The Federal Prison Population Buildup: Options for Congress
Released: 2016-05-20T00:00:00

T he Bureau of Prisons (BOP) is the largest correctional agency in the country in terms of the number of prisoners under its jurisdiction. BOP was established in 1930 to house federal inmates, professionalize the prison service, and ensure consistent and centralized administration of the federal prison system.

At the end of 1930, BOP operated 14 facilities that held approximately 13,000 inmates. By the end of 1940, BOP had expanded to 24 facilities that held approximately 24,000 inmates. The number of inmates in the federal prison system, with a few fluctuations, remained at approximately 24,000 for the next four decades. Then, beginning in FY1980, the federal prison population started a nearly unabated, three-decade increase. The total number of inmates under BOP's jurisdiction increased from approximately 25,000 in FY1980 to over 205,000 in FY2015. Between FY1980 and FY2013, the federal prison population increased, on average, by approximately 5,900 inmates annually. However, the number of inmates in the federal prison system decreased from FY2013 to FY2015.

The U.S. Sentencing Commission (USSC), BOP, and scholars have identified several policy changes over the past three decades that have contributed to the growth of the federal prison population:

increases in the number of federal offenses subject to mandatory minimum sentences, changes to the federal criminal code that have made more crimes federal offenses, and the elimination of parole.

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 certain offenses or reducing the length of the mandatory minimum sentence. Finally, policymakers could consider repealing federal criminal statutes for some offenses.

Congress is currently considering legislation that would put into effect some of the policy options discussed in this report, including expanding the "safety valve" for some low-level offenders, allowing inmates to earn additional good time credit as a part of a risk and needs assessment system, and reducing mandatory minimum penalties for some offenses.

A Brief Overview of the Issues Related to Prison Population Growth

The Government Accountability Office (GAO) reported that BOP faces several challenges resulting from the increasing number of inmates placed under its supervision. According to GAO, BOP reported

increased use of double and triple bunking, which brings together for longer periods of time inmates with a higher risk of violence and more potential victims; waiting lists for education and drug treatment programs, which can pose a threat to institutional security by increasing inmate idleness and may decrease recidivism-reducing benefits these programs can provide; limited meaningful work opportunities, which can also contribute to inmate idleness; crowded visiting rooms, which can make it difficult for inmates to visit with their families; and increased inmate-to-staff ratios, which can compromise institutional safety by increasing staff overtime and stress while reducing staff-inmate communication.

GAO also noted that the growing federal prison population is taxing BOP's infrastructure, which was designed to manage a smaller prison population. BOP is also facing increasing maintenance costs as older facilities age.

The burgeoning prison population has contributed to mounting operational expenditures for the federal prison system. BOP's appropriations increased more than $7.1 billion from FY1980 ($330 million) to FY2016 ($7.479 billion). BOP's expanding budget is starting to consume a larger share of the Department of Justice's (DOJ) overall annual appropriations, meaning that funding for the federal prison system might start to crowd out funding for other DOJ initiatives. In FY1980 appropriations for BOP accounted for 15% of the total amount appropriated for DOJ; in FY2016 it was 26%.

Select Policy Options

The growth in the federal prison population over the past three decades has resulted in an increasingly expensive federal prison system that is overcrowded and aging and where facilities might not be staffed at an optimal level. Congress could choose to address the mounting number of federal inmates either in the context of existing correctional policies or by changing the current policies.

Continuing or Expanding Current Correctional Policies

Under the umbrella of continuing existing policies, Congress could consider addressing issues related to the burgeoning federal prison population by (1) expanding the capacity of the federal prison system, (2) continuing to invest in rehabilitative programming, (3) placing more inmates in private correctional facilities, or some combination of the three.

Expanding the Capacity of the Federal Prison System

Arguably one of the most straightforward approaches for managing the steadily increasing number of federal inmates is to expand the capacity of the federal prison system. Congress could choose to mitigate some issues related to federal prison population growth by appropriating more funding so BOP could expand prison capacity to alleviate overcrowding, update and properly maintain existing facilities, and hire additional staff. While a large-scale expansion of the federal prison system might help reduce overcrowding, it takes several years for a prison to be built and be ready to accept inmates. If Congress chooses to appropriate funding for an expansion of BOP's infrastructure, it could be several years before overcrowding is reduced.

