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Michael Carvajal

Photo by Tom Williams via Reuters

The search is on for a new director of the federal Bureau of Prisons after Michael Carvajal announced on January 5 that he’s retiring from his appointed post and will leave when the Department of Justice finds his replacement.

The Biden Administration needs to replace Carvajal with a person who knows prisons inside and out: someone who’s been incarcerated before.

When President Joe Biden announced his first round of cabinet picks just weeks after being elected in 2020, then Vice President-elect Kamala Harris said: “When Joe asked me to be his running mate, he told me about his commitment to making sure we selected a cabinet that looks like America – that reflects the very best of our nation.

It’s not clear that the Biden administration looks like the America that so many of us occupy.

Five years ago, researchers estimated that about three percent of the country – and 15 percent of Black men in the United States — have spent time in prison. Eight percent of the country and a third of Black men had felony convictions. Dr. Sarah Shannon, a sociologist who led the study, limited the data to the year 2010. Incarceration peaked in 2008 and reached its lowest level since 1995 last summer, according to a 2021 study by the Pew Research Center. Decarceration has added many more people to these totals since that 2010 snapshot; I think it’s much higher than the “20 million” number that gets appended to discussions of hiring people with criminal records.

So this part of America looks like it’s growing — and isn’t well reflected in the employee pool that staffs the Biden administration.

Some structural barriers prevent potential applicants with criminal records from filling federal posts, but it doesn’t have to be that way. Former President Barack Obama signed an executive order to turn the practice of allowing ex-felons to work in federal government into a formal regulation. At least three people with criminal histories worked in the Obama administration, mostly toward the end of his second term.

If the White House had remained in Democratic hands in 2016, even more former incarcerees might have found their way into federal employment -- but Obama’s successor erased much of that progress. The Trump campaign hired people with criminal backgrounds but not the Trump administration. Trump’s team actually wanted to expand the disqualifying criteria for federal employment to include having charges that were disposed through a pretrial diversion program. They wanted to exclude people who didn’t have a felony conviction record with an even harsher criterion: Merely a brush with the criminal legal system would have served as cause for rescinding a job offer.

Biden said he hopes he’s the polar opposite of Trump; one way to prove that would be to embrace the Beltway adage that “personnel is policy” — coined in a 2016 op-ed by Ronald Reagan’s Director of Personnel, Scott Faulkner — and rewind the reputation he’s earning for himself that he doesn’t care about doing better by the 157,596 men and women penned in the country’s 122 federal correctional facilities as of January 13.

While he promised to phase out reliance on private prison management companies early on (a vow some advocates question), Biden hasn’t made any commutations or pardons. In December, the White House ordered an “expedited clemency screening program for drug offenders with less than four years left on their sentences” but it hasn’t reorganized the Office of the Pardon Attorney. Biden lost some support in the reform community when he rebuffed a request from the National Council of Incarcerated and Formerly Incarcerated Women and Girls to commute the sentences of 100 women in his first 100 days.

While Trump touts the First Step Act as the pinnacle of reform, Biden’s Department of Justice has slow-walked its implementation. People restricted to home confinement could have completed their sentences years ago if the Department of Justice had applied the law’s signature “Earned Time Credits” to their sentences when they earned them. Instead, Attorney General Merrick Garland finally ordered it done the week of January 10, 2022, taking over a year to do what could have been accomplished very quickly.

The director of the Bureau of Prisons isn’t a Cabinet member per se. The office is filled by the attorney general and doesn’t require Senate approval – an aspect of the job that may change if a House bill introduced January 13 requiring confirmation hearings and a Senate vote to install a new director is made law.

Even though the Bureau of Prisons remains the only Justice Department agency whose head doesn’t require a Senate vetting, the choice is important to the entire tenor of an administration. Carvajal’s short stint mirrors the president he served; certain prisoners hoarded large sums of money in their inmate accounts and dodged financial obligations and a certain lawlessness pervaded federal prisons, which had nothing to do with the people convicted of federal crimes. A 2021 Associated Press investigation found more than 100 correctional employees have been arrested and/or convicted of crimes since 2019. It was a lapse significant enough for Senator Dick Durbin (D-IL) to call for Carvajal’s ouster in November 2021.

Naming a director who has a rap sheet would leave very few critics of Biden’s commitment to reform. Of course, this proposal will inevitably invite accusations that the Biden administration is allowing the inmates to run the asylum — as if that’s necessarily worse than who’s running it now.

But, surprisingly, it seems that even the most fervent reform advocates fall just short of saying that the new director should be a formerly incarcerated person.

The same National Council of Incarcerated and Formerly Incarcerated Women and Girls that sought to free at least 100 women a year ago, released a statement on January 12 and an open letter to President Biden asking for a director who has “a deep understanding of the causes of mass incarceration and a track record of combating institutional racism in keeping with this Administration's oft-stated -- but rarely seen -- commitment to racial justice… [and is] committed to decarceration of people who should not be in prison: the elderly, ill, survivors of domestic violence, and long-timers.”

The National Council did not return a request for comment on whether that “deep understanding” really means someone who lived deep inside a cell. Neither did representatives from Just Leadership USA, an organization that trains formerly incarcerated people for leadership positions. [Disclosure: I was one of JustLeadership’s “Leading with Conviction” Fellows in 2018.]

I’m not suggesting that someone slinging meth on a corner because his criminal record locks him out of legitimate employment should slide into Carvajal’s seat. More than enough former prisoners are qualified to do his former job. Among the millions of people who’ve re-entered society, there are two MacArthur Foundation Genius Grant award winners (1, 2), one of whom made Time Magazine’s 2019 Top 100 list, as well as law professors, elected officials, business pioneers, non-profit founders, authors, journalists, and artists who have accomplished more than other people who’ve never walked the line.

It won’t be some rough-riding abolitionist either who would deliver a surprise — or even illegal — exodus from federal pens; I don’t think an abolitionist would take the position. And that highlights the real risk of carving out Carvajal’s job for someone who’s been through the criminal legal system. It’s not a dearth of talent or responsibility; it just may be that none of them really wants the job of managing people confined to the same spaces they once were.

But if called, one of us should serve, even if only for a short period. To be the first person to leave one door of a prison and walk in another would too much of a revolution to ignore. And this president and his Department of Justice should kick it off by picking someone with lived experience to lead the federal government’s prison system.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns will now appear regularly in The National Memo.

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