The Government Accountability Office (GAO) released a report on the Federal Bureau of Prisons’ (BOP) use of restrictive housing. GAO concluded that the BOP continues to house a high number of prisoners in Special Housing Units (SHU) where individuals are isolated in cells for up to 23 hours per day. As of October 2023, BOP continued to house about 8 percent of its population (approximately 12,000 individuals) in these settings.
Placing prisoners in SHU has been an ongoing problem for the BOP. A Department of Justice report in February 2023 detailed the BOP’s failure to reduce the number of people in SHU. The primary purpose of SHU is for disciplinary reasons. Disciplinary segregation is a punitive housing status imposed as a sanction for violating a disciplinary rule. The incarcerated individual is typically placed on disciplinary segregation status for a determinate term—akin to a prison sentence in a criminal proceeding—and then either released back to the general population or transferred to another facility. Not all disciplinary violations can be punished using disciplinary segregation, and disciplinary segregation is just one of various types of punishment typically available in the prison disciplinary system.
However, SHU has been used for those under investigation for a disciplinary violation, protective custody (fear of being assaulted by fellow prisoners), pending transfer to another institution or to protect a prisoner at the end of their disciplinary confinement term to prevent them from being assaulted on returning to general population. Some prisoners can be in SHU for months with little communication with the outside world and hardly a recreation outside of the cell in which they are confined. While prisoners may be in SHU for these administrative reasons, it certainly feels like punishment.
U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, was so concerned about the DOJ report on confinement that he introduced legislation to curb the use of the practice. Durbin issued a statement in February 2023 stating, “This issue has been studied extensively, and now is the time for action. Today, I’m announcing my intention to reintroduce the Solitary Confinement Reform Act this Congress, and to hold a Senate Judiciary Committee oversight hearing on the Bureau of Prisons this year. I encourage my colleagues to support these steps, as we continue to conduct meaningful oversight and work to improve the safety of our federal prisons.” Today’s GAO report shows that there is still more work to be done.
The GAO concluded that while the BOP was previously called out for the practice of SHU placement of prisoners, little has changed. BOP has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices. The first study, completed by a BOP contractor in 2014, had 34 recommendations (16 of which are fully implemented.) The other evaluation, completed in 2016 by the DOJ, had 53 recommendations (17 of those are fully implemented). A May 2022 Executive Order on criminal justice practices directed the Attorney General to ensure full implementation of the January 2016 recommendations. BOP has made slow progress due in part to not assigning responsibility for recommendation implementation to appropriate officials and not establishing associated time frames for completion.
One of the most restrictive programs in the BOP is the Special Management Unit (SMU). The BOP closed the notorious SMU at Thomson penitentiary in Illinois, after frequent reports of violence and abuse. One of the contributing factors to that closing was that black individuals were 38 percent of the total BOP population but 59 percent of the SMU placements. In comparison, White individuals were 58 percent of the total BOP population and 35 percent of the SMU placements.
One challenge for BOP is that SHU is an effective means of securing the safety of prisoners who feel unsafe in general population. After all, the prisoner must be placed somewhere. However, that security comes at a price of isolation from family (limited phone calls and visits) while in SHU. Some placements in SHU for such prisoners can last weeks or months.
GAO interviewed prisoners as part of their study with one stating that an individual had waited over 6 months in SHU without an external appointment because the facility did not have a psychiatrist. Another noted that staff kept a toilet “full of excrement” in one of the SHU cells to use as a punishment and then directed an orderly to clean it before a visit from the regional director.
BOP Director Colette Peters responded to GAO’s report by stating that the agency recognizes that restrictive housing is not an effective deterrent and can increase future recidivism. She also noted that the SMU program had been suspended and announced a reduction in Disciplinary Segregation is anticipated to be published for notice and comment in the near future. Peters also noted other studies the BOP is undertaking to address the issues brought forward by GAO.
Follow me on Twitter or LinkedIn or Forbes. Check out my website or some of my other work here.
Article originally published on Forbes.com by Walter Pavlo (Jan 29, 2024)
