Establish Oversight of the Bureau of Prisons
Holding government agencies accountable for their performance is essential in any healthy democracy, and in some instances, that task is best left to an independent overseer. Such is the case today with the federal Bureau of Prisons (BOP). In 2016, the Charles Colson Task Force on Federal Corrections produced a sweeping report detailing a web of complex problems plaguing the BOP, from inadequate staffing levels that threaten the health and safety of staff to the acute shortage of programs, case planning, services, and treatment needed to help incarcerated people prepare for their return to the community. Three years later, a congressional investigation of the BOP’s disciplinary process found that lower-ranking employees and incarcerated people at federal prisons were subject to rampant abuse and harassment, and that misconduct was “ignored or covered up on a regular basis.” As these and other assessments make clear, the BOP is struggling to perform at a high level of correctional practice, and an oversight board is needed now to help the agency improve. Research supports the proposition that oversight boards with authority, independence, and the ability to conduct random inspections can produce positive results. Such boards should be trained and should establish measurable goals that can be easily evaluated. They should play an advisory role, rather than possessing operational authority, but should be equipped with the power to obtain data, analyze it, and distribute findings to the public. For a correctional oversight board to be effective, it “must be primarily related to either investigation of wrongdoing or monitoring of conditions in prisons or jails.” Independence is also essential. The board must retain the unfettered ability to oversee operations, policies, and conduct. To ensure their independence, oversight boards should neither report solely to nor receive funding from the agencies they oversee. The myriad reforms proposed by the Charles Colson Task Force on Federal Corrections included a recommendation for a permanent, independent board to oversee BOP. This Task Force seconds that recommendation, and encourages Congress to act expeditiously to help improve the largest correctional system in the nation.
Congress should create an independent performance, oversight, and accountability board (Board) to oversee and advise the Bureau of Prisons (BOP). The Board shall be comprised of a broad cross-section of criminal justice stakeholders and shall possess the authority to review and assess all BOP policies, procedures, practices, and complaints, but have no operational authority.
- The Board should be comprised of members of Congress, officials from relevant federal agencies such as Health and Human Services, Labor, and Education; federal judges; U.S. Attorneys; federal public defenders; private defense attorneys; public health professionals; formerly incarcerated individuals; correctional union representatives; and researchers.
- The Board should consist of no fewer than nine individuals, with appointments made in equal proportion by the President, the Speaker of the House, and the Senate Majority Leader.
- The Board should be administratively located in the Office of the Attorney General and funded directly by congressional appropriation.
- The Board should have access to all areas of all BOP facilities (including contract facilities) and should be permitted to request and receive copies of any relevant documents, including electronically stored information.
- The Board should assist in developing a BOP policy that states, in part, that any BOP employee, contractor, or volunteer who engages in, fails to report, or knowingly condones physical or sexual abuse, sexual harassment of, or any illegal act perpetrated on any incarcerated individual would be subject to disciplinary action, up to and including termination, and could be subject to criminal prosecution. These requirements and protections would be in addition to those of the Prison Rape Elimination Act. The reporting employee also would be covered under the protections of the Whistleblower Protection Act.
- The Board should: a. evaluate conditions of confinement, programming, reentry preparation, and officer wellness; b. obtain (from BOP or independently), review, and publicly disseminate accurate, uniform data about what the Board deems to be key metrics, including information on deaths occurring in custody, victimizations and injuries of those in custody as well as correctional officers and staff, use of segregation, and officer use of force; c. review officer staff-to-incarcerated population ratios and recommend resource levels required to reflect industry standards and best practices for optimal care, custody, and control; d. develop recommendations regarding officer training on interpersonal communications, problem solving, de-escalation, and principles of equity and procedural justice to be delivered in both academy and in-service trainings; e. conduct an annual prison safety, climate, and environmental impact audit at all BOP facilities, including contract facilities; f. review and assess policies and procedures related to the use of administrative and disciplinary segregation (solitary confinement), which has been linked to mental health issues, acts of self-harm, and suicide; g. examine current use of segregation at all BOP facilities, including contract facilities, and collect for public release all data on people placed in segregation, the reason for placement, and the duration; h. develop a plan for reducing the use and duration of solitary confinement while ensuring the safety of staff and incarcerated populations at all BOP facilities, including contract facilities; i. review and assess policies and programming on reentry preparation, substance use disorder treatment, healthcare, correctional education, job-skills training, mental health treatment. and cognitive behavioral therapies; j. review and assess post-release outcomes, including but not limited to recidivism; k. recommend best practices in all areas and develop short- and long-range plans to adequately support BOP in its implementation of these best practices; and l. issue its reports publicly to the Attorney General, the Congress, and the public.
