There is a lot of coverage in the media about prisoners who accumulate thousands of dollars in their institutional accounts, despite being ordered by the court to pay restitution to their victims. (Judges require about 15% of federal prisoners to pay restitution required by judges, usually for crimes such as fraud, embezzlement and robbery—although 30% of those in for murder also are ordered to compensate victims’ families.)
This issue, not usually a subject of media controversy, broke onto the public radar when The Washington Post reported that high-profile prisoners like Larry Nasser, the doctor convicted of sexually abusing female Olympic gymnasts, spent more than $10,000 on commissary items in a three-year period, while only paying $300 toward his court-ordered restitution. (However, this reflects a failure on the part of Nasser’s unit team in prison. The policy clearly states that the minimum payment of $25 per quarter can be increased depending on a prisoner’s resources.)
Public outcry followed, and in response to a Justice Department memo, the federal Bureau of Prisons (BOP) proposed changes to what’s called the Inmate Financial Responsibility Program. However, it overlooks the fact that most prisoners are not Nasser; they barely have enough money to buy the essential items and services we’re forced to purchase.
At my prison, FCI Cumberland (Maryland), prisoners who have been paying $25 every quarter toward restitution, or some other negotiated, reasonable sum, are suddenly being required to pay more than they can afford, and thus struggle to buy hygiene items, communicate with loved ones, etc. And some prisoners who had managed to save over many years to prepare them for release have seen it all wiped out.
How does restitution work?
Restitution by prisoners is regulated by the Mandatory Victims Restitution Act (MVRA) of 1996. The MVRA requires federal courts to grant restitution to victims for certain crimes. It also mandates that courts specify the manner and schedule for which and payments are made. So, if the court is responsible for setting a payment schedule, how does the BOP have the authority to step in and demand more?
The BOP’s collection method is spelled out in in the agency’s Program Statement, in a section titled “Inmate Financial Responsibility Program (IFRP).” It requires a prisoner’s unit team to develop a payment plan for restitution and other fines. According to this policy, prisoners who do not work one of the higher-paying jobs in UNICOR (a BOP-owned commercial enterprise), must pay a minimum of $25 per quarter. The payment may be more if warranted by the prisoner’s specific situation. (UNICOR workers have contracts that set a flat, predictable rate of payment: 50% of their paychecks. No other source of money is impacted.)
To determine the appropriate payment, the BOP developed a formula. This is how it currently works: First, the amount deposited into a prisoner’s account over six months (from a job or family and friends) is determined. Then the amount already paid toward restitution during that time is subtracted, along with $450 for the cost of communicating with loved ones through email, phone calls, etc. The amount remaining after these deductions is then divided by six months and then considered for additional IFRP payments. The BOP’s program statement gives the unit team sole discretion to determine the exact amount a prisoner must pay monthly, beyond the $25 minimum. This provision subjects prisoners to the mercy of the unit manager –and thus, potential abuse.
What the BOP wants to do now
The proposed new regulation would eliminate the $450 allowance for phone communications, as well as the deductions for payments already made within the six-month evaluation period. The original intent of the $450 deduction was to ensure that prisoners always have a minimum amount of funds for communication with family via telephone and email (both profit-making ventures for the prison-industrial complex—on the backs of prisoners and their families). However, the BOP says it now believes it is no longer necessary to assure funds are available for communication, since wardens are required to allow indigent prisoners one free phone call a month. Although more can be authorized if “special” circumstances exist, one phone call a month is not enough under normal circumstances to maintain bonds with people on the outside.
In addition, the BOP is proposing to garnish 25% of the wages paid to prisoners who don’t work for UNICOR. What you need to know about these institutional jobs is that someone at grade 4, the lowest level, earns $19-$25 a month. A 25% garnishment of $19 leaves only $8.54 for the month. If this is a prisoner’s main source of income, that’s woefully insufficient.
