"The negative effects of overcrowding on safety are even more pronounced in high security facilities that house the most serious offenders," Holder wrote. "Nearly 90 percent of these inmates have a history of violence, and nearly 70 percent have been sanctioned for violating prison rules. Assaults on BOP staff are higher at high security prisons than at lower security facilities."
Much of this bad news could be better if Uncle Sam had greater flexibility in reducing his prison population. A number of states have done more than the federal government in modifying their sentencing policies.
"Because of the mandatory minimum sentences required for many federal offenses and the absence of parole for most federal inmates in the federal system, BOP generally does not have the authority to significantly adjust an inmate's period of incarceration," the GAO said in September.
Marc Mauer, executive director of the Sentencing Project, an organization that supports reforms in sentencing policy, said New York and New Jersey each have reduced their prison populations by about 20 percent over the past decade. New York has modified its drug laws and allowed reduced sentences for inmates who participate in drug treatment programs. New Jersey has focused on reducing parole revocations.
"There is a sharp divide" between the approach of states and the federal government toward incarceration, Mauer said. State budget pressures are "forcing them to confront these issues" in a way not present at the federal level, he added.
So what can be done at the federal level?
The bureau does have the Residential Drug Abuse Program (RDAP), but crowding and underfunding reduce its effectiveness. Inmates who successfully complete the program can get a sentence reduction of up to a year. It sounds good on paper, but "RDAP programs are full," says the GAO, "and BOP cannot keep up with demand for RDAP enrollment" because of staff and budget shortages.
Congress made some progress on reforming drug sentencing laws with the Fair Sentencing Act of 2010, which lessened the severe sentencing discrepancy between federal crack cocaine and powder cocaine offenses. But the changes were not retroactive, so some offenders remain imprisoned with sentences based on a 100-to-1 disparity in the way crack and powder were treated for sentencing purposes, despite a law that recognizes that fundamental unfairness.
Reforming sentencing laws is one option the GAO listed for addressing crowding, along with allowing alternatives to incarceration, providing greater sentencing flexibility and increasing capacity.
Something needs to happen soon.
As Mauer said: "It's not a good situation for anybody involved."