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March 8, 2013

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

March 8, 2013 at 09:34 AM | Permalink


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Increase good time days in accordance with the Barber act.. Instead of 54 days/yr make it 128 days/yr....The sentences are in decades, so this would still make a very long sentence...They have all but cut all training and programming in the BOP... If you can't offer them anything to better them, then you are just Warehousing bodys the same as if they are a cases of corn...

My idea is to go back to the pre 1986-87 guidelines and make it 65% or there abouts..Thats plenty long to satisfy 3553...Anyone have facts to refute this.. Congress cannot make any decisions, so the USSC must do it for them...Oops did I really say that..

The federal government has had there way and look at the total mess everything is in..Now its time to start carving out on all government programs.. No MM for drugs.. MAke it for the white collar biys and cogress and senators and Federal Judges and AUSA that abuse the power they have bestowed upon them...Especially AUSAO boys as well..

Posted by: MidWestGuy | Mar 8, 2013 9:56:42 AM

Crying wolf about sequestration is already old news here inside the Beltway. This massively overspending country can learn to do with a little less, and a little less -- a VERY little less -- is all that sequestration means.

And please, let's see something a bit more original than merely the long pre-existing agenda trotted out again, for the umpeenth time, only this time with sequestration lipstick on it.

If we need to make ends meet, I propose a distinctly unRepublican idea: A tax increase. The tax would be in the form of a $1000 annual charge to become a member of, or renew membership in, the bar of any federal court. Lawyers and their antics create a good deal of cost of running the system; it's past time for them to start paying for it, sequester or no.

Instead of unleashing criminals on the public, let lawyers -- a relatively quite prosperous group -- start carrying more of their fair share.

Posted by: Bill Otis | Mar 8, 2013 10:04:18 AM

Bill's idea has merit. I would add that every United States Attorney, who charges a person under federal law when the case could be brought under state law, should be required to pay the costs of their antics which would be the difference between what it would cost to defend the case in federal court versus the cost to defend the case in state court.

Posted by: ? | Mar 8, 2013 10:54:48 AM

? --

Where federal law provides jurisdiction, there is nothing wrong with using it. Congress, not the executive branch, made the decision to create concurrent jurisdiction, and, under the Dual Sovereignty Docctiine, Congress's decision is perfectly legitimate.

Still, I'm glad you see merit in my idea.

Posted by: Bill Otis | Mar 8, 2013 11:09:12 AM

Its a very good idea...But I don't think it will fly.. Mostly because the good old boys that make the rules, cannot seem to get the wheels moving...

Bill and ?..WHat else would you suggest to help cut the debt...Hey, no idea is stupid these days...Its how we could get it done...The best ideas, are the simplest ones, sometimes.....

We cannot spend our way out of debt...We simply are going to need a much leaner government, that doesn't hold back creativity by excess legislation...Going to have to cut down the wasted entitlements to those that don't contribute anything...Medicare and medicaid tighter limits and unemployment cannot be given for 48 months....Where is the incentive to even look for a job...Good gravy....You cannot be on Medicaid for a lifetime, if you could contribute in some way.. Right now its a gravy line...Take all of the federal agencies and reduce them down, to a few that will either hit the mark or be disbanned...Have lots that overlap, another one created to fix the agaency that fails, but is still operating...Fix Fannie and Freddie...or cut them...Disability for the flimsiest of things, once approved, a lifetime of freeloading...

What say ye all..

Posted by: MidWestGuy | Mar 8, 2013 11:41:48 AM

Since most federal criminal defendants are indigent and the gov't thus has an obligation (under existing law that I suspect isn't going to change in the near future) to fund their defense out of tax dollars, heightened bar fees imposed on defense counsel are one way or another going to ultimately get paid for by the taxpayers, just as heightened bar fees imposed on AUSA's would get paid for by the taxpayers. If you impose such fees only on privately-retained defense counsel you will raise the cost of such representation and thereby at the margin make more defendants unable to afford it and thus entitled to taxpayer-funded counsel.

