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Is the Bureau of Prisons Failing to Properly Implement the Second Chance Act of 2007?

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, acts of terrorism, bank robbery, or even murder - to the more mundane non-weapon/non-violent offenses.

However, for the purposes of our immediate position being set forth herein, previous judicial notice has been taken and official records will confirm that a significant percentage of incarcerated federal inmates are non-violent offenders who are incarcerated for comparatively low-security risk type 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 dollar BOP budget that was approved for fiscal year (FY) 2009.

In an effort to facilitate a federal inmate's return to society, reduce inmate recidivism, and bring the federal prison population to manageable levels, U.S. Congressman Danny Davis (D-IL) introduced House Resolution 1593 (H.R. 1593) in 2007. On April 9, 2008, it was signed by President Bush (Public Law 110-199) and became known as The 2nd Chance Act of 2007. In addition to its many provisions offering funding mechanisms for inmate re-entry programs, The 2nd Chance Act also increased a federal inmate's previous 6-month maximum allowed in a Residential Re-entry Center (RRC), commonly referred to as a Halfway House, to a maximum of 12-months. The thought of course being that it would immediately reduce federal prison levels by allowing worthy non-violent offenders an opportunity to return to society, become gainfully employed, start paying income taxes, begin paying restitution to any victims, and most importantly, start supporting their own families. However, despite the intent of The 2nd Chance Act, and the logic that accompanied it, the BOP has again apparently decided to "implement" this very worthwhile Congressional mandate in the same cavalier manner that they handle most of the many other conspicuously ineffectual political and judicial attempts to "dictate policy" to BOP upper management - they simply ignore it. Consequently, prison populations are still increasing and American taxpayers continue to fund the $25,000 to $35,000 annual fee it reportedly requires to house each federal inmate.

To find a solution, we must first ask ourselves how we came to be engulfed in this social and economic quandary. 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 court system. 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.

Thus, as a result of this near-perfect business plan, 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 would now appear to be enjoying unprecedented powers and an autonomy (“institutional arrogance”) that has heretofore been reserved for the likes of 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, some federal judges mistakenly believed that they remained sacrosanct 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 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 economic 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 various credible and well-publicized allegations, 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 appearance 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 both the Department of Justice (various U.S. Attorneys Offices) as well as the Drug Enforcement Administration, eventually leading to some high-ranking executives being federally indicted. In fact, one May 2008, incident in the District of Maryland 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 and do so even while these various federal investigations were still being conducted. Due to limited space here, we won't even open the "Pandora's Box" of BOP Government Purchase Orders (GPO) - Duraskin Gloves from Indonesia, clothing from Pakistan, Hypard products from China, Gildan merchandise from Honduras, cloth and other products from Vietnam and Mexico. Are we, as American taxpayers, to understand that our U.S. based and owned factories are incapable of manufacturing a single item 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 certainly make ourselves available to discuss the 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 and, in some cases, even Physician's Assistants and/or Emergency Medical Technicians (EMT). The recent and arbitrary discontinuation of any kind of medically acceptable and/or effective pain medication from the BOP Formulary - replacing them exclusively with Gabapentin (Neurotin). 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. Lastly, of specific interest to us would be a detailed BOP management accountability of revenues generated by the BOP from reduced/unpaid inmate salaries, inmate TRULINC and copier fees, re-cycling contracts, UNICOR profits, inmate commissary and long distance telephone profits, monies saved from "low-bid" food purchases - all the while failing to backfill several vacant correctional positions causing the understaffing of the more violent BOP facilities thus, exposing the remaining overworked and underpaid 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 73, 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 would now appear to have the 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 less than 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 novel The Brethren, “If you have to do time – do federal time.” However, notwithstanding 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 Déjà Vu all over again." Even last ditch Congressional inquiries from family members, friends, and even 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 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.

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 federal legal process by filing repeated and frivolous complaints and/or federal torts claims. Conduct that eventually facilitated the strict adherence to both the Prison Litigation Reform Act (PLRA) and the Federal Tort Claim Act (FTCA). As a result, every inmate is now relegated to “exhausting” all complaints through the labor intensive and intentionally time consuming BOP Administrative Remedy Process. Unfortunately, despite the purpose of this Process, it would appear that BOP management has now, yet not surprisingly, developed the Administrative Remedy Process into their own self-managed and personally supervised shell game to frequently 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 need to 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?

Yet, as Dennis Miller would say, “This is just our opinion – we may be wrong.”

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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