[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4988 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4988
To establish an inspections regime for the Bureau of Prisons, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 28, 2022
Mr. Ossoff (for himself, Mr. Braun, and Mr. Durbin) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To establish an inspections regime for the Bureau of Prisons, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Prison Oversight Act''.
SEC. 2. CREATION OF AN INSPECTIONS REGIME FOR THE BUREAU OF PRISONS.
(a) In General.--Section 8E of the Inspector General Act of 1978 (5
U.S.C. App.) is amended by adding at the end the following:
``(e) Inspections Regime.--
``(1) Definitions.--In this subsection:
``(A) Bureau.--The term `Bureau' means the Bureau
of Prisons.
``(B) Covered facility.--The term `covered
facility'--
``(i) means a correctional facility
operated by the Bureau; and
``(ii) does not include a State, local,
Tribal, territorial, or private correctional
facility at which Federal prisoners are housed
under an agreement with the Bureau.
``(C) Family member.--The term `family member'
includes a grandparent, parent, sibling, spouse or
domestic partner, child, aunt, uncle, cousin, niece,
nephew, grandchild, or any other person related to an
individual by blood, adoption, marriage, civil union,
or a romantic or fostering relationship.
``(D) Inspector general.--The term `Inspector
General' means the Inspector General of the Department
of Justice.
``(E) Ombudsman.--The term `Ombudsman' means the
Ombudsman established under paragraph (3)(A).
``(F) Representative of an incarcerated person.--
The term `representative of an incarcerated person'
includes paid or unpaid legal counsel or any other
person or entity chosen by an incarcerated person to
represent the interests of the incarcerated person.
``(G) Staff.--The term `staff' means employees and
contractors of the Bureau.
``(2) Inspections of covered facilities by the inspector
general.--
``(A) Establishment of inspections regime.--
``(i) In general.--The Inspector General
shall conduct periodic inspections of covered
facilities pursuant to the requirements of this
subsection.
``(ii) Access to covered facilities.--The
Attorney General shall ensure that the
Inspector General has access to any covered
facility, including the incarcerated people,
detainees, staff, bargaining unit
representative organization, and any other
information that the Inspector General
determines is necessary to carry out the
provisions of this subsection.
``(iii) Notice of inspections.--An
inspection of a covered facility under this
subsection may be announced or unannounced.
``(B) Inspection criteria.--An inspection of a
covered facility under this subsection may include an
assessment of the following:
``(i) The policies, procedures, and
administrative guidance of the facility.
``(ii) The conditions of confinement.
``(iii) Working conditions for staff.
``(iv) The availability of evidence-based
recidivism reduction programs and productive
activities, as such terms are defined in
section 3635 of title 18, United States Code,
and the application of earned time credits
pursuant to section 3632 of title 18, United
States Code.
``(v) The policies and procedures relating
to visitation.
``(vi) The policies and practices relating
to the use of single-cell confinement,
administrative segregation, and other forms of
restrictive housing.
``(vii) The medical facilities and medical
and mental health care, programs, procedures,
and policies, including the number and
qualifications of medical and mental health
staff and the availability of gender-
appropriate and trauma-responsive care for
incarcerated people.
``(viii) Medical services and mental health
resources for staff.
``(ix) Lockdowns at the facility.
``(x) Credible allegations of incidents
involving excessive use of force, completed,
attempted, or threatened violence, including
sexual violence, or misconduct committed
against incarcerated people.
``(xi) Credible allegations of incidents
involving completed, attempted, or threatened
violence, including sexual violence, committed
against staff.
``(xii) Adequacy of staffing at the covered
facility, including the number and job
assignments of staff, the ratio of staff to
inmates at the facility, the staff position
vacancy rate at the facility, and the use of
overtime, mandatory overtime, and augmentation.
``(xiii) Deaths or serious injuries of
incarcerated people or staff that occurred at
the facility.
``(xiv) The existence of contraband that
jeopardizes the health or safety of
incarcerated people or staff, including
incident reports, referrals for criminal
prosecution, and confirmed prosecutions.
``(xv) Access of incarcerated people to--
``(I) legal counsel, including
confidential meetings and
communications;
``(II) discovery and other case-
related legal materials; and
``(III) the law library at the
covered facility.
``(xvi) Any aspect of the operation of the
covered facility that the Inspector General
determines to be necessary over the course of
an inspection.
``(C) Inspection schedule.--An inspection of a
covered facility under this subsection shall be
conducted on a schedule based on the combined risk
score of the covered facility as described in
subparagraph (E) and the following considerations:
``(i) Higher risk facilities shall receive
more frequent inspections.
