The federal Bureau of Prisons (BOP) has huge challenges in front of it with crumbling infrastructure, staffing shortages and a troubled implementation of the First Step Act. While progress has been made, the BOP’s own troubles are now influencing the decisions of judges at sentencing. In one case in the Eastern District of New York, U.S. District Judge Gary R. Brown (Case No.: 23-CR-417) ordered that defendant Gary Colucci be sentenced to 9 month in prison. However, his order came with the stipulation, “... if the BOP opts to designate MDC [Brooklyn] as the relevant facility, then the imposed term of imprisonment will be vacated and, in its place, the defendant shall serve nine months of home incarceration ...”
MDC Brooklyn made headlines in January 2019 when an electrical fire caused the heat to go out for 7 days during a stretch of weather in New York where temperatures were in the single digits. The facility, located near the federal courthouse in Brooklyn, NY holds approximately 1,700 prisoners. The Office of Inspector General (OIG) issued a report on the incident and made other observations about the conditions of the facility concluding that “the BOP failed to adequately address preexisting heating and cooling at MDC Brooklyn.” The incident also caused extended periods where legal counsel could not visit with prisoners, many of whom were at MDC Brooklyn ahead of court appearances.
After the incident, lawsuits ensued and a federal judge appointed former Attorney General Loretta Lynch to mediate between the Federal Defenders of New York and the BOP to come to agreement on conditions at the prison and access to legal visits. Even with this oversight and attention, MDC Brooklyn continues to struggle with hiring and the pains of an aging infrastructure according to recent congressional testimony by BOP Director Colette Peters. Judges have also noticed the problems, with some not imposing a sentence because of the conditions at the prison. Judge Brown’s decision took his decision regarding MDC Brooklyn to a new level.
Daniel Colucci, 74 years old, was a defendant charged with tax fraud and facing sentencing before Judge Brown, a conservative President Donald Trump appointee. In imposing a sentence of 9 months in prison, Brown said that he did not want the BOP to send him to federal prison.
Judge Brown stated in his order that the sentence of Colucci was made more complicated by “... an extrinsic factor that looms large in nearly every bail and sentencing determination made in this judicial district: the dangerous, barbaric conditions that have existed for some time at the Metropolitan [MDC Brooklyn].”
Colucci was bound to go to prison. Judge Brown noted the severity of his crime, how it affected the company employees (Colucci had taken money withheld from employee paychecks that was supposed to go to the government) and the complexity of the concealing the crime. These were all factors that Judge Brown believed involved a prison term but he was unable to overcome the risk that Colucci might end up designated to MDC Brooklyn.
At MDC Brooklyn, there are minimum security prisoners that are part of a work cadre at MDC Brooklyn. While the facility’s primary mission is to support those on pretrial detention or who are awaiting designation, some defendants serve their sentences there when their classification is minimum, their sentence is relatively short in duration and it places the prisoner close to their residence (within 500 miles). While there is more to the designation process, these factors alone could lead someone like Colucci to be designated to MDC Brooklyn.
The judge noted that prisoners at MDC Brooklyn were regularly subject to 24-hour lockdowns and related deprivations, also noting that it has become “routine for judges in both [the Southern] District and the Eastern District to give reduced sentences to defendants based on the conditions of confinement in the MDC.” In most cases, prosecutors are not even objecting to statements regarding the conditions at the prison.
Judge Brown used the opportunity to provide a list of known problems at the facility, noting things such as:
Judge Brown concluded that “these circumstances present a conundrum. Evaluating the statutory factors indicates that a sentence of incarceration is warranted. On the other hand, the defendant ... is over 70 years of age, faces significant health challenges and has no criminal record.”
I asked a retired BOP executive how the judges’ order would be received and that person told me that the BOP will most likely not designate Mr. Colucci there, preferring to look at Judge Brown’s criticism as a judicial recommendation to not designate him to MDC Brooklyn.
The order itself could have been more direct but Judge Brown went to great lengths to document what he knows about the facility and he admittedly stated that he is confident that there are far more problems that he was not aware of at MDC Brooklyn.
Congress recently received more oversight of the BOP with President Joe Biden signing legislation into law that will allow the Office of Inspector General to conduct unannounced and unfettered access to BOP facilities. No doubt, MDC Brooklyn is on that list.
