Audit of the Department of Justice, Office of the Federal Detention Trustee

Audit Report No. 05-04
December 2004
Office of the Inspector General

Executive Summary


In Fiscal Year (FY) 2001, Congress approved the Department of Justice (Department or DOJ) request for the establishment of the Office of the Federal Detention Trustee (OFDT or office). Historically, the confinement of persons in federal custody awaiting trial or immigration proceedings (i.e., detention) was the responsibility of the U.S. Marshals Service (USMS) and the former Immigration and Naturalization Service (INS).1 However, there have been longstanding concerns with the cost, efficiency, and safety of federal detention, and the involvement of two separate components resulted in a fragmented approach to detention management. Because of the magnitude of these issues, detention was a longstanding DOJ material weakness and one of its top management challenges for over 10 years. The Department created a working group to address the matter, and this group concluded that a central command structure was key to realizing cost savings and improving efficiency in managing detention activities.

The DOJ Appropriations Act of 2001 therefore provided $1 million to establish the OFDT as a separate component within the Department reporting to the Deputy Attorney General. As directed by Congress, the initial objective of the new office was to centralize responsibility for detention to better manage and plan for needed detention resources without unwanted duplication of effort or competition with other Department components. The law provided that the OFDT was to:

[E]xercise all power and functions authorized by law relating to the detention of Federal prisoners in non-federal institutions or otherwise in the custody of the United States Marshal Service and the detention of aliens in the custody of the Immigration and Naturalization Service...2

Detention Growth

One of the challenges facing the OFDT was the significant growth in detention. The number of detainees held by the INS/ICE and the USMS increased from 25,675 in 1994 to 69,615 in 2003. On average, the number of detainees increased at an annual rate of almost 12 percent between 1994 and 2003, resulting in a total increase of over 171 percent.

Detained Criminal Defendants and Aliens3
[Image Not available electronically]
Source: Office of the Federal Detention Trustee

This growth has, in turn, generated the need for additional funding for bed space, transportation, medical costs, support services, and associated personnel. To illustrate, when 25,675 detainees were being held by the Department as of September 30, 1994, a total of about $690 million was expended that fiscal year for detention. In comparison, the administration's FY 2003 budget request included over $1.3 billion in funding for detention, about $700 million for the USMS and $600 million for the INS.4 Over this same 10-year period, the average daily rate for detention beds rose from about $54 to $61 per bed. This represents a modest 13-percent increase in the daily bed rate compared to the 171-percent increase in the number of detainees cited above. These statistics help illustrate that the rising costs of detention are primarily due to the significant increase in the number of detainees.

Audit Objectives and Results

The objectives of this Office of the Inspector General (OIG) audit were to: 1) review the funding and the accomplishments of the OFDT since its inception in FY 2001; 2) determine how the OFDT coordinates and oversees detention activities within the Department; and 3) examine the OFDT's plans and goals for managing detention needs. Additional information on our audit objectives, scope, and methodology is contained in Appendix I.

In brief, we found that although the office has been in place for almost four years, the OFDT has not been able to complete the goal of centralizing and overseeing detention activities. The former INS's transfer to the DHS, congressional action, leadership vacancies, and other obstacles have complicated the OFDT's ability to build a firm foundation with a clearly defined organizational purpose. In addition, the area of detention has recently experienced funding shortages that have caused the need for funds to be transferred to the OFDT from other Department initiatives.

Obstacles to the OFDT Mission

The Department's proposal for the creation of the OFDT stated that the agency would be a small office operated separately from the existing components involved in detention to oversee the various activities and develop solutions to issues that went beyond individual component interests. Its budget in each of the first two years of operation was only about $1 million. This changed dramatically in FY 2003 when it was given authority over the entire $1.3 billion DOJ detention budget. The staff size has grown from its original ceiling of 3 individuals to its current level of 18.

Despite this growth, the OFDT has encountered significant obstacles in its ability to achieve its mission of overseeing detention, resulting in the office being seen by officials both inside and outside of the Department as an unstable organization with an uncertain future. For example:

  • In March 2002, just six months after the hiring of the first Detention Trustee, the Department began planning to eliminate the OFDT as an independent entity and transfer its function and personnel into the Federal Bureau of Prisons (BOP). In May 2003, the Office of Management and Budget (OMB) officially rejected the proposal because it wanted the OFDT to remain independent.

