The federal prison system’s history, from its founding to the present, has been marked with years of corruption and cycles of violence, perpetuated onto incarcerated people, their families, and their communities. While some progressive legislation has been passed to improve conditions, federal prisons remain a stain on the United States’ criminal justice system. The Bureau of Prisons utilizes its $7.7B budget on a deeply flawed system with high rates of recidivism. It’s time to reevaluate the federal government’s role in criminal justice and shrink the federal prison system.
1787-1890: The Foundation of the Federal Government
When the Founders signed the Constitution, only three federal crimes existed: treason, piracy, and counterfeiting. By 1790, the first federal criminal law, the Crimes Act, passed, expanding to 17 federal crimes. Over 200 years later, the number of federal crimes is estimated to be at 4,500. Prior to the establishment of federal prisons, U.S. marshals utilized state prisons. This was possible due to the minimal number of people convicted of federal crimes.
1891-1979: The Establishment of the Federal Prison System and its Labor Practices
In 1891, Congress established the federal prison system with the “Three Prisons Act”, thus creating and funding three federal prisons: USP Atlanta (1902), USP Leavenworth, and USP McNeil Island (1890). Of the three, USP Atlanta and USP Leavenworth still operate today. Over the course of 30 years, the number of federal prisons rapidly rose, partially due to the 1920s era of Prohibition. Originally, the Department of Justice had direct oversight on the federal prison system. This changed in 1930 when Congress established the Federal Bureau of Prisons in an effort to centralize and professionalize its services.
A key aspect of daily life in prison is work. In 1934, the Federal Prison Industries, also known as UNICOR, was established to provide people with employment while incarcerated. The program is meant to prepare incarcerated people for release, as well as to teach career-building skills. UNICOR wages range from 23 cents to $1.15 per hour. UNICOR factories produce numerous items for the federal government, including but not limited to: military uniforms, mattresses, and office equipment. Non-UNICOR jobs, also known as compound jobs, typically range from $5.25 to $54 per month for full-time work. Often, UNICOR work is preferred due to its relatively higher pay.
By the time the Prison Rehabilitation Act of 1965 became law, labor in prisons had been established for 30 years. It expanded the freedoms of incarcerated people through furloughs, work release programs, and community centers. Prison labor still remains in the 21st century and is seen as an exploitative practice where corporations and governments make billions of dollars off of forced labor.
1980-1999: The Era of Over Federalization
Until 1980, the federal prison population had consistently remained around 24,000 people for decades. Although former President Nixon coined the term “the War on Drugs”, it was the start of the Reagan administration that opened the floodgates on mass incarceration. Elected officials and law enforcement pushed for stronger enforcement, intense sentencing guidelines, and other policies in an effort to be “tough on crime”. This is most evident in the prison population growth: a 333% jump from ~24,000 to ~105,000. Furthermore, nearly 60% of the federal prison population was sentenced for a drug-related offense by 1997.
Another contributor to the over-federalization of crime lies within the Commerce Clause, allowing Congress to regulate interstate commerce. This elevates regular state crimes to federal status if deemed related to interstate commerce. In this modern age, many state crimes, such as carjacking and robbery, can be considered federal crimes.
Over the next two decades, Congress passed multiple pieces of legislation with a significant impact on the criminal justice system. In 1984, the Comprehensive Crime Control Act became law. This law ended parole, created new Federal crimes, reduced good time credit, and reinstated the death penalty. Mandatory minimum sentencing was also implemented three separate times within the decade.
The era of mass incarceration was only further fueled by the 1994 Crime Bill: legislation notorious for its punitive measures and disparate impact on African American communities. Some measures include the expansion of death penalty crimes, the “three strikes” life sentence mandate, increased funding for law enforcement and prisons, ban of certain assault weapons, and creation of new federal crimes. As the largest criminal justice bill ever passed, its devastating impact is still felt today through incredibly long sentences.
While the over-criminalization of the federal system affected many, women and communities of color were and continue to be disproportionately impacted by these policies. Since 1980, the population of federally incarcerated women has jumped nearly tenfold from 1,173 to 10,532. Compared to white women, Black women are 1.6x to 4.1x more likely to be in prison. Furthermore, incarcerated women have unique needs that are not being met. A 2018 DoJ report noted the inaccessibility of female hygiene products, lack of gender-responsive approaches, and lack of trauma-responsive care.
The late 80s and 90s were also marked with violence towards immigrants. On numerous occasions and at numerous prisons, Cuban immigrants held protests over unfair deportations and conditions. The New York Times released its 1987 report investigating two specific incidents in Louisiana and Atlanta when the Justice Department had received no notification of the Cuba-United States Repatriation Agreement to deport 2,500 cuban detainees. The NYT claimed that the secretive negotiations and lack of precaution in prisons incited protests. Even federal elected officials called out the mishandling of the situation. Ultimately, the Cuban detainees won a deportation moratorium and case hearings but no guarantee that they’d be able to stay.
