On Feb. 3, 2022, the Public Defender Service for the District of Columbia filed Blades v. Garland in the U.S. District Court for the District of Columbia against the Federal Bureau of Prisons (BOP). The class action lawsuit alleges that the BOP uses an algorithm to calculate security designations for people charged in Washington, D.C., but that this algorithm is discriminatory and leads to people from Washington being treated unfairly. The plaintiffs call for a stop of the BOP’s practice which scores the criminal history of individuals serving Washington sentences more harshly than other individuals serving their sentences in federal prisons.
Washington’s criminal legal system was federalized in 1997. Because of this, individuals who are sentenced for committing offenses in Washington serve their sentences in the federal prison system. This happens regardless of whether the individual was convicted of a federal or local offense. In the early 2000s, Washington closed its prison, which was located in Lorton, Virginia. Because Washington now does not have its own prison, people convicted of D.C. Code offenses serve their time in federal prisons all over the country. As of 2021, there were more than 2,700 Washington residents serving their sentences in 120 federal prisons across 35 different states. This number has previously been as high as 4,000.
When an individual is convicted of a crime and placed in the BOP system, they are assigned a criminal history score via a designation algorithm. This is a number that is taken into account to determine institutional factors such as security classification and later eligibility for home confinement or halfway houses. For the majority of individuals sentenced in federal courts across the country, when they enter the BOP system, their criminal history score is calculated according to the guidelines established by the U.S. Sentencing Commission. However, for those convicted of local Washington offenses, their criminal history scores are calculated by the BOP’s Inmate Security Designation and Custody Classification. The lawsuit alleges that D.C. Code offenders are systematically and disproportionately placed in higher security prisons due to these two different algorithms. For example, when scoring is conducted according to the U.S. Sentencing Commission, defendants generally receive no points for juvenile offenses, some petty offenses, or certain offenses that were committed more than 10-15 years ago (“stale convictions”). For individuals convicted under D.C. Code, and therefore subjected to the BOP’s algorithm, these types of offenses almost always count toward their criminal history calculations. This leads to individuals serving Washington sentences to have disproportionately higher scores, thus resulting in their placement in higher security prisons.
The effects of these differing criminal history scores are long lasting. Kavya Naini, the representative of the plaintiffs, says, “[i]ndividuals are disproportionately in higher security prisons where there’s more violence, there is more stigmatization, there’s less programming opportunities, there’s less freedom of movement. They’re not able to go outside as much. They often spend 23 hours on lockdown, especially during the pandemic.” But the issues don’t stop there. She continued, “[a]nd above and on top of that is the effect that it has on their ability to be released through compassionate release or to serve the rest of their sentences at home, because they are less eligible for those opportunities.” The D.C. Code offenders serving their sentences in federal prisons have long cited disrespectful staff, poor treatment and racism, on top of the more violent and restrictive environments of high security prisons. Almost 70% of incarcerated Washington residents reported that they were treated worse in comparison to other inmates serving their sentences in the BOP. Incarcerated Washington residents provided specific examples of staff discrimination, including visitors from Washington being inordinately turned away when attempting to visit the facility. One incarcerated Washington resident said this visitor refusal seemed to target Washington residents, and he has started discouraging family members from traveling to see him.
Naini’s concerns are exemplified by Antwon Buchannan, who is serving his Washington sentence at a high security prison in Kentucky. Buchannan, a practicing Muslim, said there were Muslim chaplains at medium-security prisons, but not at the Kentucky high-security prison. In Kentucky, he also had no celebration for Eid. Additionally, Buchannan said the high-security prison had less access to phone calls with loved ones and to prison opportunities like programming and vocational training as compared to the medium-security prisons. The lawsuit states that if Buchannan's criminal history score had been calculated according to the U.S. Sentencing Commission rather than the BOP’s, his score would be cut in half. This lower criminal history score means that he would have a higher chance of being transferred to a medium-security facility. As Naini points out, the medium-security prison would have less violence and more programming opportunities and time out of cells when compared to the high-security prison. Jonathan Blades, who is currently incarcerated at USP Pollock in Louisiana, also voiced his experiences in different security prisons. According to Blades, higher security prisons offer less college courses because those facilities are often locked down for security reasons. “There is more gang violence and there are more rules that I need to follow in order to keep myself from being attacked, even something as simple as trying to use the phone can become deadly if I do not use it at the right time. That type of violence is not typical at a medium or lower security facility,” he said.
The lawsuit further emphasizes the unfair treatment of those convicted according to D.C. Codes by highlighting criminal histories of other federal inmates. For example, just under half of the people serving federal sentences had prior convictions for a petty or otherwise minor offense. These individuals were not assigned points under the U.S. Sentencing Commission, whereas D.C. Code offenders would have been assigned points to their score. Furthermore, over half of the people serving federal sentences had at least one “stale conviction,” which is a conviction that is not assigned points under the U.S. Sentencing Commission’s algorithm because it is too old. However, D.C. Code offenders do have these “stale convictions” added to their criminal history scores. This unfair criminal history algorithm has a disparate racial impact because more than 95% of individuals sentenced by the D.C. Superior Court are Black, while most of those serving federal sentences are white. Additionally, almost 40% of all D.C. Code offenders serve their sentences in high-security prisons, whereas only 12% of the overall BOP population serve their sentences in high-security prisons.
Plaintiffs in this case ask the court to order a revision to the criminal history algorithm currently in place for the BOP. Specifically, they ask for the exclusion of prior petty crimes and juvenile offenses from counting toward criminal history, which is consistent with the U.S. Sentencing Commission’s algorithm. While the lawsuit was filed as a class action of D.C. Code offenders, the suit also notes that the same claim of unequal treatment applies to other people serving their sentences in federal prisons who were not convicted through the federal system like, for example, convictions through military tribunals. As the Public Defender Service noted in their press release on this issue, “[t]his case seeks to put individuals from D.C. on equal footing with their federal counterparts with whom they share housing, programming, and opportunities for rehabilitation. It also seeks to ensure that criminal history scores for people sentenced by the D.C. Superior Court are accurate and fair.” So far, the Bureau of Prisons has declined to comment on the lawsuit.