Fixing the First Step Act and the Bureau of Prisons
Congress passed the First Step Act of 2018 to, among other things, improve access to classes, counseling, and other programming for those incarcerated in the federal system. Progress has been slow, but in mid-January the administration took one major step toward ensuring the law is faithfully implemented. That said, several other vital matters still require immediate attention from the president and Bureau of Prisons (BOP).
The core of the First Step Act is an incentive program meant to encourage people in prison to participate in programs like training courses and behavioral therapy. A draft BOP regulation issued in late 2020 would have severely undermined that goal by making it all but impossible for imprisoned people to earn meaningful benefits from participation. Thankfully — and due in part to bipartisan pressure from the law’s drafters in Congress — the Justice Department reversed course on January 13, 2022, publishing a final rule that will ensure people are able to earn credits in a way more consistent with congressional intent. Credits will also be awarded retroactively, leading to many people being transferred immediately to prerelease custody or supervised release.
Yet, there are additional and important changes that need to be prioritized. Three years after the law’s passage, prison programming remains in short supply. The law also calls for a risk assessment tool to help determine when, among other things, people participating in programming can be transferred to pre-release custody such as a residential reentry center. Unfortunately, the initial release of the tool raised concerns about racial bias due to its reliance on data tainted by discriminatory policing. And that didn’t stop the BOP from using the tool for another purpose, one for which it was never designed: making life-or-death decisions about transfers to home confinement during the pandemic. The tool was recently updated, but it still appears to leave several concerns unaddressed, including some related to racial bias.
Turning to the BOP more broadly, the agency’s lack of transparency and unwillingness to use release mechanisms significantly hindered its response to Covid-19. And, according to the Associated Press, “more than 100 federal prison workers have been arrested, convicted or sentenced for crimes since the start of 2019,” indicating a pattern of “abuse, graft and corruption.”
- The BOP’s current director, Michael Carvajal, plans to retire. President Biden should direct the DOJ to appoint a successor dedicated to (at a minimum) successfully implementing the First Step Act and responding flexibly and promptly to public health emergencies.
- The Justice Department should completely rebuild the First Step Act’s risk assessment tool in consultation with external stakeholders.
- Congress should fund a full build-out of rehabilitative programming in federal prison. This will require more funding than Congress has authorized to date.
- Congress should create an independent oversight body for the BOP to ensure more consistent and thorough review of the prison system.
Eliminating the Federal Death Penalty
On the campaign trail, Biden pledged to eliminate the death penalty. Yet a full year into the Biden administration, the DOJ has merely announced a moratorium on federal executions while committing to study the issue.
Today, 27 states and the federal government allow the death penalty, and opposition among Americans is at its highest level since May 1966.
Nonetheless, in 2019, the federal government announced it would resume executions after an almost two-decade pause. In fact, the Trump Administration executed 13 people during its last six months in office. These executions underscored the arbitrary nature of capital punishment. We also know that the death penalty is levied in a racially biased way. One study found that 96 percent of reviewed death penalty cases exhibited a pattern of bias. And a startling number of people on death row have been exonerated over the decades, dramatically illustrating the fallibility of our legal system.
On July 1, 2021, Attorney General Merrick Garland announced a review of DOJ policies, citing the “arbitrariness in [the death penalty’s] application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.” However, given the long list of reasons that the death penalty cannot be fairly implemented, one more report is not necessary for the Biden administration to take decisive action. It is also difficult to square the administration’s statements with its request that the Supreme Court reinstate the death penalty against Dzhokhar Tsarnaev, who was convicted of perpetrating the 2013 Boston Marathon bombing.
- Even without congressional action, the president can commute all federal death sentences to life without the possibility of parole. This would ensure that even if future administrations revive federal executions, they would not be able to execute anyone currently on death row in the federal system.
- The DOJ should instruct every U.S. Attorney not to pursue capital charges.
- Congress should pass — and the President should champion — the Federal Death Penalty Prohibition Act of 2021, which abolishes the federal death penalty and provides for resentencing for anyone who was sentenced to death before enactment of the legislation.
- President Biden should urge Congress to provide federal incentives for state and local prosecutors to avoid seeking capital punishment.
Limiting DOJ’s Reliance on For-Profit Detention
While campaigning, Biden pledged to end the federal government’s use of private prisons, declaring that “the federal government should not use private facilities for any detention, including detention of undocumented immigrants.” The administration took some steps toward this goal in its first year, but much more needs to be done.
Within weeks of taking office, Biden issued an executive order directing the Justice Department not to renew any contracts with for-profit firms that operate prisons. The order stated, “privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff,” and referred to a 2016 DOJ Office of Inspector General report comparing certain privately operated BOP prisons to government operated ones.
The order expands on an Obama-era policy but still does not apply to privately owned or managed immigration detention centers. As the federal government has outsourced approximately 80 percent of Immigration and Customs Enforcement detention to for-profit companies, these firms still have a significant foothold in federal ICE detention. And it’s especially consequential given that the detained ICE population has since increased by more than 50 percent since hitting a low point in the first few months of 2021.
Additionally, the executive order leaves loopholes. For one, for-profit firms remain able to sign contracts with counties, which then contract with the federal government. For example, since the company CoreCivic could not renew its contract with the U.S. Marshals Service (USMS) for 990 beds at the firm’s Northeast Ohio Correctional Center, CoreCivic instead entered an agreement with the local sheriff’s department, which then allowed people in USMS custody to stay there. This arrangement allows the USMS to technically comply with the executive order because CoreCivic is not contracting directly with the government.
Additionally, some for-profit firms have shifted to providing immigration detention to preserve their contracts. In January 2021, the DOJ declined to renew its contract with GEO Group, another for-profit firm that manages prisons and detention centers, to run the Moshannon Valley Correctional Facility in central Pennsylvania. Then, later in the year, GEO Group entered into a brand new five-year contract to reopen the facility as a roughly 1,900-bed detention facility for ICE detainees.
These strategies illustrate that the Biden administration’s executive order jumpstarted a game of musical chairs where custodial populations have been moved from one facility to another while for-profit firms look to creative contracting to secure additional business opportunities.
- President Biden should focus on detaining fewer people in immigration detention centers across the country so that the federal government can finally stop relying on for-profit firms to house those individuals.
- Biden should follow up on President Obama’s attempt at working with the Department of Homeland Security to examine its reliance on for-profit firms and draft an action plan for how the federal government can once and for all move away from delegating this responsibility to corporations. Once this work is done, the Biden administration can issue a new executive order banning DHS from contracting directly with for-profit firms.
- The President should also ensure that the Fiscal Year 2023 and subsequent year budgets contain far less funding for ICE detention centers.