2000 – Present: Current Landscape of the BOP and Federal Prisons
Mass incarceration and tough-on-crime policies did not end at the start of the 21st century. Although, there have been some efforts to curb the intense injustice seen in federal prisons. The Prison Rape Elimination Act (2003) was passed unanimously in Congress and signed into law by former President George W. Bush. It aimed to provide to protect people from rape in prisons through data collection, analysis, and policy recommendations. Eventually, the PREA commission published standards regarding prison rape and in 2010, the PREA resource center was founded.
As mentioned previously, legislation like the 1994 Crime Bill targeted communities of color through unjust policies, such as the crack and cocaine powder sentencing disparity. Despite being the same drug, the unfair targeting of crackled to “African Americans [serving] virtually as much time in prison for non-violent drug offenses as whites did for violent offenses”, according to the ACLU. The Fair Sentencing Act of 2010 reduced these disparities from 100:1 to 18:1.
After nearly a decade of advocacy, former President Trump signed the First Step Act into law in 2018. Its main goals were to reduce federal sentences, focus on rehabilitation rather than punishment, and improve overall conditions in prisons. In the years since its passage, the First Step Act has improved incarcerated people’s lives but its passage is only the beginning of true reform.
Currently, one of the most significant challenges facing prisons is COVID-19. Due to the ongoing nature of the pandemic, its impact on the federal prison system cannot be fully measured yet but the situation has been dire. According to the Office of the Inspector General, over 45,000 incarcerated persons and 6,300 staff have contracted COVID-19. Incarcerated persons, their families, and prison staff reported on the dire situation. One such instance is a video from FCI Elkton where a man is pleading for help, “…they literally like leaving us in here to die.”
The federal prison system’s history of corruption and violence bleeds into the present. Despite crime being at an all-time low, the United States continues to incarcerate people, specifically communities of color, at an alarmingly high rate. The profiteering in the prison industrial complex reinforces the unjust cycle of mass incarceration with no end in sight. With the federal prison population at a comparatively low and research signaling rehabilitative actions are best, it’s time to shrink the federal prison system and reinvest those dollars directly into the communities disparately impacted by the unfair criminal justice system.
- Population Growth in U. S. Prisons, 1980-1996: https://www.jstor.org/stable/1147683
- About the Federal Bureau of Prisons: https://www.bop.gov/resources/pdfs/ipaabout.pdf
- Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System: https://www.jstor.org/stable/40971832
- Cruel and Unusual Construction: The Eighth Amendment as a Limit on Building Prisons on Toxic Waste Sites: https://www.jstor.org/stable/26600578
- “Prisoner Uses Smuggled Cellphone to Beg for Help With Coronavirus on Facebook Live”: https://www.vice.com/en/article/z3b9qj/prisoner-uses-smuggled-cellphone-to-beg-for-help-with-coronavirus-on-facebook-live
- Prison Rape Elimination Act: https://www.prearesourcecenter.org/about/prison-rape-elimination-act
- Behind the Prison Riots: Precautions Not Taken: https://www.nytimes.com/1987/12/06/us/behind-the-prison-riots-precautions-not-taken.html
- ACLU Fair Sentencing Act: https://www.aclu.org/issues/criminal-law-reform/drug-law-reform/fair-sentencing-act
- BOP population statistics: https://www.bop.gov/about/statistics/population_statistics.jsp
- Profiting Off of Prison Labor: https://businessreview.berkeley.edu/profiting-off-of-prison-labor/
- What’s really in the First Step Act: https://www.themarshallproject.org/2018/11/16/what-s-really-in-the-first-step-act
- A Brief History of the Drug War: https://drugpolicy.org/issues/brief-history-drug-war
- The Constitution and Crime (Heritage Foundation): https://www.heritage.org/the-constitution/commentary/the-constitution-and-crime
- Department of Justice FY 2021 Budget: https://www.justice.gov/doj/page/file/1246841/download
- Doing Violence to the Law: The Over-Federalization of Crime: https://www.heritage.org/crime-and-justice/commentary/doing-violence-the-law-the-over-federalization-crime
- DOJ Prisoners in 2014: https://bjs.ojp.gov/content/pub/pdf/p14.pdf
- Prisons and jails will separate millions of mothers from their children in 2021 https://www.prisonpolicy.org/blog/2021/05/05/mothers-day-2021/
- Women’s prison data https://www.prisonpolicy.org/reports/women_overtime_table_1.html
- Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population https://www.oversight.gov/sites/default/files/oig-reports/e1805.pdf
- Treatment Denied: The Mental Health Crisis in Federal Prisons: https://www.themarshallproject.org/2018/11/21/treatment-denied-the-mental-health-crisis-in-federal-prisons?ref=hp-1-100%20[themarshallproject.org]/wp/2018/11/21/feature/federal-prisons-were-told-to-improve-inmates-access-to-mental-health-care-theyve-failed-miserably/
About Dream Corps
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