The Federal Prison Population Buildup: Options for Congress

Summary

Since the early 1980s, there has been a historically unprecedented increase in the federal prison population. Some of the growth is attributable to changes in federal criminal justice policy during the previous three decades. An issue before Congress is whether policy makers consider the rate of growth in the federal prison population sustainable, and if not, what changes could be made to federal criminal justice policy to reduce the prison population while maintaining public safety. This report explores the issues related to the growing federal prison population.

The number of inmates under the Bureau of Prisons' (BOP's) jurisdiction has increased from approximately 25,000 in FY1980 to over 219,000 in FY2013. Since FY1980, the federal prison population has increased, on average, by approximately 5,900 inmates each year. Data show that a growing proportion of inmates are being incarcerated for immigration- and weapons-related offenses, but the largest portion of newly admitted inmates are being incarcerated for drug offenses. Data also show that approximately 7 in 10 inmates are sentenced for five years or less.

Changes in federal sentencing and correctional policy since the early 1980s have contributed to the rapid growth in the federal prison population. These changes include increasing the number of federal offenses subject to mandatory minimum sentences; changes to the federal criminal code that have made more crimes federal offenses; and eliminating parole.

There are several issues related to the growing federal prison population that might be of interest to policy makers:

• The increasing number of federal inmates, combined with the rising per capita cost of incarceration, has made it increasingly more expensive to operate and maintain the federal prison system. The per capita cost of incarceration for all inmates increased from $21,603 in FY2000 to $29,291 in FY2013. During this same period of time, appropriations for the BOP increased from $3.668 billion to $6.445 billion.
• The federal prison system is increasingly overcrowded. Overall, the federal prison system was 36% over its rated capacity in FY2013, but high- and medium-security male facilities were operating at 52% and 45%, respectively, over rated capacity. At issue is whether overcrowding might lead to more inmate misconduct. The results of research on this topic have been mixed. One study found that overcrowding does not affect inmate misconduct; but the BOP, based on its own research, concluded that there is a significant positive relationship between the two.
• The inmate-to-staff ratio has increased from 4.1 inmates per staff member in FY2000 to 4.8 inmates per staff member in FY2013. The inmate to correctional officer ratio was the same in FY2013 as it was in FY2000 (9.9 inmates for each correctional officer), and the current inmate to correctional officer ratio is down from a high of 10.9 inmates per correctional officer in FY2005.
• The growing prison population is taking a toll on the infrastructure of the federal prison system. The BOP reports that it has a backlog of 159 modernization and repair projects with an approximate cost of $342 million. Past appropriations left the BOP in a position where it could expand bedspace to manage overcrowding but not reduce it. However, reductions in funding since FY2010 mean that the BOP will lack the funding to begin new prison construction in the near future. At the same time, it has become more expensive to expand the BOP's capacity.

Should Congress choose to consider policy options to address the issues resulting from the growth in the federal prison population, policy makers could choose options such as increasing the capacity of the federal prison system by building more prisons; investing in rehabilitative programming (e.g., substance abuse treatment or educational programs) as a way of keeping inmates constructively occupied and potentially reducing recidivism after inmates are released; or placing more inmates in private prisons.

Policy makers might also consider whether they want to revise some of the policy changes that have been made over the past three decades that have contributed to the steadily increasing number of offenders being incarcerated. For example, Congress could consider options such as (1) modifying mandatory minimum penalties, (2) expanding the use of Residential Reentry Centers, (3) placing more offenders on probation, (4) reinstating parole for federal inmates, (5) expanding the amount of good time credit an inmate can earn, and (6) repealing federal criminal statutes for some offenses.

Introduction

The Bureau of Prisons (BOP) is the largest correctional agency in the country in terms of the number of prisoners under its jurisdiction.¹ The BOP currently operates 119 correctional facilities in 35 states and Puerto Rico.² The BOP was established in 1930 to house federal inmates, professionalize the prison service, and ensure consistent and centralized administration of the federal prison system.³

Since the early 1980s, there has been a historically unprecedented increase in the number of inmates incarcerated in the federal prison system. The number of inmates under the BOP's jurisdiction has increased from approximately 25,000 in FY1980 to over 219,000 in FY2013. In comparison, the federal prison population increased by approximately 12,000 inmates between 1930 and 1980. Since FY1980, the federal prison population has increased, on average, by approximately 5,900 inmates each fiscal year.

Some of the growth in the federal prison population is attributable to policy changes over the previous three decades, including

• increasing the number of federal offenses subject to mandatory minimum sentences,
• changes to the federal criminal code that have made more crimes federal offenses, and
• eliminating parole.

The BOP faces several challenges resulting from the increasing number of inmates placed under its supervision. The first is the increasing cost of operating the federal prison system. Data show that with each passing fiscal year it is increasingly more expensive to incarcerate an inmate in a federal prison, yet the BOP must operate the federal prison system within the annual appropriation approved by Congress. Second, the federal prison system is becoming more overcrowded, especially in high- and medium-security male prisons. Research conducted by the BOP suggests that there might be a link between higher levels of overcrowding and inmate misconduct. Third, the federal inmate population is increasing at a rate whereby the gap between the number of inmates and the number of staff and correctional officers is slowly starting to widen. Finally, the rising federal inmate population is starting to place a strain on the infrastructure of the federal prison system. The BOP has not been able to expand prison capacity at a rate that would allow it to close older prisons and it has also had to defer hundreds of millions of dollars in maintenance costs, which might result in either direct or indirect security problems.

There are a number of policy avenues lawmakers could consider should Congress choose to address the growth in the federal prison population. Several options—such as expanding the capacity of the federal prison system, continued investment in rehabilitative programs, and placing inmates in private prisons—either continue or expand current correctional policies. However, Congress might also consider changing some existing correctional or sentencing policies as a means of addressing some of the issues related to the growth of the federal prison population. Some of these options include placing some inmates in alternatives to incarceration, such as probation, or expanding early release options by allowing inmates to earn more good time credit or allowing inmates to be placed on parole once again. Congress could consider reducing the amount of time inmates are incarcerated in federal prisons by repealing mandatory minimum penalties for some offenses or reducing the length of the mandatory minimum sentence. Finally, policy makers could consider repealing federal criminal statutes for some offenses.

Recent trends in the federal prison population stand in contrast to overall incarceration trends. The Bureau of Justice Statistics (BJS) reports that the total number of inmates under the jurisdiction of state correctional authorities decreased each year between 2009 and 2012.⁷ However, while the number of state inmates has decreased, the federal prison population has continued to increase, although growth over the past couple of fiscal years has been much slower than it was in the past.

Number of inmates in thousands

Source: Presentation of data provided by the U.S. Department of Justice, Bureau of Prisons.

The following discussion of some of the demographics of federal inmates uses data from the BJS rather than the BOP. BJS data on federal prisoners are only available for FY1998 through FY2011. Therefore, the BJS data cannot be used to show how these select demographics changed since the federal prison population started its sustained growth in the early 1980s. The proceeding discussion is intended to provide context for the discussion later in the report of potential policy options for addressing federal prison population growth.

Despite the increase in the proportion of inmates entering the federal prison system for immigration offenses, drug offenders still constitute the largest portion of inmates entering federal prisons. The proportion of inmates being sent to federal prison for drug offenses has decreased somewhat since FY1998 (when 41% of inmates entering federal prison were convicted for drug offenses). In every fiscal year between FY1998 and FY2011, drug offenders constituted the largest proportion of prison admissions, though in FY2009-FY2011, immigration offenders were a close second. In FY2011, the vast majority of sentenced drug offenders, nearly 99%,¹⁰ were sent to federal prison for trafficking offenses.¹¹

Source: Presentation of data from the U.S. Department of Justice, Bureau of Justice Statistics, Federal Criminal Case Processing Statistics.

