    [Senate Hearing 113-315]
    [From the U.S. Government Publishing Office]

      COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
                                FISCAL YEAR 2014

                                  ----------

                             THURSDAY, JUNE 6, 2013

                                           U.S. Senate,
               Subcommittee of the Committee on Appropriations,
                                                        Washington, DC.
        The subcommittee met at 11:15 a.m., in room SD-138, Dirksen
    Senate Office Building, Hon. Barbara A. Mikulski (chairwoman)
    presiding.
        Present: Senators Mikulski, Feinstein, Shelby, Collins,
    Murkowski, Graham, and Kirk.

                             DEPARTMENT OF JUSTICE

                         Office of the Attorney General

    STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL

                opening statement of senator barbara a. mikulski

        Chairwoman Mikulski. The Commerce, Justice, Science
    subcommittee will now come to order.
        Today, we take the testimony of the Attorney General of the
    United States. The subcommittee wishes to welcome the Attorney
    General, and we know he will be testifying on, the Department
    of Justice's (DOJ) budget, its priorities for fiscal year 2014,
    and also the impact of the sequester this year and next year in
    terms of the impact on the DOJ, its mission because of the
    impact on its employees.
        Later, we will also be listening to the DOJ Inspector
    General, Michael Horowitz, testifying for the first time about
    oversight in terms of management issues. We are doing this at
    every one of our hearings listening to the Cabinet. We invited
    the Inspector General to come so that we have a better sense of
    how this committee not only spends money, but how we can be a
    more frugal, more efficient Government, and to get value for
    our dollar.
        Today, we will discuss how the Justice Department's fiscal
    year 2014 budget strengthens national security and
    counterterrorism, protects the safety and security of the
    rights of citizens, and how the Department ensures it uses
    taxpayer's money wisely.
        DOJ enforces and defends the interests of the United
    States, public safety against threats foreign and domestic,
    seeks punishment of the guilty while providing leadership in
    preventing and controlling crimes, and ensures fair and
    impartial administration of the justice of all Americans. That
    is a lot, and we ask a lot of the Department of Justice,
    employing more than 115,000 people; 26,000 of them are Federal
    agents: the FBI, DEA, our U.S. Marshals, ATF. We have over
    roughly 20,000 prison guards and nearly 10,000 prosecutors,
    investigators, and legal experts. We get a lot, too, for what
    we have asked them to do.
        The U.S. Marshals have arrested over 12,000 fugitive sex
    offenders; 12,000 sexual predators were taken off the streets
    because of the aggressive work of our marshals. The DEA put
    3,000 drug trafficking organizations, not people, out of
    business. And the FBI dismantled 409 criminal enterprises. The
    U.S. Attorneys collected $13 billion in criminal and civil
    penalties, going again, after the bad guys. They are the
    guardians of our justice system, and we want to make sure that
    we let them know we value them.
        So Mr. Attorney General, when we get ready to turn to you,
    we want all those people who work at the Department of Justice
    administering justice, protecting America and its Constitution,
    we want to say thank you.
        We ask a lot of the DOJ, and as we look at this year's
    budget, we know that the DOJ got a request from the President
    of $27.6 billion. We also know that in fiscal year 2013, we
    enacted $26.8 billion, but then you faced the sequester, which
    took the entire funding down by almost $1.5 billion to $25.3
    billion. Those are numbers, but wow, they must have had just a
    tremendous impact, and we are going to look forward to hearing
    about that impact.
        For us, we look for community security, national security,
    oversight, and accountability. We know that for your
    highlights, we know that there have been limited, but targeted
    entry increases in gun violence, requesting $1.4 billion, $379
    million more than the fiscal year 2013 request, to keep our
    home, schools, and communities safe.
        I like the fact that we want to help States improve the
    quality of criminal records and also mental health records, to
    allow schools to hire school safety personnel, and train local
    police on how to respond to these threatening incidents.
        While we are looking out, though, the threat that I
    consider the new enduring war is the threat to cybersecurity.
    In the last month, DOJ has charged cyber criminals in a $45
    million ATM heist. Why rob a bank, when you can do an ATM
    heist?
        There is a growing nexus between organized crime and
    nation-states. Our Nation is facing, what Leon Panetta called,
    a digital Pearl Harbor. We know that the Justice Department is
    requesting $668 million for FBI agents, computer scientists,
    Federal prosecutors on the issue of cybersecurity, and we look
    forward to working with you on that.
        There are many issues facing the budget. One of the biggest
    stresses on the budget is Federal prisons. The Bureau of
    Prisons' request is close to $7 billion. We have added 3,200
    new inmates for a total of 224,000 people in our Federal
    prisons. That is a stunning number and it requires a lot of
    protection. We are concerned about keeping the bad guys off the
    street. We need to deal with the prison situation and also look
    out for the safety of our prison guards.
        We want to strengthen national security and we will be
    talking about that as we move along. But we also know that for
    State and local law enforcement, this is an area of great
    concern because we know the way that the Department of Justice,
    the FBI through joint task forces, and our U.S. attorneys work:
    it is through State and local. There is a request of $2.3
    billion for grants to be able to support the investments in
    that effort. We look forward to hearing more about that.
        We also look forward to hearing from you in terms of how we
    can achieve those savings and be a more, as I said, we want to
    have a safer country. We need to have a smarter Government in
    terms of how we use our resources. And yet, at the same time,
    we want to protect all American people.
        I would like to turn now to Senator Shelby.

                     statement of senator richard c. shelby

        Senator Shelby. Thank you, Madam Chairman.
        Welcome, Mr. Attorney General.
        Today, we will hear from the Attorney General of the United
    States, Attorney General Holder, about the Department of
    Justice and his fiscal year 2014 budget request. We will also
    hear from the Inspector General, Michael Horowitz, who has
    taken a very active oversight role within the Department, as he
    should.
        First, I want to take a moment to recognize the men and
    women, Mr. Attorney General, of the DOJ who protect this
    country from crime and terrorism. They work hard to keep us
    safe in this country, and for that, I think we all owe them a
    debt of gratitude.
        The fiscal year 2014 budget request for the Department of
    Justice totals $28 billion, a 3.9-percent increase over the
    fiscal year 2013 enacted level. That increase, however, comes
    largely in the form of funding for new gun control measures
    while the majority of law enforcement accounts basically remain
    flat.
        The budget also proposes a number of gimmicks to find
    additional so-called savings within the Department. I believe
    this approach is misguided, Mr. Attorney General, and look
    forward to working with Chairwoman Mikulski to put the
    Department's budget on the right track in the fiscal year 2014
    process.
        The budget also proposes to remove language that prohibits
    the transfer of GTMO detainees to U.S. soil. This provision
    received broad bipartisan support last year and I am troubled
    by the administration's recommendation that it be removed.
    Their proposal is particularly disconcerting in light of the
    President's renewed declaration on May 23 to close Guantanamo
    Bay.
        Aside from his broad declarations regarding the closure of
    GTMO, the President has made no specific proposal for dealing
    with the current detainees. The President has not even
    attempted to remove those detainees, his own administration has
    determined, who can be returned to their home country.
        The budget proposal, however, leads me to believe that the
    President is planning to move the GTMO detainees here to the
    United States. Why else would the budget delete the transfer
    language? Either this is a real proposal or it is a political
    posturing. In my view, political posturing is unnecessary and,
    frankly, detrimental to any real discussion about terrorist
    detainees.
        I am also adamantly opposed to moving any terrorist
    detainees to the United States, and I believe many of my
    colleagues would agree with me. Such a move would necessarily
    place Americans in harm's way. These are dangerous individuals
    and they need to be isolated. GTMO, as we all know, provides
    that isolation.
        Madam Chairwoman, I would be remiss if I did not mention
    the controversy that has engulfed the Department and the
    Attorney General in recent weeks. These issues have overwhelmed
    the Department and cast a shadow of doubt upon the Attorney
    General.
        The Attorney General, as we all know, is the chief law
    enforcement officer of the Federal Government, and as the head
    of the Department of Justice, it is his responsibility to
    ensure that the laws are enforced and the interests of the
    United States are defended.
        The controversy that has embroiled the Department has
    called into question its ability, I believe, to fairly
    administer law and justice. Further, the questionable actions
    of the Attorney General, I believe, have tarnished the
    integrity, impartiality, and efficacy of the position of
    attorney general.
        I believe it is the responsibility of this committee, Madam
    Chairman, to provide the resources necessary to ensure that the
    DOJ can efficiently and effectively enforce the laws, protect
    our citizens, and administer justice.
        Similarly, it is the responsibility of the Department of
    Justice, headed by the attorney general, to ensure that it
    carries out its duties. That it is responsible and responsive
    to the citizens of the United States, and that it operates
    with, and it tolerates, no less than the highest degree of
    honesty and integrity.
        Unfortunately, I believe that until these issues are
    resolved, and the controversy surrounding the Justice
    Department and the Attorney General's Office is laid to rest, a
    hue of distrust will hover over the DOJ.

                               prepared statement

        Mr. Attorney General, it is my hope that you will move
    swiftly to address these issues that have been raised, not just
    by me but by others, to put this controversy to rest in a full
    and open manner so that the Department, which is so important,
    can get back to focusing on the issues central to its mission.
        [The statement follows:]
                Prepared Statement of Senator Richard C. Shelby
        Thank you Madam Chair.
        Today we will hear from Attorney General Holder about the
    Department of Justice and its fiscal year 2014 budget request. We will
    also hear from the Inspector General, Michael Horowitz, who has taken a
    very active oversight role within the Department.
        First, I want to take a moment to recognize the men and women of
    the Department of Justice who protect this country from crime and
    terrorism. They work hard to keep us safe and for that we owe them a
    debt of gratitude.
        The 2014 budget request for the Department of Justice totals $28.1
    billion; a 3.9 percent increase over the fiscal year 2013 enacted
    level. That increase however, comes largely in the form of funding for
    new gun control measures while the majority of law enforcement accounts
    remain flat.
        The budget also proposes a number of gimmicks to find additional,
    so called savings, within the Department. I believe this approach is
    misguided and look forward to working with the Chair to put the
    Department's budget on the right track in 2014.
        The budget also proposes to remove language that prohibits the
    transfer of GITMO detainees to U.S. soil. This provision received broad
    bipartisan support last year and I am troubled by the administration's
    recommendation that it be removed. The proposal is particularly
    disconcerting in light of the President's renewed declaration on May 23
    to close GITMO.
        Aside from his broad declarations regarding the closure of GITMO,
    the President has made no specific proposal for dealing with the
    current detainees. The President has not even attempted to remove those
    detainees his own administration has determined can be returned to
    their home country.
        The budget proposal however, leads me to believe that the President
    is planning to move GITMO detainees here, to the United States. Why
    else would the budget delete the transfer language?
        Either this is a real proposal or it is political posturing. In my
    view, political posturing is unnecessary and frankly, detrimental to
    any real discussion about terrorist detainees.
        I am adamantly opposed to moving any terrorist detainees to the
    United States and I believe many of my colleagues agree with me. Such a
    move would unnecessarily place Americans in harm's way. These are
    dangerous individuals and they need to be isolated. GITMO provides that
    isolation.
        Madam Chair, I would be remiss if I did not mention the controversy
    that has engulfed the Department and the Attorney General in recent
    weeks. These issues have overwhelmed the Department and cast a shadow
    of doubt upon the Attorney General.
        The Attorney General is the chief law enforcement officer of the
    Federal Government and as the head of the Department of Justice, it is
    his responsibility to ensure that laws are enforced and the interests
    of the United States are defended. The controversy that has embroiled
    the Department has called into question its ability to fairly
    administer the law and justice. Further, the questionable actions of
    this Attorney General have tarnished the integrity, impartiality and
    efficacy of the position.
        It is the responsibility of this Committee to provide the resources
    necessary to ensure that the Department of Justice can efficiently and
    effectively enforce the laws, protect our citizens, and administer
    justice. Similarly, it is the responsibility of the Department to
    ensure that it carries out its duties; that it is responsible and
    responsive to the citizens of the United States; and that it operates
    with and tolerates no less than the highest degree of honesty and
    integrity. Unfortunately, I believe that until these issues are
    resolved and the controversy laid to rest, a hue of distrust will hover
    over the Department of Justice.
        Mr. Attorney General, it is my hope that you will move swiftly to
    address these issues--to put this controversy to rest in a full and
    open manner so that the Department can get back to focusing on the
    issues central to its mission.
        Madam Chair, thank you for the time and I look forward to hearing
    more from the Attorney General and from the Inspector General.

        Senator Shelby. Thank you, Madam Chair.
        Chairwoman Mikulski. Mr. Attorney General.

                 SUMMARY STATEMENT OF HON. ERIC H. HOLDER, JR.

        Attorney General Holder. Good morning Chairwoman Mikulski,
    Ranking Member Shelby, other distinguished members of the
    subcommittee.
        I appreciate this opportunity to appear before you today to
    discuss the President's fiscal year 2014 budget for the
    Department of Justice, and to provide an overview of the
    Department's recent achievements and important ongoing work.
        Thanks to my dedicated colleagues, the nearly 116,000
    employees serving in offices around the world, in recent years,
    the Department has made really tremendous progress in
    protecting the safety and the sacred rights of the American
    people, and nowhere is this clearer than in our work with
    regard to ensuring America's national security.
        Since 2009, we have brought cases, secured convictions, and
    obtained appropriately robust sentences against scores of
    dangerous people on terrorism-related offenses by relying on
    our tried and tested Federal Article III civilian court system.
    We have identified, investigated, and disrupted numerous
    potential plots by foreign terrorist organizations, as well as
    by homegrown terrorists. Moving forward, we will continue to
    remain vigilant, to adapt to emerging threats, and to take
    these comprehensive efforts to a new level.
        To this end, the President's budget requests over $4
    billion for vital national security programs and to respond to
    events like the horrific terrorist attacks on the Boston
    Marathon. As we continue to investigate this matter, I want to
    assure you, and the American people, that my colleagues and I
    are determined to hold accountable, to the fullest extent of
    the law, those who bore responsibility for this heinous act,
    and all who threaten our people or who attempt to terrorize our
    cities.
        While the DOJ must not waver in its determination to
    protect our national security, we must be just as vigilant in
    our defense of the sacred rights and freedoms that we are
    equally obligated to protect, including the freedom of the
    press.
        In order to ensure the appropriate balance in these
    efforts, and at the President's direction, I have launched a
    review of existing Justice Department guidelines governing
    investigations that involve reporters. Last week, I convened
    the first in a series of meetings with representatives of news
    organizations, Government agencies, and other groups to discuss
    the need to strike this important balance to ensure robust
    First Amendment protections and to foster a constructive
    dialogue.
        Now, I appreciate the opportunity to engage members of the
    media and national security professionals in this effort to
    improve our guidelines, policies, and processes and to renew
    the important conversation that really is as old as the
    Republic itself about how to balance our security with our
    dearest civil liberties.
        As part of that conversation, let me make at least two
    things clear. First, the Department's goal in investigating
    leaked cases is to identify and to prosecute Government
    officials who jeopardize national security by violating their
    oaths, not to target members of the press or to discourage them
    from carrying out their vital work.
        Second, the Department has not prosecuted, and as long as I
    have the privilege of serving as Attorney General of the United
    States, will not prosecute any reporter for doing his or her
    job.
        With these guiding principles in mind, we are updating our
    internal guidelines to ensure that in every case, the
    Department's actions are clear and consistent with our most
    sacred values. To the extent that there is a problem, and I
    just want to make clear that I think that it is with our
    guidelines and with our regulations--and not with the people of
    the Justice Department who have been involved in these matters.
        Now, this conversation is not static and it seldom results
    in easy consensus. It is often difficult, and it is often
    emotionally charged. It requires all parties to approach these
    delicate issues in good faith so that today's Government
    leaders, journalists, and concerned citizens from all walks of
    life can come together as our predecessors have done to secure
    our freedoms, to ensure the safety of our citizens, and to
    update and refine key protections in a way that is commensurate
    with the challenges and the technologies of a new century, and
    consistent with our most treasured values.
        In addition to this critical work, my colleagues and I
    remain committed to working with Members of Congress to secure
    the passage of common sense measures for preventing and
    reducing gun violence. The President's budget request provides
    $395 million to support these efforts and to allow us to keep
    our promise to the families and communities of those
    senselessly murdered at Sandy Hook Elementary School and in
    countless other acts of gun violence throughout the Nation.
        We will also continue to advocate for comprehensive
    immigration reform and strive to improve our broken immigration
    system in a way that is fair and guarantees that all are
    playing by the same rules. It requires responsibility from
    everyone, including those who are here in an undocumented
    status and employers who would attempt to hire or exploit them.
    I am encouraged that these basic principles are reflected in
    proposals that are currently under consideration by the Senate,
    and I look forward to working with leaders of both chambers of
    the Congress to strengthen, pass, and implement responsible
    reform legislation.
        In the meantime, the Justice Department will continue to
    move aggressively and appropriately to enforce existing
    immigration laws to safeguard the most vulnerable members of
    our society, to ensure the fairness and integrity of our
    financial markets, to protect the environment, and to invest in
    strategies for becoming both smarter and tougher on crime.
        I think that we can be proud of the progress that the
    Department has made in each of these areas in recent years, and
    I am encouraged to note that the President's budget request
    includes the resources that we will need to continue this
    important work, including an additional $25 million for the
    Executive Office for Immigration Review to augment staffing and
    to improve the efficiency of our immigration courts; $2.3
    billion for State, local, and tribal assistance programs with a
    focus on funding evidenced-based programs; increase of $55
    million to combat financial and mortgage fraud; an additional
    $93 million to address cybersecurity needs; and an increase of
    $7 million to expand on the historic achievements of the Civil
    Rights Division in addressing bias, intimidation, and
    discrimination.
        I must note that our ability to continue this progress has
    been negatively impacted by sequestration, which cut more than
    $1.6 billion from the Department's budget for the current
    fiscal year. Earlier this year, with the help of this
    subcommittee, I provided $150 million to the Bureau of Prisons
    to mitigate the effects of these untenable reductions and to
    avoid furloughing more than 3,500 correctional staff each day
    from Federal prisons around the country.
        In April, again with your support, and using similar
    authority, I provided necessary funding to the FBI, the U.S.
    Marshal Service, the ATF, and to U.S. Attorneys and other
    components to prevent furloughs and to maintain adequate
    operations. I really want to thank the subcommittee for your
    full and immediate support of these actions. It could not have
    occurred without your assistance.
        But I must stress that these and similar solutions will no
    longer be available to alleviate fiscal year 2014 shortfalls
    due to joint committee reductions should they be allowed to
    persist. I am eager to work with this subcommittee and with the
    entire Congress to prevent this from occurring, and to secure
    the timely passage of the President's budget request, which
    provides a total of $27.6 billion for the Justice Department.
    That level of support will be essential in ensuring that my
    colleagues and I have the resources that we need to fulfill our
    critical missions.

