Recommendations For Improving The Prison System
Sexual Violence in Prisons
The Prevalence of Sexual Assault in Correctional Facilities and Lack of Accountability for Sexual Abusers
Sexual violence behind bars has reached crisis proportions. PREA called for the development of binding national standards for the prevention, detection, response, and monitoring of sexual violence behind bars, and for the Attorney General to publish a final rule adopting binding national standards within one year.77 However, the Attorney General has yet to implement the standards, and appropriations for PREA have been drastically cut every year since its passage, making the prospects of assisting states and monitoring their compliance with the standards even more challenging.78
Fully Implement PREA
Congress should provide sufficient appropriations for PREA. When PREA was passed, Congress authorized $60 million per year in funding through 2010.79 Since then, however, appropriations have dropped substantially—from an initial level of $35 million annually in fiscal years 2004 and 2005 to approximately $18 million annually in fiscal years 2006 through 2008. Because of the reduced funding, the state grants authorized by PREA have not been awarded since Fiscal Year 2006.80 At a minimum, Congress should retain current funding levels for PREA, with money earmarked for state and county grants.
Additionally, Congress should hold oversight hearings with the Attorney General and relevant members of his staff to ensure that the Department of Justice is meeting its obligations under PREA. The Attorney General was obliged under PREA to ratify national standards by June 2010, but has failed to do so. Indeed, no new deadline for ratification of national standards has been set. As noted above, the Department has also failed to administer the state grants program or prioritize funding for it within its proposed budget. Congress must hold the Administration accountable for its obligations under the law.
The Attorney General should ratify national standards addressing sexual violence in detention. The National Prison Rape Elimination Commission spent more than five years holding public hearings, convening expert working groups, and consulting with the full range of stakeholders – including corrections officials, advocates, policymakers, and prison rape survivors – to come up with their proposed standards. These recommendations represent a compromise, balancing the fiscal and security concerns of officials with the rights of inmates to be free from sexual abuse. The Attorney General should defer to the expertise gathered by the Commission and the compromise it established by ratifying the basic provisions that it proposed.
The Department of Justice should establish meaningful compliance monitoring of PREA standards. For these standards to have an impact, the Department must monitor compliance and hold corrections agencies accountable for meeting these basic obligations. The Department of Justice should establish general guidelines for local compliance monitoring and then provide federal oversight to ensure sufficient accountability.
Failures of the Prison Litigation Reform Act (PLRA)
The Prison Litigation Reform Act Impedes Prisoners’ Access to Justice
While PLRA was originally intended to stem frivolous prisoner lawsuits, in practice it often denies justice to victims of rape, assault, religious restrictions, and other rights violations. PLRA’s “physical injury” and exhaustion requirements have severely limited prisoner’s ability to address violations of their constitutional rights and other serious abuses. Certain provisions of PLRA must be amended or repealed in order to restore meaningful access to the courts for incarcerated adults and youth.
Address the Problems Created by PLRA
To address the unintended consequences of PLRA, Congress should reintroduce and pass legislation similar to the Prison Abuse Remedies Act (PARA),81 originally introduced in the 110th Congress, and the Prison Abuse Remedies Act of 2009 (PARA),82 introduced in the 111th Congress.83 The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, held hearings on November 8, 2007 and April 22, 2008 regarding the problems with PLRA and the recommended reforms.84 However, neither bill received a committee vote. Congress should pass legislation containing similar provisions to PARA’s to address the over-reach of PLRA. The legislation should:
- Repeal the provision in 42 U.S.C. § 1997e(e) prohibiting prisoners from bringing lawsuits for mental or emotional injury without demonstrating a “physical injury.”
- Amend the requirement in 42. U.S.C. § 1997e(a) for exhaustion of administrative remedies to instead require prisoners to present their claims to responsible prison officials before filing suit. Should prisoners fail to do so, the amendment should require courts to stay the case for up to 90 days and return those claims to prison officials to provide them the opportunity to resolve the complaint administratively.