Notes: Percentages were calculated excluding offenders whose conviction offense was classified as "unknown."

Source: Presentation of data from the U.S. Department of Justice, Bureau of Justice Statistics, Federal Criminal Case Processing Statistics.

Notes: Percentages were calculated excluding offenders whose sentence was classified as "unknown."

Source: Presentation of data from the U.S. Department of Justice, Bureau of Justice Statistics, Federal Criminal Case Processing Statistics.

Notes: Percentages were calculated excluding offenders whose sentence was classified as "unknown."

A confluence of changes to federal sentencing and correctional policy since the early 1980s—including the expanded use of mandatory minimum penalties, the increased federalization of crime, and the abolition of parole for federal inmates—have contributed to the growing federal prison population. The expanded use of mandatory minimum penalties has resulted in offenders being sentenced to longer terms of imprisonment than they were 20 years ago. At the same time, the expanding federal criminal code, combined with greater enforcement of federal criminal statutes, has resulted in more people entering the federal criminal justice system. Thus, while more offenders are being arrested by federal law enforcement, tried in federal courts, and sentenced to incarceration in federal prisons for increasingly longer periods of time, the abolition of parole ensures that most inmates will serve all or nearly all of their sentences.

In a 2011 report, the United States Sentencing Commission (USSC) found that the enactment of a greater number of federal mandatory minimum sentences has, in part, contributed to the growing federal prison population. Mandatory minimum penalties have contributed to federal prison population growth because they have increased in number, have been applied to more offenses, required longer terms of imprisonment, and are used more frequently than they were 20 years ago.¹²

The number of mandatory minimum penalties in the federal code expanded as Congress made more offenses subject to such penalties. The USSC reported that the number of mandatory minimum penalties in the federal criminal code nearly doubled from 98 to 195 from 1991 to 2011.¹³ Not only has there been an increase in the number of federal offenses that carry a mandatory minimum penalty, but offenders who are convicted of offenses with mandatory minimums are being sent to prison for longer periods. For example, the USSC found that, compared to FY1990 (43.6%), a larger proportion of defendants convicted of offenses that carried a mandatory minimum penalty in FY2010 (55.5%) were convicted of offenses that carried a mandatory minimum penalty of five years or more.¹⁴

While only offenders convicted for an offense carrying a mandatory minimum penalty are subject to those penalties, mandatory minimum penalties have, in effect, increased sentences for other offenders.¹⁵ The USSC has incorporated many mandatory minimum penalties into the sentencing guidelines, which means that penalties for other offense categories under the guidelines had to increase in order to keep a sense of proportionality.¹⁶ Research by the Urban Institute found that increases in expected time served contributed to half of the prison population growth between 1998 and 2010.¹⁷ The increase in amount of time inmates were expected to serve was probably partially the result of inmates receiving longer sentences and partially the result of inmates being required to serve approximately 85% of their sentences after Congress eliminated parole for federal prisoners (this is discussed in greater detail in the "Eliminating Parole for Federal Inmates" section).

However, the increase in the federal prison population is not solely attributable to the increased use of mandatory minimum penalties. The USSC reported that the number of inmates in the federal prison system who were convicted of an offense that carried a mandatory minimum penalty increased 178%, from approximately 40,000 in FY1995 to nearly 112,000 in FY2010.¹⁸ Of these offenders, nearly 30,000 in FY1995 and approximately 80,000 in FY2010 were actually subject to a mandatory minimum penalty.¹⁹ However, over the same time period there was a similar rate of growth in the number of inmates in federal prison who were not convicted of an offense that carried a mandatory minimum. In FY1995, nearly 32,000 inmates in federal prison were convicted of an offense that did not carry a mandatory minimum.²⁰ This increased 152%, to approximately 80,000 inmates, by FY2010.

While the increase in the number of federal criminal statutes carrying a mandatory minimum sentence has contributed to the escalating federal prison population, the USSC also identified the federalization of crime²¹ as another contributing factor to prison population growth. Over the past four decades the federalization of crime resulted in more people entering the federal criminal justice system as federal law enforcement agencies and the U.S. Attorneys Office started to enforce a broader array of federal offenses. The Urban Institute concluded that increased federal law enforcement activity contributed to about 13% of the growth in the federal prison population between 1998 and 2010, though the effects were not consistent across offense types and time.²² For example, heightened immigration enforcement and increased investigation of weapons offenses contributed to approximately one-tenth of the population growth, but the growth in the prison population resulting from investigating more weapons offenses mainly occurred between 1998 and 2005.²³ However, decreased drug investigations reduced the federal prison population from what it might have been assuming that federal law enforcement priorities and practices had remained as they were in 1998.²⁴

Amounts in millions of dollars

Security Level

Fiscal Year

All of BOP

High

Medium

Low

Minimum

2000

$21,603

$26,518

$21,417

$18,407

$17,452

$21,360

2001

22,175

26,135

21,806

18,846

17,788

20,543

2002

22,518

27,456

21,473

19,228

18,770

21,538

2003

23,180

26,461

21,946

19,480

18,136

21,948

2004

23,267

26,951

21,896

19,242

17,647

21,764

2005

23,431

26,377

21,718

19,193

17,478

22,458

2006

24,439

25,398

23,648

20,834

17,291

23,152

2007

24,923

26,109

23,492

21,922

17,812

22,804

2008

25,895

27,924

24,065

23,373

19,635

23,958

2009

27,251

32,119

25,442

24,087

20,772

25,750

2010

28,282

33,858

26,248

25,377

21,005

27,267

2011

28,894

34,629

26,852

26,853

21,286

27,516

2012

29,027

34,046

26,686

27,166

21,694

27,683

2013

29,291

33,887

27,278

27,386

21,960

28,330

Source: U.S. Department of Justice, Bureau of Prisons.

Notes: Per capita costs include support costs. The per capita cost of incarceration for all of BOP includes direct costs for federal detention centers, administrative security facilities, medical referral centers, privately operated institutions, residential reentry centers, and contracts with state and local institutions. It also includes support costs for federal detention centers, administrative security facilities, and medical referral centers.

However, the per capita cost of incarceration decreases as inmates are moved into lower-security level institutions. For example, in FY2013 it cost the BOP approximately $34,000 to house an inmate in a high-security facility. In comparison, it cost the BOP approximately $27,000 to house an inmate in either a medium- or low-security facility and nearly $22,000 to house an inmate in a minimum-security facility. This is partly because lower-security facilities do not require as many correctional officers; hence their operating expenditures are lower. In addition, the rated capacity for a facility decreases as the security level increases, meaning that higher-security facilities hold fewer inmates, which results in a higher per capita cost of incarceration for higher-security facilities. For example, even if the total operating expenditures for a high- and a low-security facility were the same for any given fiscal year, the per capita expenditure in the high-security facility would be greater because it held fewer inmates.

Source: Based on a CRS analysis of data provided by the U.S. Department of Justice, Bureau of Prisons.

Notes: Per capita costs were calculated using figures on the number of inmates held in BOP facilities at the end of the fiscal year.

Number of Inmates per...

Fiscal Year

All BOP Staff

Correctional Officers

2000

4.1

9.9

2001

4.1

9.7

2002

4.3

10.1

2003

4.5

10.5

2004

4.7

10.8

2005

4.9

10.9

2006

4.9

10.6

2007

4.9

10.6

2008

4.9

10.4

2009

4.9

10.6

2010

4.8

9.8

2011

4.9

10.2

2012

4.8

10.0

2013

4.8

9.9

While it might appear somewhat surprising that the BOP would have an inmate-to-correctional officer ratio that was twice the ratio of inmates to staff—especially since the data presented above indicate that state correctional agencies have inmate-to-correctional officer ratios that are much closer to inmate-to-staff ratios—the BOP trains all of its staff as correctional officers, which means that the bureau does not need as many correctional officers to maintain the same level of security as other correctional agencies. For example, in many state prisons it would not be uncommon for a correctional officer to be stationed in a classroom while an instructor was teaching a class. However, since all staff in BOP facilities have been trained as correctional officers, the BOP does not place a correctional officer in classrooms during instructional periods.

