In a memorandum prepared by the Department of Justice’s Inspector General and published late last year, the Office said the federal prison system is in a “persisting crisis” that is failing on two fronts: A ballooning cost that is consuming the DOJ’s budget and overcrowding that is severely imperiling the health and safety of prisoners and the people who work there.
In a sense, the memo did not contain many surprises. There has been more than sufficient research to show the federal prison system is a huge budgetary drain. However, the facts presented put in stark terms the extent to which the status quo is not only unsustainable, but harmful to justice.
The two major problems with the system — a budget expanding out of control and resources stretched too thin — are in direct conflict with one another. The only solution is major criminal justice reform.
Currently, the budget for Federal Bureau of Prisons (BOP) is $6.9 billion per year. It consists of a quarter of the DOJ’s budget. Just 14 years ago, the budget for the bureau was $3.8 billion, and it consisted of 18 percent of the Department’s budget. Next year, the department has requested an increase in the budget of 0.5 percent.
The expanding size of BOP’s budget is cutting into the Department’s ability to handle other major duties — for example, the investigation of major threats to public safety, according to the memorandum. The FBI is the only division in the DOJ whose budget exceeds BOP’s.
Health care is a major budgetary concern, especially with an aging population. The number of inmates older than 50 grew 25 percent from 2009 to 2014. About 17 percent of people now in federal prison are older than 50, and another quarter of the population are in their 40s.
Age is not the only health care concern. For instance, a person in federal prison is about six times more likely to have chronic hepatitis C than any other person in the United States. It costs the federal government more than twice as much, on average, to house a person in a BOP medical center than to house that person in the general population.
Cutting costs is not a true option for the federal prison system to gain control of its budget, according to the memo. The other threat to the system is its inability to provide the for the safety and security of its staff and inmates.
Overcrowding proves the biggest threat to safety. Federal prisons operate at 133 percent of their capacity, with medium and high security facilities the most crowded (at 140 percent and 142 percent, respectively). Despite the BOP acknowledging its overcrowding problem, its plans for the future do not. Their Long Range Capacity Plan projects a capacity of 138 percent by 2018.
The overcrowding has led to outsourcing to privately run prisons, which have a recent history of poor management. In 2008 and 2009, inmates in the privately managed Reeves County Detention Center in Texas rioted multiple times. Th e inmates said the disturbances were caused by poor medical care.
These two issues run head-to-head against one another. The DOJ should not expect to see its departmental budget increase other than a very modest amount — even if this were a wise choice, the current political climate virtually guarantees any expansion in government is a nonstarter. In its current trajectory, prisons will take up a larger and larger portion of the DOJ budget, ensuring less and less resources for going after real threats to public safety.
The only real way to control ballooning costs and safety issues is to dramatically alter the size of the prison population. The memo says this, and points to both some actions that are being taken, including drafting charges for low-level drug offenders to avoid mandatory minimums and an increased focus on treatment court. The memo also points to some failings, like the failure to utilize compassionate release.
Overall, more must be done to decrease the prison population. Reducing the use of mandatory minimums is an important goal. However, only about 14.5 percent of people sentenced in 2012 were sentenced under a mandatory minimum. To even bring the prison population down to less-than-overcrowded, we must cut it by a quarter. Reducing the length of sentences for even all of those sentenced to a mandatory minimum will not get us to where we need to be.
Instead, we must readdress what we consider a criminal offense worthy of imprisonment. The War on Drugs is the clearest place to start. Nearly half of all prisoners in federal custody are there on drug charges.
Providing some relief to the overburdened prison system is just one of the many positive results we would see if we started addressing controlled substances as a public health issue rather than a criminal one.
Guest Blogger: Donald H. Flanary III is a San Antonio federal defense lawyer who is a partner in Goldstein, Goldstein & Hilley. He has represented defendants on a broad range of charges, including drug trafficking and complex fraud cases in Texas federal courts, as well as state courts. Mr. Flanary has also lectured and written on constitutional law topics.