Jeff Chiu/AP Photo
The Federal Correctional Institution in Dublin, California, pictured on December 5, 2022
Nearly two years ago, The Washington Post’s Devlin Barrett published an article on the finances of people incarcerated in federal prison. The topline numbers detailed that approximately 129,000 people collectively held more than $100 million in their government-managed deposit accounts. But just 20 high-profile prisoners each held more than $100,000; taken together, those 20 accounts totaled more than $3 million.
The takeaway for readers pointed toward an interpretation, according to criminal justice reform advocates who spoke to the Prospect, that federally incarcerated people simply have too much money in their government-sponsored accounts. That money should be going toward paying court-ordered obligations such as child support, state restitution, additional fines and fees, etc.
The finances of those 20 individuals in particular became an emblematic example of the government being too soft on crime. The high-profile individuals included R. Kelly, former Olympic doctor Larry Nassar, and the Boston marathon bomber Dzhokhar Tsarnaev. Advocates who spoke to the Prospect described the Post’s characterization as misleading. Most people sent to prison are poor before they’re even incarcerated; a 2015 report from the Prison Policy Initiative found that the median annual income of incarcerated people prior to entering prison was just over $19,000 per year. And nobody gets rich while serving time.
Spurred by the Post’s reporting, the federal Bureau of Prisons (BOP) proposed a new set of rules in January. Those changes were aimed at reforming the Inmate Financial Responsibility Program (IFRP), which is designed to assist in the payment of financial obligations, such as fines, court-ordered payments to victims, federal court costs, child support, student loans, and other liabilities. IFRP staff helps the incarcerated person set up a payment plan for these costs. In theory, IFRP puts people on a path to some sense of financial stability upon their release from incarceration.
BOP proposed four major adjustments. First, BOP would be authorized to confiscate up to 75 percent of money provided from outside sources, essentially a 75 percent tax for every dollar one wanted to send to someone in federal prison. Two, depending on the hourly wage, BOP would be able to seize 25 to 50 percent of wages. Most federal inmates in work programs are paid as little as 12 cents an hour, and on the higher end they earn just more than a dollar an hour. Third, BOP would remove an exemption for the first $75 of earnings each month. And lastly, under the pressure of being reported to the U.S. Attorney’s Office, BOP would encourage payoffs of fines and fees in lump sum if they have sufficient funds.
The proposal triggered outcry from advocates and members of Congress. BOP has yet to clarify the status of the proposal, despite questions from the Prospect. If it goes forward, incarcerated people will face a second sentence beyond being locked up: the systematic suppression of their financial life.
While technically, enrolling in IFRP is voluntary, in practice, most people incarcerated in federal prison participate in the program because it would be a severe hardship not to. For example, those who opt out of IFRP are barred from UNICOR jobs—some of the highest-paying work available to them. Their monthly spending is limited, as well as the items available for purchase at commissary. They’re subjected to the lowest-quality living quarters, barred from participating in residential drug treatment programs, and they forfeit their rights to supplemental funds after they have served their sentence. So an incarcerated person in federal prison is incentivized to enroll in IFRP, to avoid an exponentially more miserable experience that will make life after incarceration that much more difficult.
Incarcerated people will face a second sentence beyond being locked up: the systematic suppression of their financial life.
Advocates reacted to the proposed changes with alarm. Former prison warden and assistant director for the Bureau of Prisons, John Clark, told the Prospect, “A few inmates have extensive resources, most simply don’t. I would hope in the review process the requirements can be made less burdensome on the many prisoners and families who have little.” He further explained the importance of IFRP in preparing inmates for post-incarceration: “It’s important that the new policy enables prisoners to build up some savings to aid in their reentry.”
Under the Administrative Procedure Act, proposed rules go through a public comment process. A coalition of consumer protection, criminal justice reform, and civil rights organizations expressed concerns on moral and potentially legal grounds. In an interview with the Prospect, spokespersons from the Southern Poverty Law Center (SPLC) explained the rationale behind their criticism.
Nina Patel, an SPLC senior policy counsel for decarceration and criminal legal system reform, explained that prisons are closed market systems with hyperinflation. The prices of simple goods like toothpaste and toilet paper are already marked up, even as incarcerated people are working for under $1 an hour. “If you’re earning 23 cents for every hour that you work [plus 25 percent seized by BOP], and deodorant costs $2.55,” that translates to somewhere around 15 hours of work. Expand this budgeting for additional goods, health care co-pays, and phone calls, and the costs add up very quickly, far beyond an incarcerated person’s ability to earn. That’s why the proposed rule’s 75 percent tax on outside money is so egregious.
David Ayala, executive director of the Formerly Incarcerated Convicted People and Families Movement, told the Prospect that had the proposed rules been in place during his incarceration, his re-entry would have suffered. To Ayala, the proposed rules unduly punish the loved ones of an incarcerated person. “The family members [of those] inside prison are not rich … You’re putting the burden now on family members who are just working folks.”
The sliding scale as proposed by BOP increases the percentage of wages seized as an incarcerated person earns more. Some of the advocates who spoke to the Prospect suggested that such high rates could actually disincentivize someone from working or professionally advancing themselves throughout their incarceration. “It’s a smack in the face … they’re already being paid slavery wages,” Ayala said.
Last month, Sens. Dick Durbin (D-IL), Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), and Chris Coons (D-DE), all of whom sit on the Senate Judiciary Committee, co-authored a letter to BOP director Colette Peters. “We have serious concerns that the proposed rule would further marginalize the vast majority of incarcerated individuals who are indigent and would create additional barriers to successful reentry,” the senators wrote.
Ultimately, the senators agreed that BOP should crack down on high-profile, wealthy inmates, but that rather BOP should focus on crafting policy that targets them. Caroline Cohn from the National Consumer Law Center told the Prospect, “Focusing on these ultra-wealthy individuals who are the extreme outliers in federal prison … is like taking a sledgehammer when a scalpel is needed.”
The outside pressure at first appeared to make a difference. On March 31, the District of Columbia Corrections Information Council (DC CIC), an independent agency that reports on confinement conditions for District of Columbia residents, posted on their social media channels that BOP notified them that the rule would be halted.
In an interview with the Prospect, Dana DeMartino from the DC CIC said, “We only heard verbally from the BOP’s director of programming that they are putting the policy on hold right now due to the public comments.” In other words, it was not a formal withdrawal, and possibly just a reference to BOP closing the comment period.
On April 4, a coalition of advocates co-authored a letter to BOP requesting the agency reopen the comment period for the proposed rules because of a pending FOIA request filed by the Washington Lawyers’ Committee. “We believe this data and information is critical to the decision-making process and the public’s understanding regarding this proposed amendment,” they wrote.
BOP’s unwillingness to clarify the rule’s status, or give the public an update on when they should expect updates, tracks with how the agency operates, according to DeMartino. “We found out about [IFRP changes] from the Washington Lawyers’ Committee that the BOP was proposing this. They didn’t give us a heads-up or anything.” Neither BOP’s press release nor news stories make mention of the proposed IFRP changes.
When the Prospect asked BOP if the agency would formally withdraw the proposed rules in writing, a spokesperson said: “As the comment period for the rule has ended, the BOP is now in the process of evaluating all comments received. No final determinations have been made yet regarding potential changes to the proposed regulation.”