There may be some concern that Congress might invest a significant amount of funding in expanding BOP's capacity and then the prison population will drop. The number of federal inmates has decreased in each of the past two fiscal years (see Table A-1 ). Even so, the federal prison system is still operating at 23% over capacity. Should Congress choose to invest in a wide-scale expansion of prison capacity, and the prison population decreases in the future, the surplus bedspace could allow BOP to close some of its older facilities. Expanding prison capacity would generally require more maintenance and need higher staff-to-inmate ratios to safely operate.

Critics contend that expanding the capacity of the federal prison system does not address the growth of the federal prison population since the early 1980s. Also, this policy option would not resolve the issue of the rising cost of the federal prison system; in fact, it could exacerbate it. However, alternatives that would reduce the federal prison population would most likely involve prosecuting fewer people in federal courts, providing ways for inmates to be released before they served a significant portion of their sentences, putting more inmates into diversionary programs, or placing more offenders on some form of community supervision. If Congress does not seek to take any of these steps, a large-scale expansion of the federal prison system might be the sole way to manage the effects of an increasing prison population. Some may argue that in order to protect public safety Congress should appropriate the funding necessary to expand the federal prison system rather than adopt policy changes that would reduce the prison population through early releases, alternatives to incarceration, or fewer prosecutions.

Investing in Rehabilitative Programs

A review of the literature on rehabilitative programs (e.g., academic and vocational education, cognitive-behavioral programs, and both community- and prison-based drug treatment) suggests that there are enough scientifically sound evaluations to conclude that these programs are effective at reducing recidivism, which could potentially help stem growth in the federal prison population in the future. BOP offers a variety of rehabilitation programs such as academic and vocational education, work programs through the Federal Prison Industries (FPI), substance abuse treatment, and cognitive-behavioral programs that focus on promoting pro-social behavior. One possible option for reducing the federal prison population would be to ensure that BOP has adequate resources to provide rehabilitative services to inmates. At a time when some policymakers are considering reducing discretionary funding for federal agencies, there might be some effort to restrain the growth of BOP's appropriations, including for rehabilitative services. BOP has to administer the federal prison system within the funds appropriated for it by Congress. If BOP does not have sufficient resources, it might not be able to provide rehabilitative programming to all inmates who need it.

It could be argued that in order to reduce the growing cost of operating the federal prison system, BOP should reduce funding for rehabilitative programming and invest solely in providing for the subsistence of inmates and maintaining a level of staffing that is adequate to ensure that federal prisons are secure. However, reducing programming opportunities might result in more inmate idleness, which might in turn result in more inmate misconduct. Moreover, BOP is authorized to reduce an inmate's sentence by up to one year for successfully completing a residential substance abuse treatment program; therefore, reducing programming opportunities could hamper one of the few avenues BOP has for releasing inmates early. It is also possible that BOP might be able to realize some long-term cost savings by successfully rehabilitating inmates. For example, research by the Washington State Institute for Public Policy (WSIPP) suggests that effective rehabilitation programs can result in cost savings.

As policymakers consider the appropriate level of funding for BOP in light of concerns about the federal deficit and potential freezes or reductions in non-defense discretionary spending, they may consider whether it is prudent to increase resources for BOP's rehabilitative programs in the near term in order to realize potential long-term benefits. The size of the effect that decreased recidivism among federal offenders would have on BOP's budget would depend on how many new inmates BOP incarcerates. If new commitments exceed the number of inmates released who do not return to prison, then the demand for prisons, personnel, and inmate programs and services would continue to grow, although possibly at a slower rate. If the number of new commitments is less than the number of inmates released who do not return to prison, then the demand for prisons, personnel, and inmate programs and services would decrease. However, even if the growth of the federal prison population slows, the demand for increased BOP appropriations may continue.

Placing More Inmates in Private Prisons

BOP has placed an increasing share of federal inmates in contract facilities as a way of managing the growth in the federal prison population. Congress might also consider whether more federal inmates should be housed in private facilities as a means of reducing crowding in federal prisons and potentially reducing the cost of operating the federal prison system. The number of inmates under BOP's jurisdiction held in contract facilities has generally increased since the early 1980s. However, the growth in the number of inmates held in contract facilities is mostly the result of more inmates being placed in Residential Reentry Centers (RRCs) at the end of their sentences. Most BOP inmates held in private correctional facilities are low security, non-citizen offenders. The debate about whether to house inmates in privately operated correctional facilities has been framed by two overarching questions: (1) can private facilities incarcerate inmates at a lower cost and (2) can private facilities provide services that are equal or superior to the services provided in public institutions?

