Credit: Darrow Montgomery

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Not many people are asking to move into the D.C. Jail. But the few that are have been stymied in their efforts for years.

The jail may be a deplorable place to live (so much so that it’s at the center of another new class action lawsuit), but it’s also considerably safer than the federal prisons where most incarcerated D.C. residents are sent to serve their time. Plus, the jail has the unique distinction of being the only correctional facility in the District itself, keeping incarcerated people close to their families and friends and helping staff become familiar with the unique demands of D.C.’s criminal legal system. And it also boasts some decent programs for residents preparing to rejoin the communities, rather than keeping them constantly locked down in their cells.

All of this makes the jail a better place to be for people seeking early release through the District’s “second look” law, which gives people who committed crimes at a young age a chance to get out after they’ve served at least 15 years of their sentences. The process can take months, or in some cases years, before a judge issues a final decision, and the hundreds of prisoners eligible for resentencing could benefit from waiting at the jail instead of at federal facilities.

“When it comes to D.C. inmates, the federal workers have this dismissive attitude toward us, like they couldn’t care less,” says Michael Stewart, who spent roughly 26 years in federal prisons on a murder conviction before winning early release last year. “If you are truly going to prepare for society, and truly be able to integrate successfully, you’ve got to put us in an environment where we can do this…That’s why a lot of inmates are willing to deal with the conditions of the D.C. Jail.”

Yet people like Stewart have been denied the chance to be transferred back to D.C. for the past three years now, according to activists, lawyers, and formerly incarcerated people. Many fear that this dynamic will persist long after the inciting incident of the pandemic, undermining the spirit behind these innovative reforms in the process.

“It’s just such a hard stance right now that is to the detriment of the guys that are so far away from home,” says Troy Burner, who was granted early release in 2018 (and later fully exonerated) after spending 25 years behind bars. He now works as an associate at the Justice Policy Institute advocating on these issues. “More effort should be given in trying to find ways to bring these guys back,” he adds.

Police, prosecutors, and Mayor Muriel Bowser’s administration have all fought these sentencing reform laws to varying degrees, so it is perhaps no surprise that there have been implementation challenges. (The Council enacted the Incarceration Reduction Amendment Act in 2017, which lets people under the age of 18 apply for release after 15 years inside, over objections from Bowser and federal prosecutors; it expanded eligibility to anyone under 25 with the Second Look Amendment Act in 2021.) But lawyers and activists working with incarcerated people say that the federal government and the District’s court system have been bigger impediments to getting people back to the jail than any local opponent.

Attorneys representing people seeking release under IRAA (as the law is commonly known) say they had little trouble getting their clients moved to the jail when the legislation first took effect. The local facility is generally reserved for people awaiting their trials or serving short sentences, while people convicted of serious crimes are shipped off to federal prisons all across the country due to the feds’ control of the District’s court system. But judges would allow IRAA applicants to live in the jail while their petitions were pending.

Perhaps understandably, the pandemic represented a sea change, says James Zeigler, the founder and co-executive director of the Second Look Project, a nonprofit focused on early release efforts. Conditions at the jail quickly deteriorated as COVID broke out, and the gears of the court system ground to a halt. Zeigler says it wasn’t ideal to meet with his clients virtually, but it’s a reality pretty much everyone had to adapt to as the pandemic grew worse.

The problem is that nothing changed for IRAA applicants even as the system started getting back to normal. Zeigler and his colleagues continued pushing the courts on the issue, but they were disheartened when D.C. Superior Court Chief Judge Anita Josey-Herring signed an order on Aug. 2, 2021 specifically barring judges from allowing IRAA applicants to move back to the jail.

She said in the order that this move was primarily about COVID safety and that her goal was “reducing the footprint and influx of prisoners from the” federal Bureau of Prisons. But she also justified the move by arguing that IRAA “created a significant case load increase on the Superior Court at the very time the court is operating in a pandemic,” and noted that the Council’s recent passage of the Second Look Amendment Act expanded early release eligibility to nearly 600 more people. Zeigler disputes any notion that housing an IRAA applicant at the jail makes a difference in the speed at which these cases get resolved. (A spokesperson for the U.S. Attorney’s Office for D.C., which prosecutes most crime in the District and represents the government in IRAA applications, estimates that just 172 applications have been filed since the Council expanded eligibility in 2021.)

Activists suspect that Josey-Herring’s decision was driven a bit more by optics than practical concerns. Just a few days before issuing that order, Josey-Herring had delivered a highly unusual public rebuttal to Bowser’s claims that delays at the local courts were partially responsible for an increase in gun violence in the city. Any perception that judges were, say, taking more time to hear arguments for the release of convicted felons instead of addressing gun crime cases was suddenly politically unpalatable under pressure from the mayor.

“The chief judge made it pretty clear she thinks this will slow down cases,” says Pam Bailey, who advocates for incarcerated people as a co-founder of the group More Than Our Crimes. “But even if that’s true, you have to balance that against the impact on the people. And they pretty clearly don’t care about them.”

