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Despite DOJ Announcement, The Federal Prison Population Will Grow

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Attorney General Eric Holder's announcement at the American Bar Association conference in San Francisco made news when people interpreting his remarks believed that the trend of growing America's prison population had come to an end.  It did sound like that.  According to The Guardian, Holder said, "Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason," he said, adding later: "We cannot simply prosecute or incarcerate our way to becoming a safer country."  While that may sound like it will reduce the federal prison population, that simply is not going to happen.

The Department of Justice's position is that it is going to move away from counting the number of pounds of drugs found on a defendant who is not a member of a gang and not in possession of a weapon.  That way of prosecution, by weight, is the same used in white-collar crime when the Feds go for dollars instead of pounds.  The fact is, long prison terms and increasing rates of incarceration at the federal level will remain with us for some time to come no matter today's announcement.

First, there is a lot of money in incarcerating people ... and it is hard to take that money away.  Congressmen have promised and delivered thousands of jobs to their respective districts by opening prisons.  The most recent one, a women's prison in Aliceville, AL cost over $250 million and is hauling women in to fill its cells.  Another men's prison opened recently in Berlin, NH, amid boasts of job fairs and prison tours.  Fewer prisoners would mean fewer people watching, feeding and counseling prisoners ... fewer jobs.   It is not like one can re-purpose a prison into, say, daycare or subsidized housing.  The private sector is cashing in on prison as well, with private prison company The GEO Group announcing just last week, "strong quarterly earnings", along with announcing an expected increase in its quarterly dividends.  That does not sound like a company expecting a downturn.

Second, federal prosecutors make a name for themselves by bringing cases that make the biggest headlines ... and headlines are made with long prison terms.  Rudolph Guiliani did not become U.S. attorney for the Southern District of New York so that he could become famous by putting criminals on probation.  He wanted them to go to jail.  The longer the prison term, the more press coverage, the better it looks on the resume.  Those resumes come in handy when prosecutors switch to defending the same folks they worked so hard to put away.   Prosecutors are not going to stop going for the cases that result in long prison terms, they are just going to have to work a little harder to get them ... and they will get them.

Third, even if an inmate's prison term is reduced, there is not enough existing halfway house facilities to take the inmates.  Once an inmate is released from federal prison, he/she is assigned to a transition facility known as a halfway house prior to earning real freedom.  Those last few months of the prison sentence at the halfway house are used to get a job and to reintegrate into society.  This transition period is such a great idea that Congress' Second Chance Act of 2008 allowed the Bureau of Prisons to give an inmate up to one year in a halfway house.  However, most inmates are getting only a few months, with the exception being those enrolled in the Residential Drug Abuse Program (RDAP), which mandates a 6-month stay in a halfway house.  That same RDAP program is supposed to knock a year off of an inmate's prison term, but due to overcrowding, most are getting less time than that off of their sentence.  It should be noted that since the Second Chance Act was signed by President Bush in 2008, the federal inmate population has increased by over 10,000.

Fourth, when lower prison terms are offered to first time non-violent offenders, there will be less incentive for one defendant to snitch on another.  As it stands now, telling on another person for their involvement in a drug crime in order to get a lower sentence is understandable when facing a decades in prison.  However, for 3-5 years, a paltry sentence for a drug crime, it might serve a person better to keep quiet and serve the time in order to live a "quieter" life when they return home.  This could result in people actually going to prison longer than they would have had they cooperated against others.

For federal inmates across the country, hope springs eternal and the news made for a quicker day behind bars.  However, those inmates should not be making plans for that return home anytime soon, particularly those white-collar felons who were not even mentioned in Holder's remarks.  There is just no quick solution to this problem that was launched decades ago as an initiative to curtail drug use but has instead become a money-making operation masked by the ruse that we are all more safe.

The only thing Holder's statement made was a big headline ... and that's something the DOJ has done well.