The Public Defender Service for D.C. has filed a class action lawsuit against the Federal Bureau of Prisons, arguing that people from D.C. are treated unfairly in federal prisons.

The lawsuit, which was filed late last week in federal court, alleges that the system used to calculate security designations for people charged with crimes in D.C. “systematically” leads to higher criminal history scores — which means they are more likely to serve time in higher-security facilities and less eligible for early release programs than people serving sentences for federal crimes.

The difference in scoring has a “profound impact” on people from D.C. who are incarcerated in federal prisons, according to PDS attorney Kavya Naini, who is representing the plaintiffs in the suit.

“Individuals are disproportionately in higher security prisons where there’s more violence, there is more stigmatization, there’s less programming opportunities, there’s less freedom of movement. They’re not able to go outside as much. They often spend 23 hours on lockdown, especially during the pandemic,” said Naini. “And above and on top of that is the effect that it has on their ability to to be released through compassionate release or to serve the rest of their sentences at home, because they are less eligible for those opportunities.”

The lawsuit asks that the BOP stop using separate scoring systems for D.C. offenders — and re-score all people serving D.C. sentences according to the U.S. Sentencing Commission guidelines that the agency uses to score people convicted of federal crimes.

The Bureau of Prisons did not respond to a request for comment on the suit.

Unlike the 50 states, D.C. does not have a prison of its own; in the early 2000s the city closed its prison (which was located in Lorton, Virginia) and started sending people convicted of crimes to federal facilities across the country. That means that people convicted of violent crimes in D.C. serve their time in federal prisons, regardless of whether their offense was a federal or local offense. As of 2021, there were more than 2,700 D.C. residents housed in 120 federal prisons in 35 states across the country, according to the D.C. Corrections Information Council. In recent years, that number has been higher — as of April 2020, the Council for Court Excellence reported that 3,339 D.C. offenders were incarcerated in the BOP, and the number had been over 4,000 in the two years prior.

Formerly incarcerated D.C. residents have long said that they feel they received unequal treatment in the Bureau of Prisons, because of a combination of racism (D.C. residents sentenced to prison time are nearly exclusively Black people, while a majority of federal prisoners are white) and bias against people from the District. Reports from the CIC, the D.C. agency that monitors the treatment of D.C. residents in federal prison, often include the accounts of D.C. residents who feel they’re treated unequally in the federal system because of their race and hometown.

The lawsuit from PDS alleges that part of this bias against D.C. residents is embedded in the system BOP uses to tabulate a person’s criminal history. When people are convicted of a crime and placed in BOP custody, they are assigned a “criminal history score” — a number that is then used to determine their security classification and eligibility for both home confinement and release to a halfway house. For the majority of people in federal prisons, their “criminal history score” is calculated according to guidelines established by the U.S. Sentencing Commission. But for people convicted of local D.C. crimes, the lawsuit says, criminal history scores are calculated by the BOP’s Program Statement 5100.08, which has different rules.

According to the suit, people convicted of federal crimes generally aren’t given criminal history points for certain offenses that were committed more than a decade or fifteen years ago. Juvenile offenses also don’t count against people with federal convictions, the lawsuit says. And petty offenses, like public intoxication, also don’t count against people serving federal sentences. But, the lawsuit argues, these types of offenses count towards the criminal history calculations for people serving D.C. sentences and routinely raise their scores.

“The system the BOP uses to calculate criminal history points for individuals with

D.C. sentences results in systematically higher criminal history scores than their similarly situated federal counterparts,” reads the lawsuit. “This leads to higher, more restrictive security designations for individuals with D.C. sentences as compared to individuals with federal sentences that have identical criminal histories.”

According to the lawsuit, these different ways of tabulating criminal history have a widespread effect on the experiences of people from D.C. in federal prison — and help to drive their overrepresentation in high-security facilities, where incarcerated residents have less freedom of movement and access to programming and recreation. About 40% of people convicted of D.C. offenses are incarcerated in high-security facilities, compared to 12% of the overall BOP population, according to an analysis by the Council for Court Excellence.