                               PREPARED STATEMENT

        So I want to thank you again for the chance to discuss this
    work with you today. And I would be more than glad to answer
    any questions that you might have. Thank you.
        [The statement follows:]
                 Prepared Statement of Hon. Eric H. Holder, Jr.
        Good morning, Chairwoman Mikulski, Ranking Member Shelby, and
    members of the subcommittee. Thank you for the opportunity to appear
    before you today to highlight the President's fiscal year 2014 budget
    for the U.S. Department of Justice (DOJ)--and to discuss the
    Department's recent achievements and future priorities. I would also
    like to thank you for your support of the fiscal year 2013 supplemental
    Disaster Relief Act and the fiscal year 2013 Consolidation and
    Continuation Appropriations Act, which provide important resources for
    our law enforcement, correctional, and litigation operations.
        As you are aware, automatic spending reductions--known as
    sequestration--recently cut more than $1.6 billion from the
    Department's budget, leaving very little flexibility in how the cuts
    are applied. Sequestration is having a significant impact on the
    Department's operations--affecting not only employees, but our ability
    to ensure the administration of justice in communities across the
    Nation. As a result, we have carefully and thoughtfully reviewed our
    spending levels and redoubled ongoing efforts to reduce expenses
    throughout the Department. Spending restrictions have been identified
    and established in the areas of hiring, contracts, travel, training,
    conferences, non-law enforcement employee overtime, and monetary
    awards.
        While I recognize the need to take action to absorb these deep
    cuts, our actions must not threaten the critical operations of the
    Department that are necessary to protect life and safety. In March,
    using my limited authorities to transfer and allocate existing funds
    from within the Department, I provided $150 million to the Bureau of
    Prisons (BOP) to avoid furloughing correctional workers at our prison
    institutions. Without this intervention, we would have been forced to
    furlough 3,570 staff each day from the Federal prisons around the
    country. The loss of these correctional officers and other staff who
    supervise the 175,000 prisoners at 119 institutions would have created
    serious threats to the safety and security of our staff, inmates, and
    the public. In April, using similar authorities, I provided necessary
    funding to the Federal Bureau of Investigation (FBI), United States
    Marshals Service (USMS), Bureau of Alcohol, Tobacco, Firearms and
    Explosives (ATF), United States Attorneys (USA), and other DOJ
    components to mitigate furloughs and maintain adequate staffing
    resources in order to fulfill the Department's missions. Chairwoman
    Mikulski, Ranking Member Shelby, and members of the subcommittee, thank
    you for your full and immediate support of our actions to provide
    relief to the Department.
        However, I must note that I remain concerned about our ability to
    keep DOJ employees on the job to respond to emergencies and safeguard
    the American people in the days ahead. The solutions that we used to
    alleviate sequestration cuts in fiscal year 2013 will no longer be
    available to mitigate fiscal year 2014 funding shortfalls.
        This could threaten programs that affect the safety of Americans
    across the country, and undermine the remarkable work that the
    Department's nearly 116,000 dedicated employees have made possible over
    the last 4 years. Today, I affirm the Department's commitment to
    continue building on this work--to protect the Nation from terrorism
    and other national security threats, combat violent crime, eradicate
    financial fraud, and safeguard the most vulnerable members of society.
    While fulfilling this commitment, I will continue to explore innovative
    techniques to carry out our missions more efficiently--and to make
    targeted investments to protect the safety and security of the American
    people, our critical national infrastructure, and global financial
    markets.
        The President's fiscal year 2014 budget request for the Department
    is $27.6 billion. The request represents a 3 percent increase more than
    the fiscal year 2012 enacted level. More specifically, the President's
    fiscal year 2014 budget request:
      --Provides increased funding for adjustments to existing Federal
            programs.--The request provides $566.7 million more than the
            fiscal year 2012 enactment to fund adjustments in key areas
            where there is little short-term flexibility, such as rent
            costs, foreign expenses, prison operations, and restoring
            cancellation of balances. The request also funds employee pay
            adjustments.
      --Enhances critical counterterrorism and counterespionage programs
            intelligence gathering and surveillance capabilities.--The
            request includes $14 million in program increases for
            technological and human capital resources to detect, disrupt,
            and deter threats to our national security.
      --Supports the administration's plans to reduce gun violence.--The
            request invests $395 million in Federal programs to help reduce
            gun violence. This includes $100 million to double the existing
            capacity of the FBI's National Instant Criminal Background
            Check System (NICS), and $73 million for additional Bureau of
            Alcohol, Tobacco, Firearms and Explosives (ATF) investigative
            and regulatory capabilities. It also includes improvements in
            ATF's tracing and ballistics systems. In addition, the request
            provides $222 million for grant programs to assist States in
            making more records available in the NICS system, to improve
            school safety, to support officer safety programs--including a
            joint Office of Justice Programs (OJP)/FBI training for active
            shooter situations, to provide incentives for State and local
            governments to update NICS data with criminal history and
            mental health information, and to encourage the development of
            innovative gun safety technology.
      --Enhances efforts to combat and keep pace with increasingly
            sophisticated and rapidly evolving cyber threats.--The request
            provides $92.6 million in program increases to improve the
            ability to share information in a timely and accurate manner,
            to develop forensic capabilities for a cloud architecture, to
            increase cyber collection and data analysis, to provide prompt
            victim notification and response, and to enhance the
            Department's cyber policy scope.
      --Invests in law enforcement efforts targeting financial fraud.--The
            request includes $55 million more to improve the Department's
            capacity to investigate and prosecute a broad range financial
            fraud, including securities and commodities fraud, investment
            scams, and mortgage foreclosure schemes.
      --Strengthens enforcement of immigration laws.--The request invests
            $25 million in additional personnel to process the increasing
            workload and improve the efficiency of our overall immigration
            enforcement efforts.
      --Invests in Federal civil rights enforcement.--The request provides
            $9 million, of which $1.5 million is included as part of the
            Department's financial fraud investments, to enhance the
            Department's enforcement of Federal civil rights laws,
            including human trafficking, hate crimes, police misconduct,
            fair housing, fair lending, disability rights, and voting
            rights.
      --Supports Federal prisons and detention operations.--The request
            invests $236.2 million to continue to maintain secure,
            controlled Federal criminal detention and prison facilities and
            additional programming to reduce recidivism.
      --Enhances State, local, and tribal law enforcement programs.--The
            request invests $2.3 billion, which is a net increase of $201.3
            million over the fiscal year 2012 level. The budget includes
            critical resources for police hiring, programs targeting
            violence against women, school safety, and general purpose
            criminal justice programs. The budget expands programs that
            have demonstrated success, including new programs that are
            structured on evidence-based principles, and programs to reduce
            gun violence.
        As I testified during my first appropriations hearing 4 years ago,
    I will continue to pursue a very specific set of goals:
        First, my colleagues and I will continue to bolster the activities
    of the Federal Government that protect the American people from
    terrorism and other threats to our way of life. We will use every
    lawful instrument to hold terrorists accountable for their actions and
    bring them to justice.
        Second, we will continue to enhance the credibility of the
    Department while promoting equality, opportunity, and justice for all.
        Third, we will continue to strengthen the traditional missions of
    the Department. In partnership with government, law enforcement, and
    industry leaders, we will enforce the law and defend the interests of
    both consumers and the United States.
        In addressing these priorities, I am profoundly grateful for the
    contributions of Justice Department employees here in Washington and
    around the world--and I look forward to the continued support of this
    subcommittee and Congress, as a whole.
       protecting the american people from terrorism and other national
                                security threats
        The fiscal year 2014 budget includes a total of $4.4 billion to
    maintain critical national security programs within the Department.
    National security threats are constantly evolving and adapting, often
    requiring additional resources to address new critical areas.
    Increasing global access to technological advancements can result in
    new vulnerabilities that the Department must be prepared to address.
    This request includes $14 million in program increases that provide the
    technology and personnel needed to effectively identify, obstruct, and
    avert threats to our national security.
        Preventing, disrupting, and defeating terrorist acts before they
    occur remains the Justice Department's highest priority. Since 2009,
    the Department has thwarted multiple terrorist plots against the United
    States. In 2012, the Department obtained a conviction against Naser
    Jason Abdo for his role in a plot to use explosives to attack soldiers
    from Fort Hood. He was sentenced to life in prison. We also secured a
    conviction--and a life sentence--in the case of Adis Medunjanin, for
    his role in a plan to carry out a suicide terrorist attack in New York
    City.
        In addition, the Department has successfully executed ground-
    breaking counterintelligence operations to safeguard sensitive U.S.
    military and strategic technologies and keep them from falling into the
    wrong hands. In 2012, Bryan Underwood, a former guard at a U.S.
    Consulate under construction in China, pleaded guilty in connection
    with his efforts to sell classified photographs and information about
    the U.S. Consulate to China. Working closely with our U.S. and
    international partners, we disrupted an international network
    conspiring to illegally export United States-origin materials to Iran
    for the construction of gas centrifuges used to enrich uranium. We also
    disrupted a Russian procurement network in the United States that was
    illegally exporting United States microelectronics to Russian military
    and intelligence agencies.
        From terrorists seeking to sabotage critical infrastructure; to
    organized crime syndicates and cyber criminals attempting to defraud
    banks, corporations, and individuals; and other criminals searching for
    new ways to steal defense and intelligence secrets and intellectual
    property--our Nation's economy and security are under constant threat
    from domestic and foreign sources. In the past year, Michael Patrick
    Sallnert pled guilty in connection with his role in an international
    cybercrime ring believed to have caused more than $72 million in total
    losses to more than one million computer users through the sale of
    fraudulent computer security software known as ``scareware.'' And we
    obtained a conviction against Shanshan Du and Yu Qin for conspiring to
    steal General Motors trade secrets with the intent to use them in a
    joint venture with an automotive competitor in China.
        The Department continues to maintain and strengthen its own
    cybersecurity environment to counter cyber threats, including insider
    threats, and to ensure its personnel have unimpeded access to the IT
    systems, networks, and data necessary to fulfill their missions. In
    2012, the FBI established Cyber Watch as its 24/7 operations center for
    cyber intrusion prevention and response operations.
        combating violence and other crimes against the american people
        Gun violence has touched every State, county, city, and town in
    America. Especially in the wake of December's horrific events in
    Newtown, Connecticut, the need to address this problem has come into
    sharp focus. Since then, the Department has been working with the White
    House--and our colleagues across the administration--to develop and
    implement concrete, common-sense steps to combat the gun violence that
    devastates too many lives and communities every day.
        The fiscal year 2014 budget provides funding and programs to reduce
    gun violence and prevent future tragedies. The Department of Justice
    seeks to invest $395 million to strengthen the national background
    check system; enhance our investigative and regulatory resources;
    improve our tracing and ballistics systems; and assist law enforcement
    personnel in the dangerous work of protecting the American people from
    violence. The Department recognizes that gun violence is not just a
    Federal problem, and our partners at the State, local, and tribal
    levels stand on the front lines of the critical work to keep our people
    safe--and our cities, neighborhoods, and schools more secure.
        In the past year, the Department has spearheaded a number of
    collaborative efforts between Federal law enforcement agencies and
    local police departments to combat violent crime in some of the most
    seriously afflicted neighborhoods across the country. As part of this
    initiative, the Department has enhanced its ability to re-target
    Federal resources to areas experiencing the highest levels of violence.
    For example, last summer in Philadelphia, the U.S. Attorney's Office
    for the Eastern District of Pennsylvania charged 92 defendants in 77
    indictments; ATF made 84 Federal and 17 State arrests; USMS arrested
    more than 300 fugitives charged with violent crimes and crimes closely
    associated with violence; DEA made 258 arrests for drug related
    offenses; and the FBI made more than 140 arrests. As we've repeatedly
    seen, effectively combating violent crime demands that--with the help
    and leadership of our U.S. Attorneys' Offices, as well as the FBI, ATF,
    DEA, and USMS--we will continue to use every tool, resource, and
    authority to crack down on the gang-, gun-, and drug-fueled violence
    that menaces our streets and threatens our communities. Through
    intelligence-driven, threat-based prosecutions--we will focus on
    dismantling criminal organizations and putting them out of business for
    good. We will continue to measure the effectiveness of our endeavors in
    these crime-ridden areas to ensure that our efforts result in
    significant and lasting positive outcomes.
        In addition to protecting our communities, the Department is
    working to safeguard our environment--and to hold accountable those
    responsible for the Deepwater Horizon disaster. In November 2012, BP
    Exploration and Production Inc. pleaded guilty to 11 counts of felony
    manslaughter, 1 count of felony obstruction of Congress, and violations
    of the Clean Water and Migratory Bird Treaty Acts for its conduct
    relating to the 2010 Deepwater Horizon disaster that killed 11 people
    and caused the largest environmental disaster in U.S. history. As part
    of its plea, BP agreed to pay a record $4 billion in criminal fines and
    penalties. In addition, the two highest-ranking BP supervisors on the
    Deepwater Horizon oil rig were charged with 11 counts of manslaughter,
    and a former senior BP executive was charged with obstruction of
    Congress. In January 2013, Transocean Deepwater, which operated
    Deepwater Horizon oil rig, agreed to plead guilty to violating the
    Clean Water Act and to pay a total of $1.4 billion in civil and
    criminal fines and penalties for its conduct in relation to this
    tragedy. Nearly 80 percent of these penalties will be distributed
    directly to the Gulf States as dictated by Congress under the RESTORE
    Act.
        As we continue to investigate the explosion that led to the
    Deepwater Horizon oil spill, my colleagues and I are determined to hold
    accountable those who violated the law, pursue appropriate action to
    recover civil penalties under the Clean Water Act, and hold all parties
    liable for natural resource damages under the Oil Pollution Act.
                          eradicating financial fraud
        Beyond this work, the administration and the Department remain
    committed to combating financial and mortgage fraud that harms the
    financial security of the American people and threatens national
    economic stability. The President's budget request provides program
    increases totaling $55 million to improve the Department's capacity to
    investigate and prosecute allegations of such conduct.
        In the past year, the Department has launched numerous
    investigations into those engaged in financial fraud--and these efforts
    are yielding significant results. For instance, we secured a $160
    million penalty from Barclays Bank, PLC, to resolve allegations related
    to the role Barclays played in attempting to manipulate its submissions
    for the London Interbank Offered Rate (LIBOR), which is used as a
    benchmark interest rate in financial markets around the world. We also
    obtained convictions against three former UBS AG executives--Peter
    Ghavami, Gary Heinz and Michael Welty--for their participation in
    frauds related to bidding for contracts for the investment of municipal
    bond proceeds and other municipal finance contracts.
        In connection with its ongoing investigations into the manipulation
    of LIBOR and other global benchmark interest rates, the Department
    obtained admissions establishing criminal liability from three major
    financial institutions in 2012 and 2013--including corporate guilty
    pleas from the responsible subsidiaries of two banks. We received more
    than $800 million in related penalties, which was part of a total $2.5
    billion in settlements paid by the banks to resolve their liability
    with U.S. and foreign regulators. And the Department charged two
    derivatives traders individually for their role in this scheme.
        Fortunately, this is only the beginning. The Department also
    continues to make progress toward achieving justice for victims of
    mortgage fraud. In 2012, the Department played a major role in
    obtaining the largest joint Federal-State settlement on record--against
    the Nation's five largest mortgage services--resulting in $25 billion
    in financial penalties and extensive consumer relief. We secured a $175
    million fair lending settlement against Wells Fargo Bank to resolve
    allegations involving a pattern or practice of discrimination against
    qualified African-American and Hispanic borrowers in its mortgage
    lending from 2004 through 2009.
        In February 2013, the Department filed a civil lawsuit against
    Standard & Poor's Financial Services--as well as its parent company,
    McGraw-Hill--alleging that the credit rating agency S&P engaged in a
    scheme to defraud investors in financial products known as Residential
    Mortgage-Backed Securities, or RMBS, and Collateralized Debt
    Obligations, or CDOs. We alleged that, by knowingly issuing inflated
    credit ratings for CDOs--which misrepresented their creditworthiness
    and understated their risks--S&P misled investors, including many
    federally insured financial institutions, causing them to lose billions
    of dollars. In addition, we alleged that S&P falsely claimed that its
    ratings were independent, objective, and not influenced by the
    company's relationship with the issuers who hired S&P to rate the
    securities in question--when, in reality, the ratings were affected by
    significant conflicts of interest, and S&P was driven by its desire to
    increase its profits and market share to favor the interests of issuers
    over investors.
              safeguarding the most vulnerable members of society
        My colleagues and I are determined to uphold the civil and
    constitutional rights of all Americans, particularly the most
    vulnerable members of our society. The fiscal year 2014 budget includes
    $258.6 million to support the Department's vigorous enforcement of
    Federal civil rights laws, including laws that address human
    trafficking, fair housing, fair lending, disability rights, and voting.
    This request includes an additional $9 million for the Civil Rights
    Division and Community Relations Service, of which $1.5 million is
    included as part of the Department's financial fraud investments.
        In 2012, the Department charged a record number of human
    trafficking cases. Through expanded partnerships with State and local
    law enforcement agencies, foreign governments, and nongovernmental
    organizations, we prosecuted 73 human trafficking cases. We obtained a
    conviction--and a life sentence--against Weylin Rodriguez, for his role
    in sex trafficking and his violent use of firearms in recruiting three
    minor females and two young adults to work as prostitutes. We
    prosecuted Kala Bray, who was later sentenced to 14 years in prison,
    for her role in a conspiracy to engage in child sex trafficking by
    force, fraud, and coercion.
        In addition to these high-profile cases, we secured the longest
    sentence ever recorded in a forced labor case, in which a defendant
    received a sentence of life plus 20 years for his role in a
    transnational organized criminal network that exploited Ukrainian men
    and women for labor on commercial cleaning crews in the Philadelphia
    area--by using threats, violence, and sexual assaults to intimidate and
    control the victims. We also convicted and secured life sentences
    against one sex trafficker who exploited young, vulnerable Micronesian
    women in brothels in Guam--and another who targeted Eastern European
    women and used brutal beatings, rapes, and threats to control every
    aspect of their lives--branding them with tattoos and compelling them
    into forced labor and prostitution.
        Last, the Department remains focused on reinvigorating its fair
    housing and fair lending enforcement--and working to ensure that local
    governments and private housing providers offer safe and affordable
    housing on a non-discriminatory basis. In the past year, we secured a
    record monetary settlement in a fair housing accessibility case,
    including the largest civil penalty in any Fair Housing Act case.
                                   conclusion
        Chairwoman Mikulski, Ranking Member Shelby, and members of the
    subcommittee, I want to thank you for this opportunity to discuss my
    concerns about the adverse impact of sequestration on the Department,
    to highlight the Department's ongoing priorities, and to share our
    plans to strengthen our efforts in fiscal year 2014.
        As we speak, the Department is confronting significant funding and
    operational challenges across every component. Our ability to rise to
    these challenges will have serious consequences for the administration
    of justice. I am deeply troubled by the impact that sequestration will
    have on the Department's capacity to prevent terrorism, combat violent
    crime, and protect the most vulnerable among us. Despite the obstacles
    ahead--and the significant challenges we face every day--the Department
    remains committed to fulfilling our responsibilities to protect the
    American people, even as we navigate this period of fiscal uncertainty.
        As we do so, we will continue to identify additional efficiencies
    and cost-saving measures--while making our programs and activities as
    efficient and effective as possible. I look forward to working with
    this subcommittee and with the entire Congress to build on the record
    of achievement we've established over the past 4 years. And I am happy
    to answer any questions you may have.

        Chairwoman Mikulski. Thank you, Mr. Attorney General.
        We are going to go to the 5 minute rule, and I am going to
    stick to it as well, and we will let Senator Shelby go next,
    and then the order of arrival of everybody.
        There are many questions to be asked because the Department
    of Justice has such, such scope and incredible mission. I want
    to ask my first question, though, related to what I consider an
    explosive situation, and that is the Federal prisons.

