More prisoners are doing federal time than ever, but Congress isn't allocating enough funds to pay for them. Prison officials and reformers say a rethink of the system is long overdue.
While cash-strapped states are responding to the nation's economic crisis by looking for ways to reduce their prison populations, the federal prison system is heading in the opposite direction.
Last year, the 115 federal prisons added 7,000 inmates to their rolls, making a total of 211,000 inmates in federal facilities as of early June---and the figure is expected to grow. The number of federal criminal cases filed annually has increased from 69,575 in fiscal year 2005 to 76,655 in FY 2009.
To make matters more difficult, federal funding isn't keeping up with the extra burden.
At a U.S. Sentencing Commission hearing in Washington, D.C. last week, U.S. Attorney for Atlanta Sally Quillian Yates said that federal facilities are currently operating at 34 per cent above capacity. And that, she warned, will have "real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety."
The White House appears to have recognized the problem. President Barack Obama is seeking a $600 million increase in the prison system's budget for next year. The proposal includes filling an additional 1,200 correctional staff positions and opening three new facilities.
But the question is whether a budget-conscious Congress will go along. The prison system already eats up $6.8 billion, making it the second-largest component of the Justice Department's budget, just below the FBI.
What accounts for the rise in federal prison inmates?
While white-collar criminals like Bernard Madoff get a big share of news coverage, they constitute only a small minority of the federal prison population. Slightly over half of current federal prisoners (52 percent) are doing time for drug-related crimes. While the average sentence for drug trafficking has held steady in recent years (six to seven years), it is a key factor contributing to the pressure on federal prisons. Another factor is the government's crackdown on immigration violators, who account for another 11 percent of federal prisoners. An additional eight percent are in for for violent crimes. Adding to the pressure, about 11 percent of federal prisoners require high-security facilities.
Concerns about federal prison overcrowding are shared by prison workers as well. Bryan Lowry, president of the American Federation of Government Employees' Council of Prison Locals, which represents most of the 35,800 federal prison workers, says the crowding contributes to an increasingly hostile environment for both inmates and those charged with watching over them.
And the results can be fatal. In June 2008, correctional officer Jose Rivera, who had returned from serving in Iraq with the U.S. Navy and had worked in the Atwater, California, federal maximum-security prison for 10 months, was stabbed to death by two inmates. According to Lowry, if not for funding cuts and changes in Bureau of Prison policy, Rivera would have had another officer working alongside him, as well as better equipment to fend off his attackers.
There have been 340 inmate-on-staff assaults in federal prisons nationwide since Rivera's death.
"These aggressive acts by inmates against staff illustrate a common reality facing staff daily at their workplace," Lowry told a House Appropriations subcommittee in March. "[Federal] prisons have continued to be increasingly dangerous places to work, primarily because of serious correctional worker understaffing and prison inmate overcrowding problems."
Meanwhile, the growing prisoner count, coupled with aging facilities, are requiring more renovations and new construction every year.
Federal Bureau of Prisons Director Harley Lappin told Congress this spring that the rising federal inmate population has made the funding pressure to pay for them relentless. In order to combat overcrowding, he said, officials must make some hard choices. Either more prisons must be built, or there should be movement towards reducing sentences, and "significantly" increasing community-based alternatives such as home confinement.
But making those choices involves bringing together the multiplicity of players involved in the system: the prison bureau, Congress (which determines the bureau's budget), and the U.S. Attorney General's office (which determines prosecution priorities). Federal courts, meanwhile, are in charge of setting parameters for community supervision.
In other words, the solution is political.
The escalating costs and rising population in the federal prison system are "fundamentally a political problem," says Chris Innes, research and evaluation chief at the National Institute of Corrections, an arm of the prison bureau that provides training and technical assistance to corrections agencies. "It's going in the opposite direction of the way that [state] prisons are going, and that's a function of Congress, of the federal sentencing guidelines and the insulation that the federal budget has, which is not a luxury at the state and local levels."
