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The hottest topic for PERA is the systemic issues associated with the administrative remedy program, which prisoners must “exhaust” before going to court to seek relief for wrongdoing. Yet there are numerous obstructions at every stage that makes successful completion very difficult. For example, the grievance process begins with the filing of a “BP-8,” a carbon-copy paper form that must be requested from staff (who may be the subject of the complaint!). Staff may refuse to provide the form, or — when it is submitted — the form is frequently “lost.” Likewise, receipts are seldom issued, so residents can’t document the submission. This is an issue PERA believes can be improved quickly by allowing residents to submit BP-8s via the existing online “cop-out” system.
In addition, reports of retaliation for filing grievances are rampant. It is our firm belief that submission of grievances electronically will result in greater accountability and timelier responses. It also is important to ensure that grievances can be filed by individuals detained in the SHU (restrictive housing).
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One of the many complaints that has risen to a fever pitch lately is the inability of incarcerated people and their attorneys to communicate on a timely basis. The procedures for scheduling legal calls are inconsistent between institutions and do not conform to the intent of BOP policy. Legal mail is routinely opened prior to distribution, outside the presence of the recipient, and sometimes is not delivered, period. The obstruction of confidential attorney/client communication forces the parties to rely on monitored channels, which harms representation.
However, this dysfunction can be corrected simply by copying the implementation of the consistent, methodical and seamless process used to assure protected legal communication for people held in BOP witness-security units. This process, which is outlined in the protective custody unit manual, could be replicated and enforced easily if it were an administrative priority.
It’s time to level the playing field.
Extended isolation of people in the special housing unit (SHU) or other restrictive conditions is rightly a focus of the Department of Justice (DOJ). Unfortunately, rather than requiring the BOP to follow its own policies, the DOJ continues to commission expensive studies by outside entitles that repeatedly come to the same conclusions. It’s time for action, not more research, starting with simple solutions like requiring that detained individuals be informed of their right to attend their review hearings, which BOP policy mandates after seven and 30 days. In addition, “investigations” and disciplinary hearings should be bound by specific timeframes, with any variance approved by the regional office. After SHU reviews are conducted by the executive staff, individuals held in these units should be notified in writing of the results and the basis for decisions.
Over the decades, the therapeutic relationship has eroded between unit teams and their incarcerated charges. This breakdown is systemic and profound. Meetings of the unit team are now a charade, with six-month program reviews reduced to a person sliding a paper to sign under the incarcerated person’s cell door. Instead, a multi-disciplinary team is supposed to meet in person, for at least 15 to 20 minutes, to develop and discuss the ideal programming for the person.
BOP management says this occurs, but we can say with certainty it does not. Program review has become a paper exercise, when it should be the most important component of rehabilitation.
While PERA commends many of the “front-end” aspects of the First Step Act, the differential treatment of people by charge is discriminatory and implementation by the BOP has been haphazard and reactive. Prior to the tough-on-crime era, all incarcerated people were eligible to earn both statutory and meritorious good time. The sentence itself was the punishment and people were treated equally once incarcerated. However, in the upside-down FSA world, a person from a marginalized population that committed a violent offense decades ago can be denied credits, while a white-collar person who stole the last penny from a blind, elderly widow is eligible. We won’t even comment on the inequities of the PATTERN algorithm or the years-long waiting lists for qualifying programs; we’ll address these in a later, deeper dive.
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As documented by NPR, the BOP health care system suffers from systemic problems that too often result in a lack of timely treatment. Specialized exams, tests and procedures can take months to make happen, and the results are often not divulged or explained to the individuals. A 2022 OIG report stated:
“…we found that the BOP faces challenges in transporting inmates to off-site appointments that result in a frequent need to reschedule appointments that could delay an inmate’s health care. In addition, the BOP does not have systems in place to track and monitor the causes for rescheduling appointments, including whether the reason for a cancellation was a BOP issue or one that was out of its control, such as the physician cancelling the appointment. BOP also does not have a process in place to monitor how long an inmate waited to receive care after a cancelled appointment. Because the BOP does not have systems to measure or track any of these issues, we believe it is difficult for the BOP to determine whether inmates are receiving care within the required community standard.”
This lack of appropriate systems is exacerbated by insufficient appropriate staff.
Both full and partial lockdowns of entire prisons or units are increasingly common across the BOP system. They are being imposed for a variety reasons, primarily insufficient staff, collective punishment and lack of capacity in the SHU. In turn, these lockdowns, which can last for days and weeks, lead to lack of access to programming, insufficient medical attention, deprivation of social connections (no email or phone calls), and emotional distress. Enabling this trend is a lack of central policy, which allows individual wardens to act at will, and a dearth of data that allows transparency and accountability.