By its own account, the Federal Bureau of Prisons “was established in 1930 to provide more progressive and humane care for federal inmates to professionalize the prison service, and to ensure consistent and centralized administration of the federal prisons in operation at that time.”
It’s true that, even as recently as the dawn of the 1970s “tough on crime” era, the bureau was considered a somewhat progressive system emulated by the states as the gold standard of corrections. It took decades of neglect and mismanagement to reach its current state of crisis.
The National Association of Criminal Defense Lawyers and organizations across the political spectrum have increasingly become concerned about inadequate inmate healthcare, overuse and misuse of solitary confinement, obstacles to attorney-client communication, physical and sexual abuse of incarcerated people, and failure to implement legislative reforms.
Most recently, the health and safety conditions at the federal Hazelton prison complex in West Virginia were so appalling, as brought to light by a whistleblower and media reports, that the government set up a hotline for incarcerated individuals to report civil rights abuses. We understand that efforts to create a means to register complaints have not proven reasonably accessible, timely or effective to individuals incarcerated there.
In 2022, the National Association of Criminal Defense Lawyers and the American Bar Association endorsed independent oversight of bureau prisons. The Federal Prison Oversight Act would authorize independent oversight by the Justice Department’s Office of Inspector General. Just as important, the bill would create a process for incarcerated people, their families, and bureau staff to raise complaints about serious problems in the federal prison system, including civil rights violations and poor prison conditions. Unfortunately, the bill faces a hold in the Senate, so any short-term improvements must come from within the bureau.
Fortunately, there is much the agency could do to improve the system. Beyond the lack of independent oversight, one of the primary deficiencies at federal facilities is the broken and obstructed administrative remedy system, a formal complaint process for incarcerated persons to report abuses internally and eventually access the courts if those abuses are not addressed. This process is fraught with bureaucratic obstruction right from the beginning when the incarcerated person is required to obtain an informal complaint form from their correctional counselor and must wait for the counselor even when none is unavailable for days or weeks due to leave.
In addition, informal resolution requests often disappear or fail to receive a timely response, which can cause denial of a formal complaint on grounds of “timeliness.”
The current system does not permit inmates to make a computerized request for tracking until the informal resolution process has ended. Formal complaints often receive no response, and the bureau policy indicates the lack of a response should be considered a denial. This obstruction in due process is profound in that every complaint — from medical care to physical or sexual abuse — is required to go through this deliberately and systemically dysfunctional process.
The Bureau of Prisons director can immediately begin allowing inmates to submit complaints through the internal computer system (TRULINCS) for tracking purposes, just like every other request to staff members. Informal resolution time frames should be established and easy access to obtain the needed forms by any unit staff member or counselor available to assist. An accountable and transparent bureau begins with a functioning administrative remedy process.
Finally, access to counsel during all phases of a person’s incarceration is critical to a fair justice system. Justice Department leaders have recently demonstrated an interest in addressing problems in this area. Especially when a person is incarcerated before trial, they must be able to meet with their attorney in a confidential setting. Incarcerated persons also have a right to review materials disclosed by the prosecution that might be relevant to their guilt or innocence. Too often, client visits and evidence reviews are thwarted by inconsistent and irrational policies, staffing issues and inadequate technology.
Some communication could be handled quickly and efficiently through email. Still, the bureau has refused to implement a confidential email system allowing attorneys to communicate with their clients while protecting the attorney-client privilege. Our clients cannot primarily rely on snail mail or time-consuming jail visits for every type of communication, including time-sensitive questions, especially during the heat of trial preparation.
Under the Constitution and federal law, there must be meaningful access to counsel at every phase of an incarcerated person’s case. For too long, our criminal legal system has tolerated a deeply problematic double standard, with incarcerated defendants experiencing greatly encumbered access to counsel compared with their counterparts granted release pending trial. Bipartisan legislation in the House and Senate, the Effective Assistance of Counsel in the Digital Era Act, would require the bureau to set up a confidential attorney-client email system. But again, the agency need not wait for Congress to mandate reform.
As recent congressional oversight hearings and media reports attest, this is far from a comprehensive list of bureau failures. The bureau cannot remain on its current path without serious repercussions, and the rash of sexual and physical abuse at certain institutions is likely just the tip of the iceberg. The question now is whether the administration can adopt much-needed changes without a mandate from Congress. The situation at the bureau is a mess, and it is also an opportunity to demonstrate genuine leadership.
