- 1. THE USMS HAS NOT MADE ADEQUATE PLANS TO SECURE DETENTION SPACE IN THE ABSENCE OF CAP FUNDING
CAP funding has declined significantly over the last five years and was eliminated completely in FY 2005. In addition, OMB has recommended that no CAP funds be provided for FY 2006. The need for USMS detention space has increased by 34 percent since FY 2001. The USMS currently has 180 CAP agreements, guaranteeing 11,203 bed spaces annually that will expire between FY 2005 and FY 2029. Of these, 31 agreements, guaranteeing 1,318 bed spaces, will expire between FY 2005 through FY 2007. An additional 149 CAP agreements, guaranteeing 9,885 bed spaces annually, will expire between FY 2008 and FY 2029. Further, the USMS has identified 47 court cities where detention space is a serious or emergency problem but funds are not available to secure guaranteed detention space through CAP awards. The USMS continues to secure detention space by using IGAs, private jail contracts, and BOP space. However, the USMS has not determined whether jails with expiring CAP agreements will continue to house USMS detainees at a reasonable cost after the CAP agreements expire. Therefore, the USMS cannot provide assurance that it will be able to meet its detention space needs as existing CAP agreements expire.
CAP Funding Reductions
CAP agreements have historically been a significant tool to guarantee detention space in certain court cities. Since 1982, the USMS awarded about $285 million to counties and municipalities under CAP agreements guaranteeing more than 13,600 spaces for federal detainees. In recent years, Congress steadily reduced the appropriation for the CAP, and eliminated CAP funding altogether in FY 2005, as shown in the following chart.
CAP Funds Appropriated
FY 2001 – FY 2005
| Source: Office of Justice Programs Appropriations |
The following paragraphs describe the funding reductions experienced by the CAP during FY 2001 through FY 2006.
For FY 2001, the USMS submitted a proposed budget for $167 million in CAP funding. This amount was for both the USMS’s and the former INS’s CAP agreements and included an increase of $132 million over the appropriated funding for FY 2000. In its analysis and recommendations, JMD noted that the USMS and the INS had not consolidated their CAP funding request as had been previously recommended by the OMB. Instead, the two agencies merely submitted separate lists of each agency’s priority CAP agreement needs. The Department requested that only $35 million be approved for both the USMS and INS in FY 2001. The President’s budget included the requested $35 million for FY 2001 and Congress appropriated $35 million for both the USMS and INS.
For FY 2002, the USMS submitted a proposed budget reflecting an increase of $10 million above the $35 million appropriated for FY 2001. This request was for USMS CAP agreements only. The Department increased the USMS’s $45 million request to $60 million to provide funding for the INS CAP agreements. The President’s budget included a total of $35 million for both the USMS and INS. Congress reduced the President’s request by $15 million, appropriating $20 million for the USMS and INS for FY 2002, indicating that the two components had retained over $20 million of unobligated CAP funds that could have been used in FY 2002.
For FY 2003, the USMS submitted a proposed budget for $35 million in CAP funding. This amount included funding for both USMS and INS CAP agreements. The Department reduced the request by $30 million to $5 million, and the President’s budget recommended no CAP funding at all for FY 2003. Congress appropriated $5 million for both the USMS and INS.
For FY 2004, the USMS submitted a proposed budget for $46 million in CAP funding for USMS and INS agreements. The Department reduced the USMS’s request by $41 million to the $5 million level appropriated for FY 2003 and the President’s budget recommended no funding at all for FY 2004. Congress appropriated $2 million for the USMS alone.
For FY 2005, the USMS did not request any increase over the $2 million in CAP funding appropriated for the previous fiscal year, and the OFDT made no recommendation on the proposed budget. The Department forwarded the $2 million request to OMB. The President’s budget did not recommend any CAP funds for FY 2005, and Congress subsequently eliminated funding for the CAP altogether for FY 2005.
For FY 2006, the USMS submitted to the OFDT a proposed budget for $52 million in CAP funding. The OFDT reduced the USMS’s request to $19.8 million and requested that the CAP appropriation be included in the OFDT’s budget instead of in the OJP’s budget and subsequently transferred to the OFDT. The Department disapproved the increase because it did not agree with the OFDT’s request that the CAP appropriation be included in the OFDT’s budget. JMD staff told us they believed that the OFDT did not have the staff to properly administer the program. Therefore, the Department recommended only the base amount of $2 million. The President’s budget did not include any funding for the CAP, and Congress has not acted on the FY 2006 budget proposal as of June 2005.