- Repeal 18 U.S.C. § 3626(g), 28 U.S.C. §§ 1915(h), 1915A(c), and 42 U.S.C. § 1997e(h), which extend PLRA to juveniles confined in juvenile facilities.
- Restoring judicial discretion to grant the same range of remedies in prisoners’ civil rights actions that are available in all other civil rights cases by repealing 18 U.S.C. § 3626.
- Amend 28 U.S.C. §§ 1915(a), (b) to allow indigent prisoners whose cases are found to state a valid claim at the preliminary screening stage to pay a partial filing fee rather than the full filing fee (currently $350 in district courts and $450 in appellate courts).
- Amend the “three-strikes provision” in 28 U.S.C. §1915(g) (which requires indigent prisoners who have previously had three cases dismissed to pay the full filing fee up front, except in cases of imminent danger of serious physical harm) by limiting it to prisoners who have had three lawsuits or appeals dismissed as malicious within the past five years.
The Administration should support amending PLRA and commit to signing reforms to PLRA that Congress passes.
Transparency and Oversight in Correctional Institutions
Lack of Transparency and Accountability in Correctional Institutions
Despite the massive expenditure of taxes and the profound effect that prison has on the individual, the community, and public safety, there is very little oversight of prisons, jails, and juvenile detention facilities, or public accountability for what takes place behind bars. Currently, there are no national standards for the treatment of prisoners and no systemic national oversight to ensure that the constitutional rights of prisoners are protected. Further, since the enactment of PLRA in 1996, the traditional power of the federal courts to provide oversight has been drastically undercut. As a result, it is essential that the government implement alternative forms of oversight.
Build Transparency and Accountability in Corrections
Congress should reauthorize DICRA. DICRA expired in 2006 and has not been reauthorized. Congress should reintroduce and pass this critical legislation.85
Congress should strengthen the JJPDA86 to include oversight of conditions of confinement in juvenile facilities and to ensure that youth charged as adults are kept out of adult jails pre-trial. This would improve the likelihood of safe and humane conditions of confinement for youth in both juvenile and adult facilities, and keep youth out of adult jails and prisons completely.
Congress should reintroduce the Private Prison Information Act.87 The Act, introduced in the House in April of 2007 with 25 cosponsors, would require prisons and other detention facilities holding federal prisoners or detainees under a contract with the federal government to make the same information available to the public that federal prisons and detention facilities are required to do by law. Private prisons would be subject to the same Freedom of Information Act (FOIA)88 provisions as the BOP in order to build transparency and accountability in the work of federal contractors. Currently, BOP is subject to FOIA as a bureau of the federal government.
Congressional committees in both the House and Senate should hold oversight hearings to investigate conditions at BOP facilities. The hearing could areas of concern including:
- Federal death row conditions;
- BOP’s required reporting under the Second Chance Act regarding the shackling of pregnant women prisoners under its jurisdiction;
- Medical care at federal facilities, including staffing ratios;
- Discretion given to wardens to limit First Amendment rights through special administrative measures (SAMS);
- Regulation and oversight of Communication Management Units (CMUs);
- Treatment of prisoners with mental illness;
- Treatment of prisoners held in long-term isolation and policies to ensure humane treatment and the availability of meaningful due process for prisoners who may be subject to such conditions, as well as the availability of plans for prisoners to earn their way out of restrictive housing;89 and
- BOP’s response to the findings of Office of Inspector General (OIG) audits, investigations, special reviews and reports.
Finally, Congress should fund National Institute of Justice research to look into state and local independent oversight models to determine which are most successful.
The role of the OIG, which conducts independent investigations, inspections, special reviews, and audits of Department of Justice programs and personnel, including the BOP, should be expanded. The OIG should be fully funded and expanded to allow for greater and more effective oversight of BOP’s facilities across the nation and the over 200,000 individuals incarcerated therein. The Attorney General should ensure that BOP is held accountable for both responding to the OIG’s report findings and immediately taking steps to remedy any problems or areas of concern identified by the OIG.
