Institutional Failure: BOP And CBP
It is a story straight out of Putin’s Russia. A disgraced oligarch whom witnesses report has incredibly damaging kompromat on many of the country’s governing elites dies under mysterious circumstances while in government custody, a reported suicide. The top legal official in the land, whose family provided the oligarch with his initial entrée into the world of the rich and powerful, who was hand-picked for that legal job by the head of state on whom the oligarch was rumored to have kompromat, and who just days earlier had praised the concept of vigilante justice, had earlier refused to recuse himself from the case and expressed some interest in it. That top legal official has now announced an investigation into the oligarch’s apparent suicide. Friends of the oligarch contend he had been in good spirits and worry that he was actually murdered. Incredibly, the head of state actually backs those friends’ belief, but claims the oligarch was killed by the head of state’s political enemies despite the fact that the oligarch was under government supervision.
Of course, the story isn’t out of Putin’s Russia but Trump’s America and the “oligarch” is Jeffrey Epstein. Chances are we will never know the exact circumstances of Epstein’s death and the fortunate timing of his death for so many of the rich and powerful will fuel conspiracy theories for decades to come. And let’s also be clear, the suspicious nature of Epstein’s death and the fact that it happened while in a federally run prison after a prior reported suicide attempt that Epstein reportedly claimed was instead an attempt to kill him will make it far less likely that women who were used and abused by Epstein will now come forward and perhaps make those who have come forward think twice as well. In any case, once again, the victims will not get their day in court and, in the eyes of many, Epstein will have evaded justice again as well.
Whether one believes that Epstein was murdered or the far more likely case that he did, in fact, commit suicide, it is clear that there what happened at the Metropolitan Correctional Center (MCC) involved egregious, if not willful, negligence on the part of the staff there. According to the New York Times, there are serious questions whether Epstein should have been removed from suicide watch. In addition, in a violation of policy, he was left in a cell all by himself after his cellmate was transferred out and the required 30 minute checks were not performed. (Update: not only were the guards asleep when they should have been checking on Epstein, they falsified records to cover their failure). The guards working the shift when Epstein died were both working overtime, one of them for the fifth day in a row, primarily because the prison is understaffed by about 30%.
MCC itself has been a disaster for years. Adam Klasfeld has highlighted some of the jail’s lowlights. The man behind the largest money laundering scheme to evade sanctions on Iran had a knife pulled on him when it was learned he was cooperating with federal authorities. His associate, who implicated Turkish President Erdogan in that scheme, managed to bribe an MCC guard for contraband such as cellphones, alcohol, over-the-counter medications, and food. The man accused of leaking CIA secrets managed to get multiple cellphones, including one encrypted device, into MCC so that he could continue to leak even more information. MCC cells are apparently bug and rat infested. A guard was convicted or raping a prisoner and other guards have covered up a fatal beating. MCC was declared “worse than Guantanamo” by someone who had spent time in both facilities. Its sister federally-run prison in Brooklyn is no better. Last winter, the prison had no heat or hot water for nearly a week as inmates were left to freeze in their cells.
The MCC is run by the Bureau of Prisons (BOP), another dysfunctional agency that is a law unto themselves, which is itself part of the Department of Justice. And the problems at MCC are replicated throughout the BOP system. At the maximum security prison in Colorado, inmates spend 23 hours a day in isolation, eating and showering inside their cells. In the separate H unit of the prison, special inmates can only speak to their lawyers and immediate family members. Simply speaking to other prisoners is forbidden. The resulting mental illness from such solitary confinement has led a former supermax warden to describe the prison as a place “not built for humanity. I think that being there, day by day, it’s worse than death”. Guards have resorted to force-feeding inmates who have gone on hunger strikes protesting the inhumane conditions, a procedure generally considered torture, and conditions in the prison have prompted numerous lawsuits.
Sadly, suicides by people being held in government custody is far more prevalent than any of us imagine. The Department of Justice tracks deaths in police custody and jails but, incredibly, has a federal exemption that prohibits that data from being shared with the public. A recent Huffington Post survey taken over a full year estimated that around 1,000 people die in custody each year and one-quarter to one-third of those deaths are suicide. Since 2000, suicide is estimated to be the leading cause of death among those dying in custody. The use of solitary confinement, the lack of mental health resources and training for prison personnel, understaffing, and the general inhumane attitude of guards towards inmates all exacerbate the number of prison suicides. The lack of funding for prisons in general and the corresponding push to privatize incarceration also is a factor.
The expansion of the incarceration state in the 1990s and early 2000s along with the launching of the war on terror has allowed the BOP to essentially become a world of its own. Effective oversight from Congress has been virtually non-existent primarily because of the political liability of opposing the law and order mentality. A 2019 report showed rampant abuses by guards, not only against inmates but also against other lower ranking officers, are ignored by senior management leading to a total breakdown in order even within BOP personnel. Sexual abuse of female officers by other guards largely went unpunished and even inmates were allowed to take advantage of these women with the approval of higher ranking officers. Management rarely intervened. The report also showed that BOP has made virtually no progress in addressing these issues since a similar study in 2004.