Detainee Increases
While CAP funding has decreased dramatically since FY 2001, the USMS average daily detainee population has increased from 36,965 to 49,405, or about 34 percent over the same time period. This increase, shown for each year in the table on the next page, has necessitated the increased use of methods other than the CAP program for housing the detainee population.
USMS Average Daily Population Increases
| Fiscal Year | Average Daily Detainee Population | Rate of Increase from Prior Year |
|---|---|---|
| 2001 | 36,965 | --- |
| 2002 | 40,114 | 8.5% |
| 2003 | 43,984 | 9.6% |
| 2004 | 49,405 | 12.3% |
| Source: USMS |
The USMS has thus far met demands for detention space through the use of CAP agreements, IGA agreements with state and local governments, private jail contracts, and space at BOP prisons.
Agreement Expiration and Detention Problems
Many CAP agreements will expire between 2005 and 2007, thus ending guarantees for about 1,300 beds, and many more will expire by the end of 2029. To perform our analysis, we obtained the USMS’s CAP Beds Report as of October 18, 2004. The CAP Beds Report identifies all court cities with active CAP agreements and contains the following data:
- State
- District
- Court City
- Recipient Jail
- USMS Beds Guaranteed
- Years Agreement is in Effect
- USMS Funding
- Average Cost Per Bed
- Year Beds Become Available
- Year Agreement Expires
We also obtained the CAP agreements to confirm the expiration date of each agreement. The period of the agreement commences on the date the project funded by the CAP agreement is completed and payments by the United States Marshals Service are fulfilled. To calculate the expiration date of each agreement, we reviewed two reports in the CAP agreement files located at USMS headquarters. These two reports are the “USMS District CAP Agreement Financial Closeout Report” and the “Recipient CAP Agreement Financial Closeout Report.” The first report identifies the date all work was completed on the project that was funded by the CAP agreement. The second report identifies the date that the recipient of the CAP award received final payment from the USMS. We took the latter of the two dates and added the duration of the agreement to determine the expiration date of each. If only one or neither report was in the CAP agreement file, we relied on the best documentation available in the file to determine the completion date of the project and the date the recipient received final payment from the USMS, and used the later date.
We found that as of FY 2005, the USMS has 180 active CAP agreements guaranteeing 11,203 bed spaces annually that will expire between FY 2005 and FY 2029. Specifically, we determined that the USMS had 31 CAP agreements, guaranteeing 1,318 bed spaces annually, that will expire between FY 2005 through FY 2007. A listing of these agreements showing the beds guaranteed and expiration dates is in Appendix IV. The remaining 149 CAP agreements, guaranteeing 9,885 bed spaces annually, will expire from FY 2008 through FY 2029. A listing of these agreements showing the beds guaranteed and expiration dates is in Appendix V. The following tables show the number of agreements that will expire each fiscal year and the number of beds that will no longer be guaranteed from FY 2005 through FY 2029.
Number of CAP Agreements that Will Expire Each Fiscal Year and
Resulting Number of Beds That Will No Longer Be Guaranteed
FY 2005 - FY 2007
| Fiscal Year | Number of Agreements That Will Expire | Number of Beds That Will No Longer Be Guaranteed |
|---|---|---|
| 2005 | 5 | 236 |
| 2006 | 11 | 372 |
| 2007 | 15 | 710 |
| Total | 31 | 1,318 |
| Source: USMS Prisoner Services Division |
Number of CAP Agreements that Will Expire Each Fiscal Year and the
Resulting Number of Beds That Will No Longer Be Guaranteed
FY 2008 – FY 2029
| Fiscal Year | Number of Agreements That Will Expire | Number of Beds That Will No Longer Be Guaranteed |
|---|---|---|
| 2008 | 20 | 959 |
| 2009 | 13 | 568 |
| 2010 | 15 | 923 |
| 2011 | 11 | 611 |
| 2012 | 7 | 187 |
| 2013 | 8 | 920 |
| 2014 | 15 | 915 |
| 2015 | 7 | 470 |
| 2016 | 12 | 868 |
| 2017 | 10 | 1,430 |
| 2018 | 9 | 687 |
| 2019 | 4 | 237 |
| 2020 | 4 | 555 |
| 2021 | 3 | 95 |
| 2022 | 2 | 104 |
| 2023 | 4 | 195 |
| 2024 | 0 | 0 |
| 2025 | 1 | 22 |
| 2026 | 1 | 75 |
| 2027 | 1 | 20 |
| 2028 | 1 | 24 |
| 2029 | 1 | 20 |
| Total | 149 | 9,885 |
| Source: USMS Prisoner Services Division |
The following chart illustrates the loss of guaranteed beds if CAP funds are not restored in future appropriations.
