A better way to run the Federal Bureau of Prisons

Attorney General William Barr announced the appointment of a new director for the Federal Bureau of Prisons (BOP) more than a week after Jeffrey Epstein’s apparent suicide while in federal custody. The appointment comes on the heels of controversy surrounding Epstein’s death, but it comes years too late, is not enough to prevent incidents like this from happening in the future and leaves us with unanswered questions.

As a former assistant U.S. attorney in the Southern District of New York and a former Federal Bureau of Prisons (BOP) employee, we have seen the pervasiveness of the challenges affecting the BOP.

In 2017 then-Attorney General Jeff Sessions appointed General Mark Inch, a retired Army major general, to run the system. After less than a year, General Inch, who tried to make changes within the Bureau and navigate a middle course, was ordered to vacate his office. A permanent replacement was not named until this week, when Barr appointed someone who previously served in the position for over a decade, and who contributed to the current problems plaguing the Bureau.

This is not going to create systemic change. This reactive switch in leadership is pure optics. We need to ask this question: Why was General Inch, someone who tried to change the culture, ultimately replaced with a BOP veteran?

The attorney general should appoint someone from the outside who will take measurable steps to reduce the number of inmate deaths, increase accountability and welcome Department of Justice oversight. Only then will we be able to begin solving some of the fundamental issues plaguing the system.

Inmate deaths have been on the rise in federal and state prisons, and agency staffing is a key issue impacting these numbers. A 2016 U.S. Department of Justice report states that suicide had become the leading cause of death in jails, and hit a 15-year high. BOP staffing is near the lowest level it has been in decades. Current staffing ratios foster dangerous conditions for both inmates and staff, while also inhibiting the delivery of health care, correctional treatment programs, attorney-client communication and educational/vocational training. A 2018 DOJ IG report on the BOP stated that “[r]esource limitations, staffing shortages, and aging infrastructure, combined with [a] possible prison population increase, has the potential to exacerbate BOP’s challenges in ensuring that its institutions are safe and secure.” As of July 2018, the inmate to staff ratio had reached 4.4 to 1, with the prison population in 2019 expected to increase.  

A lack of transparency and accountability also plague the BOP. We lack basic information on inmate death (and other) statistics as well as visibility into day-to-day BOP operations. The BOP has been rocked by scandals in recent years. As the New York Times reported last November, female BOP staffers face widespread harassment by male inmates and staff, and women who report it “face retaliation, professional sabotage and even termination,” while “the careers of many harassers and those who protect them flourish.”

In 2010, the Equal Employment Opportunity Commission issued a report condemning the BOP’s systematic mishandling of harassment claims and its “unusually high” instances of retaliation in response to such claims. We need to ask, in an era emphasizing “tone from the top” and a “culture of compliance,” what is the tone and who is policing upper level BOP management? What is the deputy attorney general doing to support and protect staffers who have credible allegations of assault, abuse and harassment?

To increase accountability within the BOP, we need a secure whistleblower system. Implementing this is easy. BOP could expand its Ombudsman program to include an anonymous, confidential reporting system for both staff and inmate complaints and for reports of abusive or neglectful treatment.

The challenge, however, is that few people understand the agency policy, culture and nuances, which hinders outside agency review. An additional challenge lies with BOP managers – and some staff – who too often protect one another and seldom suffer the consequences aside from a transfer or being allowed to retire.

BOP needs to clean up its culture problem and demonstrate a new “tone from the top,” starting at the deputy attorney general level. Indifferent treatment of inmates, the widespread sexual harassment of both staff and inmates and a “head in the sand” management style when it comes to questionable management behaviors, have all made accountability difficult.  

We can go a long way in federal prison reform simply by following and updating BOP policy directives, many of which were well thought-out and developed over a period of years, but are too easily ignored. Resources must first be reallocated to the men and women working directly with our incarcerated population, and we need updated data collections on safety and security incidents within that population.

We also need more active DOJ oversight, starting with a better understanding of the daily operations and challenges of our federal prisons, holding upper management accountable and changing the destructive agency culture. Change starts with leadership, accountability and treating both staff and inmates with the dignity they deserve and providing them with the resources needed to accomplish correctional treatment goals.        

Jaimie Nawaday is a former assistant U.S. attorney from the Southern District of New York and a white-collar defense partner at Kelley Drye & Warren. Jack Donson is a former correctional treatment specialist who retired from the Bureau of Prison and is now an advocate, reformer and federal prison educator and consultant.