The Special Litigation Section of the Department of Justice’s Civil Rights Division should be fully funded and expanded to enable more robust enforcement of the Civil Rights for Institutionalized Persons Act (CRIPA),90 a federal law that enables the Attorney General to conduct investigations and litigation regarding conditions of confinement in state and local institutions, including jails, prisons, and youth detention centers.
The President should sign the Optional Protocol to the Convention Against Torture (OPCAT)91 to enhance oversight and accountability in U.S. prisons, jails, and youth detention centers. As a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the United States is obligated to “take …measures to prevent acts of torture” and “keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for custody and treatment of persons subjected to any form of arrest, detention or imprisonment … with a view to preventing cases of torture.”92 Consistent with these obligations, parties to the CAT developed the OPCAT, which seeks to prevent torture and other forms of ill-treatment by establishing a system in which independent international and national bodies send inspectors on regular visits to places of detention.93 The U.S. is not currently a party to OPCAT, although it is a party to CAT. The President should join the Protocol as a first step towards creating a national system of oversight and accountability for the nation’s prisons, jails, and youth detention centers that focuses on preventing abuses.
The Need for Effective Rehabilitation and Reentry
High Rates of Recidivism
An estimated two-thirds of the 650,000 people returning home from prison will be re-arrested for a felony or serious misdemeanor within three years.94 Basic services can and should be provided to incarcerated individuals to reduce their chances of reoffending. Alternatives to incarceration should be offered for those who do not pose a real risk to the public. In addition, merit-based programs to encourage good behavior and rehabilitation during periods of incarceration, and programs fostering family ties during incarceration are essential in the effort to reduce juvenile recidivism.
Failure to fully to provide sufficient rehabilitation to prisoners is particularly disappointing given that U.S. voters favor rehabilitation for prisoners over a punishment-only system by a margin of eight to one.95 In fact, 80% of voters feel that job training, medical care, affordable housing, and student loans are important elements of crime prevention.96 These measures are supported by the public, can save millions in corrections costs, and reduce recidivism.
Reduce Recidivism and Increase Effective Rehabilitation
Congress should pass legislation similar to the Federal Prison Work Incentive Act of 200897 to reform federal “good time” calculation. This legislation should ensure that Congress original intent was met by making certain that prisoners receive the full 15% “good time” credit for maintaining good behavior while incarcerated.. The legislation should also apply to federal policies those policies now prevalent in the states and in the Model Penal Code, which provide for both presumptive good time (15%) and some amount of additional time off for participation in certain rehabilitation programming (15%) in order to encourage rehabilitation and lower recidivism rates.
Congress should draft and introduce a “reentry behind bars” bill that would provide grants to states to provide programs to better prepare prisoners for reentry following the completion of their prison sentence. A poll of both Democrats and Republicans revealed that 71% thought more tax dollars should be invested in job training, education and drug treatment for prisoners as an effective means of reducing recidivism.98 A majority thought that social services and rehabilitation were an essential element of corrections.99 This bill should provide grants to states to provide programs that better prepare prisoners for successful reentry to the community, including:
- drug treatment programs in prison for all drug offenders, as well as funding for the Residential Substance Abuse Treatment (RSAT) program provided that they do not impose additional penalties on participants, such as loss of good time for non-completion of a program;
- coordination between prison programs and community providers;
- government-issued ID cards upon release;
- enrollment in Medicaid prior to release (so that it is available upon release);
- alternatives to incarceration for non-violent offenders;
- merit-based reductions in sentences for non-violent offenders;
- SSA prerelease agreements for those eligible for disability assistance;
- a requirement that individuals under 18 shall not be housed in adult facilities;
- restoration of Pell Grant eligibility to prisoners;
- access to clean needles and condoms in order to reduce the incidence of HIV/AIDS, Hepatitis, and other illnesses;
- access to educational programs/job training for every prisoner;
- access to religious services;
- transportation to prisons for prisoners’ families;
- alternatives to incarceration for pregnant women and mothers;
- family-friendly visitation policies and family strengthening programs to promote healthy family ties between prisoners and their families; and
- regulating the cost of collect calls from prisons to help maintain family ties.