``(ii) The Inspector General shall
reevaluate the combined risk score methodology
and inspection schedule periodically and may
alter 1 or both to ensure that higher risk
facilities are identified and receiving the
appropriate frequency of inspection.
``(D) Report.--
``(i) In general.--Upon completion of an
inspection of a covered facility under this
subsection, or a group of inspections that
assess the same or similar issues at more than
1 facility, the Inspector General shall produce
a report to be made available to the Attorney
General, the Committee on the Judiciary of the
Senate, the Committee on the Judiciary of the
House of Representatives, employee
representative organizations, and the public,
that addresses 1 or more of the following
topics:
``(I) A characterization of the
conditions of confinement and working
conditions, including a summary of the
inspection criteria reviewed under
clauses (ii) and (iii) of subparagraph
(B).
``(II) Recommendations made to the
covered facility to improve safety and
conditions within the facility,
including recommendations regarding
staffing.
``(III) A recommended timeline for
the next inspection and assessment,
which shall not limit the authority of
the Inspector General to perform
additional inspections and assessments,
announced or unannounced.
``(IV) Any other issues or matters
identified during the inspection of the
facility or facilities.
``(ii) Consultation with stakeholders.--In
developing the recommendations described in
clause (i), the Inspector General may consult
with stakeholders, including employee
representative organizations.
``(E) Risk score.--Not later than 18 months after
the date of enactment of the Federal Prison Oversight
Act, the Inspector General shall establish methodology
and protocols for determining the combined risk score
of a covered facility, which--
``(i) shall be delivered to the Committee
on the Judiciary of the Senate and the
Committee on the Judiciary of the House of
Representatives; and
``(ii) may be based on--
``(I) frequency and duration of
lockdowns;
``(II) availability of programming;
``(III) staffing levels;
``(IV) access to adequate physical
and mental health resources;
``(V) incidences of physical and
sexual assault or neglect;
``(VI) opportunity to maintain
family ties through phone calls, video
calls, mail, email, and visitation;
``(VII) adequacy of the nutrition
provided;
``(VIII) amount or frequency of
staff discipline cases;
``(IX) access of incarcerated
people to--
``(aa) legal counsel,
including confidential meetings
and communications;
``(bb) discovery and other
case-related legal materials;
and
``(cc) the law library at
the covered facility; and
``(X) other factors as determined
by the Inspector General.
``(F) Bureau response to report.--
``(i) In general.--Not later than 60 days
after the date on which the Inspector General
issues a report under subparagraph (D), the
Bureau shall respond in writing to the
inspection report, which shall include a
corrective action plan.
``(ii) Public availability.--Each response
and action plan described in clause (i) shall
be made available to the public on the website
of the Inspector General.
``(iii) Compliance with corrective action
plan.--The Inspector General may conduct
additional inspections or investigations,
announced or unannounced, to monitor the
compliance of the Bureau with a corrective
action plan described in clause (i).
``(3) Ombudsman.--
``(A) In general.--Not later than 1 year after the
date of enactment of the Federal Prison Oversight Act,
the Attorney General shall establish in the Department
of Justice an Ombudsman who may--
``(i) receive a complaint from an
incarcerated person, a family member, a
representative of an incarcerated person,
staff, or others regarding issues that may
adversely affect the health, safety, welfare,
or rights of incarcerated people or staff,
including--
``(I) abuse or neglect;
``(II) the conditions of
confinement;
``(III) working conditions of
staff;
``(IV) decisions, administrative
actions, or guidance of the Bureau,
including those relating to prison
staffing;
``(V) inaction or omissions by the
Bureau, including failure to consider
or respond to complaints or grievances
by incarcerated people or staff
promptly or appropriately;
``(VI) policies, rules, or
procedures of the Bureau, including
gross mismanagement; and
``(VII) alleged violations of non-
criminal law by staff or incarcerated
people that may adversely affect the
health, safety, welfare, or rights of
any person;
``(ii) refer a complainant and others to
appropriate resources or Federal agencies;
``(iii) make inquiries and recommend
actions to appropriate entities on behalf of a
complainant, the Ombudsman, or others; and
``(iv) decline to investigate or take any
action with respect to any complaint and, in
any case in which the Ombudsman declines to
investigate or take any action, shall notify
the complainant in writing of the decision not
to investigate or take any action and the
reasons for the decision.