                           FEDERAL PRISON POPULATION

        I am very concerned about the fact of prison overcrowding.
    The fact that right now, the Federal prison budget is making up
    25 percent of the entire Department of Justice budget, and it
    keeps increasing year after year. As we better our Federal law
    enforcement, the competency of the U.S. Attorney's offices, we
    are getting more convictions of bad people. That is the good
    part.
        The other part, though, is that we have 224,000 people in
    prison. I worry about the safety of the guards and I know you
    do too, Mr. Attorney General, but we are on, in some ways, a
    fiscally unsustainable path here.
        I want to ask, first of all, do you feel that your request
    of $6.9 billion--which is, again, 25 percent of your budget
    request--adequate to meet the ethical standards in the care of
    prisons, prisoners, and at the same time protecting our guards?
    And then, do you have thoughts on how we can reduce the prison
    population without increasing risk to our American people?
        We worry a lot about GTMO and I know it is a big issue, but
    I sure worry about what is going on in our Federal prisons
    here. I have a topnotch one in Cumberland, Maryland, as you
    know, which I visited.
        Can we hear your thoughts, sir?
        Attorney General Holder. Chairwoman Mikulski, I share your
    concerns.
        The $6.9 billion that we have requested, will support and
    allow us to run the system in an appropriate way. It includes
    funding to handle the growth in our inmate population by
    finalizing the activation of two new facilities, one in Berlin,
    New Hampshire and one in Aliceville, Alabama. It also
    anticipates the beginning of activation for three other
    institutions, which will increase our capacity. It also adds
    2,087 new positions, including 956 correctional officers.
        And there, I think, we have a life and death issue. We have
    to have sufficient numbers of correctional officers to ensure
    that we have adequate numbers of people who can be deployed,
    not only to maintain order, but to protect their fellow
    officers. But I am confident that at this level, $6.9 billion,
    we have sufficient amounts of money to bring on that additional
    capacity and the additional officers.
        Chairwoman Mikulski. Well, that is heartening to hear
    because, again, we have legal and ethical standards in the care
    of prisoners, but also of our guards.
        Of the population of 224,000 prisoners, how many of those
    are repeat offenders and the recidivism rate?
        Attorney General Holder. The recidivism rate runs at about,
    I am not totally sure, but I think between 25 and 40 percent; I
    think it is slightly lower in the Federal system than it is in
    our State system.
        But one of the things I think that we need to do is to
    focus resources on reentry programs and rehabilitation programs
    while we have people in prison so that we make more effective
    our efforts at reducing that recidivism rate.
        Chairwoman Mikulski. Mr. Attorney General, you have a lot
    on your plate and now we are going to have the immigration
    bill, hopefully will pass, and we will have to implement. But I
    want to come back to this because I really want to keep
    America's streets safe. At the same time, the administration of
    justice is now going to be ever increasing. We cannot build our
    way out of prisons. And again, I am for tough, vigorous law
    enforcement and tough prosecution.
        What I am asking you is: do you have established within
    your Justice Department, number one, the management mechanisms
    to look at how we can reduce recidivism? What are the other
    tools and techniques where we can begin looking at stabilizing
    or reducing the population without increasing risk to our
    American people on the streets? Because it could go 25 percent,
    it can go 30 percent, we have other things to do with the
    Justice Department.
        Attorney General Holder. Yes. I think the point you make is
    a good one. We not only have to focus on how we manage the
    existing system that we have and those who are incarcerated,
    but we also need to focus on prevention activities so that we
    reduce the number of people who are coming into the system.
        And in that regard, our Office of Juvenile Justice and
    Delinquency Prevention, our Office of Justice Programs, we have
    a variety of things that we do.
        Chairwoman Mikulski. Yes, but what I want from you is a
    plan, and here is what the plan is. So let's look at the
    prisoner as a prisoner, that they have done bad things, and so
    bad that they are in Federal prison. So then I look at this
    continuum, which is really, actually, a vicious circle.
        What, then, do we need to be funding for the prevention
    programs? And then, what happens when they are in our care and
    custody that begins to change them there for when they hit the
    streets again? So they are not hitting up our people again and
    back in the same prison.
        So then, what are those programs so when we do our funding,
    we are not only funding the prison, but we are funding a
    continuum of services to prevent people from becoming at this
    dead end? And then, what are some of the other programs we need
    to do?
        We need to look at this, the scope of the committee is such
    that we need your advice on what it should be, what those
    levels should be, so we begin to tackle this. It is both a
    humanitarian concern. It is a public safety concern on our
    streets.
        A mutual dear friend of ours, Marian Wright Edelman, has
    spoken of not the cradle to grave, but the cradle to prison
    cycle. This committee wants to be a partner with you on a
    bipartisan basis to begin to break that. And you know, you are
    in those neighborhoods like me. We are now spending more to
    keep a person in prison than we are sending them to school or
    to higher education.
        Let's really look at that continuum and let's work together
    on it.
        Attorney General Holder. I want to work with you on that,
    and I think the way in which you have stated it is exactly
    right. We want to work on prevention activities. We want to
    work on rehabilitation while people are in prison, and we also
    want to deal with reentry.
        But, I think we also need to ask ourselves some tough
    questions about the enforcement priorities that we have in the
    Department and the way in which we have enforced our laws, and
    the collateral consequences of some of those enforcement
    activities. I am going to be making some proposals later in the
    year about rethinking the ways in which we are conducting our
    criminal justice system prosecutorial efforts.
        Senator Shelby. Thank you, Madam Chairman.

                              CONTROVERSIES AT DOJ

        Mr. Attorney General, the Department, as we all know, has
    been mired in a controversy of late. It began with the reports
    of an overbroad collection of telephone records of 20 AP
    reporters and editors; was followed by revelations of a
    Departmental-led espionage investigation of Fox News reporter
    James Rosen; and culminated in questions about the veracity of
    your testimony before the House Judiciary Committee.
        These issues have led some Members of Congress, and the
    public, to question the Department's adherence to the rule of
    law and your ability as the Attorney General to lead. These
    controversies have become, I believe, a significant distraction
    for this Department, and have led to calls for an investigation
    into your actions and the actions of your Department. Others
    have even called for your resignation.
        Mr. Attorney General, I think that, hope you would agree,
    that leading the Department of Justice is a full time job. I
    think you would also agree that these controversies have become
    a distraction for the Department and for you as its leader. I
    hope you would agree that the American people deserve an
    attorney general who is completely focused on the fair and
    impartial administration of justice and not distracted by
    controversies of his own making.
        I have observed over the years that effective leaders from
    time to time subject themselves to a self-evaluation process in
    hopes of improving their performance.
        How would you, Mr. Attorney General, evaluate your
    performance to date, if you could, and is there any room for
    improvement? And have you, or will you, take actions to move
    the Department beyond this controversy and how to ensure that
    similar missteps--and the cloud--will not continue there?
        Attorney General Holder. Well, I first want to assure you,
    and the American people, that in spite of the recent
    controversies that you mentioned, the Department is fully
    engaged in the work of protecting the American people in all
    the ways that are unique to the Department. I also want to
    assure the American people, and you as well, that I am fully
    engaged in that regard.
        And sure, I go through a self-evaluation process almost on
    a daily basis. I have not done a perfect job. I think I have
    done a good job, but I am always trying to do better.
        Some of the criticism that has been labeled or thrown at me
    and at the Department has caused us to rethink, for instance,
    the way in which we are going to deal with these media
    inquiries, and we will make changes. That is one of the reasons
    why we are engaged in a process now of meeting with media
    groups so that we can formulate new policies, new regulations,
    and hopefully get that behind us.
        Senator Shelby. I believe, Mr. Attorney General, and I hope
    you would agree with me, that the American people need to know
    that the administration of justice headed by the attorney
    general is in the hands of a dispassionate and capable leader.
    And whether you will continue to be the chief law enforcement
    officer of the Federal Government, the Attorney General, is
    either a decision for you or the President to make. I
    understand that.
        I am interested to know what criteria you will use to
    determine whether you can continue to lead the Department? In
    other words, what is the tipping point here? Are you going to
    clear up this controversy or is it going to hover over us and
    the Justice Department, which is very important to the American
    people?
        Attorney General Holder. The tipping point might be
    fatigue. You get to a point where you just get tired.
        Senator Shelby. Sure.
        Attorney General Holder. But beyond that, there are certain
    goals that I set for myself and for this Department when I
    started back in 2009. When I get to a point where I think that
    I have accomplished all the goals that I set, I will sit down
    with the President, and we will talk about a transition to a
    new attorney general.
        I think that change is frequently a good thing for an
    organization, a new perspective. This has been the honor of my
    professional life to serve as Attorney General. But I also have
    such respect for the Department of Justice that I want to make
    sure that it operates at peak efficiency, and that new ideas
    are constantly being explored.
        I am proud of the work that I have done. I am proud of the
    work that the men and women of this Department have done under
    my leadership. And when the time comes for me to step aside for
    my successor, I will do so.
        Senator Shelby. With the belief in the integrity of the
    Attorney General and the Justice Department is central to the
    wellbeing of this country, is it not?
        Attorney General Holder. It certainly is.
        Senator Shelby. Thank you.
        Thank you Madam Chair.
        Chairwoman Mikulski. Senator Feinstein.

                     STATEMENT OF SENATOR DIANNE FEINSTEIN

        Senator Feinstein. Thank you very much, Madam Chairman.
        I would just like to respond to that last comment and
    simply say that I believe in your integrity. I believe that you
    are a good attorney general. I think you have had undue
    problems that are hard to anticipate. I think you have
    responded the best you possibly could, and I just want to say
    that because, candidly, I do not like to see this hearing used
    to berate you.

                                MONEY LAUNDERING

        Let me ask you this question. I chair the Senate Caucus on
    International Narcotics Control, and we issue a series of
    reports, and we have just issued one on money laundering. What
    has come to my attention is that there is substantial failure
    of some United States banks to comply with anti-money
    laundering laws, which fuel drug-related violence in Mexico.
        For example, HSBC allowed more than $670 million in wire
    transfers, and more than $9.4 billion in physical money to
    enter the United States from Mexico unmonitored. Of that money,
    we know that at least $881 million in Mexican drug proceeds
    entered the United States illegally.
        On December 11, 2012, HSBC entered into a deferred
    prosecution agreement with the Department of Justice, and paid
    $1.92 billion in fines. Similarly in 2010, Wachovia agreed to
    pay $160 million to settle charges that its weak anti-money
    laundering compliance program enabled at least $110 million in
    Mexican drug money to enter the United States.
        Now, $1.9 billion in fines is a huge fine. The question I
    have of you is: do you believe that these fines are going to
    change what has been current practice? And I suspect that there
    are other banks doing this same thing, and this is an enormous
    gap in our infrastructure with respect to allowing drug
    proceeds to be monitored right in our own country.
        Could you comment on that?
        Attorney General Holder. Sure. I think the concern that you
    raise is a very good one.
        I think that we are being appropriately aggressive in our
    enforcement efforts. I think we have come up with robust, but
    proportional, financial penalties. We can never get to a
    situation where this is simply seen as the cost of doing
    business, where a bank can simply pay, even a huge amount of
    money, and think that that is the way in which it can absolve
    itself from wrongdoing.
        So we have also put in place, as part of these agreements,
    compliance measures ensuring remediation, effecting reform, and
    imposing independent monitoring, to make sure that these kinds
    of things do not happen again.
        These sanctions that we put in place go well beyond what a
    judge would be able to do if this were decided in a courtroom
    in a more traditional setting; this is not to say that we
    should not hold corporations criminally liable, and I think
    wherever we possibly can, we hold individuals liable for this
    kind of activity.
        Senator Feinstein. Well, this is a recommendation of our
    Drug Caucus that individuals begin to be held responsible for
    money laundering when it is overt and due diligence is not
    done. So I thank you for that response.

                           ATF GUN DEALER INSPECTIONS

        There was an OIG report on ATF's gun dealer inspection
    program that, I believe, Mr. Horowitz, who is going to testify,
    carried out. And as I understand it, that report found that 58
    percent of Federal firearms dealers had not been inspected
    within the last 5 years.
        You cited three reasons for this: under-staffing, the large
    geographic areas some field divisions cover, and a 16 percent
    increase in gun dealers between 2004 and 2011. It is my
    understanding that the President has $51.1 million to enhance
    ATF's enforcement efforts and strengthen inspections. We very
    much hope now to get a director of that unit. The Judiciary
    Committee, on which I serve, has him coming before us this next
    week.
        They project that this allocation, as I understand it,
    would fund 60 additional inspector positions. Your report
    concluded that you would need an additional 199,000 hours to
    inspect all dealers within a 5-year period, and that field
    divisions told ATF headquarters in 2012 that they needed 504
    more investigators.
        The Federal firearms dealer, in my view, is what makes any
    legal gun sales possible in the United States because they
    require certain material. That 58 percent figure is really a
    distressing figure.
        What do you believe these additional inspectors could do to
    increase that 58 percent? And, do you have any idea to what
    level we could be confident that with these there would be
    inspections of Federal firearms dealers within the 5 year
    period?
        Attorney General Holder. Yes, I do think that we would be
    able to do that. The ATF is an organization that, I think, has
    been resource-starved over the recent past. Actually, for a
    great number of years. Without Senate-confirmed leadership, I
    think it has also suffered.
        And I think the concern that you raise about having the
    ability to do inventories at the prescribed level, will give us
    all greater comfort, and have an impact on our ability, ATF's
    ability, to monitor the gun trade so that we make sure that
    only the appropriate people have access to weapons. And that is
    fully respecting people's Second Amendment rights. We are
    talking about keeping guns out of the hands of people who
    should not have them. Without these inventory controls, there
    is no way to tell when thefts have occurred from federally
    licensed firearms dealers, or to put up warning signs that we
    need to be on the lookout for weapons that have been missing
    from a particular location.
        But I am confident that if we get the money that we have
    asked for, and if Todd Jones is confirmed as the leader of ATF,
    that we can change that situation and make the American people
    safer.
        Senator Feinstein. Good. I just want to say this is
    important to me and I would certainly appreciate it if an
    emphasis can be placed in that area. So thank you very much. My
    time is up.
        Chairwoman Mikulski. Senator Collins.

                     STATEMENT OF SENATOR SUSAN M. COLLINS

                 USE OF LETHAL FORCE AGAINST AMERICAN CITIZENS

        Senator Collins. Thank you, Madam Chairman.
        Mr. Attorney General, it troubles me that the President has
    virtually unreviewable, unfettered authority to order the
    killing of any American citizen overseas who is suspected of
    terrorist activity without any kind of charge, or trial, or
    judicial review.
        We have all read this morning of the controversy over the
    NSA having access to phone records of American citizens. It
    seems to me that an American currently receives a greater
    degree of due process protections from the judicial branch if
    the Government is seeking to listen in on his phone
    conversations or get information about his phone conversations
    than if the President is seeking to take his life. That just
    does not make sense to me.
        Why hasn't the administration proposed to the Congress a
    process that would provide some degree of independent judicial
    review for a targeted, lethal strike against a U.S. person
    overseas? Something, either an expansion of the FISA Court or a
    different kind of classified proceeding before a court to
    ensure that there is some kind of judicial review, rather than
    vesting that authority to take a life, an American life I am
    talking about, overseas, only in the President?
        Attorney General Holder. Yes. Well, with all due respect, I
    would say that it is incorrect to say that the President has
    unlimited authority in this regard, with regard to the use of
    drones, and we are talking about being more transparent.
        I sent a letter to Chairman Leahy; the President gave a
    speech to make more transparent our efforts in this regard. But
    we operate under the statute that the Congress passed, the
    Authorization for the Use of Military Force. And we also, when
    we are dealing with these matters, try to focus on capture
    where possible. We focus on whether or not the threat is
    imminent. We also operate under the rules of law.
        And as the President said in his speech: people cannot plot
    against the United States. People cannot kill American citizens
    and then use as a shield their American citizenship. These are
    steps that we take with great care. They are the most difficult
    of decisions that we have to make. They are the things that
    keep me up at night as I think about my role as part of the
    national security team in discussing these matters.
        The concerns you raise, I understand. They are legitimate
    ones, but we are working within the administration to make sure
    that when we take these ultimate measures, they are done in
    appropriate ways, that they are done in legal ways, and that
    they are also done in a way that is consistent with our values.
        Senator Collins. Well, I would say to you that these drone
    strikes have occurred outside of the hot battlefield. We are
    not talking about countries where we are engaged in hostilities
    like Iraq or Afghanistan.
        I just do not understand why you would not want the
    protection of some sort of judicial review of the target. I am
    not saying that the President is wrong to try to kill American
    terrorists overseas who are plotting to execute our citizens.
    But I am uncomfortable giving the President that authority
    without any kind of judicial check. And I am not comforted by
    the Office of Legal Counsel opinions, which I have read now for
    the legal basis.
        Let me turn to a second point that you just made about a
    preference for capture. I have not seen a preference for
    capture. If you compare the number of terror suspects who are
    captured in the previous administration versus this
    administration, there is a huge difference, as there is in the
    number of lethal strikes with drones that were undertaken.
        Is the reason for the exceedingly low number of captures
    due to the change in the Obama administration's position on
    detention and the fact that the administration does not want to
    send captives to Guantanamo? Isn't that really the reason?
        I mean, here we have a case of the terrorist Warsame, who
    ultimately was convicted, but who was driven around on a Navy
    ship for 2 months because there really was no place to put him.
        Attorney General Holder. No, it is not a function of not
    trying to take people to Guantanamo. As you indicated, Warsame
    was captured. Abu Ghaith was captured and brought to face
    justice in an Article III court.
        The desire to capture is something that we take seriously
    because we gain intelligence.
        Senator Collins. Right.
        Attorney General Holder. Warsame, I am not sure how long he
    was on that boat. It was not a joyride for him. We were in the
    process of gathering important intelligence from him from the
    intelligence community, and then later on after he was read his
    rights, and waived them, from people in law enforcement. So
    that was time well spent and, I think, ultimately led to his
    plea in that case or his conviction in that case.
        So it is not a function of us not trying to take prisoners
    to particular places. We try to capture people. We try to
    interrogate them. We try to gain intelligence, and then we try
    to bring them to justice.
        Senator Collins. My time has expired. Thank you.
        Chairwoman Mikulski. That was an excellent line of
    questioning, Senator.
        Senator Kirk.
        Senator Kirk. Thank you.
        Chairwoman Mikulski. And then Senator Graham.

                              MONITORING OF PHONES

        Senator Kirk. Mr. Attorney General, I want to take you to
    the Verizon scandal which, I understand, takes us to possibly
    monitoring up to 120 million calls. You know, when Government
    bureaucrats are sloppy, they usually are really sloppy.
        I want to just ask, could you assure us that no phones
    inside the Capitol were monitored of Members of Congress that
    would give a future executive branch--if they started pulling
    this kind of thing up--would give them unique leverage over the
    legislature?
        Attorney General Holder. With all due respect, Senator, I
    do not think this is an appropriate setting for me to discuss
    that issue. I would be more than glad to come back in an
    appropriate setting to discuss the issues that you have raised.
    But in this open forum, I don't think I could do that.
        Senator Kirk. I would interrupt you and say the correct
    answer would be to say, ``No, we stayed within our lane, and I
    am assuring you, we did not spy on Members of Congress.''
        Chairwoman Mikulski. You know, I would like to suggest
    something here. When I read The New York Times this morning, it
    was like, ``Oh, God. Not one more thing,'' and not one more
    thing where we are trying to protect America, and then it looks
    like we are spying on America.
        I think the full Senate needs to get a brief on this, and I
    think we need the Attorney General, I think we need the
    National Security Agency, and other appropriate people.
        This is in no way to minimize, actually, Senator Kirk, your
    very excellent question, but there are also, I think, certain
    answers that might have to be given in a classified, more
    classified environment also. So I am not going to determine who
    answers what questions or censor.
        Senator Shelby. Madam Chairman.
        Chairwoman Mikulski. Senator Shelby, do you have anything
    to say?
        Senator Shelby. If I could, I would hope that you as the
    chairman, you are a member of the Intelligence Committee too, I
    think would create the appropriate forum, that is, a classified
    hearing to get into this where the Attorney General could be
    open with us.
        I think that what Senator Kirk is raising is a very
    important question and it should be dealt with----
        Attorney General Holder. Yeah, and you know----
        Chairwoman Mikulski. And I agree. I agree that Kirk
    question is, quite frankly----
        Senator Shelby [continuing]. And the sooner the better, and
    I am sure you will.
        Chairwoman Mikulski [continuing]. The kind of question I
    would like to ask myself. What I would like to suggest is that
    I will send a note to Senator Reid and McConnell because I
    think this cuts across committees. I think it goes to
    Judiciary. I think it goes to Armed Services. I think it goes
    to Intelligence, and not only including in the scope of an
    appropriations committee.
        Senator Shelby. But it has oversight of the Justice
    Department, does it not?
        Chairwoman Mikulski. Yes.
        Senator Kirk. Madam Chair, I would just suggest that for
    separation of powers that whoever was so sloppy running this
    before you and probably did not segregate out the Supreme Court
    to make sure that when you are jumping out of your executive
    branch lane, you want to make sure you are not gaining new
    intel and leverage over a separated powers under our
    Constitution.
        I would hope that we would get absolute assurance, sir,
    that not a single Supreme Court Justice was at all involved in
    this Verizon thing that we----
        Chairwoman Mikulski. Well, Senator Shelby raises a great
    light. Senator Shelby, why don't you and I talk about how you
    would like to proceed, where we do our due diligence as a
    committee, but also, this does involve others in addition to
    the Justice Department.
        Senator Shelby. I would like to do that. I believe it is a
    relevant thing for this committee to look into, and we would
    probably need a classified setting for this.
        Attorney General Holder. And I would be more than glad, as
    I said, in an appropriate setting to deal with questions.
        Senator Kirk, please do not take my response as being
    anything but respectful of the concerns that you have raised.
    There has been no intention to do anything of that nature; that
    is, to spy on Members of Congress, to spy on members of the
    Supreme Court.
        And without getting into anything specific, I will say that
    Members of Congress have been fully briefed as these issues,
    matters have been underway. I am not really comfortable in
    saying an awful lot more about that.
        Chairwoman Mikulski. Well, we are going to stop here
    because this fully briefed is something that drives us up the
    wall, because often ``fully briefed'' means a group of eight
    leadership; it does not necessarily mean relevant committees.
        And sitting right here now, there is Senator Shelby and I,
    a former chair of the Intelligence Committee and I am on it.
    Senator Collins chaired the Homeland Security Committee and led
    us, actually, to a new framework to coordinate intelligence and
    is viewed as a national leader on the topic. Senator Graham's
    experience and Senator Kirk, himself, was an intelligence
    officer in the United States Navy.
        Senator Kirk. The Navy, yes.
        Chairwoman Mikulski. So we are kind of like an A Team here,
    but we also do not necessarily, I mean, we have been in that
    fully briefed circle. So ``fully briefed'' does not mean we
    know what is going on.
        Senator Shelby. Madam Chairman.
        Senator Mikulski. Senator Shelby says we have got to know
    what is going on and there are appropriate questions to ask.
        Senator Shelby. Madam Chairman, if I could.
        Senator Mikulski. Yes, sir.
        Senator Shelby. I think this falls within the jurisdiction
    of this committee, the Appropriations Committee that you chair
    and the subcommittee that you chair, and I am ranking on both,
    to get into this.
        We fund the Justice Department. We fund the FBI. We fund
    all these operations and if we don't know, if we are not
    properly briefed as to what is going on, we are not doing our
    oversight. I know you are going to do our oversight.
        Chairwoman Mikulski. I got it. So what you are suggesting
    is that----
        Senator Shelby. A classified hearing.
        Chairwoman Mikulski [continuing]. A classified hearing for
    the full Appropriations Committee.
        Senator Shelby. Absolutely.
        Chairwoman Mikulski. Well, sir, if that is what you want.
        Attorney General Holder. That's fine.
        Chairwoman Mikulski. We will proceed in that direction, and
    we look forward to working with you in a collaborative way. And
    actually, we have Senator Feinstein, who chairs the
    Intelligence Committee, tapping the full expertise of the full
    committee.
        Senator Kirk, did you have additional questions?
        Senator Kirk. I would just say----
        Chairwoman Mikulski. Your work on the gang violence is
    really excellent. I did not know if you had a question on that.
        Senator Kirk. I want to announce to the group, I am going
    to be offering an amendment to the next markup of this bill for
    $30 million to identify gangs of national significance, which I
    would hope would be the Gangster Disciples in Illinois. I have
    talked about the possible need to arrest upwards of 18,000
    people who are members of that gang, and to do this especially
    because of my overwhelming concern for the Baltimore gang
    situation.
        Chairwoman Mikulski. Anything else, Senator Kirk?
        Senator Kirk. That's it.
        Chairwoman Mikulski. All right, Senator----
        Senator Kirk. I raise this issue because someone, whoever
    was running this program, knows they have really screwed up. I
    would just ask that you kind of seize the records and not allow
    the destruction of evidence that they have accidentally
    monitored other branches of the Government.
        Attorney General Holder. All right. Well, as I said, I
    would be more than glad to discuss this in an appropriate
    setting.
        Chairwoman Mikulski. We will, and I give my word to the
    committee members.
        Senator Graham.

