Originally published in The Hill
by Pat Nolan and David Safavian
Last month the President signed the First Step Act, the most comprehensive criminal justice reform in recent history. By shifting our federal prisons from merely warehousing prisoners to preparing them to be productive, law-abiding Americans when they are released, the First Step Act received widespread bipartisan support with lopsided votes in Congress (87-12 in the Senate, and 358-36 in the House) and the enthusiastic support of President Trump. You would then expect that the Department of Justice (DOJ) and the Bureau of Prisons (BOP) would be working hard to implement the new law as soon as possible. But you would be wrong.
The truth, President Trump might be surprised to be learn, is that his administration’s deep state bureaucracies are doing all they can to slow-walk and sabotage the reforms. Just one example of this bureaucratic resistance is their misinterpretation of the provision dealing with time off for good behavior. Since 1984, federal law has directed the BOP to “credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” Congress’s intent is not only clear, but rational. Prisoners should be encouraged to follow the rules, and those who do should be given a head start on getting back on their feet in the community.
But remember this is Washington, and things are never that simple for the bureaucracy. In defiance of Congress, the folks over at the BOP implemented a policy that only allowed 47 days of “good time” per year, despite the clear language authorizing for 54 days. Only a federal bureaucrat could find a way to make 54 days into 47. This deliberate miscounting of credits exacts a steep price for the offenders trying to get back on their feet, and for taxpayers as well. In fact, the price tag on those extra days is $128 million per year in unnecessary government spending. And don’t buy the malarkey that the extra time makes the public safer. If 10 years in prison hasn’t changed an offender, 70 more days won’t either.
In the First Step Act, Congress reaffirmed that when it wrote 54 days into the law in 1984 it meant the credit to be 54 days – not 47. Indeed, a federal judge recently put it bluntly: “The plain language of the First Step Act…makes clear Congress’ intent to reject the Bureau of Prisons’ prior implementation of good conduct credit.” It couldn’t be clearer: the BOP’s interpretation of the statute was wrong.
Yet, rather than put the 54 days into effect immediately despite clear guidance by the First Step Act, the BOP continues to drag its feet. The bureaucrats are now arguing that the First Step Act gives them up to 210 days to implement its provisions.
Why are they delaying a provision that could reunite so many families? Because it’s hard for government lawyers to admit they’ve been wrong for the last 34 years.
This is not the first time the BOP has defiantly refused to follow the law – not by a long shot. Nearly four decades ago, Congress authorized “Compassionate Release” so that terminally ill prisoners could be sent to home confinement to spend their final days with their families. Yet, the bureaucrats have denied virtually all dying prisoners’ requests. From 2013-2017, of the 5,400 inmates that applied only 312 were approved (less than 6 percent). Tragically, 266 died while waiting for approval.
Similarly, the BOP has refused to follow the law on placement of prisoners in half-way houses. The Second Chance Act allowed twelve months in halfway houses for inmates who completed programs that prepared them to reenter the community and stayed out of trouble in prison. Time in a halfway house allows inmates to reestablish bonds with their family, obtain a driver’s license, look for a job, find a house of worship, and other activities that will help them successfully transition from incarceration to freedom as law-abiding citizens. This transition requires a significant amount of time, which is why Congress allowed for up to a year in a half-way house. Yet, the the BOP arbitrarily capped it at six months.
The BOP continues to prohibit volunteers who had worked with inmates inside prison to continue to mentor them after their release. The Second Chance Act specifically mandated that the BOP reverse this absurd policy. To an inmate who has been behind bars for a long stretch, having a mentor to guide him or her in the difficult transition to the community is often the difference between staying out of trouble and returning to prison. The process of applying to be a mentor has become so complicated and expensive that the number of volunteers has dropped to nearly zero.
Taken as a whole, the prison bureaucracy is committed to keeping as many Americans as possible in prison. It’s one of the reasons many of these previous policies had to be corrected with clear directives in the First Step Act. That has many in the BOP and DOJ upset.
A tried and true tactic of the deep state to advance its own agenda has been to “interpret” the law rather than follow it. In the case of the First Step Act, the bureaucracy isn’t misinterpreting the laws in order to keep the public safer. No, the rear-guard action is driven by simple self-interest. As Mel Brooks said in “Blazing Saddles”: “We’ve got to protect our phony baloney jobs.”
No matter how much nameless, faceless bureaucrats may chafe at long overdue accountability with the First Step Act, we should not allow them to substitute their opinions for unambiguous language adopted by Congress. Their sabotage doesn’t just harm inmates; it undermines the rule of law.
Pat Nolan is the Director of the Center for Criminal Justice Reform at the American Conservative Union Foundation. David Safavian is the general counsel of the American Conservative Union.