Posted by: JWB | Mar 8, 2013 12:24:38 PM

JWB --

"Since most federal criminal defendants are indigent and the gov't thus has an obligation (under existing law that I suspect isn't going to change in the near future) to fund their defense out of tax dollars, heightened bar fees imposed on defense counsel are one way or another going to ultimately get paid for by the taxpayers..."

But the Constitution does not specify any particular amount, and we've been overspending for defense fees just as we've been overspening for everthing else. If old people are going to take a hit (which they are, since SS cannot be maintained at the current benefit levels), then criminals are going to have to take one as well.

"...just as heightened bar fees imposed on AUSA's would get paid for by the taxpayers."

Not if we freeze AUSA (and AFPD) salaries, which we're going to have to do.

None of this is fun, but fun is not what you get when you've been on a 50 year-long drunken spending binge.

The taxpayers are indeed going to get stuck. That's too bad, it's the way it has to be. The tax eaters are going to get stuck too, also because there is no other way out.

Of course, the whole mess as presented here -- prosecution and defense costs, and imprisonment -- is a diversion. The main problem is not discretionary spending. The main problem by far is entitlement spending, and focusing on anything else is mostly just whistling past the graveyard.

In the 21st Century, we have found out that we cannot afford the 20th Century entitlement state. The ancient verity has caught up with us: There is no such thing as being "entitleed" to a particular standard of living. You're entitled to what you work for and earn. Wealth is not produced by legislation. It's produced by effort.

Posted by: Bill Otis | Mar 8, 2013 2:00:47 PM

I totally agree, its not going to be fun fixing the debt...Everyone is going to have to get hit, if its going to work....We have been drunk on debt for longer than I can ever remember. As a kid, someone would comment...Oh no that a federal initiative, the money will be there and once you get on it, your on the Gravy Train for what seems like forever...

Is it true that Congress is fully vested for retirement after a single term.
ie: they get that salary for life, whether ther are retired or not, and free helth care for life.... I thought I read they had to contribute to health care insur, while in office....I donot believe that they participate in SS though. Why would they, already have their retirement...

Federal workers and state workers both need to contribute say 30-40% towards their health insur..
Raise the $limit on SS ceiling, and don't allow Congress to take it away.. That would shore it up in a big hurry...MIght not be as fair for the wealthier, but they earned their $$ in America...

Posted by: MidWestGuy | Mar 8, 2013 2:51:25 PM

call me crazy but i seem to recall a budget surplus tucked in somewhere during these last 50 years. or was that just a dream? hmmm, when was it? it must've been when the party currently obsessed with deficits had control of the house, the senate, and the presidency. because republicans really hate government spending. and deficits. and spending. hate hate hate. oh, wait. i wonder where all that money went? friggin' ACORN!

Posted by: call me crazy | Mar 8, 2013 6:37:07 PM


Do you consider Social Security and Medicare to be entitlement programs? Then the Ponzi Scheme and lies belong to our beloved government.

If not entitlement programs, what are they?

Posted by: albeed | Mar 8, 2013 10:43:15 PM

albeed --

I, along with everyone I ever heard of, left and right, consider SS and Medicare to be entitlement programs.

We have made promises we can't and aren't going to keep. We can either start the needed pruning now, when it can be gradual and relatively easy, wait until some catastrophe.

And yes, in a sense the government is to blame. In a more important sense, the public is to blame. We have bought the idea that we are "entitled" to a given standard of living. It's a complete myth. The amount of wealth we have is the amount that, by working, we produce, neither more nor less.

Posted by: Bill Otis | Mar 9, 2013 9:20:47 AM

Yes entitlemant programs may be unsustainable. I also underatand the reason Congress talks about not being able to cut discretionary spending. That is where the pork is.

The pensions and health care benefits of retired government workers must be considered entitlements. This system is the big gorilla in the room.