                      STATEMENT OF SENATOR LINDSEY GRAHAM

                ROLE OF THE EXECUTIVE VERSUS LEGISLATIVE BRANCH

        Senator Graham. Well, thank you. I am very glad I came.
    This has been an interesting hearing. I am going to ask you a
    question, now pay close attention.
        Attorney General Holder. I always do----
        Senator Graham. I know you do.
        Attorney General Holder [continuing]. When you have a
    question.
        Senator Graham. The purpose of the PATRIOT Act, and the
    FISA Court, and the National Security Administration is to make
    sure that we are aware of terrorist activity and disrupting
    plots against our interests abroad and at home.
        Is that true?
        Attorney General Holder. I would agree with that.
        Senator Graham. The purpose of the PATRIOT Act is not to
    allow the executive branch to gather political intelligence on
    the judicial branch or the legislative branch.
        Do you agree with that?
        Attorney General Holder. I would agree with that.
        Senator Graham. So this is like killing innocent people in
    a cafe. I know exactly what you were trying to say. There is no
    lawful authority in the law of war or in any other statute to
    drone somebody who has done nothing wrong anywhere.
        Do you agree with that?
        Attorney General Holder. Yes, I would agree with that.
        Senator Graham. We are trying to capture and kill people
    who we believe present a national security threat to our
    Nation. Right?
        Attorney General Holder. Also true.
        Senator Graham. And one thing we are trying to do in this
    PATRIOT Act is to find out about terrorist organizations and
    individual terrorists, who they may be talking to.
        Attorney General Holder. Again, I would say that is an
    overall----
        Senator Graham. I hope the American people appreciate that
    we are at war, because I sure as hell do. I hope the American
    people appreciate that the way you protect the homeland is you
    try to find out what the enemy is up to.
        I am a Verizon customer. It does not bother me one bit for
    the National Security Administration to have my phone number
    because what they are trying to do is find out what terrorist
    groups we know about, and individuals, and who the hell are
    they calling. And if my number pops up on some terrorist's
    phone, I am confident that the FISA Court is not going to allow
    my phone calls to be monitored by my Government unless you and
    others can prove to them that I am up to terrorist activity
    through a probable cause standard. So I may come out
    differently than my colleagues on this.
        This was created by the Congress and if we have made
    mistakes, and we have gotten outside the lane, we are going to
    get back inside the lane. But the consequence of taking these
    tools away from the American people through their Government
    would be catastrophic.
        So you keep up what you are doing, and if you have gone
    outside the lane, you fix it. President Bush started it.
    President Obama is continuing it. We need it from my point of
    view.
        Now, under the law of war, there are three branches of
    Government. What branch of Government is in charge of actually
    implementing and executing the war?
        Attorney General Holder. The executive branch.
        Senator Graham. So we don't have 535 Commanders-in-Chief.
    We have one, right?
        Attorney General Holder. That is true.
        Senator Graham. Okay. Can you tell me any other time in any
    other war where our judiciary took over the decision of who to
    target, who the enemy was, and whether or not to use legal
    force from the executive branch?
        Attorney General Holder. I am not aware of that. We
    obviously operate within legal parameters, but within those
    legal parameters, it is generally----
        Senator Graham. I will be astonished for America during
    this war to turn over from the Commander-in-Chief the ability
    to use lethal force to a bunch of unelected judges who have
    absolutely no expertise and no background as to who the enemy
    is and whether or not we should use lethal force.
        I think the worst possible thing we could do is to take
    away from this Commander-in-Chief and any other Commander-in-
    Chief the power to determine who the enemy is in a time of war,
    and what kind of force to use, and give it to a bunch of
    judges. That would be the ultimate criminalization of the war.
        I support you for having transparency and for making the
    hard call. But you have, from my point of view, been more than
    reasonable when it comes to the drone program. And to an
    American citizen, if you side with the enemy and we go through
    a laborious process to determine if you have, we will kill you
    or capture you. The best way to avoid that is not to help Al
    Qaeda.
        Anwar al-Awlaki was an American citizen in Yemen. Any doubt
    in your mind he was helping Al Qaeda?
        Attorney General Holder. None, and if you look at that
    letter that I sent, we laid out exactly why he was a target,
    that he was an appropriate target.
        Senator Graham. And there are other American citizens we
    know who are associated with Al Qaeda, one of them is a
    spokesman.
        Is that correct?
        Attorney General Holder. That is correct.
        Senator Graham. If we find him, kill him, or capture him,
    don't go to the court, and you don't need my permission to do
    it because it is your job. It is the executive branch job.

                                 GUANTANAMO BAY

        Finally, she asked a very good question. Would this
    administration use Guantanamo Bay in the future to house a law
    of war capture?
        Attorney General Holder. I think the President has been
    pretty clear. It is not our intention to add any additional
    prisoners to Guantanamo.
        Senator Graham. Okay. So it goes back to her question. A
    jail cannot be a ship. Under the Geneva Convention, that is not
    a viable option. So we are a Nation without a jail and the
    reason we put the guy on the ship, we have got no place to put
    him, and this is going to catch up with us, Mr. Attorney
    General.
        This Nation has lost the ability to gather intelligence
    because we don't have a prison to put people. And if we don't
    correct that, we are going to lose valuable intelligence.
        And this last question, do you agree with me that the
    people we have had at GTMO for years, that the intelligence we
    have gathered humanely through the law of war interrogation has
    made this country safer and was one of the big reasons we got
    bin Laden?
        Attorney General Holder. Well, I think one of the many
    reasons we got Osama bin Laden was the intelligence we
    gathered.
        Senator Graham. Would you agree with me that one of the
    treasure troves of the intelligence regarding the war on terror
    has come from people at GTMO?
        Attorney General Holder. Well, at this point, you have some
    people who have been there for 10 and 11 years, and their
    intelligence value is close to zero at this point.
        Senator Graham. Well, some people may be, but the war is
    changing. What I am trying to say is there is no doubt in my
    mind that we did not torture our way to getting bin Laden. We
    put the puzzle together, and the big pieces of the puzzle were
    people we had at GTMO.

                                 SEQUESTRATION

        Last question: sequestration. What is it doing to your
    ability to protect us as a Nation?
        Attorney General Holder. We are struggling, really, to keep
    our resources at the level where we can do our job.
        Since January 2011, I have put a hiring freeze in place. We
    lost 2,400 people. We have lost about 600 prosecutors. Through
    the help of this subcommittee----
        Chairwoman Mikulski. When you say ``lost,'' what does that
    mean? Did they quit? I do not mean to interrupt you, sir, but
    could you be clear on what you mean?
        Attorney General Holder. These are people who have left the
    Department of Justice and who have not been replaced. So we are
    a smaller DOJ than we were before I instituted the hiring
    freeze.
        If we do not get assistance in fiscal year 2014, the
    furloughs that we were able to avoid because of your
    assistance, your assistance Ranking Member Shelby, those are
    furloughs that we would have to institute. And you will have
    FBI agents who are not out on the streets and prosecutors who
    are not in the courts.
        My guess would be that whoever the Attorney General is a
    year or 2 years from now, you are going to see reduced numbers
    with regard to prosecutions, and I think that will be a
    function of this sequestration that we are trying to deal with.
    And we have tried to deal with, again, with your help.
        Chairwoman Mikulski. I have such a great committee. I
    really do, no and really, the members. The reason I asked, and
    I did not mean to in any way intervene in your time, it is
    really talent on both sides of the aisle to really get to
    protecting our citizens.
        If I could just clarify before I turn to Senator Murkowski.
    The people when you say, ``they were lost,'' were they
    voluntary departures or involuntary departures?
        Attorney General Holder. I think largely voluntary
    departures. People, you know, through normal attrition.
        Chairwoman Mikulski. Which you did not replace. In other
    words, they left, and then you did not replace.
        Attorney General Holder. We did not. I saw along with our
    officials from Justice Management Division that the economic
    clouds were forming and that we needed to get ahead of this.
        And it was as a result of that hiring freeze and other
    great work done by JMD, that we were able, with your
    cooperation, to avoid furloughs in this year by having a hiring
    freeze, which kept our costs low, but at a price. We are paying
    a price for that lack of capacity.
        Chairwoman Mikulski. I understand.
        Senator Murkowski.
        Senator Murkowski. Thank you, Madam Chairman.
        I wish that I had been here for more of the discussion
    earlier. It sounds like it was quite animated.

                            TED STEVENS PROSECUTION

        I am going to dial it back a little bit perhaps, but
    certainly for Alaskans, it is not dialing it back. And this
    goes back to the misconduct that was found in the Ted Stevens'
    prosecution some years ago; clearly admitted procedural
    defects. And then after that, the Department has a disciplinary
    process. Effectively, the judge threw out the discipline that
    the Department had imposed against the two assistant U.S.
    attorneys there. That was extraordinarily troubling to many of
    us.
        Senator Cornyn and I wrote you a letter to suggest that the
    Department should appeal this decision, as well as relook at
    these disciplinary procedures in light of the board's decision.
        So the question to you, Mr. Attorney General, is: Do you
    think that the decision to throw out the discipline that had
    been imposed on these two prosecutors was fair? Are you going
    to be appealing that? Where are we with this? Because Alaskans
    are still kind of left dangling out there wondering is there
    any justice out there? And they think not.
        Attorney General Holder. Well, I have respect for the
    people at the board who made that decision. I disagree with it,
    and my expectation is that we will be appealing that decision.
        Senator Murkowski. And in light of that, do you envision
    any changes in the prosecutorial discipline system as a
    consequence of what we have seen with this case?
        Attorney General Holder. Well, I think we have a system in
    place, a disciplinary system that is adequate. I do not agree
    with the way the board looked at the way in which we conducted
    that disciplinary system. I think we followed the rules. We
    came up with a disciplinary sanction that was appropriate given
    the misconduct that was found. And we will, as I said, be
    appealing that. We will be appealing the board's determination.
        Senator Murkowski. Well, I would encourage that because it,
    unfortunately, leaves the appearance that some of the folks
    that were not perhaps at the highest level of the
    decisionmaking process were held accountable while others were
    given a pass, and that just does not sit well.
        So I would, again, encourage that appeal and encourage you
    to look at how we might address, clearly, what some think the
    gaps and discrepancies are.

                            VAWA REAUTHORIZATION ACT

        Second question for you, and again, this is very parochial.
    But we just passed the VAWA Reauthorization Act, and contained
    in that act, in section 909, we direct the Justice Department
    to consult with the State of Alaska, consult with our tribes,
    and present some recommendations to us in the Congress about
    restarting the Alaska Rural Justice Law Enforcement Commission.
    Those recommendations are due out in 2014.
        This is a Commission that was established some time ago. It
    provides, basically, a venue for various officials to come
    together and improve law enforcement, judicial responses to
    crime, domestic violence, the whole gamut there. The Commission
    is no longer active because the earmarked funding was run out.
    So we do not have any forum, really, to move forward on the
    Commission's initial work.
        So I would just ask that you have your folks look into
    whether or not we have started the work on implementation of
    section 909 to see if we can make some progress.
        As you know, we have got some considerable challenges that
    face, particularly, our Native villages when it comes to public
    safety, to domestic violence. We need to turn this around, and
    we need your help.
        Attorney General Holder. I agree with you, Senator. That is
    not a parochial concern. The one which you have expressed,
    maybe that mechanism is, but the concerns that you have raised
    go outside of your State and, I think, are worthy of your
    attention, my attention, and I look forward to working with you
    to come up with ways in which we can make effective that
    provision of the VAWA Reauthorization.
        It is something that we have tried to make a priority,
    generally in the Justice Department, but the concerns that you
    have raised about what is going on in your State are very
    legitimate concerns. They are not parochial. These are national
    issues that require national responses and national attention.
        Senator Murkowski. I appreciate that.
        Thank you, Madam Chair.
        Chairwoman Mikulski. Thank you, Mr. Attorney General. If
    there are no other questions from the committee, I would like
    to thank you until we meet again in the matter that we have
    discussed. There are many questions that we want to talk about
    and work with your staff, but we would like to hear from the
    Inspector General. We know that Senators have other duties.
        Mr. Attorney General, I want to thank you for your
    flexibility on the schedule. We were originally scheduled
    earlier today because of the votes. Thank you for your
    cooperation in participating at the time that we requested, and
    we look forward to working with you and your staff, and we just
    have a lot to do here, and thank you.
        Attorney General Holder. Good. Thank you very much.
    STATEMENT OF HON. MICHAEL E. HOROWITZ, INSPECTOR
                GENERAL, OFFICE OF INSPECTOR GENERAL
        Chairwoman Mikulski. I would like to now call the Inspector
    General for the Department of Justice, Mr. Michael Horowitz.
    Mr. Horowitz will keep his opening statements to a minimum.
    Could we shake hands and keep it all going here?
        Thank you very much, Mr. Horowitz. I am not going to have
    an opening statement either. I know Senator Shelby and I want
    to get right to it, but they do have close to $27 billion to
    spend.
        There are many issues facing the Justice Department from
    the administration of grants, a topic I know that Senator
    Collins is so very keenly interested in. I worry about
    cybersecurity. Are we heading to a more secure Nation? Not only
    the excellent issues that were raised by colleagues, but are we
    heading to a techno boondoggle? Senator Shelby, Senator
    Murkowski, we all have great questions.
        So why don't you, Mr. Horowitz, proceed in your comments to
    us? And then we can get right into a robust Q&A, and we know
    Senators have responsibilities.

                 SUMMARY STATEMENT OF HON. MICHAEL E. HOROWITZ

        Mr. Horowitz. Thank you, Chairwoman Mikulski, Ranking
    Member Shelby, and members of the committee.
        Thank you for inviting me to testify today about the work
    of the Inspector General's Office. It is just over 1 year now
    since I was sworn in as the Inspector General, and it has been
    an extraordinarily busy time for me and the Office.
        We have issued numerous reports of great importance during
    the past year, including on ATF's Operations Fast and Furious
    and Wide Receiver. The Justice Management Division's improper
    hiring practices. The Department's handling of the Clarence
    Aaron's clemency request, and the Department's handling of
    known or suspected terrorists in the Federal Witness Security
    program.
        We also completed many reports that did not make headlines
    that will help to make the Department's operations more
    effective and efficient. We issued more than 70 audits in the
    past year including annual financial audit statements,
    information security audits, and audits of grant recipients. We
    issued reports on the FBI's handling of suspension and
    debarment, the FBI's implementation of the Sentinel project,
    the U.S. Marshal Service management of its procurement
    activities, and the Executive Office of Immigration Reviews'
    management of immigration cases.
        During the same time, our agents made dozens of arrests for
    corruption and fraud offenses, and conducted misconduct
    investigations that resulted in well more than 100
    administrative actions against Department employees.
        And I am particularly proud of having appointed the first-
    ever DOJ OIG whistleblower ombudsperson. We must ensure that
    whistleblowers can step forward and report waste, fraud, and
    abuse without fear of retaliation.
        I have learned that our work this past year is typical of
    the extraordinary work that the OIG has regularly produced.
    Over the past 10 fiscal years, the OIG has identified nearly $1
    billion in questioned costs, far more than the OIG's budget
    during that same period. In addition, we have identified over
    $250 million in taxpayer funds that could have been put to
    better use by the Department.
        As with other Inspector Generals, however, sequestration
    has significantly impacted our Office. We received a 5-percent
    reduction to base this fiscal year, and are scheduled to
    receive a 2.3-percent additional reduction next fiscal year.
    Because approximately 79 percent of our expenditures are
    personnel-related, these budget reductions equate to a
    permanent reduction of nearly 8 percent of our workforce.
        We are already well below the staffing levels we were at
    when I became Inspector General last year, and we continue to
    substantially reduce our--restrict our spending. These reduced
    staffing levels are negatively impacting our work in a number
    of ways, including requiring us to reevaluate the number and
    types of audits and investigations we will be able to conduct
    going forward.
        Regarding our plans for future work, this past November, we
    released our list of the Department's top 10 management
    challenges. I would like to briefly mention three of them.
        First, safeguarding national security remains one of the
    highest priorities as tragically demonstrated by the Boston
    Marathon bombings. The OIG is conducting numerous reviews
    including: National security issues, including intelligence
    information sharing among Federal agencies prior to the Boston
    bombing; the Department's coordination of its efforts to
    disrupt terrorist financing; and the use of the FBI's Foreign
    Terrorist Tracking Task Force.
        Our report last month on the Federal Witness Security
    program revealed the potential risks involved in failing to
    properly share intelligence information.
        The Department also must ensure it is appropriately using
    the investigative tools that it has been given, and we continue
    our substantial work in this area as well including our latest
    reviews of the FBI's use of national security letters and
    section 215 orders.
        Second, cybersecurity must be one of the Department's
    highest priorities. Computer systems in the public and the
    private sector that are integral to the infrastructure,
    economy, and defense of the United States face a rapidly
    growing threat of cyber intrusion and attack.
        The OIG previously examined the operations of the Justice
    Security Operation Center and the National Cyber Investigative
    Joint Task Force, as well as the capabilities of FBI field
    offices to investigate cyber intrusion. We made important
    recommendations in these reports, and we are currently
    evaluating additional reviews in this area.
        Third, let me turn to the significant budget challenges the
    Department is facing, particularly in relation to the Federal
    prison system, which you mentioned earlier. Even as the
    Department's overall budget is shrinking, the Bureau of Prisons
    continues to consume an ever-increasing share of that budget
    due to the growth of the prison population and the aging of the
    prison population.
        Fifteen years ago, the BOP's budget represented 14 percent
    of the Department's budget. Today it represents, as you
    indicated, 25 percent. And I would note if the Department, if
    the projected growth in the budget over the next several years
    continues, and the Department's budget stays flat, that number
    grows to 30 percent in the next several years. The BOP accounts
    for nearly one-third of all Department employees today, more
    than the FBI or any other Department component.
        Despite the BOP budget growth, Federal prisons are now 37
    percent over rated capacity, and the BOP projects that number
    to increase to 44 percent in the years ahead, even with the
    additional funding. The present path is unsustainable and the
    Department must address this issue before it necessitates cuts
    to the budgets of other DOJ components.