In most cases, it takes at least a year for prisoners to earn the highest pay grade possible for an institution job, which is grade 1. I have finally reached that level, earning the maximum of $84 a month. A 25% garnishment is $21, leaving me with $63—for a month. After the purchase of email credits, stamps and personal hygiene items (phone calls are still free due to COVID), I’m left with little to nothing.
And then there are the effects of inflation. Spending $63 dollars today doesn’t buy us anywhere near what we could get 30 years ago, the last time the IFRP regulations were revised. The result is very little incentive to work.
Still, the 25% garnishment of prison wages would be somewhat reasonable, if not for another proposed rule change that will require us to allot to restitution 75% of funds received from family and friends. Remember, our relatives send us moderate funds, usually infrequently, so we can get adequate nutrition (prison-supplied food is notoriously meager, hygiene items, etc. Garnishing most of what they send us for restitution subverts their intent, discourages them from assisting us and erodes our support system.
True, the rule allows the 75% to be modified on a case-by-case basis. But nothing is said about the criteria that must be met before that rate can be lowered—leaving it to the discretion of the unit manager and associate warden, thus creating an opportunity for discrimination. Leaving anything to the discretion of prison officials is always a dangerous proposition.
The impact in personal terms
I have spent 20 years in prison. I receive moderate, infrequent funds from family and friends. Aside from the times I have worked for UNICOR, I have rarely received more than $1,000 during the six-month assessment period. On the few occasion my account did rise above that, my unit team never failed to increase my restitution payment. Perhaps the reason why Nasser was allowed to accrue that much to spend on commissary items was because the prison earns a 30% mark-up on store purchases.
According to the commentary in the proposed regulations, the BOP considered a less debilitating approach. One option it looked at is similar to progressive taxation: The more income prisoners receive above a specified amount, the more they pay. If they receive below that amount, they pay less. This is a much fairer system. However, the BOP said it posed technical and administrative disadvantages.
First, the BOP believes a progressive system would incentivize prisoners to deliberately maintain lower account balances through “unlawful” and “illegitimate” means, including transferring some of their funds to others in the institution. But the same incentive is built into a flat 75% deduction from all deposits. Prisoners with the financial means would immediately find someone to hold their funds who has not been ordered by the court to pay restitution. This policy only hurts those who can’t compensate another prisoner to hold their money. Those without substantial resources would bear the brunt of this oppressive policy.
Another objection of the BOP to progressive taxation is that prisoners may “structure” payments into their accounts to avoid putting more into the IFRP. But how is structuring different from the smart budgeting we all should do? If prisoners know we must pay 25% of our income to restitution, isn’t it simply good practice to plan out what is needed for personal needs, then try to manage our finances in a way help them live within their means? In the “real world,” that’s called financial literacy.
There are over 160,000 federal prisoners. Of those, according to the Post, approximately 20, such as Nasser, have at least $100,000 in their accounts. That is fewer than 1% of federal prisoners. Yet these few individuals are cited as the basis for a policy that will penalize people who can barely scrape together $1,000 in a six-month period. As usual, the BOP is using collective punishment to address a problem that would be better targeted at those responsible.
Meanwhile, I am fighting back as best I can. Using the established grievance system, I challenged the $150 my unit manager says I must pay. Instead, I proposed to pay $54 a month, because that is the amount I was guaranteed to receive. In response, my unit manager put me on “refusal” status, which reduced my pay for my job as orderly and art instructor in the Recreation Department to $5 a month and limits my commissary purchases to $25. I also lost my second job as a suicide-watch companion, because you can’t serve in that position if you are on refuse status. The result: I can’t pay any restitution.
I believe restitution is part of a prisoner’s debt to society that must be honored. But it is inappropriate to use it as a weapon to crush the spirit of a population that already feels dejected and emasculated. I hope enough people submit comments about the injustice of the proposed rule changes and the powers that be settle on a more reasonable system. As for me, I will continue to fight back, even going to court if necessary.
And, just maybe, the next proposed regulation change will include an increase in the hourly wage for institutional jobs to better reflect inflation. One can only hope.
