The flow in prisoners to federal prison must pass through the federal courts and, specifically, federal judges. The Federal Bureau of Prisons (BOP) usually has no input as to its ability to handle the care of the defendant in prison and when asked they most always say that they can. However, the BOP is tasked with carrying out the imposed sentence and caring for the prisoner during the sentence, no matter its duration. Now, judges are looking at conditions in federal prison as part of their calculus for fashioning a sentence.
When a person is sentenced to federal prison, there are three main documents presented to the Court (judge) to help her determine an appropriate sentence. Obviously the crime itself plays a large part of the equation but there are factors presented by three interested parties to present information for consideration to the Court; Prosecution, Defense Attorney and U.S. Probation.
U.S. Probation’s report, known as a Presentence Report, describes the criminal activity, a calculation of the Federal Sentencing Guidelines, factors that may mitigate the sentence (health issues, mental health, family situation, etc.) and some family history. In practice, U.S. Probation’s report is a neutral report that simply states facts of the case, without bias, though many defense attorneys have voiced concern that the reports favor the government. Prosecutors also have a sentencing memorandum, which usually presents reasons for a long term of incarceration or a request for leniency based on the cooperation against others. Finally, defense attorneys present the best attributes of their client and reasons for a lighter sentence. Together, these all assist the judge in formulating a sentence. Sentencing a person to prison is a difficult task, or at least it should be.
However, with the BOP under intense pressure to reform, judges are also considering the prison conditions and the ability of the BOP to care for the prisoner. Defense attorneys are presenting more information about the BOP as a mitigating factor to a term of incarceration, and some judges are listening.
U.S. District Judge Jesse M. Furman, Southern District of New York stated in an order regarding whether defendant Gustavo Chavez should be remanded until sentencing said the problems at MDC Brooklyn were so bad that, “... the only other way to mitigate the ongoing tragedy is to improve the ratio of correctional officers to prisoners by reducing — or at least not adding to — the prisoner population.”
Judge Furman noted three reasons for his decision to allow Chavez out on bail to report back to Court for sentencing; 1) Inmates at the MDC spend an inordinate amount of time on “lockdown” – that is, locked in their cells, prohibited from leaving for visits, calls, showers, classes, or exercise, 2) The MDC is notoriously and, in some instances, egregiously slow in providing necessary medical and mental health treatment to inmates — especially where such care requires the attention of outside providers, and 3) The MDC’s physical conditions have long been problematic (mold, rat droppings, poor plumbing, etc.). This as MDC Brooklyn has been a priority for the BOP to clean up since a fire in the late 2019 that left the facility without power for days in freezing temperatures. A settlement of $10 million is pending in federal court as part of a class action brought by inmates housed at the prison during the outage.
More judges want information on how the BOP will carry out a sentence and care for the person while incarcerated. Those convicted of crimes, just like the general population, have health and mental health issues that may make a term of incarceration more difficult for one prisoner over another. For instance, there is only one female medical center in the BOP and that is located in Carswell, TX. If you are a female with medical issues, and you live in the northeast United States, you will be over 1,500 miles from home.
Paul Petruzzi, a criminal defense attorney in Miami said that more must be done to improve the conditions in prison and until there is improvement he intends on including those types of arguments as part of sentence mitigation. “When lawmakers create the Federal criminal laws that send people to prison for long periods of time, they assume that the BOP will provide reasonable, rational care in humane conditions,” Petruzzi said, “That assumption has never been more wrong than it is today. The BOP is failing in its core mission and every day, more and more judges are considering these failures when imposing sentences. Now, more than ever, defense lawyers need to highlight the BOP’s failures and ask that they be considered as mitigation.”
The BOP was criticized in OIG reports on two female faculties (FCI Tallahassee and FCI Waseca) for shortages of correctional and medical staff, rotten food, mold and major infrastructure issues. In fact, infrastructure issues are a BOP-wide problem as pointed out in yet another OIG report, which concluded that the BOP lacks a strategy for how to upgrade its facilities but estimates it would cost over $2 billion to bring all prisons up to date. However, BOP budget requests have been far below its own estimates of its resources needs, and therefore it has not received the funding to address these infrastructure challenges.
The BOP is in a difficult position. One former BOP executive told me that predicting the number of people that are heading the BOP’s way after sentencing is difficult. The source said, “It is easy to look at the current role of inmates and see who is going to be incarcerated in the coming year, but the flow of people into prison is something controlled by prosecutors and judges.”
Judges should know where they are sending people and many judges have made the effort to visit prisons so that they understand the situation in prisons. However, the BOP could provide some guidance to DOJ about other forms of incarceration that could be used and the situations in which it would be preferred over institutional incarceration. At times, prosecutors will bring in BOP staff to make statements on level of care and programs in an effort to assure the Court that the inmate will be cared for during the prisons term. However, the sentences of people like an 80 year old sick inmate who is going to a federal medical center because of his illness represents a burden to the agency. The same BOP executive who wished to not be named said “Bed space in federal medical centers is precious and it often is the last resort for inmates who are sick but who have long prison sentences. For minimum security inmates who are reporting to medical centers for just short periods of time, under a few years, there has to be an alternative because the space they take up in the medical center means that some other inmate, usually with a much higher security classification, must sit in a community hospital near the prison they are currently housed in until a bed opens up. The BOP should be able to communicate that to the Court so judges assess that in their decision to send someone to prison.”
The more information that can be presented at sentencing will allow judges a better opportunity to determine if prison is appropriate when there are other means of incarceration. The BOP has used halfway houses and home confinement for decades. U.S. Probation has been responsible for many sentences involving home confinement rather than a prison term. Today, when the BOP has so many challenges, the diversion of few defendants to an alternative form of institutional incarceration needs to be considered.
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Article originally published on Forbes.com by Walter Pavlo (Feb 27, 2024)