The criminal justice system is bloated and ineffecient. I read an article about the 16 Amish inmates and their confinement - there is not much to say about it except it is a fine example of government overreach.

Posted by: beth | Mar 9, 2013 10:32:17 AM

Imposing austerity during a recession does nothing but deepen the recession and risk turning the recession into a depression. Although austerity will cause a decrease of the deficit in absolute terms, the deficit will increase as a percentage of GDP.

I agree that the deficit should be reduced. However, that should be done only when the economy is expanding. Trying to do it now only will increase the number of under and unemployed and put off the next expansion of the economy.

As a lawyer who draws my clients from the general public, I, like all other small businessmen, only want more clients (or customers) who can pay a fair fee for my services (or products). The government should not be creating conditions that decrease the number of clients (or customers) who can do so.

Posted by: Fred | Mar 9, 2013 10:49:26 AM

Fred --

First, "auserity" is an odd word for borrowing, say, only a few hundred billion, rather than a trillion, to finance the way you want to live. It's "austerity" when you live BELOW your income, not when you're "only" borrowing a large amount instead of a gargantuan amount.

But even under your own terms, the time to start cutting back is right now. You say, "Imposing austerity during a recession does nothing but deepen the recession and risk turning the recession into a depression." So what? We're not in a recession; it ended some good while ago (according to Obama, who for once is telling the truth). We're in a period of growth. The stock market is at an all time high. The housing market is recovering. Unemployment is dropping.

There will ALWAYS be some reason you can come up with (e.g., "but the recovery is weak!!!") in order to avoid doing the unpleasant cutting back every adult knows has to happen. It is exactly such thinking that got us in the mess we're in now, so it's time for some different thinking. This is what I suggest:

Buck it up, quit borrowing against your children's future, do with less and stop complaining.

Posted by: Bill Otis | Mar 9, 2013 12:03:41 PM

Mr. Otis:

You wrote: "So what? We're not in a recession; it ended some good while ago (according to Obama, who for once is telling the truth)."

Of course Obama said that. Politicians say only what they need to. Reagan and Cheney both said deficits don't matter.

You believe Obama because from where you're standing you see a recovery. I don't believe Obama, because from where I'm standing, I see nothing but continued recession.

Don't perceptions, right or wrong, drive a market economy.

I hope you're right about the improvement of the economy, but I don't think so.

Posted by: Fred | Mar 9, 2013 1:07:17 PM

I will only tolerate a reduction in SSI if government workers pensions are similarly reduced, ALL government pay is similarly reduced ("they" were the major contributors to this problem by lying through their teeth), and judges pay is GREATLY reduced. They must share the greater sacrifice! If not, we will elect people who will make these changes and punish the real B-st-rds who caused all this.

I don't need SSI to continue my standard of living, but I'll be damned if I am means tested by some lying gubermint to reduce what I will have coming.

Here gubermint, throw away more money and make us safer - Hah!

Posted by: albeed | Mar 9, 2013 4:23:41 PM

Fred stated: "Imposing austerity during a recession does nothing but deepen the recession and risk turning the recession into a depression. Although austerity will cause a decrease of the deficit in absolute terms, the deficit will increase as a percentage of GDP."

Check out the depression of 1920. Unemployment climbed to 12% and GNP reduced by 17%. All was going to hell and in many ways it began just as badly as "The Great Depression."

The reason it did not become The Great Depression is because it was handled well. Harding cut the budget by HALF, taxes were slashed for ALL income groups, and the Fed stayed out of it (for the most part).

By mid 1921, unemployment was down to 6.7% and by 1923 it was 2.4%.

That austerity cannot work is only believed by Keynesians, theories which would have been put down for humanitarian reasons if they were an animal. Both economics and history shows that austerity works.

Posted by: TarlsQtr1 | Mar 10, 2013 5:23:37 PM

TarlsQtr1 --

The Number One item by far that would help restore confidence is action that would show the government is serious, rather than pretend-serious, about putting its financial house in order. That would mean doing the exact opposite of what Fred recommends. It means, specifically, cutting borrowing and spending back to levels of self-sufficiency, not imbibing more "stimulus" a/k/a methadone.