Declining Number of Guaranteed Beds from
Expiring CAP Agreements (FY 2005 - FY 2029)
| Source: USMS CAP Agreement Files |
One tool used by the USMS to determine if an existing CAP agreement needs to be expanded or a new CAP agreement needs to be established is the annual detention status survey that Districts complete for each of the approximately 280 court cities in the federal judicial system. In the surveys, Districts are requested to identify their current detention status as either “no problem”, “serious”, or “emergency.” We obtained the 253 surveys submitted by the District offices for FY 2004. For the 31 CAP agreements expiring during the remainder of FY 2005 through FY 2007, we compared the agreements to the annual detention status surveys submitted by USMS District offices for FY 2004. This comparison showed the detention status reported for the 31 court cities covered by the soon-to-expire CAP agreements as follows.
CAP Agreements Expiring FY 2005 – FY 2007
District Detention Status Reported as of October 2004
| FY | No Report | No Problem | Serious | Emergency | Totals |
|---|---|---|---|---|---|
| 2005 | 3 | 1 | 1 | 0 | 5 |
| 2006 | 6 | 3 | 2 | 0 | 11 |
| 2007 | 2 | 5 | 7 | 1 | 15 |
| Totals | 11 | 9 | 10 | 1 | 31 |
| Source: USMS Prisoner Services Division |
For the 11 court cities citing an existing serious or emergency problem, the expiration of these CAP agreements will worsen the detention space problem. Since there was no report or no problem cited for the court cities covered by the remaining 20 CAP agreements, we contacted officials in the District offices that submitted these agreements and asked whether the expiration of the CAP agreements would, in the absence of additional CAP funding, cause the District a problem in securing adequate detention space. For 10 of the 20 agreements, the officials stated that expiration of the agreements would cause a problem in the District’s ability to secure adequate detention space in the applicable court cities. For the remaining 10 agreements, the District officials did not believe that expiration of the agreements would cause problems in securing detention space. From the data and follow-up interviews, expiration of CAP agreements between FY 2005 through FY 2007 will significantly affect the USMS’s ability to acquire detention space in 21 of the 31 court cities where CAP agreements are currently in place.
Detention problems could also worsen in other court cities because CAP agreements can no longer be awarded beyond the current balance of unobligated CAP funds. The FY 2004 detention status surveys identified 47 court cites where detention space is rated as being either a serious or emergency situation and where no CAP agreements currently exist. The USMS identified 41 of the 47 court cities as having a serious situation and the remaining 6 court cities as having an emergency situation. The six court cities with an emergency situation were Tucson, Arizona; Bangor, Maine; Rouses Point, New York; Aiken, South Carolina; Laredo, Texas; and Brattleboro, Vermont.
According to the 2004 detention status surveys, the most serious problems were in Tucson, Arizona; Rouses Point, New York; and Brattleboro, Vermont. For Tucson, Arizona, the USMS reported that it has a contract with a local private jail for 3,000 beds to house USMS detainees, but exceeds this total by an average of 900 detainees each day.14 Consequently, the USMS must move the excess detainees to out-of-district facilities. For Rouses Point, New York, the USMS reported that new detainees are transported to jails in northern Vermont, which is a 400 mile trip. In Brattleboro, Vermont, the USMS reported that the local jail space is exhausted and it is housing detainees in 15 different jails in 5 states.
Since CAP funding is no longer available to extend existing CAP agreements or award new CAP agreements, it is critical that the USMS develop alternate plans for securing detention space in court cities reporting serious or emergency situations. If current CAP facilities will not allow the USMS to continue to house detainees in their space, the USMS should determine if other jail space is available at a BOP facility, another local jail willing to enter into an IGA, or a private jail facility.
Plans to Secure Detention Space Without CAP Agreements
Given that no new CAP funding is available to help the USMS secure detention space, we asked USMS and OFDT officials whether they had: 1) made plans to secure detention space for the 31 court cities with CAP agreements that will expire from FY 2005 through FY 2007, 2) developed long-term plans to secure detention space for the 149 CAP agreements that will expire after FY 2007, and 3) developed plans to secure detention space in court cities identified in the FY 2004 surveys as having a serious or emergency detention space situation and where no CAP agreements exist. While neither the USMS nor the OFDT provided any specific plans to secure detention space for expiring CAP agreements, the USMS stated that it planned to continue using traditional methods to secure detention space such as the use of IGAs, private jail contracts, and BOP facilities. We asked USMS and OFDT officials if they had contacted officials at jails whose CAP agreements are scheduled to expire within the next three fiscal years to determine if the jail officials plan to reduce the number of beds guaranteed by the agreements. Officials of both the USMS and OFDT said that they had not contacted jail officials to determine their intentions when the agreements expire.