BOP attempted to answer these questions, with two evaluations of the Taft Correctional Institution (TCI), which was operated as a private facility as a part of a demonstration project. One evaluation of TCI and three similar BOP facilities was conducted by Abt Associates, Inc, while another was conducted by BOP's Office of Research. Both the Abt and BOP evaluations found that TCI was cheaper to operate on a per diem basis than the three comparable BOP facilities, but the two evaluations offer different conclusions as to how much was saved by operating TCI as a private institution. The two primary reasons for the different conclusions are economies of scale realized by TCI and differences in how per diem rates were calculated.

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, BOP had three escapes from a secure prison during the same time period, even though 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. 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. 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." 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." 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.

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 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 BOP has less direct oversight over the day-to-day operations of private facilities.

Changing Existing Correctional and Sentencing Policies to Reduce the Prison Population

Policymakers 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, policymakers might start by considering which offenders are incarcerated and the length of their sentences.

Changes to Mandatory Minimum Penalties

The U.S. Sentencing Commission (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." 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.

Proponents of the continued use of mandatory minimum penalties contend that after the Supreme Court's ruling in United States v. Booker and its progeny (e.g., Gall v. United States and Kimbrough v. United States ), which rendered the sentencing guidelines effectively advisory, Congress has a responsibility to set minimum penalties for some offenses as a way to limit judicial discretion, thereby preventing unwanted sentencing disparities. It has been argued that mandatory minimum penalties promote uniformity and fairness for defendants, transparent and predictable outcomes, and a higher level of truth and integrity in sentencing. Also, should Congress choose to repeal some or all mandatory minimum penalties, policymakers would relinquish their ability to control the amount of time inmates serve for certain offenses.

Even if Congress chooses not to repeal any mandatory minimum sentences, policymakers could review current mandatory minimum penalties to ensure that they are (1) not excessively severe, (2) narrowly tailored to apply only to those offenders who warrant such punishment, and (3) applied consistently.

Alternatives to Incarceration

During the 1980s many states instituted a series of alternatives to incarceration as a way to respond to an increasing number of convicted offenders and wide-scale prison overcrowding. Prior to this, sentencing options were limited to incarceration or probation. However, there was growing sentiment that while some crimes were too severe to be punished by placing the offender on probation, they were not severe enough to warrant incarceration. Therefore, states started to develop a series of alternative sentences that fell somewhere between probation and incarceration. These alternatives included house arrest, electronic monitoring, intensive supervision, boot camps, split sentences, day reporting centers, fines, and community service. These programs provide graduated sanctions that might be more appropriate than either probation or incarceration, and provide a higher level of offender restraint and accountability than traditional probation. Some also provide higher levels of treatment or services for problems such as substance abuse, low education levels, and unemployment.

A majority of the evaluations of intensive supervision and electronic monitoring programs found that there was no significant difference in recidivism rates between offenders sentenced to alternatives to incarceration and offenders in control groups. This means that increasing surveillance and control of offenders' activities does not decrease their criminal activities. Ironically, while these programs were created as a means of reducing the number of incarcerated individuals, the increased surveillance might increase the probability that violations of the terms of probation will be detected, which could increase the number of inmates as probationers are often incarcerated for technical violations. One shortcoming of the research is that since most intensive supervision programs increase the probability of detection, there is no way to tell if the underlying level of criminality changed between the treatment and control groups; that is, the increased probability of detection might mean that offenders in the control group are simply more likely to be caught when they commit crimes, even though offenders in the control group commit crimes at the same, or even higher, rate. Also, the research tended to focus on whether the restraining aspects of the program could reduce recidivism. Some evaluations found that inmates who received treatment while participating in an intensive supervision program were less likely to be arrested.