                               PREPARED STATEMENT

        As the Department faces these and many other important
    challenges in the years ahead, the OIG will continue to conduct
    vigorous and independent oversight. The Department of Justice
    is more than just another Federal agency. It is the guardian of
    our system of justice and is responsible for enforcing our laws
    fairly, without bias and, above all, with utmost integrity. The
    OIG plays a critical role in ensuring the fulfillment of that
    mission.
        I look forward to working with this subcommittee, and I
    look forward to the questions from you today.
        [The statement follows:]
                 Prepared Statement of Hon. Michael E. Horowitz
        Chairwoman Mikulski, Senator Shelby, and members of the
    subcommittee: Thank you for inviting me to testify about the activities
    and oversight work of the Office of the Inspector General (OIG) for the
    Department of Justice (DOJ). It has been just more than 1 year since I
    was sworn in as the Department's Inspector General, and it has been an
    extraordinarily busy time for me and the Office.
         the office of the inspector general's work over the past year
        Our office has issued numerous important reports during the past
    year. For example, our report on the Bureau of Alcohol, Tobacco,
    Firearms and Explosives' (ATF) Operation Fast and Furious and Operation
    Wide Receiver detailed a pattern of serious failures in both ATF's and
    the U.S. Attorney's Office's handling of the investigations, as well as
    the Department's response to congressional inquiries about those flawed
    operations. Our report on improper hiring practices in the Justice
    Management Division (JMD) found problems with nepotism in multiple
    offices in JMD. Our report on the Department's handling of the Clarence
    Aaron clemency request found that the Department's Pardon Attorney did
    not accurately represent material information to the White House in
    recommending that the President deny Aaron's clemency petition. And
    just 3 weeks ago, we issued an interim report on the Department's
    handling of known or suspected terrorists in the Federal Witness
    Security (WITSEC) Program that detailed significant information sharing
    failures which allowed WITSEC Program participants who were on the
    Transportation Security Administration's No Fly List to fly on
    commercial airplanes using their new Government-issued identities.
        We also issued reports on such diverse topics as the Department's
    coordination of its efforts to disrupt terrorist financing; the Federal
    Bureau of Investigation's (FBI) Foreign Terrorist Tracking Task Force's
    sharing of information; the FBI's activities under section 702 of the
    Foreign Intelligence Surveillance Act (FISA) Amendments Act; ATF's
    efforts to conduct periodic inspections of explosives and firearms
    licensees; and the Federal Bureau of Prisons' (BOP) compassionate
    release program. That latter review was particularly troubling, as we
    found that the compassionate release program has been poorly managed
    and implemented inconsistently, resulting in ad hoc decisionmaking that
    has likely resulted in eligible inmates not being considered for
    release and terminally ill inmates dying before their requests were
    decided.
        In addition, we completed many reports that did not necessarily
    make headlines but that will help make the Department's operations more
    effective and efficient, and result in important savings of taxpayer
    dollars. In the past year, we issued more than 70 audits, which
    included annual financial statement audits, information security
    audits, audits of grant recipients, and audits of State and local
    participants in the FBI's Combined DNA Index System. Further, we issued
    reports on the Department's handling of suspension and debarment, the
    FBI's implementation of the Sentinel Project, the FBI's handling of its
    forensic DNA case backlog, the U.S. Marshals Service's (USMS)
    management of its procurement activities, and the Executive Office for
    Immigration Review's management of immigration cases. Additionally,
    during this time, our Investigations Division received approximately
    10,000 complaints, had dozens of arrests and convictions involving
    corruption or fraud offenses, and investigated allegations that
    resulted in well more than 100 administrative actions against
    Department employees.
        I am particularly proud of having appointed the DOJ OIG's first-
    ever whistleblower ombudsperson, and I am committed to ensuring that
    whistleblowers in the Department can step forward and report fraud,
    waste, and abuse without fear of retaliation. During my tenure, I have
    seen first-hand the important role that whistleblowers play in
    advancing the OIG's mission to address wasteful spending and improve
    the Department's operations. We will continue to do all we can to
    ensure that we are responsive to complaints that we receive, and to
    ensure that allegations of retaliation are thoroughly and promptly
    reviewed.
      past work of the office of the inspector general and the impact of
                                 sequestration
        While the past year has been a remarkably busy time, I have learned
    that it is typical of the extraordinary work that the DOJ OIG regularly
    produces, and indicative of the return on investment that the taxpayers
    receive from our office. Over the past 10 fiscal years, the OIG has
    identified nearly $1 billion in questioned costs--far more than the
    OIG's budget during the same period. In addition, we have identified
    more than $250 million in taxpayer funds that could be put to better
    use by the Department, and our criminal and administrative
    investigations have resulted in the imposition or identification of
    more than $100 million in civil, criminal, and nonjudicial fines,
    assessments, restitution, and other recoveries over that period.
        Moreover, when we issue our audits and reviews, we regularly make
    recommendations to the Department on how it can reduce costs and
    improve ineffective or inefficient programs. The Department must
    redouble its efforts to adopt and implement these OIG recommendations.
    Hundreds of OIG recommendations to the Department remain open, and our
    fiscal year 2012 audits and related single audits identified
    approximately $25 million in questioned costs that the Department
    should make every effort to resolve and, if necessary, recover. I
    intend to make this issue a priority for my office.
        Like other Inspectors General offices, our office has been impacted
    significantly by sequestration. We received as a result of
    sequestration a 5-percent reduction to our fiscal year 2012 base this
    fiscal year, and are scheduled to receive an additional 2.3-percent
    reduction in fiscal year 2014. Because approximately 79 percent of our
    expenditures are related to personnel and another 13 percent represents
    fixed rent, security, utilities, and other mandatory costs, a budget
    reduction of more than 7 percent equates to a permanent reduction of
    approximately 35 FTEs, or nearly 8 percent of our workforce.
        As you would expect from careful stewards of taxpayer money, we
    planned for the possibility of sequestration months before it went into
    effect. As a result, we already are approximately 25 FTEs below our FTE
    hiring level when I became Inspector General in April 2012, and we
    expect to further restrict our spending for the remainder of the fiscal
    year in order to meet the budget reduction. It also is requiring us to
    reevaluate the number of audits and investigations we will be able to
    conduct in the future given our substantially reduced staffing levels,
    and to consider travel costs in considering whether to undertake
    certain audits and investigations. Nevertheless, I am confident that
    the dedicated professionals in the DOJ OIG will continue to provide
    extraordinary service to the American public.
        future work and top challenges facing the department of justice
        Now that I have outlined for you some of our prior work, let me
    look forward to our future work.
        Each year since 1998, the OIG has compiled a list of top management
    and performance challenges for the Department of Justice for use by the
    Attorney General and top DOJ officials. We identified the major
    challenges for the Department in 2013 as Safeguarding National
    Security, Enhancing Cyber Security, Managing the Federal Prison System,
    Leading the Department in an Era of Budget Constraints, Protecting
    Civil Rights and Civil Liberties, Restoring Confidence, Coordinating
    Among Law Enforcement Agencies, Enforcing Against Fraud and Financial
    Offenses, Administering Grants and Contracts, and Ensuring Effective
    International Law Enforcement. In my testimony today, I will highlight
    the first three of the challenges on our list. The full list, along
    with a detailed discussion of our assessment of each, is available on
    our Web site at http://www.justice.gov/oig/challenges/2012.htm.
        Overall, I believe that the Department has made progress in
    addressing many of its top challenges, but significant and immediate
    improvement is still needed in some crucial areas.
                   national security remains a top challenge
        April's bombing of the Boston Marathon tragically demonstrated why
    safeguarding national security has appropriately remained the
    Department's highest priority and the focus of substantial resources.
    The Department's efforts in this regard have consequently been a
    priority of the OIG's oversight work, which has consistently shown that
    the Department faces many persistent challenges in its efforts to
    protect the Nation from attack.
        One such challenge is ensuring that national security information
    is appropriately shared among Department components and the
    intelligence community so that responsible officials have the
    information they need to act in a timely and effective manner. Our
    interim report on the Federal WITSEC Program last month demonstrated
    the stakes of this challenge. That review found that because the
    Department did not authorize the disclosure to the Terrorist Screening
    Center of the new identities provided to known or suspected terrorists
    and their dependents in the WITSEC Program, it was possible for known
    or suspected terrorists, using their new Government-issued identities,
    to fly on commercial airplanes and evade one of the Government's
    primary means of identifying and tracking terrorists' movements and
    actions.
        The OIG is currently conducting numerous other reviews related to
    the sharing of national security information. For example, we are
    working with the Inspectors General of the Intelligence Community, the
    Central Intelligence Agency, and the Department of Homeland Security to
    conduct a coordinated and independent review into the U.S. Government's
    handling of intelligence information leading up to the Boston Marathon
    bombing. We also are examining the Department's management of the
    consolidated terrorist watchlist, and we recently issued a report
    assessing the Department's efforts to investigate terrorist financing.
    Each of these critical functions requires careful coordination between
    Department components and other agencies to ensure that the Department
    has every opportunity to prevent terrorist attacks before they occur.
        In addition to the challenges of information sharing, the
    Department faces the challenge of ensuring the appropriate use of tools
    used to monitor and detect national security risks and threats. The
    importance of this challenge was demonstrated by our prior OIG reviews
    assessing the FBI's use of national security letters (NSLs), which
    allow the Government to obtain information such as telephone and
    financial records from third parties without a court order. These
    reviews found that the FBI had misused this authority by failing to
    comply with important legal requirements designed to protect civil
    liberties and privacy interests, and we therefore made recommendations
    to help remedy these failures.
        The FBI has implemented many of these recommendations and continues
    to make progress in implementing others. However, some recommendations
    remain outstanding, and we are now conducting our third review of NSLs
    to assess the FBI's progress in responding to those recommendations and
    to evaluate the FBI's automated system for tracking NSL-related
    activities and ensuring compliance with applicable laws. This review
    also includes the OIG's first review of the Department's use of pen
    register and trap-and-trace devices under FISA.
        On a related note, the OIG also completed its review of the
    Department's use of section 702 of the FISA Amendments Act (FAA), which
    culminated in a classified report released to the Department and to
    Congress. Especially in light of the fact that Congress reauthorized
    the FAA for another 5 years last session, we believe the findings and
    recommendations in our report will be of continuing benefit to the
    Department as it seeks to ensure the responsible use of this foreign
    intelligence tool.
                   cybersecurity is of increasing importance
        The Department and the administration have increasingly turned
    their attention to the problem of cybersecurity, which has quickly
    become one of the most serious threats to national security. Computer
    systems that are integral to the infrastructure, economy, and defense
    of the United States face the constant and rapidly growing threat of
    cyber intrusion and attack, including the threat of cyber terrorism.
    The Department also faces cyber threats to its own systems.
        While the number of cybersecurity incidents directly affecting the
    Department remains classified, a recent study by the Government
    Accountability Office (GAO) found that the number of such incidents
    reported by Federal agencies increased by nearly 680 percent from 2006
    to 2011. The Department will continue to face challenges as it seeks to
    prevent, deter, and respond to cybersecurity incidents--both those
    targeting its own networks and those that endanger the many private
    networks upon which the Nation depends.
        In recognition of this trend, the Department has identified the
    investigation of cyber crime and the protection of the Nation's network
    infrastructure as one of its top priorities. The Department has sought
    to strengthen cybersecurity by responding to recommendations made in
    OIG reports relating to cybersecurity, including our September 2011
    report examining the operations of the Justice Security Operations
    Center, and our April 2011 audit report assessing the National Cyber
    Investigative Joint Task Force and the capabilities of FBI field
    offices to investigate national security cyber intrusion cases. The
    Department has also substantially increased its requested budget for
    programs designed to combat cyber crime and defend its information
    networks: its fiscal year 2014 request of $668 million in cyber
    resources represents an increase of $92.6 million over its fiscal year
    2013 cyber budget and includes an increase of $86.6 million to support
    the FBI's Next Generation Cyber Initiative, which is focused on
    preventing intrusions into government and industry computer networks.
        The challenges posed by cyber crime multiply as cyber threats grow
    in number and complexity. Of central importance to any cybersecurity
    strategy is working effectively with the private sector. The Department
    not only has an interest in the private sector investing in the
    security of its own networks, but also in conducting outreach to the
    private sector to assure potential victims of cyber crime that
    proprietary network information disclosed to law enforcement will be
    protected. Even a modest increase in the rate at which cyber crimes are
    reported would afford the Department invaluable opportunities to learn
    the newest tactics used by an unusually dynamic population of criminals
    and other adversaries, and to arrest and prosecute more perpetrators.
        Cyber intrusion and attack also pose risks to the security of the
    Department's information, the continuity of its operations, and the
    effectiveness of its law enforcement and national security efforts. The
    OIG annually conducts Federal Information Security Management Act
    audits, which include testing the effectiveness of information security
    policies, procedures, and practices of a representative subset of the
    Department's systems. The OIG recently reviewed the security programs
    and a selection of individual systems for six components: the FBI, JMD,
    BOP, USMS, Criminal Division, and Tax Division. These audits identified
    deficiencies that included inadequate configuration management settings
    that exposed workstations to cybersecurity threats; inadequate
    identification and authentication controls that increased the risk of
    inappropriate or unauthorized access to information systems; audit and
    accountability controls that decreased the timely identification of
    operational problems and unauthorized activity; and inadequate
    contingency planning that increased the risk that information systems
    would not continue to operate during an emergency. In addition, the
    Civil Division has yet to complete corrective actions in response to a
    2009 OIG audit report finding significant vulnerabilities in its laptop
    computer encryption policies and practices. The Department must strive
    to correct these deficiencies.
     the department must address its growing cost structure, particularly
                           the federal prison system
        While the Department's mission has remained substantially unchanged
    since the attacks of September 11, 2001, the budgetary environment is
    changing dramatically, presenting critical challenges for the
    Department. From fiscal year 2001 through fiscal year 2011, the
    Department's discretionary budget grew by more than 41 percent in real
    dollars, to $28.9 billion. In fiscal year 2012, however, the
    Department's discretionary budget decreased by more than 7 percent (to
    $26.9 billion), and in fiscal year 2013, the Department's discretionary
    budget decreased again, this time by 5.9 percent (to $25.3 billion).
    Under these circumstances, the Department needs to redouble its efforts
    to evaluate spending in every program area to ensure that duplicative
    functions are streamlined, inefficient programs are remedied, and
    wasteful spending is eliminated.
        One area where the Department needs to carefully evaluate both its
    short-term and long-term plans is the Federal prison system. Even as
    the Department's overall budget is now shrinking, the BOP continues to
    consume an ever-increasing share of that budget. The statistics present
    a clear picture of the unsustainable path that the Department is
    facing. Fifteen years ago, the BOP's budget was $3.1 billion, which
    represented approximately 14 percent of the Department's budget. By
    fiscal year 2013, the BOP's budget has grown to $6.8 billion, which
    represents nearly 25 percent of the Department's budget. Moreover, the
    President's fiscal year 2014 budget projects the budget for Federal
    correctional activities to rise to $7.6 billion by fiscal year 2018,
    which, if the Department's budget were to remain flat, would represent
    fully 30 percent of the Department's budget. Today, the BOP already
    accounts for roughly one-third of all Department employees, more than
    the FBI or any other DOJ component.
        The reason for the growth in the BOP's budget is obvious: according
    to statistics published by the Executive Office for United States
    Attorneys, the number of criminal cases filed in U.S. District Court
    increased by more than 60 percent from fiscal year 1997 through 2012.
    And with a conviction rate of greater than 90 percent, more
    prosecutions have translated into more prisoners and the need for more
    bed space. Indeed, the number of Federal defendants sentenced rose from
    approximately 60,000 in fiscal year 2001 to more than 84,000 in fiscal
    year 2012, according to the U.S. Sentencing Commission. During that
    same period, the number of Federal prison inmates has increased from
    approximately 157,000 to more than 218,000.
        Unfortunately, despite the substantially increased spending on the
    Federal prison system, the BOP's prisons remain well over rated
    capacity. Since fiscal year 2006, Federal prisons have moved from
    approximately 36 percent over rated capacity to approximately 37
    percent over rated capacity as of March 2013, with medium security
    facilities operating at approximately 44 percent over rated capacity
    and high security facilities operating at approximately 54 percent over
    rated capacity. Moreover, the Department's own outlook for the Federal
    prison system remains bleak: the BOP projects system-wide crowding to
    go up to 44 percent over rated capacity by 2018. In addition, since
    fiscal year 2000, the BOP's inmate-to-staff ratio has increased from
    about four-to-one to a projected five-to-one in fiscal year 2013.
        The Department, during both the prior administration and the
    current administration, has itself recognized the budgetary and
    capacity problems associated with a rapidly expanding prison
    population. The Department first identified prison overcrowding as a
    programmatic material weakness in its fiscal year 2006 Performance and
    Accountability Report, and it has been similarly identified in every
    such report since, including last year's fiscal year 2012 report. In
    fact, prison overcrowding was the Department's only identified material
    performance weakness last year. Yet, despite the recognition of this
    significant problem for the past 7 years, the conditions in the Federal
    prison system have continued to decline even as the BOP's budgetary
    needs have continued to increase.
        Given the current budget environment, the Department will likely
    need to carefully assess all aspects of its enforcement and
    incarceration policies in order to address this issue, including which
    criminal cases should be brought in Federal court, whether performance
    metrics are aligned with the Department's enforcement priorities and
    measure the quality of cases brought rather than just the number of
    cases filed, and whether existing incarceration programs are being used
    effectively.
        The OIG and the GAO have both recently issued reports concerning
    existing detention programs and found that the Department has not used
    them as effectively as they could. For example, in December 2011, the
    OIG reviewed the Department's International Prisoner Treaty Transfer
    Program, which permits certain foreign national inmates from treaty
    nations to transfer from the United States to their home countries to
    serve the remainder of their prison sentences. With approximately 26
    percent of BOP inmates being non-U.S. nationals, and with approximately
    46 percent of Federal defendants sentenced in fiscal year 2012 being
    non-U.S. nationals, the potential impact of the appropriate use of this
    program is readily apparent. However, the OIG's review found that, from
    fiscal year 2005 to fiscal year 2010, the BOP and the Criminal
    Division's International Prisoner Transfer Unit rejected 97 percent of
    inmates' transfer requests, and, in fiscal year 2010, approved requests
    for transfer from only 299 inmates, or slightly less than 1 percent of
    the 40,651 foreign national inmates in the BOP's custody. While some
    factors that reduce the number of inmates eligible for transfer are
    beyond the Department's control, the OIG found that if only 5 percent
    of eligible inmates who had never previously applied were transferred
    to their home countries, the BOP would remove 1,974 inmates from its
    prisons and save up to $50.6 million in annual incarceration costs. The
    Department is now implementing the OIG's 14 recommendations to manage
    the program more effectively.
        The BOP also should continue its efforts to address the OIG's
    recent recommendations to improve its poorly run Compassionate Release
    Program, as well as to use and improve the programs identified in a
    February 2012 GAO report assessing BOP detention programs, which
    include the Residential Drug Abuse Treatment Program, residential
    reentry centers, home detention, and the BOP's statutory authorities to
    request a court to release certain elderly prisoners who no longer pose
    a threat to the community. Regardless of how large the cost and
    capacity savings may be, given the serious budget and capacity issues
    facing the BOP, we believe the Department must effectively use every
    program that the Congress has authorized it to use.
        The OIG is in the process of conducting multiple reviews that could
    identify other opportunities to reduce overcrowding and save costs,
    including an audit of the Department's Pre-Trial Diversion and Drug
    Court Programs with the Federal judiciary, which provide alternatives
    to traditional sentencing and incarceration of offenders. Both programs
    have received congressional support. The OIG also is conducting an
    audit of the BOP's efforts to improve its acquisition processes through
    the use of strategic sourcing.
        In an era when the Department's overall budget is likely to remain
    flat or decline, at least in the short-term, it is clear that
    significant steps must be taken to address these BOP cost and capacity
    issues. Continuing to spend more money each year to operate more
    Federal prisons will require the Department to make cuts to other
    important areas of its operations. The Department must therefore
    articulate a clear strategy for addressing the underlying cost
    structure of the Federal prison system and ensuring that the Department
    can continue to run our prisons safely and securely without
    compromising the scope or quality of its many other critical law
    enforcement missions.
                                   conclusion
        In sum, the Department has made progress in addressing many of the
    top management challenges the OIG has identified and documented through
    its work, but improvements are needed in important areas. These issues
    are not easily resolved and will require constant attention and strong
    leadership by the Department. To aid in this effort, the OIG will
    continue to conduct vigorous oversight of Department programs and
    provide recommendations for improvement.
        This concludes my prepared statement, and I would be pleased to
    answer any questions that you may have.

