The Federal Bureau of Prisons is coming under some scrutiny from Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Rand Paul (R-Ky.). The two Kentucky Republicans recently introduced the Federal Prisons Accountability Act, S. 1784, which would require the president to appoint the director of the agency and subject the nominee to Senate confirmation under Article II, Section 2 of the Constitution.
Currently, the director of the Bureau of Prisons is appointed by the attorney general and is not subject to confirmation. In June, BOP Director Charles Samuels announced that he would retire before the end of the year. Samuels, who started his career as a corrections officer, has served in the role since December 2011, overseeing more than 120 federal corrections facilities and an average of more than 217,300 prisoners between 2012 and 2014.
"Currently, the director of the Bureau of Prisons has significant budget authority over taxpayer dollars without confirmation by the U.S. Senate," McConnell said in a statement announcing the bill. "The legislation I introduced today with Senator Paul will bring some much needed accountability and transparency to the BOP, which is important for all agencies within the Department of Justice, and will help protect private sector workers in Kentucky and across the nation."
"No agency as large as the Bureau of Prisons should have so little accountability. Our bill will ensure the concerns of those who work in the prisons are heard and acted upon. It will also ensure the small businesses affected by competition from the bureau have their voices heard," Paul added.
Part of the reasoning for the bill, at least according to the statement, is that the Bureau of Prisons administers the Federal Prisons Industries (FPI), a government-sponsored entity that uses prison labor to produce goods and services in direct competition with private-sector companies. FPI, like many private businesses, competes for government contracts, which, the senators say, gives it an advantage because it can pay inmates substantially less.
FreedomWorks has no position on the Federal Prisons Accountability Act. Most nominees for Senate confirmable posts tend to sail through the process without much opposition. The unprecedented gutting of the filibuster in November 2013, which lowered the confirmation threshold from 60 votes to 51 votes, may make the confirmation process even more of a ruse if the Senate and the White House are controlled by the same party.
Still, there is a real need to subject the Bureau of Prisons to intense congressional oversight and scrutiny. Between FY 2000 and FY 2015, the Bureau of Prisons’ budget grew by roughly 88 percent in nominal dollars, and it now consumes a quarter of the Justice Department’s annual appropriations. The cost of housing just one prisoner annually jumped from $21,603 in FY 2000 to nearly $30,000 in FY 2013.
The Justice Department’s inspector general, Michael Horowitz, highlighted out of control costs, which he called a "persisting crisis," in his annual report to the attorney general, despite a "downward trend" in the size of the federal prison population. The budgetary growth in the Federal Bureau of Prisons threatens other vital areas of federal law enforcement.
The explosion in the federal prison population, which grew by nearly 800 percent between FY 1980 and FY 2013, has more than maxed out prison infrastructure. In April 2014, the Congressional Research Service noted that “the federal prison system was 36% over its rated capacity in FY 2013, but high- and medium-security male facilities were operating at 52% and 45%, respectively, over rated capacity."
"[From FY 2000 to FY 2014], the rate of growth in the BOP’s budget was almost twice the rate of growth of the rest of the Department. The BOP currently has more employees than any other Department component, including the Federal Bureau of Investigation (FBI), and has the second largest budget of any Department component, trailing only the FBI," Horowitz wrote. "The Department’s leadership has acknowledged the dangers the rising costs of the federal prison system present to the Department’s ability to fulfill its mission in other areas. Nevertheless, federal prison spending continues to impact the Department’s ability to make other public safety investments."
Among the cost drivers is healthcare for inmates, which grew by 55 percent between FY 2006 and FY 2013. The Bureau of Prisons spent $1 billion on prisoners’ healthcare, or a little less than one-sixth of its $6.445 billion budget, in FY 2013 alone. But healthcare costs are only one part of the problem with federal prison spending. Horowitz noted that the Bureau of Prisons is not properly utilizing existing programs that have already been approved by Congress.
Separately, in a detailed December 2013 report, the Government Accountability Office explained that the Bureau of Prisons’ budget requests often lacked transparency and justification. Previously, in a February 2012 report, the Government Accountability Office dinged the Bureau of Prisons for not fully utilizing existing options available to allow eligible offenders, such as those who have demonstrated good behavior, to leave prison early and serve out the remainder of their sentences in drug treatment programs, halfway houses, or home detention. Though the use of these options may have only a limited impact, it would relieve the Bureau of Prisons of, at least, some of its capacity problems.
It is important to note that the Bureau of Prisons, as it is currently run, does little more than warehouse prisoners. Kevin Ring, Director of Strategic Initiatives at Families Against Mandatory Minimums and a former federal inmate, testified on his experiences in federal prisons at a House Oversight and Government Reform Committee hearing earlier this month.
Ring, a former congressional staffer and lobbyist, was convicted in November 2010 on charges stemming from his involvement in the Jack Abramoff scandal. He served 15 months at FCI Cumberland in Maryland, a medium security facility run by the Bureau of Prisons. Since his release, Ring has worked to reform the very tough mandatory sentences he helped write because of his experiences in the federal justice system.
"I saw little to no rehabilitation in prison. There were few useful programs. The institution was either understaffed or uninterested in providing worthwhile programming. Trade apprenticeships, GED classes, and jobs with the National Park Service were the few exceptions. Most people worked menial jobs and collected their 12 to 15 cent-per-hour wages," Ring told the committee in his prepared remarks. "The most glaring deficiency in the area of programming was the lack of any cognitive behavior therapy or anger management counseling."
"I know some people still hold onto the myth that criminals, drug and white-collar, are rational actors who review the U.S. Code and weigh the costs and benefits before breaking the law. The fact, however, is that the overwhelming majority of inmates are not simply uneducated or poorly educated, but rather, they have terrible social skills and very little impulse control, ability to delay gratification, and risk awareness. The result is bad decision-making. These are the issues they need to address during their time in prison," he added.
Ring noted that FCI Cumberland had only one psychologist on staff for 250 inmates. "And despite studies from the National Institute of Justice showing the effectiveness of cognitive therapy," he said, "BOP offers a program for this in just two of its 122 institutions."
Requiring the nominee for director of the Bureau of Prisons to go through a Senate confirmation process may be an entirely valid exercise. But the issues at this federal agency go deeper than one person. Certainly, more congressional oversight of the Bureau of Prisons is sorely needed for just the tip of the iceberg revealed above.
There are, however, other issues that directly relate to the size of the federal prison population that could alleviate the unsustainable costs of the federal prison system. Lawmakers should address over-criminalization — through mens rea legislation, for example — and over-federalization of criminal law to alleviate cost concerns.
Just as important is the need to reform mandatory minimum sentences. Reducing mandatory minimums, which have contributed to the significant growth in federal prison populations, and expanding the "safety valve" exception to these sentences to include more low-level, nonviolent offenders with little criminal history would allow judges, less influenced by big government in the courtroom, to dole out punishments that focus more on diversion and treatment than warehousing offenders in federal prisons.
At the federal level, nearly half of all federal inmates are drug offenders. In 2014, 62 percent of federal drug offenders were classified in Category I and Category II, meaning that they have little to no criminal history. The public would be better served, as states like Texas and Georgia have demonstrated, if judges had more leeway to consider more effective, and less expensive, alternative sentencing options for eligible nonviolent offenders.
The Bureau of Prisons has become the elephant in the room that Congress can no longer ignore. Addressing the vast problems and unsustainable status quo in the Bureau of Prisons through increased oversight and fundamental sentencing reform would allow lawmakers to use their limited resources to fund other areas of law enforcement that pursue violent and heinous offenders and incarcerate them.