Do D.C. Officials Really Need U.S. Marshals Service Permission to Talk About Jail Conditions?

Fritz Mulhauser | December 8, 2021 | Last modified: March 8, 2022

UPDATES:

3/8/22: D.C. Council members are frustrated that “the DOC and the Marshals Service…have provided little transparency into their changes” to address jail conditions, according to a report on an oversight hearing March 2 by Spencer Hsu for The Washington Post. The acting Corrections Director Tom Faust told Council member Charles Allen (D-Ward 6) he had “come up with specific corrective action plans to address each finding, each concern of the U.S. Marshals Service.” But when he gave no specifics, Allen asked “Such as? Help me. I’m sorry, but you’ve got to help me with a little more than that.” Faust “did not provide insight into the details of those plans or what the Marshals Service was requiring to return defendants to the facility,” according to the Post. The inexplicable limits on information appear to remain in place from the agreement signed last year, as described below.

12/17/21: The D.C. Attorney General has ended its representation of the Department of Corrections in “all matters arising out of or related to” the U.S. Marshals Service surprise inspection of the D.C. Jail that found bad conditions discussed in the Coalition blog post below. The Attorney General Karl Racine notified the corrections agency its “interests will be better served by outside counsel” in a December 9 letter reviewed by The Washington Post and reported Friday evening (December 17) by Emily Davies and Spencer Hsu. The Post account said the letter did not give reasons for the withdrawal and the AG office declined to comment further.  

The withdrawal, though just now reported, came just two days after a December 7 media event when jail officials hosted a jail tour and spoke with reporters. (The Marshals had by then moved about half the planned 400 prisoners.) That event, which included the deputy mayor for public safety and the corrections agency head speaking to rebut the marshals’ criticism, appeared to violate the Memorandum of Agreement the District signed with the U.S. Marshals Service outlawing either party giving press interviews without the other’s consent. The Post also reported the mayor has met with D.C. Council Chairman Phil Mendelson and Council member Charles Allen (D-Ward 6), chair of the committee that oversees the jail, to discuss the situation and the need for funds to pay outside counsel.  It certainly appears to be time D.C. government explained the agreement, why it was entered into, and what is its status currently.

Harsh conditions at the D.C. Jail are under the microscope with calls by elected officials (even the attorney general), columnists, and the public for faster action on long-delayed improvement. Yet D.C. has agreed that for six months any release of information or press interviews in connection with assessing the jail’s problems and fixing them won’t happen unless the federal government consents.

The Washington Post headlined its editorial “the mayor must answer questions,” urging her to “muster the political will to make construction of a new jail not a talking point but a reality.” But Mayor Bowser can’t talk about it, apparently, under a strange new self-imposed limit on home rule.  

It appears as a condition agreed to in a memorandum of understanding signed a month ago by federal officials and a D.C. deputy mayor, according to the text posted on Twitter by WAMU/DCist reporter Jenny Gathright. The specific language is:

No party shall issue a publicity release or conduct a media interview in connection with the activities that are the subject of this agreement without prior consent by the other party

So what’s the agreement and where did it come from?

• The acting U.S. Marshal for D.C. sent a team the week of October 18 to check on the 400 federal detainees at the jail. The U.S. Marshals Service is a federal agency in the Department of Justice that has custody of federal prisoners housed in D.C. Jail awaiting trial in federal court, and some D.C. prisoners as well. Though serious concerns about conditions have been raised for years, new complaints had reached the courts via defense attorneys representing January 6 detainees. After confirming the observations with a visit of his own, the acting U.S. Marshal for D.C. reported to the D.C. Corrections department head November 1 on bad living conditions and mistreatment.
• A few days later, the Marshals Service announced plans to move 400 in its custody to a federal prison in Pennsylvania, four hours away. 
• At a Council hearing November 10 to review the conditions report and planned move, the D.C. Deputy Mayor for Public Safety and Justice mentioned the District had signed an agreement with the Marshals Service, to work together for the next six months. Goals include collaborating to further assess conditions, providing the marshals’ assistance to the District in correcting deficiencies, and providing information to the Marshals Service, District government, and the courts on conditions, remedial plans and progress carrying them out.
• The gag order — limits on all public release and press interviews and the requirement of mutual consent are section V. on the third page.

The issues are huge: conditions at the D.C Jail, movements of prisoners far from home, and progress on remedial plans that have been under discussion for years, are matters of great public interest.

So why has the District agreed to quash public information, apparently muzzling itself to speak about the subject only with federal officials’ consent? Did D.C. officials somehow feel such an agreement was necessary to rein in federal officials from commenting further on local affairs?

The D.C. Council, surely, will not stand for such a limit, as annual performance oversight hearings begin in a few weeks. This cramped view of D.C. home rule powers may just be ignored, and the text mentions no method of enforcement. For example, did everyone agree on a press tour of the jail this week reported in Axios D.C.?