        Chairwoman Mikulski. Well, that was an excellent testimony
    and really raises some----
        There are many things I worry about with the Department of
    Justice. One is, of course, cost escalating in the prison
    program, where we have to be so careful because we do not want
    to increase risking our community. And then the other is
    cybersecurity. Let me go to the cybersecurity question.
        Mr. Horowitz, you identify this as a great concern of yours
    and it is a great concern of mine. It is so great of a concern
    that I am going to have a hearing across subcommittee lines on
    cyber. The administration has asked for, in every agency, $13
    billion. By and large, because this committee works through the
    subcommittees, we can have a stove-type approach, and all we
    get is smoke, but I do not know if we get fire.
        The other thing that I worry about, so we want to make sure
    that whatever we do to protect the Nation, we are maximizing
    resources, getting value for the dollar, and we have our
    committees working in a coordinated way.
        I also worry about techno boondoggles where everybody likes
    to buy a gidget and a widget, but we end up with
    incompatibility, inoperability, and dysfunction.
        So here is my question: What would you say were the top
    three issues in the field of cybersecurity? And how can we
    insist, if there are deficiencies or dysfunctions, what we as a
    committee should either be insisting upon or at the same time
    investing in corrective action, or a combination of?
        Mr. Horowitz. Let me mention what I think are three of the
    most important issues here.
        Chairwoman Mikulski. Are my fears justified?
        Mr. Horowitz. I think they are very justified, the
    concerns, and we have done reports in this area about some of
    the technology efforts to implement. Some ultimately, it
    appears, work like Sentinel, but this is our tenth report, for
    example, on the Sentinel system that we are preparing to do.
        But I think in terms of the significant issues, I think
    first and foremost, is the public-private relationship. It is
    very important for the Government to reach out to the private
    sector and for the private sector to be willing to come in and
    report criminal activity to the Department of Justice, to local
    officials in this area. That is something that has to be worked
    on.
        Second is information sharing and computer sharing, the
    issue you just raised. It is making sure that it is not one
    component's system and then another component's system and they
    are not speaking to one another. That is one of the issues
    that, I think, we will end up looking at probably in the Boston
    Marathon bombing review that we are doing, because we have four
    Inspector Generals working together. So we have the benefit of
    being able to look at----
        Chairwoman Mikulski. So the so-called watch list issue.
        Mr. Horowitz. Correct. And----
        Chairwoman Mikulski. Which you are an expert on, Senator
    Collins. You have put a lot of time into the famous watch list
    issue. Go ahead.
        Mr. Horowitz [continuing]. And we are doing a review on
    that watch list to follow up to the Christmas bombing incident
    and whether the changes have been made there that needed to be
    done.
        And then, we identified in our prior reports, the need to
    make sure that the FBI agents, who are the frontline people in
    this effort, have the right training, the right tools on the
    ground, that is where the action is happening. Headquarters--I
    was a prosecutor in the U.S. Attorney's Office--that is where
    you need to make sure people are well trained. They are the
    ones who are going to have the relationships on the ground with
    the local businesses, with the local community. Those are the
    folks that need to know and understand how to take these
    actions, how to address these issues.
        Chairwoman Mikulski. Let me ask another question. I really
    invite you to work with our staffs on a bipartisan basis about
    really what would be a must-do list that we can actually
    implement through the appropriations process on this
    compatibility interoperability, particularly intradepartmental
    and then interdepartmental.
        The second question goes to the Federal prison population.
    I think you have raised in your reports the Compassionate
    Release Program and the aging population. That is a very
    intriguing thing. That one, you do not think it is well
    managed. But second, that you think that these are
    possibilities where, if done properly, we could reduce the
    number and not increase the risk, which is an obsession of the
    committee.
        Could you share with us what you think the reform should
    be?
        Mr. Horowitz. Yes. I think as we indicated in our
    Compassionate Release work, as the GAO indicated in some of the
    reviews they have done on residential reentry and elderly
    populations, we indicated on our International Prisoner
    Transfer Treaty report, there are ways to manage the prison
    population that allows individuals who have very low recidivism
    rates--you are never going to reduce it to zero, but as we
    found in Compassionate Release, the recidivism rate was about 3
    percent. Those are very low risk individuals.
        They are elderly or the prisoners who are released have, if
    you carefully select who is eligible, you can find, I believe,
    ways to address the issue with a very low potential for
    recidivism. There are several programs dealing with current
    inmates that can be done.
        The International Prisoner Transfer issue, for example,
    that is a program that there are tens of thousands of inmates
    who, in theory, are eligible for. We found the Department had
    used it with regard to 299 inmates for one of the years. If
    that number was, instead of less than 1 percent of the eligible
    inmates----
        Chairwoman Mikulski. Yes, we are not talking about the
    terrorists here----
        Mr. Horowitz. Correct. We are talking about individuals----
        Chairwoman Mikulski [continuing]. Like the GTMO problem.
        Mr. Horowitz. Right. We are talking about low level
    offenders who are non-U.S. nationals who now, by the way----
        Chairwoman Mikulski. Who are sitting in our prisons.
        Mr. Horowitz [continuing]. 27 percent of our prisoners are
    non-U.S. nationals.
        Chairwoman Mikulski. 27 percent?
        Mr. Horowitz. 27 percent, approximately; 46 percent last
    year of defendants were non-U.S. nationals. So this is a number
    that is likely to go up.
        Chairwoman Mikulski. Could you repeat those numbers again?
        Mr. Horowitz. 27 percent, approximately, of current Federal
    inmates are non-U.S. nationals and last year's----
        Chairwoman Mikulski. And 33 in the top.
        Mr. Horowitz. Right. And last year's, of 84,000 defendants
    prosecuted by the Justice Department, approximately 46 percent
    were non-U.S. nationals. That number is obviously very
    significant. Those individuals, we have treaties with countries
    around the world.
        Our report found, again, a 3 percent, approximately,
    recidivism rate; people coming back to this country and
    threatening individuals here because, again, this is not a
    mandatory program. If you carefully manage a program like this,
    you look at nonviolent offenders, first time offenders,
    individuals who have acted appropriately in prison, who have
    tried to, who have stable potential home lives. There are a
    variety of factors you would want to look at before making that
    decision.
        So we are not looking at sending tens of thousands of
    people overseas, but as we found in our report, if you just did
    3 percent of the eligible inmates, for example, that would save
    about $50 million.
        Chairwoman Mikulski. About $50 million.
        Mr. Horowitz. So there are possibilities out there that, I
    think, need to be addressed. There is a wide ranging issue.
    Obviously, it affects who is coming in the door.
        What happens in residential reentry centers, a very
    important issue that we have done a lot of reviews on and found
    a lot of issues with how our RRC's, Residential Reentry
    Centers--halfway houses--are managed. They have to be managed
    better because they are an important transit point for inmates
    to leave the prison and get back to the community, and have
    that transition period in the Residential Reentry Center.
        Chairwoman Mikulski. Well, thank you very much. I want to
    turn to Senator Shelby. I think that was a very meaty exchange.
        Senator Shelby. Very.
        Chairwoman Mikulski. And, quite frankly, an eye opener, and
    I will follow up on what I would like from you.
        Senator Shelby.
        Senator Shelby. Mr. Inspector General, I would like to
    follow up on Senator Mikulski's question a little. Of the 47
    percent you used that are currently pending, is that right?
        Mr. Horowitz. Right. Approximately 46 percent.
        Senator Shelby. More or less. What percentage of that is
    violent crime? Is it all kinds of crime? How do you break that
    down? Can you do a generic thing here?
        Mr. Horowitz. Yes. I do not have the numbers offhand.
        Senator Shelby. I know.
        Mr. Horowitz. But I certainly can get back to you and let
    you know that. But what you do find, and I think it is
    interesting as you see these numbers evolve what used to be the
    crime that had the largest share of defendants was drug
    prosecution.
        Senator Shelby. Okay.
        Mr. Horowitz. It is now immigration prosecution.
        Senator Shelby. Immigration.
        Mr. Horowitz. Drugs are now second, and then you get to
    fraud offenses and firearms offenses.
        Senator Shelby. If you excluded, just for the
    conversation----
        Mr. Horowitz. Right.
        Senator Shelby [continuing]. Immigration and drugs, what
    about violent crime? Is it connected to drugs or is it all
    across the board?
        Mr. Horowitz. I think it cuts across the board. And I think
    one of the issues--I know the Congress has tried to address
    when I was on the Sentencing Commission--we tried to address
    was to figure out which first time offenders in the drug area
    might be eligible, for example, for reentry court----
        Senator Shelby. Sure.
        Mr. Horowitz [continuing]. Or other positions because they
    do not have a connection to violence, and I think that is an
    important issue.
        Senator Shelby. Thank you. I want to get back to an area
    that I was into questioning with the Attorney General.
        Public trust and confidence, I think most of us would
    agree, is key to a successful Federal law enforcement effort
    across the board. If DOJ is facing significant issues, as we
    all know it has in recent years, and particularly in recent
    weeks that jeopardize so much of that confidence, what can be
    done to restore that public trust by the American people, in
    your judgment?
        Will it take new personnel? Will it take a different
    attitude? What will it take? Because I think that this is very
    much under attack, the confidence of the American people in the
    Justice Department right now, because of a lot of things,
    prosecutors' misconduct that the Senator from Alaska raised, a
    lot of things, as you well know in your role.
        Mr. Horowitz. Yes, I think there are of utmost importance
    to the Justice Department, to all the prosecutors and the
    agents, and all the people who work there is being able to make
    arrests, bring cases, try cases, and have the confidence in the
    jurors sitting in the jury box with what they are hearing and
    who they are hearing from.
        And there have been a series of incidents over the last
    several years, certainly the Justice Department, that have
    raised concerns in that regard.
        We did a report on Fast and Furious that involved what we
    thought were highly problematic events involving both the
    agents and the prosecutors. You have seen the Stevens
    prosecution that Senator Murkowski mentioned, other
    prosecutions that have been brought and dismissed that have
    raised concerns about that.
        And I think the Department has to keep in mind the
    importance of maintaining that integrity. It has been on our
    top 10 list of challenges for the last several years, in part,
    because of that issue.
        Senator Shelby. The confidence of the American people,
    would it not, be based on the trust, truthfulness, veracity,
    evenhandedness, honesty of the Department of Justice?
        Mr. Horowitz. Yes.
        Senator Shelby. Do you agree with that?
        Mr. Horowitz. The critical point is there has to be that
    confidence.
        Senator Shelby. And if that is questioned, it undermines
    law enforcement, does it not?
        Mr. Horowitz. Certainly, if there is a basis and then that
    takes hold, law enforcement, prosecutors, and then agents----
        Senator Shelby. I have just a few more seconds, I guess.
        But in the area that Senator Mikulski got into, cyber
    crimes, which is so important. We have always had--I guess from
    the times of the Persians or the Greeks, and the Romans, and
    you name it--industrial espionage. You know, people trying to
    find out what this product, and how they made it and so forth,
    for the edge. We understand that, and that is big.
        But it seems now with the computer age, that it has gotten
    easier. And there are other countries, including some of our
    friends, so-called friends, are very interested in the
    processes of tomorrow's products be they pharmaceutical, be
    they weapons, be they anything, energy, chemicals, you name it.
        Cyber is so important, but the defense against that because
    I think in the cyber war, we better not forget that people are
    looking for the edge and you have got competitors in the world
    are getting into our so-called industrial secrets and so forth,
    things that have been built up over years, by billions of
    dollars' worth of research.
        So I agree with Senator Mikulski, that is a real challenge
    for this country from the economic standpoint and, of course,
    always for national security.
        Do you disagree with me?
        Mr. Horowitz. No, I agree completely. And I think one of
    the things that is important that we do is understand whether
    the private sector is willing to bring that evidence in.
        Senator Shelby. What do you need? What does the Justice
    Department need? They need resources always and this is the
    Appropriations Committee. But they need the tools, and it is
    changing every day, is it not?
        Mr. Horowitz. Yes, it is constantly evolving and changing.
        Senator Shelby. And it is not going away.
        Mr. Horowitz. I would doubt that.
        Senator Shelby. Is this one of our biggest challenges as a
    Nation right now?
        Mr. Horowitz. Yes, I think it is clearly one of the most
    significant challenges we are facing.
        Senator Shelby. Thank you.
        Chairwoman Mikulski. Great questions.
        Senator Collins.
        Senator Collins. Thank you, Madam Chairman.
        First, I want to commend the Inspector General for, what I
    think, has been truly extraordinary work and a very productive
    time during his leadership of the Office.
        Last month, your Office released a public summary of an
    interim report on the Department's handling of known or
    suspected terrorists who had been admitted into the Federal
    Witness Protection Program. I must say, it came as a shock to
    me that we had known or suspected terrorists who were part of
    the Witness Protection Program, but that is a whole other
    issue.
        What was troubling in this report to me is that it
    illustrated yet another failure of Government to share
    absolutely vital information. In this case, according to your
    report, the Federal Witness Protection Program was not sharing
    information about these suspected, or even known, terrorists
    who had been admitted to the program with the Terrorist
    Screening Center. Now, the reason this is important is the
    Terrorist Screening Center's watch list is used by TSA for its
    no-fly and selectee lists.
        So here we have a situation where one agency has admitted
    known or suspected terrorists into its program, may have
    changed their identities, given them new names likely has, and
    is not sharing that information to allow TSA to put these
    individuals on its no-fly list or, at least, the list where
    there is extra screening.
        I would like to ask whether you found out whether or not
    some of these individuals actually did fly on commercial
    flights because their names were not on the no-fly list.
        Mr. Horowitz. We did find that individuals flew and that
    they flew with the knowledge and permission of the Marshal
    Service.
        What we did not go further to find out is whether on their
    own accord, they flew, but they certainly had that ability to
    do so using their new identities, even though under their real
    names, they had been put on a no-fly list by the TSA. And that
    was because, as you indicated, the criminal division of the
    Marshal Service did not share with the TSC, the Terrorist
    Screening Center, the new identity that that individual got.
        Senator Collins. So think how extraordinary this is. The
    terrorist's real name is known and is on the no-fly list, but
    the new identity created by our Government under the Witness
    Protection Program is not shared with TSA or the Terrorism
    Screening Center. And thus, that identity, which is the
    identity they are using, allows them to escape being on this
    list.
        We know that there is some official travel that may be
    necessary that you are referring to, but the fact is we have no
    idea whether these individuals traveled on their own. Is that
    correct?
        Mr. Horowitz. That is correct.
        Senator Collins. My second, and related, question to this
    is: were these individuals accompanied on the airplanes when
    they were traveling at the official behest of the Government?
        Mr. Horowitz. Our understanding is that two marshals
    brought them to the plane, but once they got on the plane, they
    were not escorted further until they landed and got off the
    plane on the other side where two marshals met them. But for
    the travel itself, no one was accompanying them.
        Senator Collins. So think about this, Madam Chairman. This
    is just so extraordinary. These individuals are dangerous
    enough that two marshals accompany them to the gate to get them
    on the plane, and yet, they fly without any marshals
    accompanying them or any law enforcement assigned to them, and
    they are so dangerous, that they are met at the other end. This
    is just mindboggling to me.
        Now, is there any information that suggests to us that the
    air marshals who are on planes were informed of the presence of
    these known or suspected terrorists?
        Mr. Horowitz. We are not aware of the air marshals, if they
    were on those planes, were notified. It appears that the effort
    to compartmentalize this and keep the information close hold
    limited the sharing that should have otherwise occurred.
        Senator Collins. So it is not as if the air marshal took
    over while they were on the plane. So I just find this
    mindboggling, and so unacceptable, and so dangerous.
        I just want to thank you publicly for doing this work and
    revealing this incredible gap. Due to your work, I know that
    the Department of Justice is looking at changing its
    procedures, but it is just extraordinary that it happened in
    the first place.
        Thank you for your good work. I know my time has expired.
        Mr. Horowitz. Thank you, Senator.
        Chairwoman Mikulski. And Senator Collins, I invite you,
    first of all, your expertise from having chaired Homeland
    Security and particularly during those early troubled times,
    you really are an expert on the watch list. But even when we
    have watch lists, you have to get on the watch list. So I have
    people, prominent Maryland citizens who cannot get off the
    watch list. But if you are a known terrorist, you do not get on
    the watch list.
        So I would really like to I would invite you and your staff
    to work with the Inspector General for any reforms you would
    like to include in the bill.
        Senator Collins. Thank you.
        Chairwoman Mikulski. Senator Murkowski.
        Senator Murkowski. Thank you, Madam Chairman. And I would
    agree, this has been a fascinating hearing, in part, due to the
    expertise of some of our colleagues.
        I am just thinking, Senator Collins, about all that you
    have detailed. You just have to kind of shake your head at what
    goes on. It was just announced yesterday that TSA has decided
    that they are going to not enforce that rule about allowing
    small knives on airplanes. As insignificant as that was, it is
    just one more example of how we are able to confuse and
    confound the public when it comes to safety as we travel. So I,
    too, thank you Mr. Horowitz, for your work here.
        I would like to focus just a moment on what Senator Shelby
    raised, which is the public trust, and the issue of how we
    regain the public's confidence because I think the public's
    confidence is clearly shaken in many areas.
        You and I had an opportunity to visit, and in that meeting
    you indicated to me that the Inspector General is really
    confined. You are bound by section 8E of the Inspector General
    Act that precludes the examination of the work of the
    Department of Justice attorneys.
        So the Inspector General can look at everybody else to do
    an independent review and investigation, but when it comes to
    the Department of Justice attorneys, they are exempted. When
    you look at the law, you are shaking your head and saying,
    ``Well, why is this?''
        I, for one, would really like to have seen a truly
    independent inquiry into whether the Justice Department's
    litigators made the right decisions in a couple of different
    matters. I mentioned the terrible situation with Senator
    Stevens. And yet, we are told through your Office and the
    predecessor's to your Office, that it is not possible to review
    the matter because of this provision within the Inspector
    General Act.
        Can you tell me if there is any legitimate reason in your
    mind why this section 8E should not be modified to allow your
    Office to conduct these independent inquiries into the
    Department's litigation units?
        Mr. Horowitz. My Office has long taken the view that there
    is no reason for that provision to prohibit us from looking at
    attorney decisions when we, as you indicated, Senator, review
    actions of agents and every other employee in the Department.
        Senator Murkowski. Do you think that if you were able to
    conduct these independent investigations of the Department of
    Justice attorneys it would help us in reclaiming that public
    trust, if you will, or the confidence that I think we are
    lacking right now when it comes to certain aspects of the DOJ?
        Mr. Horowitz. Well, let me mention two reports that we have
    done in the last year, some are well-familiar with them, Fast
    and Furious, where we addressed what looked initially to be
    agent conduct, but as we found it, also involved attorney
    conduct and decisionmaking. So that was one of those areas
    where we did speak to what attorneys did, but it was largely
    because it was originally investigator-driven and the questions
    were about ATF, but it also involved the U.S. Attorney's
    Office.
        We just issued a few weeks ago a report on a leak that
    occurred out of that case that we found involved the U.S.
    Attorney himself. Our reports in both instances were made
    public. They were judged by the public, by Members of Congress.
    I was called up to testify at least as to the first, the Fast
    and Furious report, and from our standpoint, we are subject to
    rigorous oversight in that regard, and we make our reports
    public.
        I think from our standpoint, it is important to be
    transparent, to be open so that when issues arise, if there is
    misconduct, and where there are allegations of the misconduct
    that are not proven, people know it is dealt with
    appropriately. Frankly, lots of AUSA's get allegations made
    against them that are disproven. That is, frankly, just as
    important to have out there. Their records, their names should
    be cleared if that has occurred.
        So I think in both instances that is important.
        Senator Murkowski. Well, Madam Chairman, I would love to
    discuss this further with you. I think it is an issue and an
    area that we need to look at, to address.
        I cannot think of any good reason why the Justice
    Department attorneys would be exempted, would be completely
    carved out. I do think that it would go towards really
    restoring a level of confidence, if you know that you can have
    a truly independent investigation and assessment. Right now, we
    are prohibited, the Inspector General is prohibited by law,
    from doing just that.
        Mr. Horowitz. Right, by congressional statute.
        Senator Murkowski. There is no transparency here when there
    needs to be within the Department, and I think this is
    something that we should be looking at.
        Mr. Horowitz. Thank you.
        Senator Murkowski. Thank you for your work, and thank you,
    Madam Chairman.
        Chairwoman Mikulski. Mr. Horowitz, thank you for really
    adding, I think, very much to our knowledge, to our insights,
    and to, I think, really rounded out the subcommittee hearing.
        We would like to work on these reforms that the Senators
    have indicated. And for me, I am going to come back to two
    areas, one a kind of a must-do list on that cybersecurity.
    Knowing that we are not the authorizers, but through financial
    work and through our report language, we think we can give
    guidance, and direction, and resources.
        The other goes to the prisoner issue and particularly in
    those areas where we could look, at least for this year, the
    beginning step. Not an overhaul. Again, we are not authorizers.
    We are not the executive branch. But we know that we have
    reasonable outcomes of reducing population, but we know the
    people will be safe and we won't be sorry we did it.
        I would look, then, at the aging population, what your
    suggestions would be in the areas of aging and compassionate
    release; again, carefully selected. And then the fact that 27
    percent of those in our Federal prisons could be in prisons in
    other countries and that these are not terrorism. So we are not
    into releasing them into the street or releasing them in the
    streets of Paris, or Yemen, or something like that. But really,
    again, how we could encourage the Department of Justice to get
    more on the ball in this area because it sounds like they have
    not been on the ball in this area? What we can do to do that.
    Okay?
        Mr. Horowitz. Yes. Absolutely.
        Chairwoman Mikulski. But, again, we want to thank you. And
    you were an Assistant U.S. Attorney, is that correct?
        Mr. Horowitz. I was for 7\1/2\ years up in Manhattan in New
    York City before I came down to Washington in 2009 and worked
    in the criminal division for 3\1/2\ years. So I have seen a
    variety of cases and public corruption as well.
        Chairwoman Mikulski. Well, the U.S. Attorney's Office in
    Manhattan sees every kind of case in the world, actually,
    because you see the world in New York.
        Mr. Horowitz. Right.

