Advice to New Commissioners: The U.S. Sentencing Commission Should Address the Failure of the Bureau of Prisons to Adequately Implement Statutes That Reduce Prison Time

As the Sentencing Commission revives after years without a quorum, a top priority should be to address a statutory duty that has been neglected since the Commission’s inception: the mandatory obligation under 28 U.S.C. § 994(g) to make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences. Since the effective date of the Sentencing Reform Act, the federal prison population has tripled, spurred on by Bureau of Prisons’ policies and practices that stint on or completely abandon ameliorative sentencing statutes. These administrative positions, implemented with no input from the Commission, effectively increase time individuals spend in prison serving Guidelines sentences, often generating unwarranted disparities among similarly situated defendants. With new Commissioners and a new Bureau of Prisons Director, now is the time for the Commission to make eleven recommendations to the BOP to use existing statutory authority to increase community corrections and reduce time in prison. The statutory bases for administrative action by the BOP cover prerelease custody (18 U.S.C. § 3624(c)), the residential drug abuse program (18 U.S.C. § 3621(e)), sentence calculations for pretrial custody credit (18 U.S.C. §§ 3585(b), 3584(a), and 3624(b)), compassionate release (18 U.S.C. § 3582(c)(1)(A)(i)), the boot camp, or shock incarceration, program (18 U.S.C. § 4046(a) and 28 C.F.R. § 524.31(b)), and earned time credits under the First Step Act (18 U.S.C. §§ 3632(d) and 3624(g)). Each of the proposed statutorily-based recommendations will ameliorate the overuse of prison while promoting rehabilitation and saving taxpayer money.