Earlier this Summer, Charles E. Samuels, Jr. issued a memorandum concerning his intention to retire from the Bureau of Prisons by year’s end, following 27 years of service — 3.5 of which were as Director. The announcement has led to conjecture and commentary regarding who should next helm the agency. In late July, a group of law professors wrote Attorney General Lynch encouraging “a national search focusing on identifying an experienced innovator who has a demonstrated commitment to reform—decarceration, improved conditions of confinement, education and rehabilitation, racial justice, and gender equity. The goal of the search should be a new director who can not only bring about substantial changes at the BOP but also lead American corrections more generally.” In a follow-up piece in the Washington Post, three of the professors expanded on their thinking:
The decision matters a lot. The BOP’s director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation’s benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.
Since Bennett’s era, the BOP’s leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better.
More recently, former Senior OLC Counsel and U.S. Pardon Attorney Margaret Colgate Love has offered a counterpoint to the professors’ proposal, questioning looking outside the agency–an idea she had previously supported–given the Bureau’s design and inherent mandate:
The bottom line is this: Appointing an outsider by itself is not going to solve any of the institutional problems that in recent years have limited BOP’s capacity and will to innovate. As long as BOP is housed in an agency whose criminal justice agenda is influenced if not determined by prosecutors, these problems will persist no matter how stellar the individual selected as its leader.
It should not go unremarked that the BOP Director is the only chief corrections officer in the country who is appointed by the chief prosecutor and is subject to her direction and control. In every state the director of corrections is appointed by the governor and operates entirely independent of officials responsible for prosecutions, even in the one state (New Jersey) whose law enforcement structure otherwise closely resembles the federal government’s. No state prison system is under the same roof with programs whose objectives are in such tension with progressive correctional practices and responsible budgeting.
Perhaps this authority structure made sense when the federal prison system was first organized in the 1930s, and was reasonable for a number of years afterwards under directors whose institutional independence was respected and appreciated by the federal law enforcement establishment. But profound changes in the culture and mission of the Justice Department in the past 30 years have rendered it untenable.
There is currently a bill pending in Congress that would make the BOP Director a presidential appointee, a step that would go some way toward changing the balance of authority within Justice. But even this would not be enough to bring about change, as long as the federal prison system remains institutionally subservient within an agency whose criminal justice agenda is determined by those who measure success by length of prison stay.
Whereas time will tell whom the Attorney General selects, experience suggests that the public need look no further than the BOP’s senior leadership ranks to determine the agency’s ninth Director.