Congress should introduce legislation to evaluate the effectiveness of reentry by tracking of the ability of former BOP prisoners to find employment and housing, pursue education, and avoid recidivism. This would be consistent with the recommendations of the Commission on Safety and Abuse in America’s Prisons.100
Congress should fully fund the Elderly Prisoners program under the Second Chance Act. This program would allow prisoners 65 years old or older who have served at least ten years of their sentence the opportunity to serve the remainder of their sentence in home detention. This program would only be available for non-violent offenders who are not serving a life sentence. Given the enormous cost of eldercare in the prison system, this program would maintain public safety, while reducing prison costs.101
Congressional committees in both the House and Senate should conduct oversight hearings of BOP’s administration of the programs described in the section below to ensure that BOP is complying with its obligations under the law, and if it is not, identifying the tools and policies necessary to ensure that BOP can and will meet those obligations.
To ensure lawful operation of government programs, cost-savings and efficient use of tax-payer funds, effective programming to reduce recidivism, humane treatment of prisoners, and increased safety in BOP facilities, the Attorney General and the Director of BOP should immediately review BOP’s administration of the programs described below and take immediate steps to ensure that BOP is complying with its obligations under the law and fulfilling its designated role in each program area.
BOP has failed to provide the congressionally-mandated, one-year sentence reduction incentive for thousands of drug addicted offenders who seek to participate in BOP’s RDAP. BOP should immediately change its administration of the program to permit timely participation which would allow for an immediate savings of millions of dollars. A 2002 poll found that two-thirds of Americans agree that drug abuse is a medical problem that should be handled through counseling and treatment rather than prison sentences.102 A plurality of Americans think “tough on crime” strategies aren’t working and that an approach that focuses on the effectiveness of programs, like RDAP, is a more sensible approach to crime reduction.103 Utilizing these programs will increase public safety, save money by reducing recidivism, and garner the support of the general public.
BOP should implement its mandate, as permitted under the Second Chance Act. BOP has consistently underutilized its authority under 18 USC § 3621(b) and § 3624(c) to permit prisoners to serve some or all of their sentences in CCCs and home detention as opposed to prison. On April 9, 2008, the President signed the Second Chance Act, which provides the BOP with an opportunity to substantially increase utilization of community corrections.104 Unfortunately, BOP has failed to implement its new mandate, undermining the intent of Congress and opening the way for yet more litigation.
BOP has drastically underutilized its authority under 18 U.S.C. § 3582(c)(1)(A)(i) to petition the sentencing court for reduction of a prisoner’s term of imprisonment where there have been “extraordinary and compelling” changes in the prisoner’s circumstances since the sentence was imposed. The BOP should more often provide sentencing judges with opportunities for second look resentencing. These sentence reductions would save the BOP resource by reducing the prison population, generally, and sparing it the the particularly costly need to provide medical care costs for seriously ill prisoners whose prolonged incarceration does not further the goal of increased public safety.105
Finally, for at least 16 years BOP has declined to take a position on the merits of clemency applications, abdicating its historical role to assist the Pardon Attorney in identifying appropriate cases to recommend to the President for early release.106 In fact, the Pardon Attorney has at this point stopped asking BOP for a recommendation on the merits of a clemency case.107 Engaging in the process of evaluating the merits of clemency petitions would allow BOP to help identify those prisoners in the system most capable of taking full advantage of clemency and successfully reentering their communities.
Over-reliance on the Use of Harmful Long-Term Isolated Confinement
Isolated Confinement is Overused and Harmful
The monetary cost of using isolated confinement, coupled with the human cost of increased physiological and psychological suffering, far outweighs any purported benefits. In order to build a fair, effective and humane criminal justice system, we must work to curb the use and misuse of isolated confinement.