Placing More Inmates on Probation

Congress could consider whether there are alternative ways to properly manage offenders convicted of committing relatively minor crimes without sending them to prison. One policy option Congress could consider is amending penalties for some offenses to allow more defendants to be placed on probation rather than being sentenced to a period of incarceration. However, the Booker decision that rendered the federal sentencing guidelines advisory might influence any debate Congress would have over who would be placed on probation. The sentencing guidelines placed substantial restrictions on when courts could sentence defendants to probation. Under Section 5B1.1 of the sentencing guidelines, defendants can only be placed on probation if their sentence under the guidelines is equal to or less than 15 months. Nonetheless, after the Supreme Court's ruling in Booker , federal judges are not required to impose a sentence within the range calculated under the sentencing guidelines. Therefore, judges can impose probation for offenders unless (1) the defendant has been convicted of a class A or B felony, (2) probation is statutorily precluded as a sentencing option, or (3) the defendant is sentenced to a term of imprisonment for the same or different offense that is not a petty offense.

Data show that the risk of recidivism for probationers is the highest during the first year after being placed on probation. It has been argued that surveillance and services should be front-loaded (i.e., more intensive at the beginning of a term of probation) to try to mitigate recidivism and other negative consequences that might occur during the first year that an offender is serving on probation.

A common argument from advocates of decreasing the use of incarceration is that it is cheaper to supervise an offender in the community than it is to incarcerate that individual. The Administrative Office of the U.S. Courts reports that the average annual cost of probation supervision was $3,909 per probationer in FY2014. In comparison, the average annual cost of incarceration for FY2014 was $30,621 per inmate. However, some of the lower cost of probation relative to incarceration might be the result of fewer and lower-risk offenders being placed on probation. It is possible that the annual cost of probation would increase if Congress expanded the number of people placed on probation and implemented some of the changes discussed below.

Should Congress choose to expand probation as a sentencing option for more offenses, research suggests that probation programs that use a validated risk assessment tool to sort offenders into high- and low-risk groups and focus resources and supervision on higher-risk offenders might be more effective at reducing recidivism. Research also suggests that probation programs that offer a mix of evidence-based treatment that is delivered to offenders who are the most likely to benefit from it along with surveillance are more effective at reducing recidivism than surveillance-only probation. As one expert noted, "'[t]reatment' alone is not enough, nor is 'surveillance' by itself adequate. Programs that can increase offender-to-officer contact and [emphasis original] provide treatment have reduced recidivism." Researchers have found that participants in probation programs that subject probationers with substance abuse issues to frequent random drug testing and that require probationers who violate the terms of their probation to serve intermediate sanctions, such as a short stay in jail, are less likely to recidivate than those who were on regular probation. Another option Congress might consider is allowing probationers who strictly adhere to their conditions of probation to be released from probation early. Research has shown that an earned discharge strategy can reduce recidivism.

Expanding the Use of Residential Reentry Centers

Congress could also consider extending BOP's authority to place inmates with short sentences who are deemed to be low security risks directly into Residential Reentry Centers (RRCs, i.e., halfway houses). However, a New York Times ( Times ) investigation of halfway houses in New Jersey found cases of inmates committing new crimes after escaping and instances of lax security because counselors were either poorly trained, outnumbered, or feared for their safety; inmate-on-inmate violence; and questionably delivered rehabilitative services. Further, a DOJ Office of the Inspector General (OIG) audit of RRCs raised questions about RRCs' adherence to contract requirements for supervising inmates. The Times report suggests that several of the problems experienced in the halfway houses that were the subject of its investigation resulted from the New Jersey Department of Corrections and local sheriffs' departments using halfway houses as a means of reducing prison and jail overcrowding, which resulted in inmates with violent histories and/or who were convicted for violent offenses being placed in halfway houses. These inmates were then supervised by employees with little training, who were not correctional officers and who, in some instances, feared the inmates because they were substantially outnumbered. This suggests that if Congress wanted to use RRCs as a way of reducing overcrowding in federal prisons that placement in RRCs would be best if limited to low-level, non-violent offenders. The Times article includes accounts from staff who reported fearing for their safety while patrolling the halfway houses at night because of lax security and high inmate-to-staff ratios. This might mean that should RRCs be used as a way to reduce the number of inmates held in federal prisons, BOP would need to ensure that RRCs have properly trained and adequate staff and that the RRCs have satisfactory security measures in place. The findings from the OIG audit suggest that BOP might need to increase its oversight of the RRCs it contracts with. This could mean that BOP would need additional staff and an increase in its travel budget so BOP staff could make more frequent visits to RRCs.