The lawsuit focuses on D.C. residents, but notes that the same claim of unequal treatment applies to other people in federal prisons who weren’t convicted through the federal system — like other state courts or military tribunals.

And the lawsuit argues that if people serving federal sentences were scored the way that people from D.C. were, they would also be getting higher criminal history scores. Just under half of people serving federal sentences had prior convictions for a “petty or otherwise minor offense” that were not assigned points under the federal sentencing guidelines, according to an analysis by Brent Newton, a Georgetown University professor and former staff director of the United States Sentencing Commission. And, Newton’s analysis found, just over half of people serving federal sentences had at least one “stale conviction” — a conviction that wasn’t assigned points under the federal guidelines because it was too old. But for people convicted of D.C. offenses, both of these types of offenses add criminal history points.

“I have no reason to believe that D.C. Code offenders have criminal histories that, on average, differ significantly from federal defendants,” said Newton in a declaration submitted as part of the suit. “Therefore, it is very likely that the application of the program statement’s criminal history calculus to D.C. Code offenders on average yields higher criminal histories.”

Antwan Buchanan, who is serving a D.C. sentence at the high-security USP Big Sandy in Kentucky, described in a written declaration how being at a high-security facility has affected several aspects of his daily life. He said it is harder to practice his religion at a higher-security facility; for example, Buchanan said that there were Muslim chaplains at medium-security facilities but not at Big Sandy, and unlike medium-security facilities, there is no Eid celebration at Big Sandy. Buchanan also said he has less access to phone calls with loved ones at the high-security facility, and less access to programming and vocational training opportunities.

“I have spoken to BOP staff here at USP Big Sandy about forklift operation courses, which are available at FCIs but are not available here,” said Buchanan. “I would like to enroll in a job training course but there are many fewer courses at a high security compared to a medium security. Because I am at a high security facility I will not be as well prepared for my release … every aspect about my daily life is worse because I am at a high security facility.”

According to the suit, if Buchanan’s criminal history was calculated with the same guidelines as people serving federal sentences, his score would be cut in half – which means that he would likely have a higher chance of being transferred to a medium-security facility. Since finding out last year about the disparity between criminal history scoring for D.C. sentences and federal sentences, Buchanan says he has filed multiple grievances with BOP staff demanding to be transferred to a medium-security facility to no avail.

Jonathan Blades, a resident at USP Pollock in Louisiana, said that he has also “exhausted the administrative remedy process” after finding out that D.C. code offenders were scored differently.

“I am mistreated because I am scored differently than people with the same criminal history,” said Blades in his declaration. “I don’t understand why I am being treated worse only because I am from D.C.”

Blades has experience in low- and medium-security BOP facilities — and he says there’s a stark difference between the types of prisons. At FCI Cumberland and FCI Fort Dix — a medium-security facility and a low-security facility — Blades said he was able to take college courses. But, he says, those aren’t offered at the higher-security USPs like Pollock, because those facilities are often locked down for security reasons.

Blades says that at Pollock, he is confined to his cell for most of the day — and he has experienced “much higher levels of violence” than he saw at medium and low-security prisons.

“There is more gang violence and there are more rules that I need to follow in order to keep myself from being attacked,” said Blades. “Even something as simple as trying to use the phone can become deadly if I do not use it at the right time. That type of violence is not typical at a medium or lower security facility.”

Zoé Friedland, an attorney with the Public Defender Service, told DCist/WAMU that the system for scoring criminal histories has an unignorable racial impact, too. About 95% of people sentenced in D.C. Superior Court are Black, while most people in federal district courts are white.

“On top of just being unequal, unfair and arbitrary, this disparate scoring system has a profound racial effect,” said Friedland. “That’s part of the reason we think that it has to be challenged and changed.”