Reduce the Use of Long-term Isolation and Design Effective Alternatives
Congress should introduce a bill limiting the use of long-term isolated confinement in BOP facilities. That bill should incorporate by reference Chapter 23 of the ABA Treatment of Prisoners Standards related to long-term isolated confinement, and require compliance with these standards. The bill should also require re-socialization for prisoners subject to such isolated confinement before they are released back into the community. This will protect public safety and assist individuals subject to isolation in reintegrating successfully into society. Such “de-briefings” should take place in phases, starting at least six months before the end of their sentence. All prisoners held in isolated confinement-like housing should be included in this re-socialization process. De-briefing programs should include clinical staff, social workers, and education staff to provide counseling and life skills to prepare prisoners for release to the community.
The Government Accountability Office should conduct a study of the effectiveness and availability of mental health care for prisoners in long-term isolated confinement. The study should specifically evaluate the numbers of mentally ill prisoners confined in segregated housing as defined by ABA Treatment of Prisoners Standard 23-1.0(o); the clinical treatment being provided to those mentally ill prisoners; whether or not there are policies and protocols in place and being used to ensure that the mentally ill in BOP are not housed in segregation housing; and the length of stay for mentally ill prisoners in segregated housing.
BOP should adopt policies and practices for its use of long-term isolation consistent with the standards established by the ABA’s Treatment of Prison Standards, including:
- Adopting procedures to evaluate whether segregation is warranted prior to placing or retaining a prisoner in isolated confinement;108
- Placing limits on disciplinary segregation. In general stays should be brief and should rarely exceed one year. Longer-term segregation should be imposed only if the prisoner poses a continuing and serious threat. Segregation for protective reasons should take place in the least restrictive setting possible;109
- Decreasing extreme isolation by allowing for in-cell programming, supervised out-of-cell exercise time, face-to-face interaction with staff, access to television or radio, phone calls, correspondence, and reading material;110
- Decreasing sensory deprivation by limiting the use of auditory isolation, deprivation of light and reasonable darkness, and punitive diets;111
- Allowing prisoners to gradually gain more privileges and be subjected to fewer restrictions, even if they continue to require physical separation;112
- Refraining from placing prisoners with serious mental illness in what is an anti-therapeutic environment. Instead maintain appropriate secure mental-health housing for such prisoners;113 and
- Monitoring prisoners in segregation for mental-health deterioration and dealing with deterioration appropriately if it occurs;114
Misuse of the Prison System and Over-incarceration
Over-Use of Incarceration in America
In 2008 alone, state and the federal governments spent $68 billion on corrections. Corrections expenses were the fastest growing segment of state budgets. Over the last two decades, public spending on corrections rose over 300 percent, eclipsing funding for every other essential government service but Medicaid. There is now a sense that we must find a different way. To seize this moment, policymakers should adopt evidence-based improvement that will ensure public safety while at the same time ensuring rational, cost-effective policies that work to return prisoners to the community to be productive, law-abiding citizens.
Design an Evidence-Based Approach to Criminal Justice
Congress should introduce and pass legislation similar to the National Criminal Justice Commission Act of 2009, introduced in the Senate by Senator Jim Webb (D-VA).115 The bill received widespread bipartisan support and had 39 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), former Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA), former Judiciary Committee Chair Senator Orrin G Hatch (R-UT), and Republican Judiciary Committee member Senator Lindsey Graham (R-SC). A companion bill introduced by Rep. Delahunt (D-MA) passed the House on July 27, 2010.116
Congress should also appropriate funding for the bipartisan commission established by the National Criminal Justice Commission Act to examine appropriate, humane, and cost-effective use of the prison system.
The President, the Attorney General, and the Department of Justice should support re-examination of current criminal justice practices and goals, and work to implement the recommendations of the Criminal Justice Commission regarding the appropriate use of incarceration and alternative forms of punishment.