A review of BOP staffing levels by the GAO suggests that federal prison facilities might be understaffed. The GAO cites a DOJ study from August 2010 that concluded that nearly all BOP facilities had fewer correctional officers on staff than needed.⁶¹ The GAO noted that with the exception of hiring staff when a new facility opens, the number of staff positions has generally not increased as the prison population has increased, which is reflected by the slow, but relatively steady, increase in the inmate-to-staff ratio (the GAO reported that the inmate-to-staff ratio in FY1997 was 3.6:1).⁶² The GAO reported that staffing in BOP facilities is, on average, less than 90% of authorized levels. The fact that the inmate-to-staff ratio has increased while the inmate-to-correctional officer ratio has remained fairly steady might be the result of the way that wardens make staffing decisions. The BOP funds staffing levels to the extent possible after the costs of caring for the inmate population (e.g., food, clothing, and medical care) are met. A warden might choose to use his or her allotted funding to fill more correctional officers positions while leaving more support staff positions unfilled. The overall inmate-to-staff ratio, which includes staff in the BOP's central office and regional offices, might mask staffing issues experienced by individual facilities. The GAO reported that the BOP calculates a ratio of inmates to institutional staff. From FY2006 to FY2011, the inmate to total institutional staff ratio for all facilities and for all male facilities was approximately 5.2:1. Also, the overall inmate-to-staff and inmate-to-correctional officer ratios do not reflect the fact that those ratios can vary based on the type of institution, the time of day, and the day of the week.⁶³ For example, the inmate-to-correctional officer ratio might be higher in low-security facilities compared to medium- and high-security facilities (though, arguably, this should be expected because lower security inmates should require less supervision). In addition, the inmate-to-correctional officer ratio might be lower during the night shift than during the day shifts.

The GAO also reported that staffing levels might be affected by some identified recruitment challenges the BOP faces. For example, some BOP officials reported that they have had problems with finding enough qualified candidates.⁶⁴ Furthermore, officials have reported problems with hiring professional staff (e.g., psychologists or medical staff) because BOP salaries were less than those paid for similar work in the surrounding community.⁶⁵

Source: Based on a CRS analysis of data provided by the U.S. Department of Justice, Bureau of Prisons.

Notes: Changes in the inmate population is only for inmates incarcerated in BOP facilities, not the total inmate population which would include inmates held in private facilities.

The data also show that in order to bring down either the inmate-to-staff ratio or the inmate-to-correctional officer ratio, there would have to be a significant increase in the BOP's S&E appropriation relative to the growth in the size of the federal prison population.⁶⁶

Both analyses found that TCI had an assault rate that was lower than what would have been expected based on the composition of its inmate populations, but so did two of the other three BOP-operated facilities in the study (the other BOP-operated facility had an assault rate that was similar to what would have been expected). However, random drug testing showed that inmates in TCI were more likely to use drugs than inmates in other BOP facilities. TCI also had two escapes from inside the facility's secure perimeter over a roughly four-year period. In comparison, the BOP had three escapes from a secure prison during the same time period, even though the BOP was operating over 100 facilities at the time.

Research that reviewed the results of state and local efforts to privatize correctional systems generally found that it is questionable whether privatization can deliver lower costs and whether services provided by private prisons are comparable to services provided by public prisons.⁸³ One of the first studies to quantitatively summarize the results of several evaluations of prison privatization efforts found that regardless of whether the prison was privately or publicly operated, the economies of scale, the prison's age, and the prison's security level were the most significant determinants of the daily per diem cost.⁸⁴ The researchers concluded that "[a]lthough specific privatization policy alternatives may result in modest cost savings ... relinquishing the responsibility of managing prisons to the private sphere is unlikely to alleviate much of the financial burden on state correctional budgets."⁸⁵ Their conclusions are echoed by a review of the literature on privatization. In this analysis, the researchers concluded "that prison privatization provides neither a clear advantage nor disadvantage compared with publicly managed prisons. Neither cost savings nor improvements in quality of confinement are guaranteed through privatization."⁸⁶ However, even though both studies limited their analyses to the most methodologically sound evaluations, these evaluations are still limited to the same issues described above, namely, what costs are considered when the evaluators calculated whether privatization could lower correctional costs. As discussed above, these assumptions can have a considerable effect on the results of the evaluation.

Placing more inmates in private facilities could help alleviate overcrowding in federal prisons without the need to invest in a large-scale expansion of federal prison bedspace. Expanding capacity through contracting for additional bedspace rather than building new prisons could give Congress the flexibility to reduce capacity if the federal prison population decreased in the future. However, research suggests that moving federal prisoners into private prisons might not help to control the rising costs of the federal prison system. Also, medium and high security facilities are the most crowded, and the BOP is less inclined to place medium and high security inmates in private facilities. Congress might also consider whether it wants to place a greater portion of the federal prison population in the custody of private operators when the BOP has less direct oversight over the day-to-day operations of private facilities.

Policy makers might also consider whether they want to revise some of the changes that have been made to federal criminal justice policy over the past three decades. A confluence of these changes has resulted in an increasing number of offenders being sent to federal prisons. Should Congress decide to change federal criminal justice policy to try to reduce the number of inmates held in federal prisons, policy makers might start by considering which offenders are incarcerated and the length of their sentences.

As discussed earlier, the USSC concluded that, in part, mandatory minimum penalties have contributed to the growing federal prison population. It might be argued that some or all mandatory minimum penalties should be repealed as a way to manage the growth of the federal prison population. Allowing defendants to be sentenced using the federal sentencing guidelines could allow for more individualized sentencing, thereby allowing the court to mete out punishment using an array of variables that reflect a more nuanced analysis of a defendant's culpability. Opponents of widespread use of mandatory minimum penalties contend that they are a blunt instrument with which to determine a proper sentence. The USSC reported that "certain mandatory minimum provisions apply too broadly, are set too high, or both, to warrant the prescribed minimum penalty for the full range of offenders who could be prosecuted under the particular criminal statute."⁸⁷ Also, to the extent that mandatory minimum penalties have contributed to sentence inflation as a result of the USSC incorporating them into the federal sentencing guidelines, repealing some mandatory minimum penalties might reduce the amount of time inmates serve in federal prison.

Reinstating Parole

Sentence Reduction

• terminal and non-terminal (e.g., the inmate has a serious physical or mental impairment) medical circumstances;
• circumstances for elderly inmates;
• circumstances in which there has been the death or incapacitation of the family member caregiver of an inmate's child; and
• circumstances in which the spouse or registered partner of an inmate has become incapacitated.¹³¹

Before submitting a compassionate release request to the court, the BOP will continue to consider whether an inmate's release would pose a danger to the safety of anyone in the community.¹³² The BOP made changes to its compassionate release policy as a part of the DOJ's "Smart on Crime" initiative.¹³³ Changes to the compassionate release policy were also made in response to an Office of the Inspector General's report that uncovered problems with how the BOP administered the program and critiques from external advocacy groups.¹³⁴

Notwithstanding the changes the BOP recently made to its compassionate release policy, Congress could consider modifications to the requirements for sentence reduction under 18 U.S.C. Section 3582(c)(1)(A) to allow more inmates to have their sentences reduced. For example, Congress could consider allowing courts to consider rehabilitation—either as an extraordinary and compelling reason on its own, or in consort with other reasons—when making determinations about sentence reductions. Expanding the authority of courts to grant a sentence reduction could allow inmates deemed to be a low threat to public safety to be placed in the community earlier, thereby freeing up bedspace in federal prisons.

