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What Is Congress Going to Do About the Bureau of Prisons?

BOP Director Michael Carvajal has a lot to answer for, from inadequate Covid-19 measures to solitary confinement.

April 13, 2021
Los Angeles Times/Contributor

For the first time in two years, for the first time since the coronavirus swept through the federal prison system with deadly force, the Bureau of Pris­ons will soon face public over­sight. BOP Director Michael Carva­jal, handed the job in Febru­ary 2020 by then-Attor­ney General William Barr, will answer ques­tions Thursday before the Senate Judi­ciary Commit­tee. The good news is that Sen. Richard Durbin (D-IL), now commit­tee chair­man, has long been a strong advoc­ate for federal prison reform. The bad news is that this reform is achingly slow to mater­i­al­ize, even when there appears to be bipar­tisan support for it.

I have seen it before. Many times. A BOP director comes to Capitol Hill, prom­ises all the right things under oath about treat­ing pris­on­ers better, then flees the scene and goes back to imple­ment­ing the same harsh policies as before. It is crucial, there­fore, that commit­tee members of both parties this week spend less time making speeches and more time press­ing Carva­jal for specific answers. At a minimum, we need to know how much worse things got for pris­on­ers (and staff) during the Trump era and what Carva­jal and Congress are going to do to fix that. Carva­jal should feel as though his job is on the line — or should be.

The ques­tion­ing has to start with Carva­jal’s respons­ib­il­ity for the BOP’s disastrous response to the coronavirus. It has been a train wreck from the start, from the fail­ure to protect pris­on­ers and staff at the outset of the outbreak to the recent refusal to share Covid-19 data with the public. In between, federal wardens blocked nearly all of the compas­sion­ate release requests from medic­ally vulner­able pris­on­ers and then contrib­uted to the virus’s spread behind bars by allow­ing the trans­fer of pris­on­ers from one facil­ity to another without first test­ing them. As far as, we know there have been 50,000 cases and 243 deaths inside federal facil­it­ies. My guess is that both of those numbers are actu­ally quite higher.

It won’t be enough for Carva­jal to tell the commit­tee that he accepts respons­ib­il­ity for all or most of this. Of course he’s respons­ible. Nor will it be enough for him to say the BOP is going to do better. There has to be mean­ing­ful account­ab­il­ity for what’s happened. Carva­jal has to explain why so many of his wardens were so reluct­ant to grant these compas­sion­ate release requests, even though many were justi­fied under the First Step Act. He has to explain why the BOP created waves of super­spreader events by prior­it­iz­ing federal execu­tions during the pandemic. He has to explain more gener­ally why the BOP was so cava­lier with its own staff about the danger of the virus. The story of FCI-Oakdale in Louisi­ana, where officers were ordered to work even after being exposed to people who tested posit­ive, is horri­fy­ing.

Carva­jal also must answer directly for the BOP’s disap­point­ing refusal to imple­ment other provi­sions of the First Step Act. A prime purpose of the law is to help federal pris­on­ers prepare for their even­tual release so that they are more likely to safely integ­rate them­selves back into soci­ety. That this is a sound policy ought to be a nonpar­tisan matter and obvi­ous to even the cruelest wardens. Yet here, again, BOP offi­cials stymied legis­lat­ive intent. For example, they fought to stop, or at least slow, the stream of “good-time” credit that pris­on­ers need to gain their release under the First Step Act.

To the dismay of pris­on­ers and their advoc­ates, the BOP has argued that a draft­ing error in the law justi­fies limits on the number of cred­its the agency is going to give pris­on­ers. In other words, federal prison offi­cials during the Trump admin­is­tra­tion under­mined the First Step Act by inter­pret­ing it in a manner incon­sist­ent with the broad purpose of the law. Does Carva­jal stand by this inter­pret­a­tion?

I would like Carva­jal to tell us all whether there are any other aspects of the First Step Act the Bureau of Pris­ons under­min­ing.

Commit­tee members should ask him about the vaccin­a­tion of federal pris­on­ers and the staff at the hundreds of federal facil­it­ies across the nation. How many pris­on­ers have been offered shots? How many guards? How many have gotten their shots? What efforts are being made to educate the incar­cer­ated about the coronavirus vaccine?

Carva­jal also should be asked about the use of private compan­ies running federal deten­tion facil­it­ies. And he should be asked to describe the efforts he’s taking to combat the spread of white suprem­acy inside federal pris­ons — among both guards and pris­on­ers.

Senat­ors should press Carva­jal about the persist­ent and often perni­cious use of solit­ary confine­ment in federal pris­ons and immig­ra­tion deten­tion. There was a consist­ent and success­ful push during the Obama admin­is­tra­tion to reduce the number of people locked away in this fash­ion. From 2012 to 2015, accord­ing to the Justice Depart­ment, there was a signi­fic­ant reduc­tion in the number of pris­on­ers in isol­ated deten­tion. But that vital reform was evid­ently reversed during the Trump era. So much so that four Demo­cratic senat­ors in 2019 asked the Govern­ment Account­ab­il­ity Office to review the BOP’s use of solit­ary confine­ment.

Carva­jal needs to answer under oath this week: Are there more people in solit­ary in federal prison today than there were one year ago or two years ago? If so, why? What policies were imple­men­ted by William Barr and his prede­cessor Jeff Sessions to reverse the trend we saw during the Obama admin­is­tra­tion? More specific­ally, since mental illness is both a cause and effect of solit­ary, what happened to the first federal prison program estab­lish­ing a “step-down” unit for severely mentally ill people? The welcome exper­i­ment, which began in 2014, was designed to help people trans­ition safely from solit­ary to the streets.

To his credit, Durbin has consist­ently pressed the BOP to restrict the use of solit­ary confine­ment. He has consist­ently been on the right side of this issue. In 2013, for example, he deman­ded federal prison offi­cials under­take a review of their isol­ated deten­tion policies. The BOP made a few changes but left the bulk of the prob­lems in place. Two years ago, Durbin co-sponsored legis­la­tion (along with then-Senator Kamala Harris) to both reduce the time pris­on­ers are sent into isol­ated deten­tion and increase the mental health services avail­able to those pris­on­ers. Does Carva­jal support that legis­la­tion? If so, why? If not, why not?

I am so old (and I say this sigh­ing) that I actu­ally wrote a form of this column seven and a half years ago when Charles Samuels was BOP director. The good old days. We titled it “How Not to Hold an ‘Over­sight’ Hear­ing’”. Ask me after this week’s hear­ing whether I think Durbin and company did better this time around. I am, you could say, cautiously pess­im­istic.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.