The USMS officials told us that finding bed space is not a problem, but finding bed space in close proximity to the court cities where bed space is needed is a problem. The USMS’s plans were vague and only verbally expressed. The USMS provided no evidence to show that it had performed research or analyses to determine: 1) whether state and local governments with expiring CAP agreements would continue housing prisoners, and at what cost, through IGAs in the absence of CAP funds; and 2) alternate locations, where detainees could be housed, and at what cost, if current CAP sites decide to discontinue housing USMS detainees when CAP funding ends.
OFDT officials said that detention space, in the absence of CAP funding, can be met with IGAs. They said that the USMS has in the past relied too heavily on the CAP program to provide bed space for its detainees. One OFDT official said that the CAP is not worth the money because jail officials already have an incentive to house USMS detainees through IGAs. Since the duration of a CAP agreement is typically 15 to 20 years, OFDT believes the USMS is reluctant to house its detainees in another jail that may have a lower per diem rate because they have invested funds in the CAP facility. Another OFDT official said that the CAP program should be funded but not at the level requested by the USMS. However, the OFDT had not performed any analyses to show that CAP agreements were or were not cost effective. Given the elimination of CAP funding in FY 2005, we did not undertake such an analysis for the purpose of this report. In addition, like the USMS, the OFDT provided no evidence to show that it had performed research or analyses to support its position that the USMS could meet its detention space needs at a reasonable cost with IGAs.
Conclusion
Since FY 2001, the funding appropriated for the CAP program has sharply declined and was eliminated altogether for FY 2005. Further, the OMB proposed no funding for the program for FY 2006. However, the USMS’s need for detention space has steadily increased since FY 2001. As of January 13, 2005, the USMS had 31 CAP agreements, guaranteeing 1,318 bed spaces annually, that will expire between FY 2005 through FY 2007. In addition, another 149 CAP agreements that guarantee 9,885 bed spaces annually will expire from FY 2008 through FY 2029. The USMS has identified 47 court cities where detention space is a serious or emergency problem but funds are not available to award CAP agreements to secure guaranteed detention space in these cities. Although CAP funding has been eliminated and many CAP agreements will expire over the next few years, the USMS has not determined whether jails with expiring CAP agreements will continue to house USMS detainees at a reasonable cost after the CAP agreements expire. Therefore, the USMS cannot provide assurance that it will be able to meet its detention space needs as existing CAP agreements expire.
Recommendation
We recommend that the USMS:
- Develop specific plans for securing detention space in the event that CAP funding is not restored in future appropriations. At a minimum, the plans should address:
- whether existing CAP sites plan to continue housing USMS detainees through an IGA when their CAP agreement ends, and at what cost; and
- what alternate facilities will be available to house detainees if the CAP sites decide to discontinue housing detainees when their CAP agreement ends, and at what cost.
2. THE USMS AND THE OFDT COULD NOT RECONCILE THE BALANCE OF CAP FUNDS AVAILABLE FOR EXPENDITURE
While seeking to determine the funding history of the CAP since FY 2001, we identified $990,119 that could not be supported by either the USMS or the OFDT. Of the $990,119, $739,540 is the balance of the $10.3 million appropriated for INS CAP agreements before the INS was transferred to the Department of Homeland Security. Neither the USMS nor OFDT could provide documentation to show that $739,540 had been rescinded, spent, or otherwise accounted for. The other $250,579 is the difference between what USMS records support as the balance of CAP funds available to the USMS and what OFDT records support as the balance available. Neither the USMS nor the OFDT could provide documentation to reconcile the difference.
Funding Discrepancies
In December 1999, the USMS and the INS entered into a Memorandum of Understanding establishing an agreement for a single Department CAP administered by the USMS’s Prisoner Services Division.
We interviewed and obtained documentation from the USMS, OFDT, and JMD officials regarding the accounting for CAP funds carried forward from FY 2000 and appropriated from FY 2001 through 2004. Based on the interviews and documentation provided, the following table shows the accounting of CAP funds since the beginning of FY 2001.