Posted by: Bill Otis | Mar 10, 2013 7:09:14 PM


You and I agree that "stimulus" is equivalent to methadone. I like the analogy.

We had a situation here where the mayor of a financially strapped community actually tried to turn down Byrne Grants because of the hidden costs in accepting the grants, i.e., pension, long-term health care, overtime, etc. that would still fall on the community. He was sued by the city council and overturned by a local judge. The case is still ongoing.

Posted by: albeed | Mar 11, 2013 11:29:22 AM

albeed --

Good for the mayor and good for you.

Posted by: Bill Otis | Mar 11, 2013 8:38:14 PM

TarlsQtr1 at Mar 10, 2013 5:23 PM.

The Depression of 1920 is routinely cited by the disciples of the Austrian School of Economics as proof that austerity can be imposed during a recession without deepening the recession and/or turning the recession into a depression.

Except for its usefulness to classical libertarians to support their political agenda by serving as a counter-weight to Keynesian economics, the Austrian School of Economics has absolutely no relevance to current economic issues, because it has absolutely no predictive capabilities.

It is an article of faith to Austrians and their disciples that government spending will lead to a financial Armageddon in the near to mid-term future. They constantly make predictions as to when this Armageddon is going to happen.

But they have been wrong again, again, and again. Two years ago Alan Simpson predicted that Armageddon would happen in two years. It didn’t. You would think that after a while these people would be so embarrassed they would shut up. They remind me of the cartoon characters who walk around in rags with a placard stating "repent, the world ends tomorrow."

Financial Armageddon is just another bogey man, who, along with the super predator juvenile criminals, AQ, KSM, OBL’s ghost, the Ayatollahs, and other anxieties, live under some people’s beds and keep them from going to sleep without the lights on.

This is a lawblog, not an econ/finance blog, so this is all I have to say on this. At least my comment at Mar 9, 2013 10:49 AM, which provoked your comment, referenced the difficulties facing a practicing lawyer in setting and collecting a fee in the current economy and why austerity policies would make it even more difficult to do so.

Posted by: Fred | Mar 12, 2013 11:33:47 AM

Fred --

"...the difficulties facing a practicing lawyer in setting and collecting a fee in the current economy and why austerity policies would make it even more difficult to do so."

I continue to take issue with the phrase "austerity policies." Borrwoing a large amount to live beyond your income, instead of borrowing a huge amount, is not "austerity." Neither is spending this year more than you spent last year -- just a slightly smaller increase than you had been planning -- "austerity."

I don't know when Armegedon is coming, but I do know that we can't keep borrowing endlessly and just rolling it over instead of paying it back.

Do you disagree? How and when are we going to re-pay what we've borrowed?

Posted by: Bill Otis | Mar 12, 2013 2:02:59 PM

Mr. Otis:

This topic can and will attract trolls, who have no interest in the law, and who will attempt to hijack every comment thread. Out of respect for our host, I do not want to play a part in that happening.

As to your questions, there are a multitude of econ/finance blogs, which cover every flavor of economic thought. Because of what has been going on in Washington recently, this topic is front and center on these blogs.

However, I will make one substantive comment. You and I are about the same age. The USG fought WW II, the Korean War, the Viet Nam War, the Cold War, and various other small wars.

The USG by outspending the USSR consigned that government to the dust bin of history, and liberated Eastern Europe from Soviet domination.

The USG put a man on the moon, explored the solar system, and created and ran the Space Shuttle program.

The USG built the interstate highway system and attempted to create the Great Society.

I'm sure you can think of some others.

All of these were vary expensive and deficit spending played a part in every one. None of this has to be paid back: not by us, our children, our grandchildren, or any other generation.

Don't take my word for it. Reagan and Cheney are right: deficits don't matter.

Posted by: Fred | Mar 13, 2013 7:47:02 AM

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