If policymakers were concerned about whether RRCs are a valid alternative to placing some offenders in federal prison, Congress could choose to provide funding for a program that would allow the federal government to contract with local jails to provide short-term bedspace. One possible example is the Cooperative Agreement Program (CAP) whereby the U.S. Marshals Service (USMS) provided capital investment funding to local jails in exchange for guaranteed bedspace for federal detainees. While the CAP was limited to securing bedspace for people in the custody of the USMS (i.e., people who have not yet been convicted of a crime), it is possible that such a program could be expanded to allow the federal government to expand local jail capacity in order to secure bedspace for some lower-level federal inmates who are serving short sentences. It is likely that jails would be more secure than RRCs. In addition, jails are staffed by correctional officers, who might be better prepared to supervise federal inmates.

Congress could also consider whether to require courts to place certain offenders in RRCs for violating the terms of their supervised release rather than returning them to prison. As mentioned, BOP might not save a significant amount of money by placing a greater number of inmates in RRCs, but by placing more of these short-term inmates in RRCs BOP would have additional bedspace. In addition, BOP would not have to invest time and money into re-processing the offender through the prison system. This is not to suggest that all inmates who have their supervised release revoked would be suitable for RRC placement. Indeed, inmates who are arrested and/or convicted for serious offenses would most likely need to be placed in a secure facility. However, offenders who have their supervised release revoked for technical violations (e.g., repeatedly failing drug tests) might be suitable for placement in a less secure environment that still allows for monitoring of their actions.

All of the alternatives to incarceration discussed above place the offender in the community, which means there is some level of risk that the offender could commit new offenses, because even though the offender would be supervised, the level of supervision would most likely provide a lower level of control over the individual's actions than would be provided by correctional officers in a secure environment.

Early Release Measures

One possible way to reduce the growth of the federal prison population would be to expand the early release measures for federal inmates. There are several options Congress could consider if policymakers wanted to expand early release options for federal inmates, including (1) reinstating parole, (2) expanding good time credits, and (3) expanding the conditions under which courts could reduce sentences pursuant to 18 U.S.C. Section 3582(c)(1)(A).

Reinstating Parole

One option Congress might consider is whether to reinstate parole in the federal system. Inmates sentenced for an offense in a federal court committed after November 1, 1987, are not eligible to be released on parole. Parole is one way correctional authorities can release inmates who are deemed to be at a low risk for recidivism and place them in community supervision for the remainder of their sentences.

Should Congress consider reinstating parole for federal inmates, there are several salient issues that policymakers might think about. First, how would a parole system work within the current determinate sentencing structure used in federal courts? Traditionally, discretionary parole has been combined with an indeterminate sentencing structure (i.e., a system whereby the court could impose a sentence for a crime within a range prescribed in law). Indeterminate sentences allow the court to tailor sentences to each defendant, but this gives rise to concerns about whether some sentences are arbitrary and unfair. For example, two defendants convicted for similar crimes might receive different sentences depending on which judge happens to be presiding over their cases. When combined with a parole board's discretion over when, if ever, someone would be granted parole, two defendants convicted of similar crimes could end up serving significantly different amounts of time in prison.

Congress sought to limit the discretion of the federal judiciary and the executive branch when it eliminated parole and replaced indeterminate sentencing with the sentencing guidelines. Parole might not be irreconcilable with a determinate sentencing structure. Courts could continue to use sentencing guidelines as a guidepost for determining a defendant's sentence and each inmate could then be eligible for parole after serving a certain portion of his or her sentence. However, should Congress allow federal inmates to be eligible for parole, it would grant the executive branch, through the U.S. Parole Commission (hereinafter, "commission"), some measure of control over determining how much time an inmate serves in prison. Congress might choose to limit some of the commission's discretion by setting a higher threshold for determining what portion of an inmate's sentence must be served before he or she is eligible to be placed on parole.

Should Congress choose to reinstate parole for federal inmates, another key question would be whether eligibility would be made retroactive to inmates who were sentenced for federal crimes after November 1, 1987. Making eligibility for parole retroactive could potentially reduce the federal prison population in a shorter amount of time than it would if only newly convicted inmates were eligible for parole consideration. However, it would appear likely that the commission and the U.S. Probation and Pretrial Services office would need increased resources in order to properly manage what would likely be a significant increase in their caseloads.