CAP FUNDING ANALYSIS
| Funding Action (2001) | USMS | INS | Total |
|---|---|---|---|
| Balance Carried Forward From FY 2000 | $2,107,604 | $17,400,000 | $19,507,604 |
| (+) Appropriated for FY 2001 | $21,000,000 | $14,000,000 | $35,000,000 |
| (-) Reprogrammed for FY 2001 | $0 | $0 | $0 |
| (-) Rescinded for FY 2001 | $46,200 | $30,800 | $77,000 |
| (+) Deobligated for FY 2001 | $0 | $0 | $0 |
| (-) Obligated for FY 2001 | $10,346,000 | $12,400,000 | $22,746,000 |
| Balance Carried Forward To FY 2002 | $12,715,404 | $18,969,200 | $31,684,604 |
| Funding Action (2002) | USMS | INS | Total |
| Balance Carried Forward From FY 2001 | $12,715,404 | $18,969,200 | $31,684,604 |
| (+) Appropriated for FY 2002 | $12,000,000 | $8,000,000 | $20,000,000 |
| (-) Reprogrammed for FY 2002 | $2,436,364 | $0 | $2,436,364 |
| (-) Rescinded for FY 2002 | $0 | $0 | $0 |
| (+) Deobligated for FY 2002 | $200,000 | $500,000 | $700,000 |
| (-) Obligated for FY 2002 | $20,358,340 | $14,741,660 | $35,100,000 |
| Balance Carried Forward To FY 2003 | $2,120,700 | $12,727,540 | $14,848,240 |
| Funding Action (2003) | USMS | INS | Total |
| Balance Carried Forward From FY 2002 | $2,120,700 | $12,727,540 | $14,848,240 |
| (+) Appropriated for FY 2003 | $3,000,000 | $2,000,000 | $5,000,000 |
| (-) Reprogrammed for FY 2003 | $2,563,636 | $0 | $2,563,636 |
| (-) Rescinded for FY 2003 | $19,500 | $13,000 | $32,500 |
| (+) Deobligated for FY 2003 | $980,329 | $8,125,000 | $9,105,329 |
| (-) Obligated for FY 2003 | $3,055,000 | $12,500,000 | $15,555,000 |
| Balance Carried Forward To FY 2004 | $462,893 | $10,339,540 | $10,802,433 |
| Funding Action (2004) | USMS | INS | Total |
| Balance Carried Forward From FY 2003 | $462,893 | $10,339,540 | $10,802,433 |
| (+) Appropriated for FY 2004 | $2,000,000 | $0 | $2,000,000 |
| (-) Reprogrammed for FY 2004 | $0 | $0 | $0 |
| (-) Rescinded for FY 2004 | $21,045 | $9,600,000 | $9,621,045 |
| (+) Deobligated for FY 2004 | $0 | $0 | $0 |
| (-) Obligated for FY 2004 | $0 | $0 | $0 |
| Balance Carried Forward To FY 2005 | $2,441,848 | $739,540 | $3,181,388 |
| Source: USMS Prisoner Services Division, JMD, Appropriations as Enacted |
The USMS could not document what happened to part of the funds appropriated for the INS. As shown in the CAP Funding Analysis table, at the beginning of FY 2004 the USMS had a balance of $10,339,540 that had been appropriated for INS CAP agreements. The USMS provided documentation to show that Congress rescinded $9,600,000 because the INS had been transferred to the Department of Homeland Security, leaving a balance of $739,540. As shown in the table, the $739,540 remained unspent at the beginning of FY 2005. We asked USMS and OFDT officials to document what happened to the $739,540. Despite repeated inquiries, neither organization could provide an explanation. Therefore, we question $739,540 as unsupported.
The USMS’s balance of CAP funds at the beginning of FY 2005 was $2,441,848, as is also shown in the preceding table. However, documentation provided by the OFDT showed that the balance available for USMS CAP agreements should be $2,191,269, a difference of $250,579. We asked USMS and OFDT officials to explain the reason for the difference. Neither organization was able to provide an explanation. Therefore, we question $250,579 as unsupported. The two questioned amounts are shown in the following table.
Summary of Unsupported Costs
| USMS Balance Carried Forward To FY 2005 | $2,441,848 |
|---|---|
| OFDT Balance Carried Forward To FY 2005 | $2,191,269 |
| Difference Between USMS & OFDT Balances Carried Forward to FY 2005 | $250,579 |
| Balance Remaining at USMS after INS Recission | $739,540 |
| Total Unsupported Amount | $990,119 |
| Source: USMS and the OFDT Records |
Recommendations
We recommend that the USMS:
- Remedy the questioned cost associated with the $739,540 in CAP funds provided for INS CAP agreements that was not rescinded by Congress.
- 3. Remedy the questioned cost associated with the $250,579 difference between the available balance for CAP agreements at the end of FY 2004 based on the USMS’s records ($2,441,848) and the available balance for CAP agreements at the end of FY 2004 based on documentation provided by the OFDT ($2,191,269).
- The contract for 3,000 beds at the Tucson, Arizona private jail is for housing the USMS detainees and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) detainees, About 81 percent of the space is used for USMS detainees and about 19 percent is used for ICE detainees.
