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Powerful appropriator battles Justice over prison in Kentucky

Trump’s criticism deepens deadlock between White House and two powerful Republican lawmakers

Former House Appropriations Chairman Harold Rogers described this year’s White House budget request to drop funds for a prison in Kentucky as the “same old story.”
Former House Appropriations Chairman Harold Rogers described this year’s White House budget request to drop funds for a prison in Kentucky as the “same old story.” (Tom Williams/CQ Roll Call file photo)

President Donald Trump’s administration went out of its way to skewer plans to construct a new federal prison on top of a Kentucky coal mountain, in a tone that more resembled a Trump tweet than the dull language of a budget request.

The $505 million that Congress previously set aside for the project is “wasteful spending,” the administration’s fiscal 2021 request states. The prison is “unneeded.” It is “significantly delayed due to the site selected.” And it’s not just costly to taxpayers, but “very costly to taxpayers.”

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The criticism deepens a deadlock between the administration and two of the more powerful Republican lawmakers, one that touches on broader fights about economic development, environmental concerns, recent overhauls of the criminal justice system and an appropriations process that can still let lawmakers bring home federal spending to their districts.

And it is a rare public airing of an intraparty feud. The Trump administration yet again wants Congress to take back that prison money and use it for other Justice Department priorities, and it used this election-year budget request to call more attention to that unused pot of money.

Will Congress take back the money? “No,” replied former House Appropriations Chairman Harold Rogers, the longtime Republican representative of the eastern Kentucky site of the proposed prison who put the funding in previous spending bills.

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The project would also bring federal money and 300 new jobs to the state of Senate Majority Leader Mitch McConnell, who is up for reelection and has advocated for the prison project.

Rogers described this year’s budget request to drop the prison money as the “same old story.”

“We reject their request every time,” Rogers said. “So I would hope sometime they would learn their lesson.”

That lesson? “That we’re determined to make this happen.”

But the Justice Department appears just as determined not to build the prison, which seems destined to remain in limbo.

Pork producer

Rogers brought so much funding to his district through the earmarking process over the years that he earned the nickname “Prince of Pork.” He has touted the jobs those projects brought to the economically depressed area, which is still struggling to recover from the retreat of the coal industry.

Three federal prisons have been built in eastern Kentucky since 1992, and Rogers started the work of getting a fourth with $5 million in fiscal 2006 to study potential sites in Letcher County.

The Bureau of Prisons in 2016 announced a decision to build a high-security prison on a 700-acre site of reclaimed coal mine land in Roxana, putting up to 1,200 inmates in the unincorporated area. The county has a $17,886 per capita income.

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“This facility will provide hundreds of good-paying, full-time jobs as our region struggles to rebound from the devastating loss of more than 10,000 coal mining jobs over the last eight years,” Rogers said at the time.

The site of the proposed prison in eastern Kentucky.  (U.S. District Court case file)

Rogers, as Appropriations chairman, ended official earmarking, which earned a bad name but provided some transparency about member add-ons.

Lawmakers, particularly those on the powerful Appropriations panels, have nonetheless found ways to add money for parochial projects. Rogers secured roughly $500 million necessary to construct the prison in the fiscal 2016 and 2017 spending bills.

President Barack Obama’s attorney general at the time, Loretta Lynch, told Rogers at a 2016 hearing that the prison needed to be built. “That’s certainly an important part of reducing our issues of overcrowding. Issues of correctional officer safety, as well as inmate safety, are certainly implicated by that,” Lynch said.

Two years later, Trump’s first attorney general, former Alabama Republican Sen. Jeff Sessions, told Rogers that the Bureau of Prisons had made a final decision to build the prison after an environmental review.

But the deal was far from done. Advocacy groups took action on the potential health risks to prison employees and inmates because of the long-lasting environmental impact caused by coal mining that had been done on the mountain.

A November 2018 lawsuit in Washington on behalf of federal inmates pointed out flaws in the environmental study, arguing in part that the Bureau of Prisons had excluded its entire inmate population from participating in the public comment period. Among their arguments: Mountaintop mining pollutes the nearby watershed with runoff of carcinogens and heavy metals such as selenium and manganese that can persist in the mining area for decades. Studies found people living near mountaintop mining sites had higher cancer rates and more children born with birth defects, even if mining had stopped.

The Trump administration, meanwhile, began telling Congress that the prison wasn’t needed.

“Consequently, the only sensible reason that seems to support the BOP’s decision is to satisfy Representative Hal Rogers’ pork barrel politics so that federal tax dollars can be spent on construction and development contracts with his constituents,” the lawsuit states.

Knocking heads

Rogers in June 2017 dressed down the Justice Department the first time it suggested that the Letcher County prison wasn’t needed, calling it “a little bit of parochial concern of mine.”

He described a serious overcrowding problem in the federal prisons while noting that Congress had appropriated the funds for the prison a year before and that the budget request would rescind that money.

“What I want to know is, are you serious?” Rogers said.

Then-Deputy Attorney General Rod Rosenstein smiled and succinctly laid out the Justice Department’s reasons for the fiscal 2018 budget request. The federal prison population declined by about 30,000 inmates, or 14 percent, over four years, he said.

He also said the budget request included $80 million to fully open an Illinois prison that had already been built that would add up to 2,500 high-security beds. “So what we’re doing is we’re just prioritizing our spending given the tight budget,” Rosenstein said.

Rogers wasn’t having it. “General, the Congress decided this. And it’s the Congress that controls the purse strings of the country. It’s been passed. It’s the law. The money is there, appropriated, authorized, everything in order,” Rogers said.

There’s been some reduction in overcrowding in recent years, but it’s not enough, Rogers told Rosenstein, “but this has been decided, and we expect it to be carried out.”

Congress didn’t rescind the money. The Trump administration didn’t spend it.

Tug of war

In June 2019, the Bureau of Prisons withdrew its decision to build the Letcher County prison to more fully evaluate “new information which may be relevant to the environmental analysis.” And politics had switched from a long-standing tough-on-crime stance to a more smart-on-crime one, including a criminal justice overhaul for programs to help inmates rejoin society.

Trump has touted the sentencing law as a major bipartisan accomplishment, and he focused on the issue in an ad that aired during this year’s Super Bowl. The administration’s budget also reflects $36 million in estimated savings from implementing those sentencing overhauls, with approximately 5,000 inmates released early under those provisions.

And the Justice Department has other funding priorities, including boosts to add immigration judges for a historically large backlog of deportation cases; reduce violent crime; bolster mental health programs and active shooter training to address gun-related school safety concerns; combat the opioid epidemic; and counter foreign influence campaigns on social media. The Justice Department identified the $505 million in Letcher County prison funding as the single largest budget item to pay for those other priorities.

“We don’t think we need another prison to be built,” Deputy Attorney General Jeffrey Rosen told the media during a February briefing.

Rep. Robert B. Aderholt of Alabama, the top Republican on the Appropriations subcommittee that oversees the Justice Department’s budget, said he is not familiar with the Kentucky prison issue. But he acknowledged $500 million goes a long way.

But, at the end of the day, McConnell and Rogers have a strong voice on appropriations, Aderholt said, and “it’s Congress’ decision where to put the money.”

Rogers shows no signs of backing down.

“It’s an extremely impoverished area, suffering even more because of the downturn of the coal industry. Lots of laid-off workers. And these are skilled people,” Rogers said.

“Heck, we need the jobs.”

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