There might be some concern about whether allowing federal inmates to be released on parole would pose a threat to public safety. Concerns about recidivism are not unfounded. Research published by the Bureau of Justice Statistics found that approximately three-quarters (76.6%) of inmates released in 2005 were rearrested within five years and approximately half (55.4%) were convicted for a new crime. Concerns about offenders committing new crimes while on parole have led some jurisdictions to implement intensive supervision programs where parolees are subject to more rigorous conditions of release and more frequent contacts with a parole officer. While intensive supervision programs might in theory reduce the likelihood that parolees commit new offenses while in the community, the body of research on intensive supervision programs suggests that these programs do not reduce recidivism. Depending on how recidivism is defined, intensive supervision programs may actually increase "recidivism" because they are more likely to detect technical violations of the conditions of release. This can create a paradox for policymakers: parole might be considered as a means of reducing the prison population, but it might actually increase the number of inmates in prisons as more return to prison for violating the conditions of parole. Should Congress choose to reinstate parole, policymakers might consider evidence-based measures so that parole helps as many inmates successfully transition back into the community as possible. The options Congress could consider are similar to those outlined above for successful probation programs, namely

using a validated risk assessment tool to sort parolees into high- and low-risk groups; ensuring that parolees with a demonstrated need for rehabilitative programming have access to evidence-based, appropriately delivered programs; requiring parolees who violate their conditions of release to serve intermediate sanctions rather than returning them to prison; and allowing parolees who strictly adhere to the conditions of their parole to be released early.

Also, like probationers, data indicate that parolees are at the highest risk for recidivism during their first year of parole. This suggests that in order to decrease the risk of recidivism services should be more intensive during the parolee's first year on release. Some research suggests that intensive supervision programs can reduce recidivism when they are combined with treatment and rehabilitative programming.

Expanding Good Time Credits

Another potential policy option Congress could consider as a means to slow the growth of, or possibly reduce, the federal prison population is to expand BOP's authority to grant good time credit to inmates. Congress abolished parole for federal inmates in the 1980s, which means that inmates cannot be released before serving their entire sentence, minus any good time credit, even if the inmate's risk of recidivism is low. Under current law, BOP can grant up to 54 days of good time credit per year to inmates serving a sentence of more than one year, assuming the inmate has demonstrated "exemplary compliance with institutional disciplinary regulations" and is making satisfactory progress on completing a GED (assuming the inmate does not have a GED or a high school diploma).

In addition to the amount of good time credit an inmate can earn, BOP is allowed to reduce a non-violent inmate's sentence by up to one year if the inmate participates in residential substance abuse treatment. It has been argued that teaming good time credit with a program that places inmates with objectively assessed needs and risks in evidence-based programs to address those needs and risks can reduce recidivism and cut prison costs. Congress could consider allowing BOP to award good time credit for inmates who have a need for and successfully complete rehabilitative programs other than residential drug abuse treatment. However, expanding good time credit for participation in rehabilitative programming would likely require Congress, at least in the short term, to expand funding for rehabilitative programs and inmate skills and needs assessments.

While expanding current good time credit policies might help reduce prison overcrowding, there might be some concern that BOP would effectively be reducing inmates' sentences without the sentencing court's approval. Additional good time credit would also allow inmates to be released before serving a significant (85%) portion of their sentence, a key rationale for why parole was eliminated in the first place. In addition, some may feel that regardless of an inmate's efforts to rehabilitate himself or herself or the risk he or she would pose to society when released, the inmate was sent to prison as a punishment for a crime, hence the inmate should serve his or her full sentence.