An inmate granted a sentence reduction could still be required to serve a term of supervised release, which would allow federal probation officers to monitor the inmate after he or she is released, a possible advantage over allowing inmates to be released early by increasing good conduct time. However, it is likely that the judicial branch would require additional resources in order to process more applications for sentence reductions under the program and properly monitor inmates whose sentences were reduced but who were placed on supervised release. Also, there might be a question as to whether this would turn the courts into de facto parole boards. Congress eliminated parole in the federal system, in part, over concerns that inmates were incarcerated for less than an appropriate amount of time and disparities in decisions over who received parole. Under this possible system, inmates could be released before serving a majority of their sentences, but Congress could address this concern by not allowing inmates to be eligible for a sentence reduction until they have served a certain portion of their entire sentence.

A potentially more difficult issue for Congress to address is how judges would make decisions if granted broader authority to reduce sentences under the program. It is possible that an inmate's opportunity to receive a sentence reduction would depend on which judge ruled on the inmate's petition. This concern mirrors some of the concerns that existed about how much sway parole boards held over who was granted parole.

Congress could also consider amending the requirements under 18 U.S.C. Section 3582(c)(1)(A) so that inmates could be released before turning 70. Research indicates that most offenders "age-out" of crime; that is, the older offenders get, the less likely they are to commit new crimes.¹³⁵ It appears likely that more elderly inmates could safely be released from confinement and placed on home confinement for the remainder of their sentences.¹³⁶ However, the data show that granting early release to elderly offenders would only have a minimal effect on prison overcrowding. In FY2011 approximately 15% of federal inmates were over the age of 50 and 4% were over the age of 60.¹³⁷ In addition, while elderly inmates might pose a reduced threat to public safety, there is likely to be some sentiment that any offender, regardless of age and safety risk, should serve his or her entire sentence.

There are other potential amendments to the criminal code Congress could consider if policy makers wanted to potentially reduce the size of the federal prison population. For example, Congress could consider expanding the "safety valve" provision under 18 U.S.C. Section 3553(f). The safety valve provision allows judges to impose a sentence without regard to the mandatory minimum sentences for certain drug offenses¹³⁸ if the following conditions are met:

• The defendant does not have more than one criminal history point, as determined under the sentencing guidelines.
• The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.
• The offense did not result in death or serious bodily injury to any person.
• The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined by the sentencing guidelines, and was not engaged in a continuing criminal enterprise.
• No later than the time of the sentencing hearing, the defendant has truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful or other information to provide or that the government is already aware of the information shall not preclude a determination by the court that the defendant has not complied with the requirements of the provision.

Currently, the safety valve provision cannot be applied to defendants facing a mandatory minimum sentence for an offense that is not drug-related. The safety valve provision was enacted after Congress became concerned that the mandatory minimum sentencing provisions could result in equally severe penalties for both the more and the less culpable offenders.¹³⁹ Congress could consider expanding the provision so that it would apply to defendants facing mandatory minimum sentences for offenses other than drug crimes. This option would allow Congress to retain mandatory minimum penalties that can still be applied to more serious offenders while allowing judges to sentence less serious offenders to shorter periods of incarceration.

One idea put forth is to amend current law so that judges could apply the safety valve in instances where the recommended sentencing guideline range is below the mandatory minimum penalty and where the defendant's offense did not result in death or serious bodily injury to anyone and the defendant has provided the government with all information and evidence available to the defendant.¹⁴⁰ Under the proposal, the defendant could not be sentenced to less than the minimum of the sentencing range calculated under the sentencing guidelines. Many of the conditions placed on the current safety valve provision would remain (e.g., not using violence or possessing a weapon and not being an organizer or leader in the offense), but rather than being a bar from being eligible for the safety valve, they would be factors for the court to consider when deciding whether to sentence a defendant below the mandatory minimum penalty. Judges would be required to state for the record why they chose to impose a sentence below the mandatory minimum penalty, and those decisions would be subject to appellate review. However, as noted above, the USSC has incorporated many mandatory minimum sentences into the sentencing guidelines. Therefore, in some instances the guideline sentence might be equal to or exceed the mandatory minimum penalty, which would render the proposed safety valve provision moot. One possible solution to this conundrum would be to allow the USSC to give due consideration to mandatory minimum penalties when formulating the sentencing guidelines, but not requiring the USSC to make the guidelines consistent with mandatory minimum penalties.¹⁴¹

One of the highlighted reasons for the growth in the federal prison population was the "federalization" of offenses that were traditionally under the sole jurisdiction of state authorities. Policy makers could consider revising the U.S. Code so that federal law enforcement focuses on crimes where states do not have jurisdiction over the offenses or where the federal government is best suited to investigate and prosecute the offenders (e.g., the offense involves multiple individuals acting together to commit crimes across several states). Some crimes will always be federal offenses. For example, the federal government will always be responsible for prosecuting individuals who commit immigration-related offenses because immigration laws are solely the jurisdiction of the federal government. However, over the years the federal government has become more involved in investigating, prosecuting, and incarcerating people who commit drug offenses and offenses where a convicted felon is found to be in possession of a firearm. In many instances, states have criminal penalties for individuals who commit these types of crimes. For example, in his testimony before the House Subcommittee on Crime, Terrorism, and Homeland Security at a hearing on the unintended consequences of mandatory minimum penalties, Eric Sterling, the President of the Criminal Justice Policy Foundation, argued

