Should the AG Look Outside BOP For Its New Director?

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On July 23, 42 law professors wrote a letter to the Attorney General, raising concerns about various policies and practices of the Federal Bureau of Prisons (BOP), and urging her to select BOP’s next Director from outside the agency in order to facilitate change. A few days later, three of the signatories to the July 23 letter published an op ed in the Washington Post making much the same argument, boldly predicting that with this one decision the Attorney General and the President could “reshape the future of the entire federal prison system.”

I wish I were as optimistic as the professors who signed the letter. The fundamental flaw in their position, discussed further below, is that it assumes BOP has more control over how it operates than it actually does.

But there are also practical reasons why it would be hard to find the right outsider to lead BOP as long as the job remains a career position.

I made the same argument about the benefits of recruiting from outside four years ago, the last time a new BOP director was selected, in this very space. I subsequently worked with several like-minded individuals to try to identify likely candidates for the job from state corrections departments. Despite beating the bushes, we had a hard time persuading the brightest stars of the profession to apply through the tedious process by which high-level federal career managers are selected. We concluded they probably didn’t want to put themselves forward in a semi-public competition they might lose.

I later found out that a number of aspiring candidates had gone directly to the White House in an effort to end-run the selection process. But since the job had already been advertised, it would have been hard to accommodate them without rigging the system, which might have invited a different kind of BOP placement.

If the Director’s job were made political, it would be possible to avoid the career selection rules. But that would create its own set of management problems in an agency that has been headed by a DOJ insider ever since Mabel Walker Willebrandt made Sanford Bates the first federal prison chief in 1930.

The more serious problem with the professors’ proposal is structural. Based on my experience in and out of the Justice Department since the 1980s, the source of the problems identified in the professors’ letter lies in BOP’s relationship with the policy offices in Main Justice that are responsible for the Department’s law enforcement functions, which have essentially taken BOP into receivership.

For example, over two decades the Office of the Deputy Attorney General (ODAG) has consistently frustrated BOP’s efforts to reduce its population and eliminate crowding, primarily by refusing to consider making prison sentences shorter or expanding alternatives to confinement.

More recently, ODAG has clamped down on so-called “compassionate release,” the process by which BOP asks a court to reduce a prisoner’s sentence. Even the U.S. Attorneys offices now have authority to veto sentence reduction in cases that were once the sole responsibility of the Director.

It speaks volumes that in the on-going clemency initiative, the Department has not relied on BOP to recommend deserving prisoners for sentence commutation, as Bobby Kennedy did 50 years ago in an earlier systemic use of the pardon power. Instead, it seeks clemency advice from the U.S. Attorneys Offices, which know next to nothing about a particular prisoner’s readiness for release, and which are for the most part institutionally incapable of showing mercy.

Having spent several years as an ODAG staffer during the 1980s, when BOP’s independence was being eroded, as well as almost a decade as Pardon Attorney in the 1990s, I can personally attest to the pervasive and malign influence of the prosecutorial viewpoint on any DOJ component whose mission might benefit from (if not require) a different vision.

I have also seen public ODAG attacks on BOP that were calculated to intimidate its officials, like the infamous 2002 “Christmas Eve Massacre” that sent almost 200 individuals designated to a community placement to prison just days before the holiday. This cruel and unnecessary action was justified by accusing BOP of violating the law to benefit white collar offenders, relying on a dodgy OLC opinion that alums of that office like myself thought an embarrassment.

Setting the record straight, a courageous BOP official pointed out that most of those affected were women with young children for whom the court had specifically requested a community placement. Timely intervention by the judiciary made ODAG back down, but no insider missed the significance of Director Kathy Hawk Sawyer’s resignation a few months later.

I recall with some chagrin my own self-righteous interference, as an ODAG staffer in 1989, with then-BOP Director Mike Quinlan’s laudable (if legally somewhat problematic) proposal to increase time spent on home confinement. Who else was going to object to this innovative and compassionate effort to reduce time spent in prison? Director Quinlan had already run it by the congressional oversight committees, which had no problem with it.

The bottom line is this: Appointing an outsider by itself is not going to solve any of the institutional problems that in recent years have limited BOP’s capacity and will to innovate. As long as BOP is housed in an agency whose criminal justice agenda is influenced if not determined by prosecutors, these problems will persist no matter how stellar the individual selected as its leader.

It should not go unremarked that the BOP Director is the only chief corrections officer in the country who is appointed by the chief prosecutor and is subject to her direction and control. In every state the director of corrections is appointed by the governor and operates entirely independent of officials responsible for prosecutions, even in the one state (New Jersey) whose law enforcement structure otherwise closely resembles the federal government’s. No state prison system is under the same roof with programs whose objectives are in such tension with progressive correctional practices and responsible budgeting.

Perhaps this authority structure made sense when the federal prison system was first organized in the 1930s, and was reasonable for a number of years afterwards under directors whose institutional independence was respected and appreciated by the federal law enforcement establishment. But profound changes in the culture and mission of the Justice Department in the past 30 years have rendered it untenable.

There is currently a bill pending in Congress that would make the BOP Director a presidential appointee, a step that would go some way toward changing the balance of authority within Justice. But even this would not be enough to bring about change, as long as the federal prison system remains institutionally subservient within an agency whose criminal justice agenda is determined by those who measure success by length of prison stay.

Perhaps the administrative model that would most likely ensure BOP’s institutional autonomy and stability would be the FBI, whose director is appointed by the president for a term of years and reports (at least in theory) to the attorney general.

My own hope is that the Obama Administration will take a hard look at these institutional problems as contributing to if not causing the deficiencies the professors identify in current BOP policies and practices. I hope also that those who care about the health of the federal prison system and the well-being of federal prisoners will see that bringing new personnel into the old structure is not going to make a whole lot of difference as a practical matter as long as the institutional problems themselves remain unaddressed.

In the meantime, I think the professors should urge the Attorney General to move quickly to appoint a strong insider who can count on solid support within BOP, then figure out how to backstop and encourage that person in standing up to the prosecutors in Main Justice.

They should also urge the President and Congress to begin the process of establishing home rule for the Federal Bureau of Prisons.

Margaret Love practices law in Washington D.C., representing applicants for executive clemency. She served as U.S. Pardon Attorney in the administrations of George H.W. Bush and Bill Clinton, and was liaison from the Deputy Attorney General’s staff to the Bureau of Prisons in the late 1980s. She welcomes comments from readers.

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