While BOP may have been a dysfunctional agency for many years, there is no doubt that the Trump administration, as it has with so many other federal agencies, has actually made things worse. The head of BOP is only there in an acting capacity and position of deputy director is vacant. That management void combined with Trump’s rhetoric encouraging law enforcement to not worry about abusing suspects has merely exacerbated the disregard within the BOP for policies and procedures as well as the individuals they are supposed to be managing. The violations of policy that allowed Epstein to die were not only the result of understaffing but also because guards knew they would face no real repercussions or consequences for those violations.
We can see a similar situation at Customs and Border Protection (CBP). Like BOP, CBP has been dysfunctional for many years preceding Trump. The agency was created in the wake of 9/11 by merging the functions of multiple existing agencies into the CBP under the umbrella of the Department of Homeland Security (DHS). The merger resulted in a disorganized management structure that, combined with the effort to massively and rapidly increase the agency’s work force by more than doubling it, led to an organization largely out of control.
The demand for workers led the CBP to lower hiring standards and provide minimal training. And many of those hired turned out to be criminals themselves. CBP officers have been accused of sexual abusing both immigrants and other CBP employees, trafficking drugs and firearms, actually being members of Mexican drug cartels, using excessive force on thousands of occasions, running over an immigrant with a truck and murdering others, and even being a serial killer. Over the course of a seven year period from 2005 to 2012, one CBP employee was on average arrested every single day. In 2017, that had been slightly reduced to one employee arrested every 36 hours. Agency officials have admitted that around 20% of the workforce needed to be removed.
Remarkably, there was no bureaucracy within CBP to actually investigate and discipline its employees. Any investigations had to be farmed out to the DHS Inspector General or the FBI. That lack of accountability combined with the overwhelming number of incidents involving CBP employees resulted in CBP actually removing sexual abuse from what constituted “corruption” by a CBP employee. The DHS inspector in the Rio Grande Valley dealt with the enormous backlog of CBP investigations by falsifying records, resulting in his own indictment. It is impossible to know the full extent of violations and abuses by CBP personnel simply because the agency’s record-keeping is so shoddy and unreliable.
Finally, the attempts late in Obama’s second term to finally crack down on the abuses by CBP and institute some order and accountability only created friction with the Border Patrol union, which was the first and, along with a corresponding union at ICE, two of the few unions to ultimately back Trump. Their reward on Trump’s election was to ensure that the reformist leadership within the CBP was removed and the insular culture of corruption and abuse returned to the agency.
Once again, an already dysfunctional agency became even more lawless under the Trump administration leadership. In fact, within days of Trump’s inauguration, CBP was violating explicit court orders. The recently released report from the DHS Inspector General on CBP’s actions after the initial, unconstitutional Muslim is damning indictment of a renegade agency. CBP interpreted the first court ruling against the Muslim ban as not covering those who CBP had been refused entry, resulting in at least one person being flown back to their country of origin in violation of the order. A second court order in Boston blocked CBP from detaining or removing anyone covered by the ban and to notify all airlines accordingly. CBP again violated that order, doing the exact opposite, and informing airlines not to let travelers covered by the ban fly to the US. In addition, CBP threatened those airlines with $50,000 fines and refusal to allow their planes to land if they did not comply with CBP’s illegal instructions. A third court order that clearly applied to all travelers covered by the ban from anywhere in the world was again defied by CBP. In this case, CBP took the position that the ruling only applied to those individuals who had brought the case before the court, a ridiculous and indefensible interpretation of what the order actually contained.
So, from the beginning of the Trump administration, CBP has acted in an unlawful manner. And Trump’s policy of “zero tolerance” on the southern border has created a situation the agency is totally unequipped to deal with. Having built the workforce with the focus on anti-terrorism and drug interdiction, the agency now finds itself in basically a humanitarian role, dealing with families that willingly present themselves at the border seeking asylum. Trump policy has resulted in CBP basically running concentration camps on the border and engaging in the illegal family separations where hundreds of children will probably never be reunited with their parents. It is clear that, despite the courts ruling on the illegality of family separations, CBP continues to engage in that policy. Children are continually held in CBP detention for far longer than the 72 hour maximum required by law. In the decade before the zero tolerance policy went into effect, no child had died in CBP custody. Since that time, however, six children have died in custody or shortly after they were transferred from CBP to a medical facility.
In addition, CBP has apparently also created a list of reporters, attorneys, and immigration activists that has been used to target those individuals for harassment by agency personnel. Days ago, the director of the ACLU’s Border Rights Center was stopped by a CBP patrol who claimed that the fact the fact she was driving a rental car was grounds for her to be stopped.
The dysfunction in the BOP and CBP was largely a result of massive changes in government policy that was not accompanied by the necessary oversight and support required. For the BOP, it was the expansion of the incarceration state in the 1990s. For the CBP, it was the war on terror. Without that oversight and support, both agencies increasingly became laws unto themselves where policies and procedures were routinely violated and management largely lost control of their employees.The failings of these agencies are the responsibility of both Republican and Democratic administrations. But there is no doubt that the Trump administration’s policies and rhetoric has increased rather than mitigated the dysfunction in both agencies. And the people that pay for that dysfunction the most are the people these agencies are supposed to care for.