Appropriations amounts are in thousands of dollars

Appropriations

Prison Population

Prison Facilities

Fiscal Year

Salaries and Expenses

Buildings and Facilities

Total

Institution

Contract

Total

Number

Capacity

Over- crowding

1980

$323,884

$5,960

$329,844

24,268

372

24,640

41

—

—

1981

351,759

10,020

361,779

26,195

118

26,313

43

1982

378,016

56,481

434,497

28,133

2,398

30,531

43

1983

412,133

66,667

478,800

30,214

3,002

33,216

43

1984

464,850

47,711

512,561

32,317

3,478

35,795

43

1985

536,932

86,043

622,975

36,001

4,329

40,330

46

1986

561,480

44,082

605,562

41,506

4,549

46,055

47

1987

656,941

219,249

876,190

44,194

5,184

49,378

47

1988

772,013

297,076

1,069,089

44,142

6,371

50,513

52

1989

962,016

612,914

1,574,930

51,153

6,609

57,762

58

1990

1,138,778

1,511,953

2,650,731

58,021

6,915

64,936

64

1991

1,363,645

374,358

1,738,003

64,131

7,377

71,508

68

42,531

51%

1992

1,649,121

462,090

2,111,211

70,670

9,008

79,678

69

48,527

46%

1993

1,793,470

339,225

2,132,695

79,799

8,766

88,565

72

57,610

39%

1994

1,962,605

269,543

2,232,148

85,850

9,312

95,162

75

64,751

33%

1995

2,319,722

276,301

2,596,023

90,159

10,799

100,958

83

72,039

25%

1996

334,728

2,881,621

94,695

10,748

105,443

86

76,442

24%

1997

435,200

3,183,627

101,091

11,198

112,289

91

83,022

22%

1998

255,133

3,102,910

108,207

14,109

122,316

92

86,051

26%

1999

410,997

3,299,850

117,295

16,394

133,689

94

89,581

31%

2000

556,780

3,667,853

125,560

19,565

145,125

97

94,927

32%

2001

3,469,739

833,822

4,303,561

130,327

26,245

156,572

100

98,425

32%

2002

3,805,118

807,808

4,612,926

137,527

25,909

163,436

102

103,262

33%

2003

4,044,788

396,632

4,441,420

146,212

26,287

172,499

103

105,193

39%

2004

4,414,313

393,515

4,807,828

152,518

27,377

179,895

109

108,537

41%

2005

4,571,385

205,076

4,776,461

159,501

27,893

187,394

116

118,652

34%

2006

4,830,160

99,961

4,930,121

162,514

30,070

192,584

119,510

36%

2007

5,012,433

432,425

5,444,858

167,323

32,697

200,020

114

122,189

37%

2008

5,346,740

372,720

5,719,460

165,964

35,704

201,668

114

122,366

36%

2009

5,600,792

575,807

6,176,599

172,423

36,336

208,759

115

125,778

37%

2010

6,106,231

99,155

6,205,386

173,289

36,938

210,227

116

126,713

37%

2011

6,282,410

98,957

6,381,367

177,934

39,834

217,768

117

127,795

39%

2012

6,551,281

90,000

6,641,281

177,556

41,131

218,687

118

128,359

38%

2013

6,349,248

95,356

6,444,604

176,849

42,449

219,298

119

129,726

36%

2014

6,769,000

90,000

6,859,000

—

—

—

—

—

—

Source: U.S. Department of Justice, Bureau of Prisons.

Appropriations in thousands of dollars

Salaries and Expenses

Buildings and Facilities

Fiscal Year

Inmate Care and Programs

Institution Security and Administration

Contract Confinement

Management and Administration

New Construction

Modernization and Repair

1999

$1,090,148

$1,401,349

$255,062

$142,249

$322,963

$88,034

2000

1,123,856

1,494,809

344,773

147,635

441,003

115,777

2001

1,208,480

1,601,518

511,579

148,162

710,816

123,006

2002

1,311,335

1,722,567

620,145

151,071

675,040

132,768

2003

1,454,481

1,868,538

567,365

154,404

262,956

133,676

2004

1,624,308

2,050,417

574,473

165,115

177,620

164,000

2005

1,682,656

2,094,917

627,135

166,677

25,372

179,704

2006

1,740,011

2,227,223

683,031

179,895

48,115

51,846

2007

1,774,048

2,297,055

757,851

183,479

368,875

63,550

2008

1,942,077

2,409,112

814,529

181,022

302,720

70,000

2009

2,070,002

2,495,196

840,933

194,661

465,180

110,627

2010

2,215,992

2,708,651

981,112

200,476

25,386

73,769

2011

2,294,174

2,783,664

996,772

207,800

25,335

73,622

2012

2,421,272

2,880,290

1,040,213

209,506

23,035

66,695

2013

2,424,620

2,717,938

1,017,297

189,393

23,649

71,707

2014

2,525,039

2,966,364

1,074,808

202,789

22,852

67,148

Source: U.S. Department of Justice, Bureau of Prisons.

Footnotes

E. Ann Carson and Daniela Golinelli, Prisoners in 2012: Trends in Admissions and Releases, 1991-2012, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 243920, Washington, DC, December 2013, p. 39.

Data provided by the U.S. Department of Justice, Bureau of Prisons.

U.S. Department of Justice, Bureau of Prisons, About the Bureau of Prisons, p. 1, hereinafter "About the Bureau of Prisons."

Ibid.

Ibid.

The number of inmates under the jurisdiction of state correctional authorities in 2009 was 1,407,369; in 2010 it was 1,404,032; in 2011 it was 1,382,421; and in 2012 it was 1,353,198. E. Ann Carson and Daniela Golinelli, Prisoners in 2012—Advanced Counts, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 242467, Washington, DC, July 2013, p. 2.

Contract facilities include bedspace the BOP contracts for in privately operated prisons, Residential Reentry Centers (i.e., halfway houses), and state and local correctional facilities.

Public order offenses include tax law violations; bribery; perjury; national defense; escape; racketeering and extortion; gambling; liquor; mailing or transporting of obscene materials; traffic; migratory birds; conspiracy, aiding and abetting, and jurisdictional offenses; violations of regulatory laws and regulations in agriculture, antitrust, labor law, food and drug, motor carrier, and other regulatory offenses.

Data downloaded from U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal Criminal Case Processing Statistics, http://bjs.ojp.usdoj.gov/fjsrc/index.cfm.

"Trafficking offenses" include an offense where an offender knowingly and intentionally imported or exported any controlled substance in schedule I, II, III, IV, or V (as defined by 21 U.S.C. §812). It includes manufacturing, distributing, dispensing, selling, or possessing with intent to manufacture, distribute, or sell a controlled substance or a counterfeit substance; exporting any controlled substance in schedules I-V; manufacturing or distributing a controlled substance in schedule I or II for purposes of unlawful importation; or making or distributing any punch, die, plate, stone, or any other thing designed to reproduce the label upon any drug or container, or removing or obliterating the label or symbol of any drug or container. It also includes knowingly opening, maintaining or managing any place for the purpose of manufacturing, distributing, or using any controlled substance (for example, 19 U.S.C. §1590; 21 U.S.C. §§333(e), 825(a)-(d), 830(a), 841(a)-(b) (d)(e)(g), 842(a), 843(a)(b), 845, 846, 848, 854, 856, 858, 859(a)(b), 860(a), 861(c)(f), 952(a)(b), 953(a)(e), 957, 959, 960(a)(b)(d), 961, 962, and 963; and 46A U.S.C. §§1903(g) and (j)). U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 2004, NCJ 213476, Washington, DC, December 2006, p. 119, http://www.bjs.gov/content/pub/pdf/cfjs04.pdf.

U.S. Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, Washington, DC, October 2011, p. 63, hereinafter "Mandatory Minimum Penalties in the Federal Criminal Justice System."

Ibid., pp. 71-72.

Ibid., p. 76.

Erik Luna and Paul G. Cassell, "Mandatory Minimalism," Cardozo Law Review, vol. 32, no. 1 (September 2010), pp. 16-17; James E. Felman, on behalf of the American Bar Association, statement before the United States Sentencing Commission in the Hearing on Mandatory Minimums, May 27, 2010, p. 9, hereinafter "Felman testimony."

Ibid.

Kamala Mallik-Kane, Barbara Parthasarathy, and William Adams, Examining Growth in the Federal Prison Population, 1998 to 2010, The Urban Institute, Washington, DC, September 2012, p. 10, hereinafter "Examining Growth in the Federal Prison Population."

The USSC limited its analysis of the number of inmates in federal prisons who were convicted of or subject to a mandatory minimum penalty to FY1995-FY2010 because the commission's analysis relied on combining USSC data with BOP data and there were limitations with the data prior to FY1995. Mandatory Minimum Penalties in the Federal Criminal Justice System, p. 81.

Even though a defendant might be convicted for an offense that carries a mandatory minimum penalty there are mechanisms whereby the court may impose a term of imprisonment that is below the mandatory minimum (i.e., the defendant can be convicted for an offense carrying a mandatory minimum penalty, but the defendant is not subject to a mandatory minimum penalty when sentenced). For example, under 18 U.S.C. §3553(e), the court "[u]pon motion of the Government…shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." Section 3553(e) also requires the sentence to be imposed in accordance with the federal sentencing guidelines.

Mandatory Minimum Penalties in the Federal Criminal Justice System, p. 82.

The USSC defined "federalization of crime" as the transformation of traditional state and local criminal offenses into federal crimes. Ibid., p. 63.

Examining Growth in the Federal Prison Population, p. 10.

Ibid.

Ibid., p. 11.