Sentence Reduction

In addition to allowing BOP to grant more good time credit to inmates, Congress could also consider whether to amend the conditions under which courts can reduce an inmate's sentence. Under current law (18 U.S.C. §3582(c)(1)(A)), BOP can petition the court to reduce an inmate's sentence if the court finds that "extraordinary and compelling reasons warrant such a reduction"; or the inmate is at least 70 years of age, has served at least 30 years of his or her sentence, and a determination has been made by the Director of BOP that the inmate is not a danger to the safety of any other person or the community. Congress required the USSC, when issuing a policy statement regarding sentence modification under 18 U.S.C. Section 3582(c)(1)(A), to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." Under Section 1B1.13 of the U.S. Sentencing Guidelines, the USSC deemed the following circumstances to be "extraordinary and compelling reasons" for a sentence reduction:

The inmate is suffering from a terminal illness. The inmate is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement. The death or incapacitation of the inmate's only family member capable of caring for the inmate's minor child or minor children. As determined by the Director of BOP, there exists in the inmate's case an extraordinary and compelling reason other than, or in combination with, the reasons described above.

Pursuant to 28 U.S.C. Section 944(t), rehabilitation of an inmate is not, by itself, an extraordinary and compelling reason for granting a sentence reduction. If the court grants a sentence reduction under 18 U.S.C. Section 3582(c)(1)(A), the court is also allowed to impose a term of probation or supervised release, with or without conditions, for a period up to the amount of time that was remaining on the inmate's sentence.

One of the critiques of this program is that it relies on BOP to petition the court for a review of an inmate's sentence. One commentator argues that BOP narrowly interprets when inmates should be allowed to apply for a sentence reduction, effectively limiting applications to cases where the inmate is terminally ill and near death. The policy statement governing the program states that consideration for a sentence reduction under 18 U.S.C. Section 3582(c)(1)(A) is limited to "particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing." In August 2013, BOP revised its compassionate release policy statement to broaden the circumstances under which it will consider a sentence reduction request to include the following:

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.

Before submitting a compassionate release request to the court, BOP will consider whether an inmate's release would pose a danger to the safety of anyone in the community.

Notwithstanding the changes 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 debate 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. It appears likely that more elderly inmates could safely be released from confinement and placed on home confinement for the remainder of their sentences. However, 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.

Modifying the "Safety Valve" Provision

There are other amendments to the criminal code Congress could consider if policymakers 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 offenses 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. 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. 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, 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 consideration to mandatory minimum penalties when formulating the sentencing guidelines, but not requiring the USSC to make the guidelines consistent with mandatory minimum penalties.

Repealing Federal Criminal Statutes for Some Offenses

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. Policymakers 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 remain federal offenses. For example, the federal government is 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, one expert argued

[f]ederal drug cases should focus exclusively on the international organizations that use their profits from the manufacture and distribution of cocaine, opium and heroin, methamphetamine, and cannabis to finance assassinations, terrorism, wholesale corruption and bribery, organized crime generally, and the destabilization of our allies…Every state in the U.S. has a great capacity to investigate, prosecute and punish the high-level local drug traffickers that operate within their jurisdiction. State and local police and prosecutors outnumber federal agents and prosecutors. State prisons far exceed the capacity of federal prisons…Almost none of the crack [cocaine] dealers that proliferate in countless U.S. neighborhoods warrant federal prosecution. There are neighborhood criminals and their crimes are state crimes. If a state's law does not adequately punish a crack [cocaine] dealer, that is the state's problem. Inadequate state laws do not warrant wasting very scarce, powerful federal resources even on serious neighborhood criminals [emphasis original].

Scaling back the scope of the federal criminal code could help reduce the size of the federal prison population in the future by reducing the number of people prosecuted and sentenced to incarceration in federal courts. However, this policy option could increase the burden on state criminal justice systems since they would be responsible for prosecuting and incarcerating offenders who are no longer tried in federal courts. By year-end 2014, according to the BJS, 19 state correctional systems were at or above their highest capacity, and another 18 state correctional systems were between 90% and 99% of their highest capacity. Since nearly three-quarters of states have prison systems that are operating at 90% of capacity or higher, it would appear that if the federal government chooses not to prosecute some offenses, thereby leaving states with the responsibility to do so, it would require states to either expand their prison capacities or possibly decline to prosecute some offenses. Also, it is possible that an expansion of state correctional systems could have a significant effect on state finances. The Vera Institute of Justice reported that state correctional spending has nearly quadrupled over the past two decades, which makes it the fasting-growing budget item after Medicaid. Since states typically cannot run a budget deficit, any expansion in correctional expenditures would have to be paid for with cuts to other state services, increased taxes, or issuing bonds.

Appendix. Select BOP Data