                         ADDITIONAL COMMITTEE QUESTIONS

        Chairwoman Mikulski. Well, having said that, this was an
    excellent hearing. Our witnesses were very forthcoming and
    insightful. And our subcommittee, our subcommittee was
    excellent. If there are no further questions this morning, this
    subcommittee----
        Senators may submit additional questions for this
    subcommittee in our official record. We request the DOJ's
    response within 30 days.
        [The following questions were not asked at the hearing, but
    were submitted to the Department for response subsequent to the
    hearing:]
                Questions Submitted to Hon. Eric H. Holder, Jr.
                Questions Submitted by Senator Patrick J. Leahy
                                  prison costs
        Question. As more and more people are incarcerated for longer and
    longer, the resulting costs have placed an enormous strain on Federal,
    State and local budgets and have at the same time severely limited our
    ability to enact policies that prevent crimes effectively and
    efficiently. At the Federal level, the Bureau of Prison's (BOP) budget
    now consumes a full quarter of the total budget for the Department of
    Justice (DOJ).
        What budget problems has the expanding prison population posed for
    the Department of Justice? Which other areas of the DOJ budget are
    suffering losses or cuts because funds must be diverted to maintain the
    BOP? What is the impact of such cuts to law enforcement?
        Answer. The rising costs of supporting a growing prison population
    are unsustainable. With tight budgets, the mandatory costs of housing
    and securing the prison population could crowd out funding for all
    other Department of Justice functions: investigations, prosecutions,
    treatment and prevention activities, State and local grant programs,
    and other programs that help support public safety. This includes
    programs that facilitate the transition of inmates to contributing,
    law-abiding members of their communities.
        The Department is continuing its efforts to address the growing
    inmate population. The Department supports sentencing and corrections
    policies that protect the public, are fair to both victims and
    defendants, reduce recidivism, and control the prison population.
        On August 12, 2013, the Attorney General announced his ``Smart on
    Crime'' initiative which prioritizes prosecutions on the most serious
    cases, reforms sentencing to eliminate unfair disparities, pursues
    alternative to incarceration for low-level, non-violent crimes, and
    improves reentry to curb repeat offenses and re-victimization.
        Question. How do you anticipate that continued growth of the BOP
    will divert funding from other DOJ programs and hiring in the future?
        Answer. The mandatory costs of housing and securing the Federal
    prison population are expected to continue to grow and could crowd out
    opportunities for other Department programs. BOP costs have grown from
    16 percent of the Department's Budget in 1980, to nearly 25 percent as
    of the end of fiscal year 2012, as the prison population has grown from
    approximately 25,000 to roughly 219,000 over the same period of time.
    The Department has proposed as part of the fiscal year 2014 President's
    budget two sentencing reform proposals to revise Federal statutes
    governing the time Federal inmates serve on their sentences. These
    proposals would encourage good conduct and participation in recidivism-
    reducing programming and would help reduce crowding and costs in the
    Federal prison system.
        On August 12, 2013, the Attorney General announced his ``Smart on
    Crime'' initiative which prioritizes prosecutions on the most serious
    cases, reforms sentencing to eliminate unfair disparities, pursues
    alternative to incarceration for low-level, non-violent crimes, and
    improves reentry to curb repeat offenses and re-victimization.
        Question. Since 2006, the Department has frequently testified that
    the Federal Bureau of Prisons is overcrowded and has suggested that
    more funding for more prisons is needed. In light of budget
    difficulties and the sequester, that is not a plausible solution for
    the foreseeable future.
        What policy changes and sentencing reforms would the Department
    support to reduce the size and budgetary burden of the prison system?
        Answer. Legislative changes that are supported by the
    administration that could help reduce prison costs and recidivism are
    as follows:
                            inmate good conduct time
        Title 18 U.S.C. 3624(b) (the statute that governs good time for
    Federal inmates with an offense date on or after November 1, 1987)
    states that, subject to conditions related to behavior in prison and
    participation in the General Educational Development (GED) program, a
    prisoner who is serving a term of imprisonment of more than 1 year
    (other than a term of life imprisonment) may receive credit toward the
    service of the prisoner's sentence of up to 54 days at the end of each
    year served of the prisoner's term of imprisonment (beginning at the
    end of the first year of the term). In Barber et al. v. Thomas, (S.Ct.
    No. 09-5201), the Supreme Court upheld the Bureau's interpretation of
    Section 3624(b).
        Title 18 U.S.C. 3624(b) could be modified to allow a prisoner who
    is serving a term of imprisonment of more than 1 year (other than a
    term of life imprisonment) to receive credit toward the service of the
    prisoner's sentence of up to 54 days for each year of the sentence
    imposed. This change could be made retroactive, granting the additional
    credit for all Federal inmates in custody who have an offense date on
    or after Nov. 1, 1987 (all but ``old law'' offenders). This would
    effectively increase potential Good Time awards for every inmate by 7
    days for each year of the sentence imposed.
        This change to good conduct time would result in greater incentive
    for inmates to maintain good conduct and an immediate reduction in the
    expected population growth (approximately 4,000 fewer inmates 1 year
    after enactment), and lower growth figures than otherwise would have
    been expected.
                 expanded early release for program completion
        Among the Bureau's inmate programs that have been shown empirically
    to reduce recidivism, only the Residential Drug Abuse Program (RDAP)
    offers inmates the opportunity to earn a sentence reduction for
    successful completion of the program. Specifically, title 18 U.S.C.
    3621(e)(2)(B) states that the Bureau may reduce the period an inmate
    convicted of a nonviolent offense remains in custody after successfully
    completing RDAP. The authority to provide an early release to inmates
    who complete RDAP has been used since 1995, with nearly 40,000 inmates
    getting sentence reductions. Inmates who have not been diagnosed with a
    ``drug disorder'' are ineligible for participation in RDAP; therefore,
    sentence reduction through RDAP is not available to them. Effectively,
    these inmates are disadvantaged in terms of sentence reduction, even if
    they complete programs that address their reentry needs and make them
    less likely to reoffend.
        Legislation could be enacted to allow inmates to earn up to 60 days
    per year of credit toward their sentence for each year in which the
    inmate is in the custody of the Bureau and successfully participates
    (for a minimum of 180 days) in specific programs that have been
    demonstrated to reduce recidivism such as Federal Prison Industries
    (FPI), vocational training, and education programming. Credits earned
    toward service of a sentence pursuant to this proposal would not, in
    combination with RDAP credit earned under 18 U.S.C. 3621(e) and Good
    Conduct Time credits earned pursuant to 18 U.S.C. 3624(b), be allowed
    to exceed 33 percent of the sentence imposed.
        Such a legislative proposal is not without historical precedence.
    Prior to enactment of the Sentencing Reform Act of 1984, the good time
    statutes allowed offenders to earn time off of their sentence for
    participating in educational and vocational programs. Additionally, the
    Parole Commission frequently looked to an inmate's institutional
    adjustment including program completion to determine whether to grant
    parole and release an inmate from custody.
        In addition, on August 12, 2013, the Attorney General announced his
    ``Smart on Crime'' initiative which prioritizes prosecutions on the
    most serious cases, reforms sentencing to eliminate unfair disparities,
    pursues alternative to incarceration for low-level, non-violent crimes,
    and improves reentry to curb repeat offenses and re-victimization.
        Question. Specifically, what front-end sentencing reforms does the
    Department believe would be most effective in reducing the size and
    costs of the Federal prison population? Do you agree that sentencing
    reform should include lowering some mandatory minimum penalties and
    expanding the number of defendants eligible for relief from such
    penalties?
        Answer. Please refer to the previous response.
        In addition, on August 12, 2013, the Department of Justice
    announced a change in charging policies so that certain people who have
    committed low-level, nonviolent drug offenses, who have no ties to
    large-scale organizations, gangs, or cartels will no longer be charged
    with offenses that carry mandatory minimum sentences.
                             compassionate release
        Question. The Inspector General recently released a report about
    the Bureau of Prison's mismanagement of the ``compassionate release''
    program. Typically, the BOP seeks compassionate release only for
    prisoners who are within 1 year of death due to serious illness. Both
    in and out of prison, the medical costs of the last 12 months of life
    can be very high.
        How many Federal prisoners are currently incarcerated who might be
    eligible for compassionate release? How much money could the BOP save
    if it released them all?
        Answer. Since reduction-in-sentence (RIS) requests can be made for
    both medical and non-medical reasons, the number of inmates eligible
    cannot be determined. In April 2013, the BOP expanded the medical
    criteria that will be considered for inmates seeking compassionate
    release. In addition, in August 2013, the Attorney General announced
    revised criteria for other categories of inmates seeking reduced
    sentences, including elderly inmates and certain inmates who are the
    only possible caregiver for their dependents. For all RIS requests, the
    ultimate authority to reduce a sentence rests with the United States
    District Court Judge who rules on the motion submitted by the U.S.
    Attorney's Office on behalf of the BOP. This legal authority permits a
    release from prison based on a finding that extraordinary and
    compelling reasons exist that warrant an inmate's release. See 18
    U.S.C. Sec. 3582(c)(1)(A)(i).
        Question. The report found that the process of requesting a
    compassionate release is unnecessarily complicated and takes so long
    that some people die before it is complete. What are the Department and
    BOP doing or planning to do to improve this process? How soon can we
    expect those reforms?
        Answer. The BOP's compassionate release program has been updated as
    part of the Attorney General's ``Smart on Crime'' initiative. The
    policy was updated on August 12, 2013, and clarifies the medical and
    non-medical criteria for reduction-in-sentence (RIS) consideration.
        Under a recent change to regulations, the Warden of an institution
    will send approved requests directly to the BOP's Central Office for
    review and final disposition. The regulation change removed the level
    of Regional Director review to provide for more expedited review of
    these requests. At the BOP's Central Office, requests are reviewed by
    the General Counsel and the Director. The amended regulation can be
    found at 78 FR 13478 (Feb. 28, 2013) and was effective on April 1,
    2013.
        The BOP's medical criteria for a compassionate release include the
    following:
        Inmates who have been diagnosed with a terminal, incurable disease
    whose life expectancy is 18 months or less. Previously, consideration
    was generally given to inmates whose life expectancy was 12 months or
    less. Inmates who have an incurable, progressive illness or who have
    suffered a debilitating injury from which they will not recover. For
    inmates in this category, the BOP will consider a compassionate release
    if the inmate is either completely disabled, meaning he or she cannot
    carry on any self-care and is totally confined to bed or chair, or is
    capable of only limited self-care and is confined to a bed or chair
    more than 50 percent of waking hours. Previously, consideration was
    generally given to inmates so debilitated that they could only provide
    very little or no self-care.
        The BOP policy also sets forth non-medical RIS criteria including
    the following:
        Elderly inmates meeting certain criteria regarding age, and length
    of time served, and in some cases, medical impairments relating to age;
    circumstances in which there has been the death or incapacitation of
    the family member caregiver of an inmate's child; and circumstances in
    which the spouse or registered partner of an inmate has become
    incapacitated.
        Included in the BOP's review process is an analysis of the inmate's
    ability or likelihood to re-offend, public safety concerns, the
    benefit, if any, of remaining in prison, and the availability of an
    appropriate release plan.
        If applicable, the BOP notifies and solicits comments from victims
    and witnesses regarding an inmate's possible release and considers this
    information in determining whether to recommend a compassionate release
    to a sentencing judge. The BOP also consults with the U.S. Attorney's
    Office responsible for the criminal prosecution regarding an inmate's
    possible release and considers this information in determining whether
    to recommend a compassionate release to a sentencing judge.
        A revised statement about RIS is included in the new Inmate A&O
    Handbook dated August 2, 2013, and states that the BOP may consider
    both medical and non-medical circumstances, and inmates may appeal
    denials through the Administrative Remedy Procedure. Additionally, the
    revised policy and a notice to inmates was placed on the inmate
    electronic bulletin board on August 13, 2013.
        Beginning in late August 2013, the BOP began utilizing an
    electronic tracking system for all RIS requests. Various data regarding
    RIS requests is captured at the institution and Central Office levels
    of review.
        Furthermore, various staff that work on RIS matters have been
    provided training on at least five occasions between June and September
    2013.
                                     ______