Each prisoner serving a term of imprisonment of more than one year, but not prisoners serving a life sentence, can receive a good time credit of up to 54 days per year to count toward serving the sentence. The amount of the credit is subject to the determination of the BOP. 18 U.S.C. §3624(b).

For a more in-depth analysis of the BOP's appropriations, see CRS Report R42486, The Bureau of Prisons (BOP): Operations and Budget, by [author name scrubbed].

U.S. Congress, Senate Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Departments of Commerce and Justice, and Science, and Related Agencies Appropriations Bill, 2013, report to accompany S. 2323, 112^th Cong., 2^nd sess., April 19, 2012, S.Rept. 112-158 (Washington: GPO, 2012), p. 64.

U.S. Congress, House Committee on Appropriations, Omnibus Appropriations Act, 2009, committee print, 111^th Cong., 1^st sess., March 2009 (Washington: GPO, 2009), p. 274.

Ibid. See also, U.S. Congress, House Committee on Appropriations, Departments of Transportation and Housing and Urban Development, and Related Agencies Appropriations Act, 2010, Conference Report to Accompany H.R. 3288, 111^th Cong., 1^st sess., December 8, 2009, H.Rept. 111-366 (Washington: GPO, 2009), p. 671; U.S. Congress, Senate Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Departments of Commerce and Justice, and Science, and Related Agencies Appropriations Bill, 2013, report to accompany S. 2323, 112^th Cong., 2^nd sess., April 19, 2012, S.Rept. 112-158 (Washington: GPO, 2012), p. 65.

U.S. Department of Justice, Bureau of Prisons, FY2015 Performance Budget, Congressional Submission, Salaries and Expenses, pp. 25, 29, and 45; hereinafter, "BOP's FY2015 S&E Budget Justification."

Data provided by the Bureau of Prisons.

Alex Nussbaum, "Health Care Costs Rise Faster Than U.S. Inflation Rate," Bloomberg, May 21, 2012 (article on file with author).

BOP's FY2015 S&E Budget Justification, p. 23.

See 18 U.S.C. §3624(f)(1) and 18 U.S.C. §3624(b)(3).

Each prisoner serving a term of imprisonment of more than one year, but not prisoners serving a life sentence, can receive a good time credit of up to 54 days per year to count toward serving the sentence. The amount of the credit is subject to the determination of BOP. 18 U.S.C. §3624(b).

BOP's FY2015 S&E Budget Justification, p. 30.

"Residential substance abuse treatment" is defined as a course of individual and group activities and treatment, lasting at least six months, in residential treatment facilities set apart from the general prison population (which may include pharmacotherapies, where appropriate) that may extend beyond the six-month period. 18 U.S.C. §3621(e)(5)(A).

"Aftercare" is defined as placement, case management, and monitoring in a community-based substance abuse treatment program when the prisoner leaves the custody of BOP. 18 U.S.C. §3621(e)(5)(C).

An "eligible prisoner" is defined as a prisoner who is determined by BOP to have a substance abuse problem and to be willing to participate in a residential substance abuse treatment program. 18 U.S.C. §3621(e)(5)(B).

The following categories of inmates are not eligible for early release: (1) Immigration and Customs Enforcement detainees; (2) pretrial inmates; (3) contractual boarders (for example, District of Columbia, state, or military inmates); (4) inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses; (5) inmates who are not eligible for participation in a community-based program as determined by the institution's warden on the basis of his or her professional discretion; or (6) inmates whose current offense is a felony. 28 C.F.R. §550.55.

In the conference report for the Consolidated and Further Continuing Appropriations Act, 2012 (i.e., the "minibus," P.L. 112-55), the conferees expressed concern that "the current upward trend in the prison inmate population is unsustainable and, if left unchecked, will eventually engulf the [Department of Justice's] budgetary resources." U.S. Congress, House of Representatives, Agriculture, Rural Development, Food and Drug Administration, and the Related Agencies Programs for the Fiscal Year Ending September 30, 2012, and for Other Purposes, Conference Report to Accompany H.R. 2112, 112^th Cong., 1^st sess., November 14, 2011, H.Rept. 112-284 (Washington, DC: GPO, 2011), p. 241.

Rated capacity, as calculated by the BOP, assumes some level of double bunking (i.e., two inmates to a cell) across the federal prison system. The amount of double bunking allowed depends on the facility's security level (i.e., minimum, low, medium, or high). The BOP calculates each facility's rated capacity using the following formulas: minimum and low security institutions at 100 percent double bunking; medium security institutions at 50 percent double bunking and; high security institutions at 25 percent double bunking. For example, if a high security facility had 500 cells, the facility's rated capacity would be 625 inmates. The rated capacity is intended to reflect the number of prisoners that the institution can house safely and securely with adequate access to services and rehabilitative programs.

This decision unit provides for the costs associated with the confinement of federal inmates in contract facilities, which include private prisons, residential re-entry centers, state and local facilities, and home confinement. It provides funding for the management and oversight of contract confinement functions. The decision unit also provided funding for the National Institute of Corrections.

This decision unit covers the cost of inmate food, medical supplies, institutional and release clothing, welfare services, transportation, gratuities, staff salaries, and operational costs of functions directly related to providing inmate care. It provides funding for inmate programs, including education and vocational training, psychological services, religious programs, and drug treatment. All of the drug treatment programs discussed above are funded from this decision unit. The decision unit also covers costs associated with regional and central office administration and support related to providing inmate care.

This decision unit covers costs associated with the maintenance of facilities and institution security. It funds institution maintenance, motor pool operations, powerhouse operations, institution security and other administrative functions. The decision unit also covers costs associated with regional and central office administrative and management support functions such as research and evaluation, systems support, financial management, budget functions, safety, and legal counsel.

Travis W. Franklin, Courtney A. Franklin, and Travis C. Pratt, "Examining the Empirical Relationship Between Prison Crowding and Inmate Misconduct: A Meta-analysis of Conflicting Research Results," Journal of Criminal Justice, vol. 34, no. 4 (July-August 2006), p. 401, hereinafter "Examining the Empirical Relationship Between Prison Crowding and Inmate Misconduct."

Ibid., pp. 407-408.

U.S. Department of Justice, Bureau of Prisons, The Effects of Changing Crowding and Staffing Levels in Federal Prisons on Inmate Violence Rates, Executive Summary, October 2005, hereinafter "The Effects of Changing Crowding and Staffing Levels in Federal Prisons on Inmate Violence Rates."

John Wooldredge, Timothy Griffin, and Travis Pratt, "Considering Hierarchical Models for Research on Inmate Behavior: Predicting Misconduct with Multilevel Data," Justice Quarterly, vol. 18, no. 1 (March 2001), p. 212.

Benjamin Steiner and John Wooldredge, "Rethinking the Link Between Institutional Crowding and Inmate Misconduct," The Prison Journal, vol. 89, no. 2 (June 2009), pp. 227-228.

U.S. Government Accountability Office, Bureau of Prisons: Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure, GAO-12-742, September 2012, p. 18, hereinafter "GAO prison crowding report."

Ibid., p. 19.

Ibid., pp. 19-20.

Ibid., pp. 20-21.

18 U.S.C. §3624(b)(1).

For more information on changes in how executive branch agencies procure goods produced by the FPI and the number of inmates working in FPI factories, see CRS Report RL32380, Federal Prison Industries: Overview and Legislative History, by [author name scrubbed].

"Staff" includes all employees of a facility whereas "correctional officers" only include employees whose primary duties are to supervise inmates.

James J. Stephen, Census of State and Federal Correctional Facilities, 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 222182, Washington , DC, October 2008, p. 5.

Ibid., p. 22.

GAO prison crowding report, p. 23.

Ibid., p. 22.

