Jeremy Gordon

Crimes, Credits and Carvajal’s Resignation from the BOP UPDATED 1/8/2022

BOP director Michael Carvajal has resigned after scandals, reports of crimes committed by his employees and pandemic mismanagement.

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AP: Over 100 BOP Employees Charged or Convicted of Crimes Since 2019

An Associated Press investigation has uncovered that over 100 Bureau of Prisons Employees have been charged with, convicted of, or sentenced to crimes since 2019.  The alleged crimes included priests taking bribes, teachers indicating that inmates received GED’s when they did not, wardens molesting inmates, corrections officers threatening to kill inmates, and the delivery of drugs and alcohol to inmates

BOP employees indicate that they are concerned about illegal activity by executives as well as the system works to focus on misconduct by rank and file employees and not on those at the top:

In interviews with the AP, more than a dozen bureau staff members have also raised concerns that the agency’s disciplinary system has led to an outsize focus on alleged misconduct by rank-and-file employees and they say allegations of misconduct made against senior executives and wardens are more easily brushed aside.

“The main concern with the Bureau of Prisons is that wardens at each institution, they decide if there’s going to be any disciplinary investigation or not,” said Susan Canales, vice president of the union at FCI Dublin. “Basically, you’re putting the fox in charge of the henhouse.”

Others are concerned about those investigating misconduct being caught up of misconduct of their own:

At the federal prison in Yazoo City, Mississippi, the official tasked with investigating staff misconduct has been the subject of numerous complaints and multiple arrests. The bureau has not removed him from the position or suspend him — a deviation from standard Justice Department practice.

In one instance, a prison worker reported that the official assaulted him inside a housing unit, according to a police report obtained by the AP. Internal documents detail allegations that the official grabbed the officer’s arm and trapped him inside an inmate’s cell, blocking his path.

Department of Justice Report: Bureau of Prisons Failed to apply time credits to Potentially 60,000 inmates

ABC News and Forbes have put sunlight on an Inspector General report indicating that the Bureau of Prisons did not properly award credits to potentially 60,000 inmates who completed programming under the FIRST STEP Act.

When the FIRST STEP Act of 2018 was passed, the Bureau of Prisons was supposed to use the PATTERN test and other resources to put forth Evidence Based Recidivism Reduction (EBRR) Programming to eligible incarcerated persons.  Inmates who completed these programs were eligible for time credits in order to get certain rewards, such as earlier home confinement dates.  The Bureau of Prisons is supposed to provide EBRR programming by January 15, 2022.  However, they COULD start EBRR programming in every facility as soon as now and could start sending people home (if eligible) as soon as now in every prison.  There have been cases where individuals who could go home but for the BOP not applying their credit have won release.  

The Bureau of Prisons has not applied the time credits to sentences in many situations.  BOP officials have indicated that this is because 

(1) a rule that would codify the BOP’s procedures for time credits has not been finalized, and 

(2) the BOP must complete policy negotiations on its time credits policy with the national union (No. 8 in Table 1, above). 

here are 10 other FIRST STEP Act related policies that “need to be issued,” but this is no doubt one of the most impactful.  

The Bureau of Prisons knew that they had not applied these reports.  But they believed that the damage was minimal because of the increase of people who had been sent home due to the CARES Act:

In December 2020, the Office of the Attorney General (OAG) released its annual report to Congress summarizing the activities and accomplishments of the Department in implementing the FSA.The report acknowledged that the BOP had not applied earned time credits to inmate sentences and stated that the BOP “[did] not believe that anyone ha[d] been negatively impacted…because of the dramatic expansion of inmate community placements in 2020 pursuant to the [Coronavirus Aid, Relief, and Economic Security (CARES)] Act [of 2020].

