority," "Sensitive," or some other impressive heading, yet lacks any semblance of a meaningful response to the initial question. Who's to know or even question it for that matter?
Should we point fingers, the BOP's ability to develop such unprecedented (and apparently unchecked) power can partially fall directly on the shoulders of certain federal inmates who were " amused to abuse" the legal process by filing repeated and frivolous complaints and/or torts claims. Conduct that eventually facilitated the strict implementation of both the Prison Litigation Reform Act (PLRA) and the Federal Tort Claim Act (FTCA). As a result, every inmate is now relegated to filing everything through the labor intensive and intentionally time consuming BOP Administrative Remedy Process. Unfortunately, despite the purpose of the Process, it would appear that BOP management has now developed the Administrative Remedy Process into their own self-managed and personally supervised shell game to hide and delay formal responses to inmates - or any other outside inquiries for that matter. In fact, they have turned it into an art form and, wait for it, there is no appeal, other than filing another tort claim. We know, George Orwell couldn't make this stuff up.
In conclusion, how do we properly and uniformly implement the 2nd Chance Act of 2007, and do so in the spirit for which it was developed? Actually, it's relatively simple, we develop an outside oversight committee for the BOP. A group of individuals that are tasked and empowered with the authority to ensure that BOP senior management properly runs this massive government "cash cow" and does so in full and transparent compliance with Congressional and judicial mandates. Has anyone on Capitol Hill ever read Lord Acton?
However, as Dennis Miller would say, " This is just our opinion, we may be wrong. "
The MPM Group, Inc. is a nationally recognized and court adjudicated litigation support and consultancy firm. The firm also specializes in sentencing mitigation and federal inmate advocacy issues. For more information, you can visit the firm at www.TheMPMGroup.com
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Top-level comments on this article: (2 total)This article was outstanding. Well-researched and well-written. Gives one a lot to think about.
Excellent!!!!!! Finally, someone has the facts and the ability to set them to paper. THANK YOU!!
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