Ibid. pp. 23-24.

Ibid., p. 22.

Ibid.

For more information on how the BOP's appropriations are split between decision units and what funding under those decision units is used for, see CRS Report R42486, The Bureau of Prisons (BOP): Operations and Budget, by [author name scrubbed].

The Effects of Changing Crowding and Staffing Levels in Federal Prisons on Inmate Violence Rates.

U.S. Department of Justice, Bureau of Prisons, FY2015 Performance Budget, Congressional Submission, Buildings and Facilities, p. 9.

Ibid., pp. 9-10.

Ibid., pp. 23-24.

Ibid., p. 26.

BOP's FY2015 S&E Budget Justification, p. 3.

Doris Layton MacKenzie, What Works in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (New York: Cambridge University Press, 2006), pp. 331-333, hereinafter, "What Works in Corrections."

For more information on the BOP's rehabilitative programs see CRS Report R41525, Federal Prison Inmates: Rehabilitative Needs and Program Participation, by [author name scrubbed].

Steve Aos, Marna Miller, and Elizabeth Drake, Evidence-based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates, Washington State Institute for Public Policy, Olympia, WA, October 2006.

The conference report (H.Rept. 104-863) for the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208) incorporates, by reference, language from the Senate report (S.Rept. 104-353) to accompany the Senate committee-reported version of H.R. 3814 (104^th Congress), that requires the BOP to undertake "a 5-year prison privatization demonstration project" involving the facility that the BOP built in Taft, CA.

The Taft Correctional Institution is still operating as a private facility. After the contract with the Geo Group expired in 2007, the contract was recompeted and it was awarded to Management and Training Corporation.

The three similar facilities included in the evaluation were FCI Yazoo City, FCI Elkton, and FCI Forrest City.

Gerry Gaes, "Cost, Performance Studies Look at Prison Privatization," NIJ Journal , no. 259 (March 2008), p. 33.

Ibid.

"Economies of scale" generally refers to the increase in efficiency of production that accompanies expanded production. In economic terms, this means that the average cost of the good produced decreases and production increases because fixed costs are shared over an increased number of goods. In terms of the BOP evaluation of TCI, "economies of scale" would refer to the decreased per prisoner costs resulting from spreading the prison's operating costs over a greater number of inmates.

Ibid., p. 34.

Travis C. Pratt and Jeff Maahs, "Are Private Prisons More Cost-effective Than Public Prisons? A Meta-analysis of Evaluation Research Studies," Crime and Delinquency, vol. 45, no. 3 (July 1999), pp. 358-371; Dina Perrone and Travis C. Pratt, "Comparing the Quality of Confinement and Cost-effectiveness of Public Versus Private Prisons: What We Know, Why We Do Not Know More, and Where to Go From Here," The Prison Journal, vol. 83, no. 3 (September 2003), pp. 301-322; Brad W. Lundahl, Chelsea Kunz, and Cyndi Brownell, et al., "A Meta-analysis of Cost and Quality of Confinement Indicators," Research on Social Work Practice, vol. 19, no. 4 (July 2009), pp. 383-394.

Travis C. Pratt and Jeff Maahs, "Are Private Prisons More Cost-effective Than Public Prisons? A Meta-analysis of Evaluation Research Studies," Crime and Delinquency, vol. 45, no. 3 (July 1999), p. 367.

Ibid., pp. 367-368.

Brad W. Lundahl, Chelsea Kunz, and Cyndi Brownell, et al., "A Meta-analysis of Cost and Quality of Confinement Indicators," Research on Social Work Practice, vol. 19, no. 4 (July 2009), p. 392.

Mandatory Minimum Penalties in the Federal Criminal Justice System, p. 345.

543 U.S. 220 (2005).

552 U.S. 38 (2007).

552 U.S. 85 (2007).

Erik Luna and Paul G. Cassell, "Mandatory Minimalism," Cardozo Law Review, vol. 32, no. 1 (September 2010), p. 11.

Mandatory Minimum Penalties in the Federal Criminal Justice System, p. 368.

What Works in Corrections, p. 304.

Ibid.

Ibid., p. 306.

Ibid., p. 318.

A class A felony is an offense where the maximum term of imprisonment authorized is life imprisonment or death. A class B felony is an offense where the maximum term of imprisonment authorized is 25 years or more. 18 U.S.C. §3559(a).

18 U.S.C. §3561(a).

Ibid., p. 519.

Administrative Office of the U.S. Courts, "Supervision Costs Significantly Less than Incarceration in Federal System," July 18, 2013 (document on file with author).

Joan Petersilia, "Community Corrections: Probation, Parole, and Prisoner Reentry," in Crime and Public Policy, ed. James Q. Wilson and Joan Petersilia (New York: Oxford University Press, 2011), pp. 521-522, hereinafter, "Community Corrections: Probation, Parole, and Prisoner Reentry."

Ibid., p. 522.

Ibid.

Kevin McEvoy, "HOPE: A Swift and Certain Process for Probationers," NIJ Journal, no. 269 (March 2012), p. 17.

Community Corrections: Probation, Parole, and Prisoner Reentry, p. 524.

Sam Dolnick, "As Escapees Stream Out, a Penal Business Thrives," New York Times, June 17, 2012, p. A1.

Ibid., p. A16.

Sam Dolnick, "Poorly Staffed, a Halfway House in New Jersey is Mired in Chaos," New York Times, June 18, 2012; Sam Dolnick, "At Penal Unit, A Volatile Mix Fuels a Murder," New York Times, June 19, 2012.

The RRCs were located in Denver, CO; Leavenworth, KS; El Paso, TX; Boston, MA; Washington, DC; and Kansas City, MO.

U.S. Department of Justice, Office of the Inspector General, Audit of the Federal Bureau of Prisons' Contracting for and Management of Residential Reentry Centers, Audit Report 12-20, Washington, DC, March 2012, p. 5.

The Statement of Work (SOW) for RRCs is the primary document that outlines all of the BOP's requirements for contractors operating RRCs. The SOW requires RRCs to develop individualized program plans for each inmate that focus on, when applicable, reestablishing relationships with family, obtaining and maintaining employment, obtaining drug and alcohol abuse treatment, and finding housing. At the same time each RRC must: (1) be able to locate and verify the whereabouts of inmates at all times; (2) establish an surveillance program to deter and detect the illegal introduction of drugs and alcohol into the facility; (3) effectively discipline inmates; and (4) prepare and maintain required documentation. Ibid., p. 3.

RRCs are required to randomly test at least 5% of all inmates for drugs and alcohol monthly, with a minimum of one inmate tested per month. In addition, an inmate with a known history of drug abuse, or who is suspected of illegal drug use, must be tested no less than four times per month. RRCs are also required to give inmates a breathalyzer test every time they return from an unsupervised activity. Ibid., pp. 7-8.

The OIG notes that there are three types of escapes: regular, technical new, and technical old. "Regular" escapes most closely fit the definition of what most would consider an escape. A regular escape is when an inmate fails to remain in RRC custody by (1) not reporting to the facility for admission at the scheduled time; (2) not remaining at the approved place of employment, training, or treatment during the hours specified by the terms of the employment, training, or treatment program; (3) not returning to the facility at the time prescribed; (4) not returning from an authorized furlough or pass at the time and place stipulated; (5) not abiding by conditions of employment, or curfew conditions of home confinement; or (6) leaving the facility without the permission of RRC staff. "Technical new" escapes occur when an inmate fails to remain in the RRC's custody by being arrested for a new charge. "Technical old" escapes occur when an inmate fails to remain in the RRC's custody by being arrested for an outstanding warrant while residing at a RRC. Of the escapes reported in the OIG's report, 75.3% were regular escapes, 12.7% were technical new escapes, and 11.9% were technical old escapes. Ibid. p. 15.

