In a time when the public is urging prison reform and budgets are swelling, why does the Bureau of Prisons systematically ignore their authority to use alternatives to prison?

Chris Burke, a Federal Bureau of Prisons spokesman, as quoted by Jay Stapleton and Karen Ali,  in a June 30, 2014 article published in The Connecticut Law Tribune, said it is up to Congress and the courts, not his agency, to decide on sentences. “The Bureau of Prisons’ mission involves only those individuals sentenced to a term of incarceration,” he said. “We don’t play a role in the decision to use non-prison alternatives.”

I am so saddened ( after my anger subsided) at the comment made by BOP spokesperson Chris Burke in this article. The Bureau of Prisons is the ultimate authority on where prisoners serve their sentence. If you view their website, BOP: Designations they acknowledge it and state:
BOP: Designations
The Bureau’s classification and designation functions are centralized at the Designation and Sentence Computation Center (DSCC), located at the Grand Prairie Office Complex in Texas.
“ Upon sentencing in Federal District Court, the Bureau of Prisons has the sole responsibility in determining where an offender will be designated for service of his/her sentence”

Contrary to Mr. Burkes statement statement, offenders are sentenced to a term of imprisonment, not incarceration. The BOP then evaluates the inmate and places them in a facility according to their security and custody levels. Courts in every district reaffirm that the Bureau of Prisons has the authority to designate an inmate to any means available INCLUDING COMMUNITY CONFINEMENT. Mr. Burke’s statement explains why the BOP does not acknowledge this authority at the institution level…. since he doesn’t at the national level. Instead of banking on Congress to pass some real criminal justice reform, we should be urging the Bureau of Prisons to use the authority granted to it to correct overcrowding and overincareration.

I contacted Chris Burke and attempted to have a conversation about this contradiction. I asked why as spokesperson for the Bureau he would say that they are unable to use non-prison alternatives when statutes clearly demonstrate they can. His response that was it isn’t the Bureau of Prisons Policy. When I asked if I could fax him case law and federal statutes that say that they are the ultimate authority on where an inmate is placed, he said he wouldn’t comment.
Prisons are overcrowded, most citizens and members of Congress support using alternatives to prison and there are tons of bills in Congress to address the issue, but they are needed to start reforming the system!

In addition to having the ultimate say in where an inmate spends his/her sentence, the Bureau of Prisons is OBLIGATED to place that inmate in the least restrictive facility possible:

28 USCS 994(q) “The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including— (2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure adequate security”

If Congress cant move bills forward to reform the system, the BOP can at least make sure that inmates are in appropriate placement, which can include home confinement and halfway houses. Please contact the Bureau of Prisons and urge them to start acting NOW! Here are some quotes over the years from judges affirming that the Bureau of Prisons can place inmates in non-prison settings.
Elwood v. Jeter 8th Circuit 2004
“We hold … that CCCs are places of imprisonment for the purposes of 18 USCS 3621(b) and that 3621(b) gives the BOP the discretion to transfer prisoners to CCCs at any time during their incarceration.”

Goldings v. Winn 1st Circuit 2004

“While 3624(c) clearly limits the BOP discretion not to consider community confinement or other pre-release alternatives at the end of a prisoners’ prison term, it does not prohibit the BOP from doing so earlier pursuant to a different grant of discretionary authority [3621(b)].”
“We hold that 18 USCS 3621(b) authorizes the BOP to transfer Goldings to a CCC at any time during his prison term. The BOPs discretionary authority under 3621(b) is not subject to the temporal limitations of 18 USCS 3624(c).”

Liggett v. Nash 3rd Circuit 2004

“the BOP retains authority to review and place a prisoner in a CCC at any time during a custodial sentence.”

Fults v Sanders 8th Circuit 2006

“A BOP decision not to transfer an inmate – or as in this case, a group of inmates- requires the same consideration of the 3621(b) factors as does the decision to transfer an inmate to a CCC.” It is impossible for the BOP to consider all 5 factors on a categorical basis. As such, the BOP’s regulation necessary conflicts with 3621(b) by excluding an entire class of inmates – those not serving the final 10% of their sentences – from the opportunity to be transferred to a CCC.”
“The BOP’s regulation removed the opportunity for the BOP to exercise discretion for all inmates not serving the last 10% of their sentences. Section 3621(b) requires that discretion to be exercised on an individual basis. Thus, the BOP’s regulation (CFR 570.20, 570.21) conflicts with 3621(b) and is INVALID.”

Chaipes v. Rios 9th Circuit 2010
“In Sum, the BOP has discretionary authority to transfer an inmate to an RRC at any time, after considering the factors set forth in 18 USC 3621.”


About whoistoblame

Mom of two, currently serving the last 12 months of my sentence in a halfway house and wanting to go home to my children.
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