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Closing Argument

Federal Prisons Are Over Capacity — Yet Efforts to Ease Overcrowding Are Ending

The Bureau of Prisons’ system is in trouble and needs serious upgrades on several fronts.

A dark brown high-rise federal prison.
The Bureau of Prisons Metropolitan Correctional Center in New York City, in 2019. The facility was closed in 2021 to fix major infrastructure issues that jeopardized the safety of people inside.

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The Bureau of Prisons faces a host of major challenges. Federal prisons are chronically short-staffed, creating dangerous conditions for both the people working there and for those who are incarcerated. The aging buildings are in need of major repairs and maintenance. The bureau estimates its already overcrowded prison population will expand to 10% over capacity in 2024.

Despite the grim conditions, two programs — which allow people to live in their communities while serving their sentences if they are not likely to commit new crimes — have ended, or are at risk of ending. Former BOP staffers and advocates for prisoners’ rights say that could increase the prison population at a time when resources are already strained.

The Elderly Offender Program allowed people 60 and older who had served most of their sentences, and were incarcerated for an offense categorized as non-violent or non-sexual, to be released to home confinement. It was a pilot program expanded by the First Step Act, which took effect in 2018. The program expired in September.

Older people are far less likely to commit new crimes, according to government research. Incarcerating older adults is also expensive as they require more medical care, which is especially costly behind bars because prisons have to supply transportation to and security at hospitals. Research suggests that it costs twice as much to keep an older person in prison than a younger one.

The second program is part of the CARES Act, passed in 2020, which addressed issues related to COVID-19. It allowed people to finish their prison sentences at home, to ease overcrowding at the height of the pandemic. But legislation, sponsored by Republican Sen. Marsha Blackburn of Tennessee, could force participants to return to prison. “Now that the COVID-19 emergency is over, the policy is no longer feasible,” Blackburn tweeted last month.

Both liberal and conservative organizations have pushed back against these efforts to send people back to prison, citing data that shows the CARES program poses little public safety risk.

According to a statement from President Joe Biden’s office in November, of the more than 13,000 people released to home confinement under the CARES Act, “less than 1% have committed a new offense — mostly for nonviolent, low-level offenses — and all were returned to prison as a result.” According to the White House, the program has eased the burden on BOP staff and has saved millions of dollars.

Those savings could be especially important as the bureau tries to address deteriorating prisons that need expensive maintenance and repairs.

The agency’s Office of the Inspector General recently identified unsanitary and potentially unsafe conditions at a federal women’s prison in Florida. Among other health and safety issues, investigators found rats, moldy food and leaky roofs. “We observed housing areas in which feminine hygiene products were being used to absorb water from leaking windows, an electrical outlet that appeared to have fire damage, a sink that was detached from the wall, and a black substance on walls and ceiling,” investigators wrote.

The problems are system-wide. Colette Peters, director of the bureau, told lawmakers in November that there was a $2 billion backlog for maintenance and repairs. But over the last decade, the bureau has received an average of roughly $100 million per year for repairs. “As a result, our current infrastructure needs are significant,” Peters said.

Failing infrastructure is not the only issue Peters flagged. Despite recent improvements, she said staff recruitment and retention remains a challenge.

The New York Times reported on a federal facility in Colorado where staffing was “so low that teachers, case managers, counselors, facilities workers and even secretaries at the complex have been enlisted to serve as corrections officers, despite having only basic security training.” And The Marshall Project investigated a federal prison in Illinois, where several people died in recent years. One employee at that facility told The Quad-City Times that conditions there “have cultivated an environment with catastrophic potential.”

High prisoner-to-staff ratios can have serious consequences. High-profile deaths and injuries in federal prisons, like the stabbing of Derek Chauvin in November, have highlighted the problem. The inspector general said that short staffing contributed to conditions that allowed Jeffrey Epstein’s suicide in a federal jail in Manhattan in 2019. That jail was ultimately closed in 2021 due to the poor conditions, but its companion facility in Brooklyn has seen similar issues. Just this week a federal judge refused to send a man there citing the inhumane treatment.

In a letter to bureau officials in late 2022, Colorado senators wrote about staffing concerns at the federal complex in Florence, southwest of Colorado Springs. The complex includes the only federal Supermax prison, where there were two homicides of incarcerated people and six serious assaults in 2022. In the letter, the senators estimated that the facility was short at least 188 staff members. The dangerous conditions create a downward spiral, leading more staff to leave, the senators argued. “Fatigue, exhaustion, and low morale have reduced staff productivity and led to more sick leave, retirements, and resignations,” they wrote.

Short-staffing also creates a cycle that can make it harder to release people and ease the burden on the system. The First Step Act allows people to earn credits toward early release by participating in educational programming. But Joe Rojas, a literacy coordinator at the Coleman prison complex in central Florida, told NBC his program was rarely operational, because he had to assist with work usually done by correctional officers. “There's no programming,” Rojas said. “If there's no programming, you can't do the First Step Act.”

The White House has threatened to veto any law that sends people who were released under the CARES Act back to prison.

In a rare bipartisan effort, Sen. Dick Durbin of Illinois, a Democrat, and Sen. Chuck Grassley of Iowa, a Republican, are co-sponsoring legislation that would revive the defunct Elderly Offenders program for older prisoners.

Hugh Hurwitz, the former acting director of the bureau, has said extending the program would make sense. Bureau staff could focus on people most in need of programming and security, “thereby reducing the risk to society,” Hurwitz said. “It will also save taxpayers money by greatly reducing BOP’s medical costs.”

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Shannon Heffernan Twitter Email is a staff writer for The Marshall Project covering prison conditions, experiences of the incarcerated, their families and corrections officers, the federal Bureau of Prisons and the death penalty. Heffernan joins The Marshall Project from WBEZ in Chicago, where she covered prisons and jails in Illinois over her 15 years as a public radio reporter, examining issues such as abuse and misconduct by prison guards. During her tenure at WBEZ, she was the lead reporter and host of Season Four of WBEZ’s “Motive,” a podcast investigating abuse and corruption in small town prisons in Illinois. Her work has been honored with a National Murrow Award for best writing and a National Headliner Award, among many others.