Government Watchdog: We Have a Growing Federal Prison 'Crisis'

The Justice Department's Inspector General is out with his year-end review of federal law enforcement efforts. Its language is diplomatic but the message is clear: The feds need to do better, much better, on many fronts.
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The Justice Department's Office of the Inspector General published Friday its annual report titled "Top Management and Performance Challenges Facing the Justice Department." The memo, which is 15 pages long, can be found online here and is worth reading. Not because it is particularly candid or revealing— these are lawyers writing about other lawyers, after all—but rather because we see in both the light and in the shadows of this document so much of what has animated this busy year at the intersection of law and politics.

Interspersed here are quotes from an interview I conducted by telephone Friday with the inspector general himself, Michael Horowitz, who offered to explain as best he can the memo he vetted, signed and delivered up to the world. I'll offer these in the order in which they appear in the memo, although I suspect that "Growing Crisis in the Federal Prison System," which is the title of the first section of the memo, won't get nearly as much attention as will subsequent sections about civil liberties and federal mismanagement.

As you go through the report, and even this summary of it, remember that the Inspector General's office is, even in Horowitz's words, "not in the business of... recommending particular policies" for the Justice Department. It serves to react, as a watchdog, to bark about what merits barking about. In this respect, it's like a judge who will not render an "advisory opinion" without a live case or controversy before her. The function of the OIG, by statute and by tradition, is essentially to tell the Justice Department what its employees are doing wrong instead of telling them precisely how to do things right.

Prisons

It is a very good thing indeed that the OIG now is focused upon the "growing crisis" in our federal prisons. We've been chronicling that crisis for years, often in heartbreaking terms, here at The Atlantic. Maybe one day, when enough powerful people focus upon it, Washington will actually fix the problem. As Horowitz told me, this year-end memo has been produced for many years but the topic of prisons didn't make the list until last year. This year, it's in the first spot (though, he added, the items are not necessarily ranked by priority).  

The first part of the prison crisis is financial and the math behind it is relatively simple: the number of federal inmates has increased dramatically over the past few years while the government funding available to safely house those federal inmates has decreased. "It's a zero sum game," Horowitz says. "Every dollar spent on prisons is a dollar that is going to come from somewhere else in the Department. That forces leadership to look hard at what tools it has."

From the report:

After enjoying an increase in its discretionary budget from $21.5 billion in fiscal year (FY) 2001 to $28.9 billion in FY 2011, the Department’s discretionary budget decreased in FY 2012 to $28.3 billion, and by 10 percent in FY 2013 to $25.5 billion. During this same period, the prison population in the Federal Bureau of Prisons’ (BOP) facilities grew from about 157,000 inmates in FY 2001 to about 219,000 inmates presently.

The second component of the federal prison crisis is the lack of workable ideas offered up so far to ease the crisis by reforming the system. Remember when we all were so encouraged back in August after Attorney General Eric Holder announced a series of sentencing reforms he said would safely decrease the federal prison population? Well, Horowitz and company at the OIG don't seem to think much of that plan, at least this part as presently constituted. From the report:

[T]his policy change is unlikely to have a significant short-term impact on prison costs because defendants who qualify for this relief are still likely to face some period of incarceration for their crimes.  Whether the policy change will have a material long-term impact on prison costs remains to be seen since many of these same defendants, if they had been subjected to a mandatory minimum charge, might have qualified for the mandatory minimum “safety valve” that Congress created in 1994.

The third component of the crisis in our federal prisons is simply one of poor management. The Bureau of Prisons, and thus the Justice Department, are not adequately "managing and leveraging" existing programs, the report candidly concludes. For example, federal officials are not efficiently addressing the "increasing number of elderly inmates" within the system:

From FY 2010 to FY 2013, the population of inmates over the age of 65 in BOP-managed facilities increased by 31 percent, from 2,708 to 3,555, while the population of inmates 30 or younger decreased by 12 percent, from 40,570 to 35,783.  This demographic trend has significant budgetary implications for the Department because older inmates have higher medical costs.

Nor are the BOP and the Justice Department transferring foreign national inmates out of federal prisons (to their native lands) as quickly as they should be, despite a 2011 OIG report that was sharply critical of the Department's lackluster use of the International Prisoner Treaty Transfer Program.  In other words, Friday's report tells us, the BOP still isn't properly implementing its own program and losing an opportunity to efficiently and safely reduce the federal prison population.

Finally, the OIG criticized the pace of one of the other "reforms" that Attorney General Holder touted so loudly this summer. The "compassionate release" program, in which inmates who clearly don't pose a security threat are permitted to leave prison, should be a no-brainer. And it has bipartisan support. And yet the OIG reveals that the Justice Department has failed or refused for a number of years to adequately implement the program, revising its policies on the same day that the OIG issued a report critical of those very policies. From the report: 

The BOP’s compassionate release program, which allows the Department to release inmates under extraordinary and compelling conditions, also could provide some budgetary relief for the BOP.  However, an OIG review earlier this year found that the program was badly mismanaged and that better administration of the program would inevitably result in cost savings to the BOP and help the BOP address its capacity problems.

Listening to Horowitz explain the OIG's emphasis on federal prisons, it's clear that he's trying, as diplomatically as possible, to raise the alarm about the lack of progress the Justice Department—and specifically the BOP—has shown in reacting to the changing dynamics of the inmate population. "Even though the Department since 2006 has been identifying prison overcrowding and prison capacity as a material performance weakness," he told me, "over that seven year period, the numbers haven't improved, they've gotten arguably worse, and are on the path... to continue to get worse in the years ahead." 

Something's gotta give. One solution, Horowitz says, is for Congress to simply appropriate more money for prisons. Another is that "the Department and Congress can agree on legislation that can alter various statutes." (And, indeed, that is happening). The memo, however, is designed to focus the executive branch's attention to  "what exists today. The Department does have some ability to have an impact on this current situation," he says, whether it's at the charging stage in a criminal case, the sentencing stage of such a case, or upon inmates who already are in the system.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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