RRCs can only authorize an inmate to leave for approved activities, including job searches, employment, religious services, and visitations with family and friends. Other than for employment or programming activities, such as drug abuse counseling, an inmate must generally be at the RRC facility from 9:00 p.m. to 6:00 a.m., unless the director has granted an exemption. RRCs are allowed to grant passes or furloughs to release inmates overnight or to travel distances of more than 100 miles. Ibid., pp. 18-19.

Funding for this program was discontinued after FY2004.

Data provided by the U.S. Department of Justice, Bureau of Prisons.

For more information on how inmates are processed through the federal prison system, see CRS Report R42486, The Bureau of Prisons (BOP): Operations and Budget, by [author name scrubbed].

Federal inmates who are eligible for parole (i.e., inmates sentenced before November 1, 1987) can be released after serving one-third of their sentences (if sentenced to a term of incarceration greater than one year) or after 10 years if sentenced to life or a term or incarceration over 30 years. However, the sentencing court could designate a minimum term of imprisonment the defendant would have to serve before being eligible for parole. The minimum term of imprisonment designated by the court could be less, but not more, than one-third of the sentence imposed. The sentencing court could also fix the maximum sentence to be served, at which point the inmate could be released on parole. 18 U.S.C. §§4205(a) and 4205(b), as it was in effect before being repealed by §218(a) of P.L. 98-473.

Data provided by the U.S. Department of Justice, Bureau of Prisons.

Patrick A. Langan and David J. Levin, United States Department of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994, Report NCJ193427, June 2002. For a summary of this study and other studies on recidivism, see CRS Report RL34287, Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, by [author name scrubbed].

Doris Layton MacKenzie, What Works in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (New York: Cambridge University Press, 2006), p. 310.

Ibid.

Community Corrections: Probation, Parole, and Prisoner Reentry, p. 524.

Doris Layton MacKenzie, What Works in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (New York: Cambridge University Press, 2006), p. 318.

18 U.S.C. §3624(b)(1).

18 U.S.C. §3621(e)(2)(B).

Dora Schriro, "Is Good Time a Good Idea? A Practitioner's Perspective," The Federal Sentencing Reporter, vol. 21, no. 3 (February 2009), p. 181.

28 U.S.C. §994(t).

Stephen R. Sady, "Second Look Resentencing under 18 U.S.C. §3582(c) as an Example of Bureau of Prisons Policies That Result in Overincarceration," Federal Sentencing Reporter, vol. 21, no. 3 (February 2009), p. 167.

U.S. Department of Justice, Bureau of Prisons, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g), Program Statement 5050.49, p. 1.

Rafael Lemaitre, Real #DrugPolicyReform: DOJ's New Criteria on Compassionate Release Requests, Executive Office of the President, Office of National Drug Control Policy, August 12, 2013 (document on file with the author).

Ibid.

The DOJ's "Smart on Crime" initiative is a "comprehensive review of the criminal justice system aimed at ensuring federal laws are enforced more fairly, and federal resources are used more efficiently, by focusing on top law enforcement priorities." Ibid.

Ibid.

Lindsey Devers, Desistance and Developmental Life Course Theories: Research Summary, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, Washington, DC, November 9, 2011, p. 7.

Under §231(g) of the Second Chance Act of 2007 (P.L. 110-199), the BOP was directed to conduct a pilot program in FY2009 and FY2010 whereby eligible inmates would be placed on home confinement for the remainder of their sentences. Inmates eligible to participate in the pilot program were 65 or older; non-violent or non-sex offenders; not serving a life sentence; severed the greater of 10 years or 75% of their sentences; did not have a history of escape or escape attempts; and were determined to not be at risk for recidivism. The Government Accountability Office (GAO) reported that of the 855 inmates who applied for the pilot program, 71 (8.3%) were determined by the BOP to have met the criteria for the program and were eventually placed on home confinement. The GAO noted that as of June 2012, none of the inmates placed on home confinement had recidivated or violated the terms of release. However, the BOP reported that it did not save any money by placing elderly inmates on home confinement; in fact, the BOP reported that it cost approximately $540,000 more to place the inmates on home confinement. The GAO contends that the BOP's conclusions might not be a reliable indicator of the potential cost of the program should it be continued or expanded. First, while the BOP knows what it paid RRCs to monitor inmates placed on home confinement, the BOP does not know the exact cost of home confinement. The BOP negotiates with RRCs to provide supervision of inmates placed on home confinement. RRCs are paid a per diem rate to house an inmate and they are paid 50% of the per diem rate to supervise an inmate placed on home confinement. However, the BOP does not require RRC contractors to separate the cost of home confinement services and RRCs bedspace, so the BOP does not actually know the cost of home confinement. Second, some of the costs of the pilot program would have been incurred regardless because the BOP is currently authorized to place all of the inmates in the program on home confinement for up to six months. Government Accountability Office, Federal Bureau of Prisons: Methods for Estimating Incarceration and Community Corrections Costs and Results of the Elderly Offender Pilot, GAO-12-807R, Washington, DC, July 27, 2012.

These offenses are trafficking in various controlled substances (21 U.S.C. §841), possession of certain controlled substances (21 U.S.C. §844), attempt or conspiracy to violate controlled substance provisions carrying mandatory minimum sentences (21 U.S.C. §846), smuggling controlled substances in violation of 21 U.S.C. §§952, 953, 955, 957, or 959 (21 U.S.C. §960), and attempt or conspiracy to violate the controlled substance import/export provisions (21 U.S.C. §963).

CRS Report R41326, Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions, by [author name scrubbed]. See also U.S. Congress, House Committee on the Judiciary, Mandatory Minimum Sentencing Reform Act of 1994, to accompany H.R. 3979, 103^rd Cong., 2^nd sess., March 24, 1994, H.Rept. 103-460 (Washington: GPO, 1994), p. 2.

Paul G. Cassell and Erik Luna, "Sense and Sensibility in Mandatory Minimum Sentencing," Federal Sentencing Reporter, vol. 23, no. 3 (February 2011), p. 222.

Ibid., p. 225.

Statement of Eric E. Sterling, President of the Criminal Justice Policy Foundation, U.S. Congress, House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Mandatory Minimums and Unintended Consequences, Hearing on H.R. 2934, H.R. 834 and H.R. 1466, 111^th Cong., 1^st sess., July 14, 2009, H.Hrg. 111-48 (Washington: GPO, 2010), pp. 114-115.

E. Ann Carson and Daniela Golinelli, Prisoners in 2012: Trends in Admissions and Releases, 1991-2012, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 243920, Washington, DC, December 2013, p. 42.

Christian Henrichson and Ruth Delaney, The Price of Prisons: What Incarceration Costs Taxpayers, Vera Institute of Justice, New York, NT, January 2012, p. 2.

National Association of State Budget Officers, State Expenditure Report: Examining Fiscal 2011-2013 State Spending, Washington, DC, 2013, p. 56.

Ibid.

Anne Morrison Piehl and Bert Useem, "Prisons," in Crime and Public Policy, ed. Joan Petersilia and James Q. Wilson, 2^nd ed. (New York: Oxford University Press, 2011), p. 542.

Doris Layton MacKenzie, "Reducing the Criminal Activities of Known Offenders and Delinquents: Crime Prevention in the Courts and Corrections," in Evidence-based Crime Prevention, ed. Lawrence W. Sherman, David P. Farrington, Brandon C. Welsh and Doris Layton MacKenzie (New York: Routledge, 2002), p. 337.

Bert Useem and Anne Morrison Piehl, Prison State: The Challenge of Mass Incarceration (New York: Cambridge University Press, 2008), p. 74.