A spokesperson for the D.C. courts declined to comment on the matter. BOP spokesperson Benjamin O’Cone wrote in an email that the agency makes decisions on transfers “based on several factors such as security, population, programming, and medical needs,” but declined to comment on other “anecdotal allegations.”

Even after that order, Zeigler says he found some success convincing the chief judge to grant exceptions “for some limited purposes,” like letting his clients move back to the jail for hearings on their IRAA applications. But even that bit of leniency largely dried up after the District’s very public spat with the U.S. Marshals Service over the treatment of Jan. 6 defendants in late 2021.

USMS has custody of people held in the jail before they face trial on federal charges, and it started raising concerns about the city’s management of people charged in the insurrection (so much so that a federal judge took the unusual step of holding leaders of the city’s Department of Corrections in contempt). The agency then swept in for a surprise inspection of the jail and promptly declared it so dangerous as to be unfit for people in its custody, moving 400 people to a different federal prison. The feds’ follow-up to this spate of outrage has left advocates distinctly underwhelmed, but the move had an immediate impact on IRAA hopefuls.

Zeigler says the alarms raised about the jail’s condition ensured that judges would only agree to move his clients to facilities in Pennsylvania or central Virginia, both still hours away from the city.

In Stewart’s case, his lawyers told him that the Jan. 6 fallout was the reason he remained stuck in a prison in Hazelton, West Virginia, which recently experienced staff shortages and a resulting rise in violence, while he waited for the IRAA process to play out.

“There appears to be no institutional appetite for, or willingness to start bringing people back,” Zeigler says.

This dynamic has left pretty much everyone involved feeling a bit discouraged. Fighting over these release applications has been an acrimonious process from the very beginning, largely due to resistance from federal prosecutors: the USAO estimates it’s opposed nearly half of all IRAA motions filed since 2021. (Burner notes that prosecutors opposed his petition for release, even though his attorneys had already begun showing them evidence that would eventually lead to his exoneration.) The slog gets that much worse when people are held far away from their families and attorneys.

“When you’re in that penitentiary environment, guys may come at you at any moment,” says Anthony Petty, who spent roughly 29 years in prison on a murder conviction before securing his release via IRAA in 2020. “You’ve got to protect yourself. But at the same time, protecting yourself gets used against you.”

Indeed, attorneys say that judges value clean disciplinary records as they weigh whether to grant an early release, yet federal prisons are often so violent that it’s difficult for IRAA applicants to avoid confrontations. Worse yet, D.C. natives often face a “stigma” that they are the “most dangerous kind of prisoners in the federal system,” says Destiny Fullwood, co-executive director of the Second Look Project. That largely stems from the fact that many long-serving prisoners spent time in the extremely violent Lorton prison, dubbed the “prison of terror” before it was shuttered in 2001, she says.

Burner remembers feeling like he had “a big X on your back” when he was moved to federal prisons for just this reason. Others were eager to challenge him based on this reputation. It didn’t help that there are often very few D.C. residents in each facility, he says, even while “you’re up against people from different individual cities or states or places all over the world that mob up together.”

“If you’re trying to go home, other people don’t know or don’t care about that, and all the staff couldn’t care less,” Stewart says. “You get caught up in this cycle of violence, or just the cycle of dysfunctionality, that you can’t even get your mind right and prepare for getting back to society.”

Making matters worse, Stewart says it was “really a hassle and a headache” contacting his lawyers when he was in federal prison, and Zeigler and Fullwood both say this is a common problem at BOP facilities. O’Cone, the agency’s spokesperson, writes that “access to legal counsel remains a paramount requirement in the BOP.” But Fullwood says that this commitment varies wildly across different facilities around the country.

“Our clients are basically subject to the whims and caprice of random federal correctional officers and counselors and facility managers, who all do things a little bit different,” Zeigler says.

By contrast, Petty says he was able to meet with his lawyers frequently once he secured a transfer to the jail in 2018 (he’d previously stayed at USP Big Sandy, another troubled federal prison in Kentucky). What’s more, he got involved in the jail’s Young Men Emerging unit and began mentoring some of the jail’s younger residents as part of a program that’s won national acclaim for its success. Petty credits this role with helping him secure a similar position as a youth mentor and credible messenger on the outside as part of the city’s violent interruption efforts. It is “one of the most beautiful things” to ever happen to him, he says.

It’s the sort of journey to a better life that Petty and his fellow advocates believe is eminently possible for all of the people eligible for IRAA, if only the feds, the courts, and the city could cooperate and bring people home to the D.C. Jail. In a political environment where any expansion of early release laws seems pretty much impossible (Bowser relentlessly attacked revisions to the criminal code that would expand IRAA to people of all ages and convinced Congress to help her block them), it’s the least they could do.

“There are people here ready to help the community heal from the damage that they may have done decades ago,” Burner says.