  • In January 2003, the first Detention Trustee retired after having served just 15 months. The position was then vacant for almost 18 months, while the OFDT Director of Programs served as the Acting Detention Trustee. In June 2004, after a prolonged search for a suitable applicant, the Department transferred an experienced executive (who was serving as a USMS Assistant Director in the Prisoner Services Division) into the Detention Trustee position.

  • The OFDT's budget was greatly enhanced in FY 2003 when it received full monetary authority for all Department detention activities in non-federal facilities. The OFDT's budget grew from about $1 million to over $1.3 billion. The office was ill-equipped to handle such a large change in fiscal responsibility. At the time of the enhancement, the OFDT had five employees on board.

  • In March 2003, the INS was reorganized, in part, into the newly created Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (ICE). This reorganization resulted in the transfer of significant detention activities and funding outside of the DOJ, once again fragmenting the government's efforts related to detention. An Interagency Agreement (IAA) was enacted between the OFDT and ICE in January 2004 that called for the OFDT to provide ICE with certain detention services, such as contracting support and facility inspections. However, to date, this agreement has not solved the fragmentation because it gives the OFDT only limited involvement in ICE detention activities.

  • Beginning in the FY 2002 budget and appropriation process, Congress began indicating that it wanted the OFDT to take over management responsibility for the Justice Prisoner and Alien Transportation System (JPATS), currently under the control of the USMS.5 As the OFDT was first proposed and created to be a small oversight office, this direction appeared to signal a change in the spirit and character of the OFDT by adding duties of a more operational nature. When the FY 2003 budget was passed in February 2003, Congress directed the Department to transfer the management of JPATS to the OFDT. Although the FY 2003 budget also raised the OFDT staff size to 18, the office had only five staff on board, and the Detention Trustee position was vacant at the time the legislation was passed. Therefore, Department officials believed that transferring JPATS was not feasible at that time. The FY 2004 budget again included provisions for the management of JPATS to be transferred to the OFDT. The Department is reviewing the current situation and discussing available options with Congress. In the meantime, JPATS remains under the USMS.

In our judgment, the OFDT's progress has been hampered by the lack of a clear and consistent purpose. Both Congress and Department officials seem to have wavered on the intended role and functions of the office. In addition, the former INS and its detention activities and funding were transferred to DHS, and the Detention Trustee position remained vacant for an extended period. These factors made it difficult for the OFDT to move forward in addressing detention weaknesses. Instead the office was focused on addressing the issue of the moment (e.g., the proposed merge with the BOP, the IAA with ICE) and the completion of individual tasks, such as reports requested by Congress or other special projects.

Recent Developments and the Future

After an extended vacancy, the Department placed an experienced executive in the Detention Trustee position in June 2004. The new Detention Trustee has acknowledged the weaknesses in the OFDT's operations due to the lack of a clear and consistent vision for the organization. She has provided a proposal to DOJ management for the OFDT to undertake an oversight role, including strategic management (e.g., advanced procurement planning and standardization of per diem rates for housing detainees), budget execution and formulation (e.g., forecasting and statistical analysis), and policy setting (e.g., cost containment initiatives and confinement standards), rather than an operational role requiring day-to-day OFDT involvement in contract management, facility inspections, and other routine tasks.

In recent correspondence, Department officials have expressed to Congress that it is committed to having the OFDT lead the effort in addressing the myriad detention problems that have plagued the Department. Congress responded that it considers the Department's recent actions to be positive steps to address detention issues and remains in support of the OFDT.

Detention Funding Shortfalls

The OFDT faces another challenge related to detention forecasting and budgeting. Recent budget projections of detention bed space needs have been significantly inaccurate. The OFDT attributes these inaccuracies to weaknesses in the statistical model used to calculate the projections. Because the significant growth in detention was not accurately projected by the statistical model, which was developed by a USMS contractor, detention activities needed a budgetary bailout from other Department funding sources.