However, in our review of minimum and low risk inmates in BOP facilities in March 2021 alone, we identified 50 such inmates who do not appear to have benefited from their participation in FSA programming. These 50 inmates had earned, on average, 31 days of time credits and were all projected to be released from BOP custody within the following 6 months. Yet, as of March 27, 2021, none of these inmates had been transferred to community placement despite each of them having completed at least 240 hours of EBRR programs and productive activities. It therefore appears that these inmates have not benefited from their participation in EBRR programs and productive activities due in part to the delay in applying earned time credits. 

Further, the failure to consider and grant EBRR time credits may adversely affect those on CARES Act home confinement as well. One day (we believe), the coronavirus pandemic will end.  As of now, inmates who are on CARES Act relief will be forced to return to prison if they are not within 6 months or ten percent of the end of their sentence (whichever is less).  But as of now, that “6 months or ten percent of the end of their sentence (whichever is less)” does not include “any consideration of whether time credits earned before pre-release custody placement would make them eligible to remain in home confinement, in part because the BOP has not finalized a policy to administer earned time credits.”

How did all of this happen?  The BOP and the BOP Union can’t agree on how to do the negotiations:

On August 5, 2020, the BOP issued new travel guidance that suspended “non-essential official staff travel” but permitted essential travel. As of October 25, 2021, this travel guidance was still in place. Since the implementation of Phase Two, BOP management has declined to meet in person with national union staff to conduct formal policy negotiations and has instead proposed conducting virtual policy negotiations. However, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner. Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person. This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which at the time of our fieldwork had stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA. 

Why does the BOP have to meet with the union in order to get this handled?  Because “compliance with Title VII of the Civil Service Reform Act of 1978 requires the BOP to negotiate with the national union changes to policy, including BOP policies governing FSA programs, when such changes affect the conditions of employment of bargaining unit employees.”

So in other words, the union won’t meet with the BOP online and the BOP won’t meet with the union in person and the incarcerated people, who are powerless to affect the situation, suffer.  

Durbin calls on Merrick Garland to Remove Carvajal

Dick Durbin, chair of the Senate Judiciary Committee, issued a statement calling for Carvajal’s removal from his spot at the Bureau of Prisons.  

“Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more.  It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

 “We have a new Administration and a new opportunity to reform our criminal justice system.  It’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it.  That effort must start with new leadership.”  

The Associated Press notes that the statement came two days after the report about the 100 BOP employees charged or convicted of crimes.  However, it also appears to reference the failure to implement the FIRST Step Act.  The Bureau of Prisons has long been plagued by a staffing shortage as well.  

Our Take: A Reform-Minded BOP Director should already have been appointed.

We empathize with members of the public that have had a tough Q3, but enough is enough.  From the failure to place more people on CARES Act home confinement to the 100 BOP employees who have been charged or convicted of criminal behavior to the problems with the time credits, enough is just enough.  

The AP story indicates that the Attorney General’s office indicated that Carvajal still had their support.  But why?  Given that the Department of Justice is the same people prosecuting the Bureau of Prisons Employees and the same group of people who house the Inspector General’s Office that did the report on the EBRR time credits, don’t they…already know about all of this?  

The Bureau of Prisons can be led by someone else.  Anyone else.  We would prefer a reform minded person.  

The easiest analogy is the United States Attorney’s office.  When a new president is elected, the US Attorneys for each of the 94 districts turn in their resignations almost immediately.  There are no holdovers from previous administrations in those head positions.  So too should it be with the Bureau of Prisons Director.  

UPDATE: Carvajal, Deputy Director Both Set to Retire

As The Hill and the New York Times have reported, Carvajal and Deputy Director Gene Beasley both announced their retirements this past week.  Carvajal will remain at his position until a replacement has been found.  

Of particular note is that both Carvajal and Beasley worked in corrections for long periods of time:  both Carvajal and Beasley started as correctional officers and worked their ways up through the agency.  While most would point to the idea that experience matters in such a position, we also believe it drives home the point that Carvajal would know the amount of corruption present in the Bureau and did little to stop it. 

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