- The Department of Justice should create a Correctional Ombudsperson position to respond to complaints about conditions and practices at all BOP facilities, including contract facilities. The Correctional Ombudsperson should have full access to BOP facilities and data but operate independently of BOP and report to the Attorney General.
Majority Staff, House Subcommittee on National Security, Independent Investigations and Employee Discipline at the Bureau of Prisons, 2 Jan. 2019. https://republicans-oversight.house.gov/wp-content/uploads/2019/01/Memo-to-Chairman-Russell-re-BOP.pdf A congressional report found that lower ranking employees and incarcerated individuals at federal prisons were subject to rampant abuse and harassment. This report found that “[t]he multi-step disciplinary process handled across several officers is superficially independent.” Oftentimes, wardens and local officials will exercise undue control over the disciplinary process, leading to misconduct being “ignored or covered up on a regular basis.” Reviewing thousands of internal documents, the investigators found that “individuals deemed responsible for misconduct were shuffled around, commended, awarded, promoted, or even allowed to retire with a clean record and full benefits before any disciplinary action could apply.” Allegations against several wardens included assault of an incarcerated person, embezzlement, harassment, retaliation, and creating a hostile work environment; those complaints were closed on the same day they were reported, and the complainants were not even informed of the review. Ultimately, the report suggests “the investigator[s] must be completely independent of the facility.”
Urban Institute, “Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections,” January 2016. http://www.urban.org/sites/default/files/publication/77101/2000589-Transforming-Prisons-Restoring-Lives.pdf This report summarizes the findings and recommendations of the Charles Colson Task Force on Federal Corrections. “The Task Force was established by Congressional mandate in 2014 as a nine-person, bipartisan, blue ribbon panel charged with developing practical, data-driven recommendations to enhance public safety by creating a more just and efficient federal corrections system. Informed by over a year of fact-finding, rigorous data analysis, and discussions with key experts and stakeholders, the independent Task Force’s recommendations to the US Congress, the President, and the Attorney General provide a blueprint for reforms to the federal corrections system that are sensible, cost-effective strategies to reduce crime and restore lives.”
Deitch, Michele. “Special Populations and the Importance of Prison Oversight,” American Journal of Criminal Law, vol. 37, 2010, pp. 291, 292, 296-302. https://lbj.utexas.edu/publications/4011 This article argues that “oversight is a means of achieving the twin objectives of transparency of public institutions and accountability for the operation of safe and humane prisons and jails.” The author contends that humane prisons depend on the existence of external oversight mechanisms as well as internal accountability measures. Oversight is best understood as an “umbrella” concept that includes a variety of responsibilities and functions, including regulation, audit, accreditation, reporting, investigation, and monitoring. Noting that specific populations are more likely to be victims of abuse and harm, the article identifies four categories of incarcerated individuals who need extra scrutiny: people held in isolation, those vulnerable to sexual assault/violence, those with mental health or physical disabilities, and those with serious medical needs. While independent oversight of the treatment of all incarcerated persons should be the goal, it may be easier as both a political and a practical matter to begin with oversight for special populations. The author details several oversight examples in the United States and other countries, argues that external oversight could help protect vulnerable populations in U.S. prisons, and notes that the U.S. is one of the only Western democracies that lacks a comprehensive mechanism for ensuring the routine external monitoring of all correctional facilities.
Buchanan, Kim Shayo, “Our Prisons, Ourselves: Race, Gender and the Rule of Law,” Yale Law & Policy Review, vol. 29, no. 1, Fall, 2010. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1603&context=ylpr The conventional prison rape narrative suffers from several flaws. First, this violence is less influenced by the inherently dangerous nature of incarcerated individuals, and much more influenced by tacit endorsement of “institutional actors [who] condone and legitimize sexual abuse.” Much of the responsibility for this violence lies at the feet of correctional officers and administrators for fostering this permissive culture of violence. In fact, prison rape “can be greatly reduced by well-established institutional best practices that are known to correctional administrators.”
Cohen, Andrew Cohen, “Enough Is Enough–Time for the Feds to Investigate Prison Abuse,” The Atlantic, 20 March 2013. https://www.theatlantic.com/national/archive/2013/03/enough-is-enough-time-for-the-feds-to-investigate-prison-abuse/274091/ Citing Congressional testimony in which the Inspector General of the Department of Justice states that the OIG "… is the guardian of our system of justice, and is responsible for enforcing our laws fairly without bias and above all with the utmost of integrity," the author makes a case that if the Bureau of Federal Prisons “doesn't want to be held accountable in court, or on Capitol Hill, or in the court of public opinion, it ought to at least be held accountable to the OIG.”