``(B) Limitations on authority.--The Ombudsman--
``(i) may not investigate--
``(I) any complaints relating to
the underlying criminal conviction of
an incarcerated person;
``(II) a complaint from staff that
relates to the employment or
contractual relationship of the staff
member with the Bureau, unless the
complaint is related to the health,
safety, welfare, working conditions,
gross mismanagement of a covered
facility, or rehabilitation of
incarcerated people; or
``(III) any allegation of criminal
or administrative misconduct, as
described in subsection (b)(2), and
shall refer any matter covered by
subsection (b)(2) to the Inspector
General, who may, at the discretion of
Inspector General, refer such
allegations back to the Ombudsman or
the internal affairs office of the
appropriate component of the Department
of Justice; and
``(ii) may not levy any fees for the
submission or investigation of complaints.
``(C) Decision on the merits of a complaint.--At
the conclusion of an investigation of a complaint, the
Ombudsman shall--
``(i) render a decision on the merits of
each complaint;
``(ii) communicate the decision to the
complainant, if any, and to the Bureau; and
``(iii) state the recommendations and
reasoning of the Ombudsman if, in the opinion
of the Ombudsman, the Bureau or any employee
thereof should--
``(I) consider the matter further;
``(II) modify or cancel any action;
``(III) alter a rule, practice, or
ruling;
``(IV) explain in detail the
administrative action in question; or
``(V) rectify an omission.
``(D) Actions following a decision by the
ombudsman.--
``(i) Request for information about actions
taken.--If the Ombudsman so requests, the
Bureau shall, within the time specified,
respond to any inquiry or request for
information from the Ombudsman and inform the
Ombudsman about any action taken on the
recommendations provided by the Ombudsman or
the reasons for not complying with any request
for information or recommendations.
``(ii) Reporting of continuing issues.--If
the Ombudsman believes, based on an
investigation conducted by the Ombudsman, that
there has been or continues to be a significant
health, safety, welfare, working conditions, or
rehabilitation issue, the Ombudsman shall
report the finding to the Attorney General, the
Committee on the Judiciary of the Senate, and
the Committee on the Judiciary of the House of
Representatives.
``(iii) Monitoring of internal disciplinary
actions of the bureau.--In the event that the
Bureau conducts an internal disciplinary
investigation or review of 1 or more staff
members of the Bureau as a result of an
investigation by the Ombudsman, the Ombudsman
may monitor the internal disciplinary action to
ensure a fair and objective process.
``(4) Inspector general and ombudsman access to bureau of
prisons facilities.--
``(A) In general.--Upon demand, in person or in
writing and with or without prior notice, the Inspector
General and the Ombudsman shall be granted access to
all Bureau facilities, which shall include--
``(i) all areas that are used by
incarcerated people, all areas that are
accessible to incarcerated people, and access
to programs for incarcerated people at any time
of day; and
``(ii) the opportunity to--
``(I) conduct private and
confidential interviews with any
incarcerated person, staff, employee
representative organization, or other
person; and
``(II) communicate privately and
confidentially, both formally and
informally, with incarcerated people or
staff by telephone, mail, electronic
communication, and in person, which
shall not be monitored or recorded by
or conducted in the presence of staff.
``(B) Purpose of visits.--Access to Bureau
facilities under subparagraph (A) is for the purposes
of--
``(i) conducting announced or unannounced
inspections by the Inspector General as
described in paragraph (2), including
inspections to monitor the compliance of the
Bureau with a corrective action plan described
in paragraph (2)(F)(i);
``(ii) conducting an investigation or other
activity by the Ombudsman as described in
paragraph (3); and
``(iii) inspecting, viewing, photographing,
and video recording all areas of the facility
that are used by incarcerated people or are
accessible to incarcerated people.
``(C) Access to documents.--
``(i) In general.--The Inspector General
and the Ombudsman have the right to access,
inspect, and copy all relevant information,
records, or documents in the possession or
control of the Bureau that either the Inspector
General or the Ombudsman considers necessary in
an inspection, investigation, or other
activity, and the Bureau shall assist the
Inspector General and the Ombudsman in
obtaining the necessary releases for those
documents that are specifically restricted or
privileged for use by the Bureau.
``(ii) Production of records.--Following
notification from the Inspector General or the
Ombudsman with a written demand for access to
Bureau records, the Bureau shall provide access
to the requested documentation--
``(I) not later than 20 business
days after receipt of the written
request; or
``(II) in the case of records
pertaining to the death of an
incarcerated person or staff, threats
of bodily harm including sexual or
physical assaults, or the denial or
delay of necessary medical treatment,
not later than 5 business days after
receipt of the written request, unless
the Inspector General or the Ombudsman
consents to an extension of that time
frame.
``(D) Coordination to minimize disruption of
operations.--The Inspector General and the Ombudsman
shall--
``(i) work with the Bureau to minimize
disruption to the operations of the Bureau due
to inspections, investigations, or other
activity; and
``(ii) comply with the security clearance
processes of the Bureau, provided these
processes do not impede the activities
described in this subsection.
