WASHINGTON, DC – Attorney General Karl A. Racine today announced that his office filed an amicus brief opposing unequal and discriminatory treatment of District inmates by the federal Bureau of Prisons (BOP)—which has custody of nearly all DC inmates because the District lacks statehood.

The brief, filed in the U.S. District Court for the District of Columbia, argues that the BOP must stop using a separate, stricter system to assess the criminal histories of individuals convicted of DC Code offenses than those convicted of federal offenses. This unequal system treats individuals from DC more harshly and subjects them to more restrictive conditions than others in BOP’s custody. 

“The Bureau of Prisons treats DC inmates differently than other inmates in its system—this discriminatory treatment is illegal,” said AG Racine. “All of this comes back to the District’s lack of statehood, which has profound impacts on the real lives of DC residents. Not only is it harmful and unfair to individual DC residents serving sentences in BOP facilities—which are dispersed throughout the country—but it endangers our whole community. DC residents need equal access to services and programming that help them reintegrate when they return home to DC from incarceration. It’s well-recognized that people in closer proximity to their family and community have a better chance of reintegrating successfully into society.” 

Across the U.S., individuals convicted of state-level offenses and sentenced to imprisonment typically enter state prison systems, while individuals convicted of federal crimes are handled by the federal prison system. However, in the District of Columbia—because of the lack of statehood—nearly every individual convicted of a DC Code felony offense (equivalent to a state felony offense) and sentenced to imprisonment are transferred to federal custody and sent to serve their sentences at federal prisons across the country, rather than serving their sentences in prisons within their own communities.

BOP assigns a security classification to each inmate in its custody, which determines the type of facility individuals are placed in, the level of restrictions they face while incarcerated, and the types of programming they can access. To make this determination, BOP calculates an inmate’s “criminal history score.” But BOP uses two different score calculation systems: one for inmates serving federal sentences and one for inmates serving DC sentences. The system for those serving federal sentences does not count certain types of low-level offenses toward that score, but the system for those serving DC sentences does.

The discrepancy between the BOP’s two systems often results in a higher criminal history score and leads to more restrictive imprisonment for DC residents. While 12% of BOP residents overall are incarcerated in high security prisons, 39% percent of individuals with DC Superior Court sentences are housed in those institutions. This means DC inmates in federal custody are over three times as likely to be incarcerated in a high security facility than other BOP residents. And, in one snapshot of individuals serving DC sentences in BOP facilities, more than 95% of them were Black men.

In a brief filed in support of a lawsuit filed by the Public Defender Service of the District of Columbia, OAG argues that BOP’s policies harm the District and its residents by:

• Treating DC inmates more harshly than inmates from other places: Because BOP uses a harsher and discriminatory criminal history scoring system for those serving DC sentences, individuals from DC are more likely to be incarcerated in high-security prisons; exposed to higher levels of violence while in prison; have access to fewer opportunities for education, employment, and other programs; and suffer with more restrictive conditions than inmates with nearly identical criminal histories who are serving federal sentences. 
   
• Disproportionately harming Black individuals: Because the District-specific criminal history scoring system results in higher security classifications for District offenders, and because District offenders are almost exclusively Black, a disproportionate number of Black inmates are assigned to high-security facilities. This violates BOP policies preventing actions that produce a disparate racial impact.
   
• Undermining efforts to improve public safety: The District’s criminal justice system aims to reduce recidivism and rehabilitate offenders so that they can reintegrate into the District community and are less likely to reoffend, which improves public safety. But BOP practices that bump up inmates into higher security classifications stand in the way of achieving that goal. A study that assessed federal inmates with similar security scores who were classified at two different security levels showed that the inmates placed at higher security facilities had higher rates of recidivism than those in lower security facilities.
   
• Undermining local self-determination: The current structure of the District’s justice system is the result of a compromise between local government and the federal government due to the District’s lack of statehood. But the unequal treatment of DC inmates by the BOP undermines this compromise and violates federal law that requires DC inmates to be treated the same as all others in federal custody.
   
• Failing to provide opportunity for public input: The federal rulemaking process requires agencies to allow meaningful public comment input. However, the BOP completely bypassed District residents and important criminal justice stakeholders—including the attorney general—when creating its disparate criminal history scoring system for DC inmates.

The brief argues that the BOP should be barred from continuing to use its discriminatory scoring system and urges the court to require BOP to recalculate and correct the scores of individuals currently serving DC sentences. 

A copy of OAG’s amicus brief filed in Blades v. Garland is available here.

The Washington Lawyer’s Committee for Civil Rights and Urban Affairs and other nonprofits supporting equal justice and racial equality also filed an amicus brief in the case today. Their brief is available here.