In FYs 2003 and 2004, the OFDT recognized that the funds budgeted for detention would fall short of the amount needed to fully fund activities. The receipt of $40 million in wartime supplemental funds rectified the shortfall in FY 2003. For FY 2004, however, the Department was required to reprogram $109 million from other initiatives to cover the shortage. Further, the Department has shifted $150 million in funds previously budgeted for other Department initiatives into the OFDT's FY 2005 budget request.

According to the Department officials, the primary cause of the shortfalls was a significant increase in the number of detainees. These increases far exceeded the forecasts used to calculate the budget requests. OFDT officials have acknowledged limitations of the statistical model used to develop the forecasts, and they hope to improve the accuracy of future projections by expanding the model to incorporate additional factors, such as law enforcement and prosecutorial resources and initiatives. Further, the Department has stated that the increasing trend in the detainee population is expected to continue. In response, the Department is embarking upon several initiatives coordinated by the OFDT to help contain the growth in detention costs. For example, the new Detention Trustee is heading a new high-level, interagency steering committee established to reduce the time individuals spend in detention, and the OFDT is working with the federal judiciary to raise the awareness of detention costs and projected shortfalls. The Department acknowledged that the dynamic detention environment includes significant factors outside its control but that it intends to make every effort to eliminate the need for funds to be transferred from other sources to cover detention budget shortfalls.

We believe the Department and the OFDT should also examine the current strategy and practices for acquiring detention space in non-federal facilities. According to the OFDT, detainee housing and subsistence constitutes about 90 percent of its total program costs (about $800 million). The primary method for obtaining non-federal detention space is entering into Intergovernmental Service Agreements (IGAs) with state and local governments for jail beds.6 In previous OIG audits of IGAs, we have identified questioned costs related to the daily rate charged to house federal detainees. In 17 audits between FYs 1998 and 2003, we reported questioned costs in excess of $21 million, which were primarily due to the state or local governments' inclusion of unallowable, unallocable, or unsupported costs in the computation of the daily rate.

Recommendations

As a result of our review, we have provided eleven recommendations to assist the Department and the OFDT in the endeavor to improve the Department's management of detention activities. The Department and the OFDT must address the continued lack of accuracy in estimating the cost of detention activities that has caused shortfalls to occur and must take steps to help contain the continually rising costs of detention. In addition, the Department must take firm action to establish the role and functions of the OFDT, particularly in relation to ICE and JPATS. The role and functions must then be clearly communicated to all stakeholders through the development of a strategic plan. Once this is done, the OFDT can begin to concentrate on tasks that contribute to the accomplishment of its mission. The new Detention Trustee has generally agreed with our findings and has begun taking steps to address them.

Footnotes

  1. The detention activities of the former INS were transferred to the new Bureau of Immigration and Customs Enforcement (ICE) when the Department of Homeland Security (DHS) was created in March 2003. This governmental reorganization proved to be one in a series of challenges for the OFDT that are discussed in this report.

  2. Public Law 106-553, enacted December 21, 2000.

  3. Population counts represent the population on September 30 of each year. As of July 31, 2004, the total population was 72,956; 52,951 were in USMS custody and 20,005 were ICE detainees.

  4. Since the INS was transferred out of the DOJ in March 2003, the FY 2003 budget was the last time federal detention costs were budgeted together. The DOJ detention budget for FY 2004 was originally approved in January 2004 at $814 million.

  5. Created in 1995 through the merger of the air fleets operated by the USMS and the former INS, JPATS operates a fleet of aircraft, cars, vans, and buses to transport prisoners and detainees to courts and detention/incarceration facilities. On average, more than 270,000 prisoner and alien movements a year are completed by JPATS. In FY 2004, JPATS employed 146 permanent staff in addition to 210 contract employees and had a budget of $87 million.

  6. IGAs are agreements whereby state and local facilities provide bed space for federal detainees on a per diem basis. Once the daily rate is negotiated and the IGA is signed, the jail provides bed space as available and needed; however, bed space is not guaranteed. The USMS and ICE have established over 1,500 IGAs across the country, about half of which are utilized at a given time.