It’s difficult to keep up with the chaos in the federal prison system that has ensued over the past few weeks. Among them are the welter of issues caused by the administration’s heavy-handed focus on migrants.
A top focus of concern at the recent House Appropriations Subcommittee hearing on the BOP was the Trump administration’s decision to hold ICE detainees at five bureau facilities: FDCs Miami, Philadelphia and Atlanta, and FCIs Leavenworth and Berlin. However, that list may grow. On March 12, NBC News reported that Department of Homeland Security (DHS) immigrant detention centers are at capacity and officials are working with the Marshals Service, Department of Defense and the BOP to increase bed space.
This reminds us of when a BOP central office official circulated a memorandum directing the transfer of noncitizens to privately run facilities, just before he retired and joined the GEO Group, one of the largest prison contractors. GEO is the same company that has close ties to Attorney General Pamela Bondi, who lobbied for the company when on the team of Ballard Partners. And now, GEO was just awarded a $1 billion fixed-priced contract from ICE to adapt its immigration-processing center for adult males in Newark, NJ, so it can house “mixed populations” (thus fueling internal BOP rumors that privatization will not be limited to ICE detainees). Let’s watch to see where all those recently retired BOP executives end up…
Referring to the BOP’s new contract with ICE, Rep. Grace Meng, the ranking Democrat on the appropriations subcommittee, remarked, “The BOP has so many problems, and this just complicates its operations even more. It also raises legal questions about housing civil detainees with criminals.”
Deputy Director Katheen Toomey sought to alleviate such concerns, noting that ICE will pay all the costs and that immigration detainees “are put in separate housing units and don’t interact with the rest of the population at any point.”
What makes no sense to PERA is that the BOP is already understaffed. Adding ICE units to existing facilities will stress already limited resources. What’s even more concerning is that DHS is reimbursing the BOP at a rate equivalent to the annual cost of incarceration: nearly $45,000 per person. Yet Texas Gov. Greg Abbott has reportedly offered access to 4,000 vacant prison beds for the federal government’s detention of illegal immigrants. Detainees only require short-term housing and are not offered programs, so maybe our dealmaker president should have negotiated that contract for ICE! That’s something for DOGE to look into for sure.
FSA benefits for noncitizens
And then there are the inconsistencies in how First Step Act (FSA) time credits are applied to noncitizens. For example, consider the case of Michael Harriot v. Warden J.L. Jamison: Harriot was in the country illegally when he was given a life sentence for narcotics distribution. In 2021, a U.S. District Court (South Carolina) judge granted his request for a sentence reduction (to 360 months) under the FSA. Two years later, the BOP informed Harriot that it would apply the 365 days of credit he had earned under the FSA toward early release, resulting in a one-year advancement of his projected release date. Meanwhile, ICE lodged a detainer against Harriot, requesting that the BOP inform the DHS of his impending release at least 48 hours before.
As a result, one month later, the BOP informed Harriot that he was no longer eligible for early release. In its ruling, the judge rejected that reasoning, saying “the BOP erred by relying solely on the contents of the detainer to deny application of Harriot’s FSA credits.” Thus, he should have been released on March 12, 2024 – well before the bureau was notified of an old Notice and Order of Expedited Removal (filed in 1997, after which Harriot illegally reentered the United States), followed by a notice of intent to reinstate the order. And unfortunately, it was on that basis that the judge refused the remainder of Harriot’s petition.
Trevor Parkes (counsel and project director for the NACDL’s First Step Act Resource Center), points out this other interesting comment from the judge: “Harriot may, therefore, have a plausible claim for money damages for false imprisonment for each day that he was imprisoned in BOP secure custody.” Such relief could be sought, he noted, by bringing a claim under the Federal Tort Claims Act.
It has been a common practice for the BOP to award noncitizens 365 days of FSA time credits, only to abruptly rescind them shortly before an individual’s scheduled release. PERA has been tracking noncitizen issues like this for many months and has also received descriptions of people being taken to an area of the prison where ICE agents tell them to sign paperwork without representation or interpreters.
This is an evolving concern that PERA will watch closely.
