by Keith Sanders
In February 2023, the federal Department of Justice (DOJ) published a surprisingly positive assessment of restrictive housing and sex abuse in the federal Bureau of Prisons (BOP) – the same month that BOP announced it was closing its deadliest lockup, the Special Management Unit (SMU) at the U.S. Penitentiary in Thomson, Illinois. [See: PLN, Aug. 2023, p.16.]
The report satisfies one requirement of Executive Order 14074, which was issued by Pres. Joseph R. Biden, Jr. (D) on May 25, 2022 – on the second anniversary of the death of George Floyd at the hands of Minneapolis police – attempting to alter criminal justice and policing practices in the U.S.
Specifically, Biden’s order mandated that Attorney General (AG) Merrick Garland determine whether DOJ and BOP had taken steps to ensure that restrictive housing in federal lockups is “used rarely, applied fairly, and subject to reasonable constraints.”
The new AG report first outlined BOP’s two main restrictive housing statuses: disciplinary segregation and administrative segregation. The former is defined as a “punitive housing status imposed as a sanction for violating a disciplinary rule,” while the latter refers to the use of restrictive housing for any non-punitive reason: investigative, protective, preventative, or transitional segregation.
DOJ’s 2016 Report and Recommendations Concerning the Use of Restrictive Housing required BOP to update its policies to “establish processes for investigating and adjudicating the need for administrative segregation.” BOP was also instructed then to establish regulations that require an “individual to receive notice of his or her placement in restrictive housing” and that provide “all incarcerated individuals in restrictive housing may submit a formal grievance challenging their placement.” [See: PLN, Feb. 2017, p.52.] The new report ascertained that those policies and procedures had been implemented.
For the small number of prisoners who are exceedingly violent or have what the BOP describes as a “disproportionately negative effect on the safe and orderly operation of an institution,” there is USP Administrative Segregation (ADX) in Colorado. BOP policy, according to the AG report, carefully and regularly reviews individuals in ADX to ensure restrictive housing is utilized only for “those individuals who need the security and controls.” PLN has extensively covered the harsh and dehumanizing isolation in which ADX prisoners spend every day for years at a time. [See, eg: PLN, Aug. 2021, p.44.] Since the 2016 report, at least the prisoner population in ADX has fallen 20%.
The SMU program was created in 2009 for the rest of BOP’s most troublesome prisoners, with three classifications of confinement for “individuals who present unique security and management concerns.” However, since most SMU prisoners were double-celled, the program proved especially deadly, and BOP has whittled it down to the single site that it recently announced would close.
To implement new policies mandated by the 2016 Report, BOP now requires a multidisciplinary staff committee that includes medical and mental health professionals to “regularly evaluate BOP’s restrictive housing policies and develop safe and effective alternatives to restrictive housing.”
The new report also assessed whether DOJ had fully implemented the Prison Rape Elimination Act of 2003 (PREA) and related concerns laid out in the 2016 report. The AG concluded that BOP had adopted most of the recommendations from that report and was “working diligently’ to institute the remainder in a “timely fashion.” The AG also noted that BOP facilities are in full compliance with PREA standards. However, the prison system nevertheless struggles with high incidences of sexual abuse – including indictments for sex abuse against the former warden and five other staffers at the Federal Correctional Institution in Dublin, California, all but one of whom have been convicted. [See: PLN, July 2023, p.17.].
Finally, the AG report addressed BOP’s policy of housing prisoners as close to their families as possible. It found that the “majority of BOP individuals are housed within 500 miles of their home residence.” That is not exactly a trip next door for families that are among the poorest in the country. But the report added that BOP continues to explore other measures to “maximize the proximity of incarcerated individuals to their families and communities.” See: Dep’t of Justice Efforts to Ensure that Restrictive Housing in Federal Detention Facilities is Used Rarely, Applied Fairly, and Subject to Reasonable Constraints, and to Implement Other Legal Requirements and Policy Recommendations, U.S.D.O.J. (2023).
It’s mind-boggling that anyone, let alone the Attorney General, can congratulate BOP for reigning in sex abuse or the use of solitary confinement when both remain rampant.
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