``(5) Confidentiality.--
``(A) In general.--Correspondence and communication
with the Inspector General and the Ombudsman, including
communication regarding an issue described in section
4051 of title 18, United States Code, is confidential
and shall be protected as privileged correspondence in
the same manner as legal correspondence or
communications.
``(B) Rules and procedures.--Subject to
subparagraph (C), the Inspector General and the
Ombudsman shall establish confidentiality rules and
procedures for all information maintained by the
respective office to ensure that, to the greatest
extent practicable, before, during, or after an
investigation--
``(i) staff are not aware of the identity
of a complainant; and
``(ii) other incarcerated people are not
aware of the identity of a complainant.
``(C) Exception.--The Inspector General and the
Ombudsman may disclose identifying information for the
sole purpose of carrying out an investigation and as
otherwise authorized under section 7(b).
``(6) Family advocacy and support services.--
``(A) Filing complaints on behalf of an
incarcerated individual.--
``(i) Online form.--The Ombudsman shall
create a secure online form to be made
available on the website of the Ombudsman where
the family members, friends, and
representatives of incarcerated people can
submit complaints and inquiries on issues
identified in paragraph (3)(A)(i) on behalf of
an individual incarcerated at a covered
facility.
``(ii) Telephone hotline.--The Ombudsman
shall create a telephone hotline through which
family members, friends, and representatives of
incarcerated people can call to file complaints
and inquiries on issues identified in paragraph
(3)(A)(i) on behalf of an individual
incarcerated at a covered facility.
``(B) Filing complaints by an incarcerated
individual.--
``(i) Internal private submission.--The
Bureau shall provide multiple internal ways for
incarcerated individuals in covered facilities
to privately submit to the Ombudsman complaints
and inquiries on issues identified in paragraph
(3)(A)(i).
``(ii) Submission via independent entity.--
The Bureau shall also provide not less than 1
process for incarcerated individuals in covered
facilities to submit complaints and inquiries
on issues identified in paragraph (3)(A)(i) to
a public or private entity or office that is
not part of the Bureau and that is able to
receive and immediately forward complaints and
inquiries to the Ombudsman, allowing the
incarcerated individual to remain anonymous
upon request.
``(C) Determination.--
``(i) Confirmation of receipt.--Not later
than 5 business days after submission of a
complaint or inquiry under subparagraph (A) or
(B), the Ombudsman shall confirm receipt.
``(ii) Determination.--Not later than 15
business days after issuing the confirmation
under clause (i), the Ombudsman shall make a
determination as to whether any action is
warranted and notify the complainant of the
determination.
``(iii) Statement regarding decision.--If
the Ombudsman has determined action is
unwarranted under clause (ii), the Ombudsman
shall provide a written statement explaining
the decision to the complainant.
``(D) Administrative exhaustion.--Nothing in this
paragraph shall be construed as a necessary
administrative remedy required for exhaustion under
section 7(a) of the Civil Rights of Institutionalized
Persons Act (42 U.S.C. 1997e(a)).
``(7) Prohibition on retaliation.--
``(A) In general.--The Bureau and staff of the
Bureau shall not discharge, retaliate against, or in
any manner discriminate against any complainant or any
person or entity that has instituted or caused to be
instituted any proceeding, investigation, or inspection
under or related to this subsection.
``(B) Investigation.--Any alleged discharge of,
retaliation against, or discrimination against a
complainant, entity, or person because of a complaint,
investigation, or inspection may be considered by the
Ombudsman as an appropriate subject of an investigation
or other activity.
``(8) Due process protections.--
``(A) In general.--The Attorney General and the
Inspector General shall ensure that implementation of
this subsection is consistent with section 552a of
title 5, United States Code (commonly known as the
`Privacy Act of 1974') and all other applicable laws,
and respects appropriate due process protections for
staff.
``(B) Rule of construction.--Nothing in this
paragraph shall be construed to modify, supersede, or
otherwise affect the authority of the Inspector General
to access all records, reports, audits, reviews,
documents, papers, recommendations, or other materials,
as authorized by section 6(a).
``(9) Percentage of annual appropriation for the bureau of
prisons.--It is the sense of Congress that the amount allocated
to the Inspector General and the Ombudsman to carry out the
activities described in this subsection should equal an amount
between 0.2 percent and 0.5 percent of the annual appropriation
for the Bureau.''.
(b) Effective Date.--This Act, and the amendments made by this Act,
shall take effect on the date that is 90 days after the date on which
appropriations are made available to the Inspector General of the
Department of Justice and the Department of Justice for the specific
purpose of carrying out the provisions of this Act and the amendments
made by this Act.
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