Many reformers believe that the government needs to focus on the handling of drug cases, which account for the biggest single component of the federal prison population.
Most of those prisoners were subject to tough mandatory minimum sentences imposed by federal law, "which make it easier for legislators to look tough on crime," says Julie Stewart, founder of Families against Mandatory Minimums (FAMM).
Stewart speaks from painful experience. She started her group nearly 20 years ago after her brother was given a five-year sentence in federal court for growing marijuana in his garage in the state of Washington. If he had been prosecuted in state court, the same crime would have earned him just two years, based on Washington's mandatory minimum terms, she says.
Stewart's complaint is shared by a growing number of both conservative and liberal critics who believe that punishments should be left to the discretion of judges.
But is anyone listening?
At a time of relatively low crime rates, federal prison woes get little public attention. All the same, there are signs of activity. Congressional appropriators have asked the National Institute of Corrections to report by September on evidence-based policy changes that the prison bureau could make that would help "manage its offender population while reducing recidivism, improving public safety, and reducing future costs to the American taxpayer."
In the meantime, Attorney General Eric Holder has assigned an internal group in the Department of Justice to come up with a sweeping review of federal sentencing guidelines, taking into account current available data on racial and ethnic disparities in sentencing, alternatives to incarceration, and recidivism reduction strategies.
U.S. Attorney Yates told the sentencing commission that some of the group's recommendations will be issued soon, but it was not clear that they would have a significant impact on the federal prison population.
A more-extensive review could also occur if Congress approves legislation proposed by Sen. Jim Webb (D-Va.) to create a blue-ribbon bipartisan commission to examine the nation's criminal justice system and recommend reforms. The bill was approved by the Senate Judiciary Committee in January and awaits a vote on the Senate floor. Its companion bill was introduced in the House in April.
FAMM's Stewart says one promising sign of action by Congress on sentencing is that in 2008, lawmakers passed the Second Chance Act, which authorizes federal grants to government agencies and nonprofit organizations to help released inmates with services including mentoring, finding housing and jobs, and substance abuse treatment. The law was enacted with bipartisan support.
One thing federal officials might do is look at the states.
A report this spring from the Pew Center on the States said that at least 22 states slashed their corrections budgets in 2009, many with reforms that have signaled the potential for long-term savings.
Kansas, Arizona, and Illinois are using community-based alternatives to incarceration, keeping some offenders out of the prison system and helping them get services they need to stay crime-free. Colorado and Oregon increased the number of days inmates can chip off of their sentences as an incentive for good behavior. Michigan, Idaho, California, and Mississippi are working to expedite their parole processes and move more inmates out of prison and into increasingly comprehensive re-entry services.
While Congress and the Justice Department ponder the options, the federal court system is making some changes of its own. With 45,000 federal inmates being released every year, some judges are seeking ways to make sure they don't return to prison. The judges are operating re-entry courts, modeled after more than 2,100 drug courts that have proven effective around the nation over the past 20 years. The re-entry courts give judges an option of mandating drug treatment and giving released convicts the option of making one last effort to get clean before they are forced to return to prison.
According to the National Drug Court Institute, at least 30 federal re-entry courts are currently in operation---most of them started within the past two years.
Federal courts are also working to educate probation and parole officers about evidence-based practices that will help people stay crime-free once released. Dick Carelli, spokesman for the U.S. Administrative Office of the United States Courts says that the effort is one of the judiciary's "highest priorities in the last year or two."
Federal prison director Lappin says that if politicians want to spend less public money running prisons, they should support changes like creating more community corrections programs to help prevent inmates from committing new crimes.
But he noted that many politicians don't want such projects located in their districts.
"In this past year, you can't imagine the number of locations we have tried to place halfway houses, (and their answer has been) 'absolutely not,'" he said.
"Literally, people calling me saying, 'We don't want them back, Director, don't send them here.' These are governors. These are congressmen and senators. These are community leaders. That's got to change."
Jessica Pupovac is a free-lance writer based in Chicago.