                Questions Submitted by Senator Dianne Feinstein
                  prosecuting gtmo detainees in federal court
        Question. I was pleased to see the President recommit to closing
    Guantanamo in his recent national security speech. I would like to
    focus on the part of that speech where the President said he asked the
    Department of Defense to establish a site inside the United States to
    hold Military Commission trials.
        If Guantanamo detainees could one day be brought to the United
    States for prosecution in a Military Commission, would the Department
    of Justice (DOJ) be ready to file charges against others in Federal
    criminal court in the United States?
        Answer. In 2009, the Guantanamo Review Task Force concluded that a
    number of detainees at Guantanamo should be considered for prosecution,
    whether in an Article III court or in a military commission, and those
    cases were under review at the Departments of Justice and Defense. The
    process for considering whether Guantanamo detainees could be
    prosecuted in Article III courts effectively ended when Congress passed
    laws prohibiting the transfer of Guantanamo detainees to the United
    States, including for the purposes of trial. In the event that Congress
    were to lift those restrictions, and the administration were to
    determine that the option of prosecution of Guantanamo detainees in
    Federal court should again be considered, that process could be
    restarted, but it is not clear at this time how many detainees at
    Guantanamo Bay could be prosecuted in Federal court.
        Question. Would it not be better to prosecute some GTMO detainees
    in a Federal criminal court because the charges of ``Conspiracy'' and
    ``Material Support to Terrorism'' are not available in Military
    Commissions at this time unless the Al-Bahlul decision is overturned?
        Answer. As indicated by your question, the issue whether the
    Military Commissions Act (MCA) of 2006 authorizes prosecution of
    conspiracy and material support for terrorism offenses for conduct
    committed before its enactment is currently pending before the United
    States Court of Appeals for the District of Columbia Circuit. Both the
    2006 and 2009 versions of the MCA include conspiracy and material
    support among the offenses that can be prosecuted by military
    commission. But in Hamdan v. United States, a panel of the D.C. Circuit
    held that the 2006 MCA does not authorize prosecution of pre-enactment
    conduct except for offenses previously codified or recognized as war
    crimes under customary international law. (The petitioner in that case
    had long since completed his sentence and been transferred to Yemen in
    2008.) Thereafter, a second panel of the D.C. Circuit applied the
    holding in the Hamdan decision to reverse the military commission
    convictions of Ali al-Bahlul (who is currently serving a life sentence
    at Guantanamo Bay) on charges of material support, conspiracy, and
    solicitation. In March, the Department of Justice sought review of the
    panel's holding in al-Bahlul, and in April the D.C. Circuit granted en
    banc review. The D.C. Circuit held oral argument on September 30, 2013.
    Because the terrorist activities of the detainees at Guantanamo Bay
    generally predate both the 2006 MCA and 2009 MCA, the outcome of the
    al-Bahlul case is likely to have a significant impact on whether
    military commissions will be authorized to prosecute Guantanamo Bay
    detainees on material support and conspiracy charges.
        Criminal prosecutions in Article III courts could include charges
    of material support for terrorism and conspiracy if there is an
    evidentiary basis to support such charges.
        Question. I understand that there may be some cases on appeal
    regarding the ability to charge detainees with Conspiracy and Material
    Support. Is DOJ currently preparing criminal complaints against any
    GTMO detainees, especially where charges of Conspiracy and Material
    Support are possible?
        Answer. As indicated above, the Department's review process for
    considering whether, and under what theories, Guantanamo detainees
    could be prosecuted in Article III courts effectively ended when
    Congress passed laws prohibiting the transfer of Guantanamo detainees
    to the United States. In the event that Congress were to lift those
    restrictions, the administration would again consider whether it is
    appropriate to prosecute Guantanamo detainees in Federal court, but it
    is not clear at this time how many detainees at Guantanamo Bay could be
    prosecuted in Federal court.
        Question. Of the 80 GTMO detainees who have not been cleared for
    transfer, do you know how many can only be prosecuted for Conspiracy or
    Material Support?
        Answer. It would not be appropriate for the Department to speculate
    on such issues.
    office of legal counsel (olc) legal opinions regarding targeted killing
                                   operations
        Question. I'd like to thank the administration for earlier this
    year providing the Intelligence Committee and the Judiciary Committee
    access to all of the OLC opinions related to the targeted killing of
    Americans outside the United States and outside areas of active
    hostilities, such as Afghanistan. However, I want to continue to work
    with you and the administration to get the other opinions we have not
    seen.
        As you are aware, since 2010 the Senate Intelligence Committee has
    sent bipartisan letters to the executive branch requesting copies of
    all the OLC legal opinions concerning the U.S. Government's targeted
    use of force by unmanned aerial vehicles so that we can understand and
    evaluate the executive branch's legal reasoning, pursuant to our
    oversight obligations. In fact, you were copied on one of our original
    letters on this topic, dated September 21, 2010, requesting these OLC
    documents.
        In his recent national security speech, the President said, ``I
    have asked my administration to review proposals to extend oversight of
    lethal actions outside of warzones that go beyond our reporting to
    Congress.'' He went on to say that he looks forward to ``actively
    engaging Congress to explore these--and other--options for increased
    oversight.'' As part of this commitment to increased oversight, can I
    have your commitment that you will work to provide the Congress with
    all of the OLC opinions that have been requested?
        Answer. Where Congress or congressional committees have questions
    regarding the legal basis for the Government's conduct, including its
    counterterrorism and intelligence activities, the Department is
    committed to working with the departments and agencies of the executive
    branch who engage in that conduct to provide Congress with an
    explanation of the legal basis for those activities, while doing so in
    a manner that does not compromise the ability of executive branch
    officials to receive candid and confidential legal advice to inform
    their deliberations and decisionmaking.
        It is undeniable that any decision to use lethal force against a
    U.S. citizen, even one in a foreign land who has become an operational
    leader of a terrorist organization intent on harming other Americans,
    would be a grave decision, and it is important that the public and
    Congress be aware of the legal framework that would apply in such
    circumstances. This is why the President, the Attorney General, and
    other senior administration officials have made public remarks
    addressing this important subject. The administration has also provided
    the Intelligence Committees with classified briefings regarding that
    legal framework, as well as an extensive classified white paper that
    contains a detailed discussion of applicable constitutional and
    statutory standards. The President's recent decision to provide members
    of the Senate Select Committee on Intelligence, as well as the House
    Permanent Select Committee on Intelligence and the Senate and House
    Judiciary Committees, with access to classified Office of Legal Counsel
    (OLC) advice related to the use of lethal force against U.S. citizens
    was an additional and extraordinary accommodation in the context of
    ongoing, extremely sensitive operational activities by the executive
    branch.
        To the extent that Congress is interested in obtaining additional
    information to better understand and evaluate the executive branch's
    legal reasoning regarding potential counterterrorism or intelligence
    activities, including activities that might involve the use of lethal
    force, the department or agency that would engage in such activities
    would be in the best position to explain their legal basis. This
    longstanding approach allows Congress to conduct effective oversight of
    such activities and appropriately permits Congress to test, examine,
    and understand fully the lawfulness of the Government's action without
    the need for disclosure of confidential and pre-decisional legal
    advice.
        As a general matter, the department or agency that engages (or
    would engage) in a particular activity is in the best position to
    explain the legal basis for that activity. There is, however, a
    fundamental difference between explaining the legal basis for executive
    branch conduct and disclosing the confidential advice and deliberations
    that precede executive branch decisions. Department of Justice legal
    advice and OLC opinions often address sensitive and controversial
    matters and reflect candid legal advice provided to executive branch
    decision makers in advance of decisions regarding potential Government
    actions. Routine disclosure of this sort of pre-decisional, internal
    executive branch legal advice could deter client agencies from coming
    to the Department for legal advice in the future and could affect the
    Department's presentation of that advice to its executive branch
    clients. Effective and informed decisionmaking by executive branch
    officials depends upon a robust deliberative process that includes the
    provision of confidential legal advice by agency general counsel and,
    in certain circumstances, by the Department and OLC.
        While the Department's legal advice may at times relate to
    classified counterterrorism and intelligence activities, the
    Department's concern with protecting the confidentiality of such legal
    advice does not stem from a concern that classified information or
    intelligence sources and methods may be compromised if the advice were
    disclosed to the Congress the Department expects that the relevant
    congressional committees would usually be cleared to receive classified
    information and likely would already be aware of any intelligence
    sources and methods discussed in the Department's legal advice. Rather,
    it is to safeguard the ability of the executive branch to receive
    confidential legal advice and to have robust and confidential
    deliberations before making decisions.
        Question. Were any intelligence sources or methods compromised when
    the most recent OLC opinions were shared with Congress? If not, then
    why not share the remaining OLC opinions with us as we have requested?
        Answer. The response to the previous question is a comprehensive
    response that addresses this question and the next question.
        Question. As you may recall, some of the OLC opinions during the
    Bush administration were withdrawn or superseded by the Department of
    Justice, often years after their issuance. If you do not provide all of
    the OLC opinions we have asked for, how can we ensure that today's
    executive branch is not repeating the mistakes of the past?
        Answer. Please see the response to the previous question.
                          confirmation of atf director
        Question. I applaud President Obama for nominating ATF's Acting
    Director to serve as the Bureau's permanent Director. ATF has a
    critical mission to keep guns out of the hands of criminals and other
    people who shouldn't have them. Yet, ATF has never had a Senate-
    confirmed Director.
        I very much hope we can confirm the President's nominee as soon as
    possible. I am pleased that my colleague on this committee--who also
    serves as the Chairman of the Judiciary Committee--has scheduled a
    hearing on the nomination for Tuesday. I find it ironic--and a little
    hypocritical--that some Senators have, on the one hand, called on ATF
    and DOJ to prosecute more gun cases while, on the other hand, they have
    consistently blocked the President's nominee to lead this very same
    agency.
        Do you believe the absence of a Senate-confirmed Director has
    affected ATF's ability to carry out its mission to enforce the Nation's
    laws regarding guns and explosives?
        Answer. I am pleased that the Senate confirmed B. Todd Jones as the
    Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives on
    July 31, 2013. The lack of permanent leadership at the ATF had an
    adverse effect on morale within the agency. The men and women that work
    at ATF are dedicated to executing ATF's mission of fighting violent
    crime and preserving public safety. They now do so with the benefit of
    a Senate confirmed Director.
                                     ______

                Questions Submitted by Senator Mary L. Landrieu
                         consent decrees in new orleans
        Question. The city of New Orleans is not a signatory to the Orleans
    Parish Prison (OPP) Consent Decree, but the agreement includes
    provisions that will obligate the city to fund all or part of the OPP
    consent decree. The city has calculated that the total cost of the New
    Orleans Police Department (NOPD) Consent Decree is approximately $55
    million. Sheriff Marlin Gusman initially requested $22.5 million to
    fund the OPP Consent Decree. These requested dollars would be in
    addition to the approximately $22.5 million the city already provides
    to the Sheriff to operate OPP.
        Prior to signing the Orleans Parish Prisons Consent Decree, did the
    Department of Justice conduct an analysis of the cost of the Orleans
    Parish Prisons Consent Decree? Why or why not?
        Answer. In the civil case involving the Orleans Parish Prison
    (OPP), the role of the United States is to ensure that OPP is operated
    in a manner that complies with the Constitution and laws of the United
    States. The constitutional violations identified by the United States'
    investigation of OPP are well documented and egregious. The city has
    had the opportunity to put forth evidence that the conditions at OPP
    meet constitutional muster or that the proposed consent judgment
    extends farther than constitutionally necessary. The city has not
    presented any evidence, including expert testimony, showing that
    conditions at OPP do not violate the Constitution or title VI. The city
    also has not offered evidence with respect to an alternative, less
    costly or less intrusive, approach to remedying conditions at OPP.
        On June 6, 2013, Judge Lance Africk, who is overseeing the process
    for correcting the constitutional violations in OPP, including the
    process for determining the cost of compliance issued a 104 page
    ``Order Approving the Consent Judgment and Certifying Settlement
    Class,'' (attached), which set forth a process to determine how
    ensuring constitutional conditions in Orleans Parish Prison would be
    funded. (See Attachment #1)
                                     ______

                                 ATTACHMENT #1

                          UNITED STATES DISTRICT COURT
                         EASTERN DISTRICT OF LOUISIANA

    LASHAWN JONES ET AL.                     CIVIL ACTION

                                             No. 12-859
    VERSUS                                   c/w 12-138
                                             REF: BOTH CASES

    MARLIN GUSMAN ET AL.                     SECTION I

                      order approving consent judgment and
                          certifying settlement class
        Before the Court is the joint motion \1\ for approval of the
    proposed consent judgment \2\ filed by plaintiffs, LaShawn Jones et al.
    (``Class Plaintiffs''), intervenor plaintiff, the United States of
    America (``United States'') (collectively, ``Plaintiffs''), and
    defendant, the Orleans Parish Sheriff (``Sheriff''). Also before the
    Court is the motion \3\ for certification of a settlement class filed
    by Class Plaintiffs, which the United States and the Sheriff do not
    oppose. Third-party defendant, the City of New Orleans (``City''),
    opposes approval of the proposed consent judgment and certification of
    a settlement class.\4\ For the following reasons, the motions are
    GRANTED.
    ---------------------------------------------------------------------------
        \1\ R. Doc. No. 101. Record citations are to Civil Action No. 12-
    859 unless otherwise noted.
        \2\ Consent Judgment. Record citations to ``Consent Judgment'' are
    to the document filed on this date, which incorporates the March 18,
    2013 amendments discussed herein and grammatical and typographical
    corrections listed in a separate filing.
        \3\ R. Doc. No. 145.
        \4\ E.g., R. Doc. No. 159.
    ---------------------------------------------------------------------------
                               factual background
        This lawsuit arises from the alleged unlawful conditions of
    confinement at Orleans Parish Prison (``OPP''). Among other things, the
    lawsuit seeks to address deficiencies in safety and security, medical
    and mental healthcare, environmental conditions, fire safety, and
    Spanish language services at OPP. Inmates are currently housed in seven
    physical facilities that collectively comprise OPP, namely, (1) the
    original OPP,\5\ (2) Conchetta, (3) Templeman Phase V, (4) the
    Temporary Detention Center, (5) the Tents, (6) the Warren McDaniels
    Transitional Work Center, and (7) the Intake Processing Center.\6\ The
    600-800 inmates housed in the original OPP include youth inmates,
    maximum security inmates, and inmates with medical issues.\7\ Conchetta
    houses 300-400 inmates, including both youth and adult inmates, in six
    housing units.\8\ Templeman Phase V (``Templeman V'') houses
    approximately 240 female inmates and inmates with mental health issues
    in nine different units.\9\ The Temporary Detention Center houses
    approximately 400-500 inmates in four units, each of which contains two
    dormitories.\10\ The Tents consist of eight windowless canvas tents,
    supplied by the Federal Emergency Management Agency (``FEMA'') after
    Hurricane Katrina,\11\ which collectively house approximately 500-600
    inmates in a dormitory setting.\12\ Approximately 150 inmates may be
    present at the Intake Processing Center on a given day.\13\
    Approximately 115 inmates may be present at the Warren McDaniels
    Transitional Work Center, also referred to as the Broad Street work-
    release facility, on a given day.\14\
    ---------------------------------------------------------------------------
        \5\ This facility is also referred to as ``Old Parish Prison.''
    E.g., Pl. Ex. 374, at 10; R. Doc. No. 405, at 26. The Court refers to
    this facility as the ``original OPP'' and to the seven facilities
    generally as ``OPP.''
        \6\ Pl. Ex. 3; Pl. Ex. 374, at 7; Pl. Ex. 380.
        \7\ Pl. Ex. 85; Pl. Ex. 370; Pl. Ex. 374, at 32; Pl. Ex. 380.
        \8\ Pl. Ex. 88; Pl. Ex. 368; Pl. Ex. 374, at 13; Pl. Ex. 380.
        \9\ Pl. Ex. 374, at 15; Pl. Ex. 380.
        \10\ Pl. Ex. 374, at 16; Pl. Ex. 380.
        \11\ R. Doc. No. 374, at 7.
        \12\ Pl. Ex. 374, at 13-14; Pl. Ex. 380.
        \13\ Pl. Ex. 380.
        \14\ Pl. Ex. 380.
    ---------------------------------------------------------------------------
                               procedural history
        Although the conditions at OPP have long been the subject of
    litigation, this particular lawsuit is the product of investigations
    and complaints arising in the past 5 years.\15\ In early 2008, the
    Sheriff requested technical assistance from the National Institute of
    Corrections, a Federal agency, expressing particular concern as to OPP
    facilities' staffing and emergency preparedness.\16\ After two outside
    consultants conducted a six-day site visit, they drafted a report
    examining operations at OPP facilities, and focusing on staffing and
    emergency preparedness.\17\ They noted OPP's ``pervasive and long
    standing problems,'' which date back many years. \18\ The October 2008
    report discussed some of the deficiencies alleged in this case and
    proposed general solutions.\19\
    ---------------------------------------------------------------------------
        \15\ The litigation before the Court is separate from that in
    Hamilton v. Morial, which was ongoing for approximately 40 years before
    that case was closed in 2008. See Hamilton Plaintiffs v. Williams
    Plaintiffs, 147 F.3d 367, 368 (5th Cir. 1998) (``In 1969 a class
    action, Hamilton v. Schiro, was filed in the Eastern District of
    Louisiana challenging conditions in the New Orleans Parish Prison. In
    April 1970, the trial court found that the prison conditions were
    unconstitutional and issued a remedial decree, including a prisoner
    population cap.''); see also Civil Action No. 69-2443, R. Doc. No. 2007
    (August 23, 2007) (dismissing plaintiffs' claims without prejudice),
    adopted by Civil Action No. 69-2443, R. Doc. No. 2041 (June 20, 2008)
    (``Magistrate Judge Chasez has done an outstanding job through the
    years and all parties to this litigation were fortunate to have her
    preside over this case. But this litigation has now run its natural
    course and the time has come to end it.'').
        \16\ Pl. Ex. 3, at 3.
        \17\ Pl. Ex. 3, at 6.
        \18\ Pl. Ex. 3, at 6.
        \19\ E.g., Pl. Ex. 3, at 60-61 (``Current classification practices
    are inadequate and require substantial improvements. . . . The Sheriff
    should request assistance from the National Institute of Corrections to
    develop a comprehensive new approach to inmate behavior management,
    including the development of a valid and effective system of inmate
    classification.'').
    ---------------------------------------------------------------------------
        In September 2009, the United States, through the Department of
    Justice (``DOJ''), conducted a site visit at OPP and issued a letter to
    the Sheriff, describing findings of unlawful conditions related to
    inmate violence, staff use of force, mental healthcare, and
    environmental conditions.\20\ In April 2012, DOJ issued a findings
    update letter to the Sheriff, reporting that unlawful conditions
    persisted, notifying the Sheriff of discriminatory conditions not
    addressed in the previous letter, and requesting that the Sheriff take
    immediate action.\21\
    ---------------------------------------------------------------------------
        \20\ Pl. Ex. 1. DOJ issued a copy of the letter to Mayor Ray Nagin;
    T. Allen Usry, counsel for the Sheriff; Penya Moses-Fields, City
    Attorney; and Jim Letten, United States Attorney for the Eastern
    District of Louisiana.
        \21\ Pl. Ex. 2. DOJ issued a copy of the letter to Mayor Mitch
    Landrieu; T. Allen Usry, counsel for the Sheriff; Richard Cortizas,
    Acting City Attorney; and Jim Letten, United States Attorney for the
    Eastern District of Louisiana.
    ---------------------------------------------------------------------------
        On January 18, 2012, three youth inmates, through their next
    friends, filed a sealed complaint for injunctive and declaratory
    relief, alleging that unconstitutional conditions at OPP facilities
    subjected them to substantial risks of bodily harm or death.\22\
    ---------------------------------------------------------------------------
        \22\ Civil Action No. 12-138, R. Doc. No. 2.
    ---------------------------------------------------------------------------
        On April 2, 2013, ten named OPP inmates (``Class
    Representatives''), seeking solely injunctive relief, filed a complaint
    alleging that the Sheriff, the wardens of several OPP facilities, OPP's
    medical director, and its psychiatric director were violating OPP
    inmates' Eighth and Fourteenth Amendment rights. Class Representatives
    specifically alleged that defendants fail to provide constitutionally
    adequate medical care and mental healthcare.\23\ Class Representatives
    further alleged that violent conditions of confinement subjected them
    to a substantial risk of serious physical injury, to which defendants
    were deliberately indifferent.\24\ On the same day they filed their
    complaint, Class Representatives filed a motion for certification of a
    class of plaintiffs consisting of all current and future OPP
    inmates.\25\ The April 2 complaint was consolidated with the January 18
    complaint.\26\ The Court refers to the class, including Class
    Representatives, as ``Class Plaintiffs.'' Class Plaintiffs are
    represented by the Southern Poverty Law Center (``SPLC'').
    ---------------------------------------------------------------------------
        \23\ R. Doc. No. 1, at 36-37.
        \24\ R. Doc. No. 1, at 37.
        \25\ R. Doc. No. 2.
        \26\ R. Doc. No. 13. Subsequent litigation has focused on the April
    2 complaint. The named plaintiffs in Civil Action No. 12-138, however,
    are parties to this settlement pursuant to its express terms and
    implicitly as class members. See Consent Judgment, at 1.
    ---------------------------------------------------------------------------
        Class Plaintiffs moved for a preliminary injunction, but discovery
    disputes delayed the consideration of this motion.\27\ By September 21,
    2012, however, the Court was advised that the Sheriff intended to file
    a third-party complaint against the City, after which Class Plaintiffs
    would file a motion for entry of a proposed consent judgment.\28\
    ---------------------------------------------------------------------------
        \27\ E.g., R. Doc. No. 56.
        \28\ R. Doc. No. 71.
    ---------------------------------------------------------------------------
        On September 24, 2012, the United States moved to intervene in the
    April 2 lawsuit, stating that such intervention would provide the most
    efficient resolution of Class Plaintiffs' and the United States'
    overlapping concerns.\29\ The Court granted the United States'
    unopposed motion.\30\ In its complaint in intervention, the United
    States alleged that the Sheriff violates inmates' Eighth and Fourteenth
    Amendment rights by failing to protect inmates from harm, providing
    insufficient mental health and medical care, and subjecting inmates to
    unconstitutional environmental conditions.\31\ The United States also
    alleged that the Sheriff violates Title VI by unlawfully discriminating
    against Latino inmates with limited English proficiency.\32\
    ---------------------------------------------------------------------------
        \29\ R. Doc. No. 68, at 3.
        \30\ R. Doc. No. 69.
        \31\ R. Doc. No. 70.
        \32\ R. Doc. No. 70.
    ---------------------------------------------------------------------------
        On October 1, 2012, with leave of Court, the Sheriff filed two,
    substantively similar, third-party complaints against the City, one
    based on Class Plaintiffs' claims and one based on the United States'
    claims.\33\ In each complaint, the Sheriff asserted that, ``should
    judgment be rendered granting any prospective relief against third-
    party plaintiff,'' the Court should order the City of New Orleans to
    pay the Sheriff ``the full cost, as determined by the Court, of
    providing any prospective relief ordered by this Court pursuant to 18
    U.S.C. Sec. 3626.'' \34\
    ---------------------------------------------------------------------------
        \33\ R. Doc. Nos. 75, 76.
        \34\ R. Doc. Nos. 75, 76.
    ---------------------------------------------------------------------------
                         the proposed consent judgment
        On December 11, 2012, Class Plaintiffs, the United States, and the
    Sheriff moved for the Court to approve a proposed consent judgment,
    notwithstanding the City's decision to remain a nonparty to the
    agreement.\35\
    ---------------------------------------------------------------------------
        \35\ R. Doc. No. 101.
    ---------------------------------------------------------------------------
        The consent judgment is a 49-page agreement \36\ entered into by
    Class Plaintiffs, including the named plaintiffs from each of the two
    consolidated cases, the United States, acting through DOJ, and the
    Sheriff, in his official capacity.\37\ The consent judgment also
    functions as a settlement of class members' claims. According to the
    consent judgment:
    ---------------------------------------------------------------------------
        \36\ This number does not include the cover page and table of
    contents, which constitute an additional 4 pages and are numbered
    separately.
        \37\ Consent Judgment, at 1.

            The purpose of this Agreement is to address the constitutional
            violations alleged in this matter, as well as the violations
            alleged in the findings letter issued by the United States on
            September 11, 2009. [OPP] is an integral part of the public
            safety system in New Orleans, Louisiana. Through the provisions
            of this Agreement, the Parties seek to ensure that the
            conditions in OPP protect the constitutional rights of
            prisoners confined there. By ensuring that the conditions in
            OPP are constitutional, the Sheriff will also provide for the
            safety of staff and promote public safety in the community.\38\
    ---------------------------------------------------------------------------
        \38\ Consent Judgment, at 1.

        The substantive provisions of the consent judgment are organized by
    subject matter: protection from harm, mental healthcare, medical care,
    sanitation and environmental conditions, fire safety, language
    assistance, and youthful prisoners. Each subject is divided into
    several components, which address certain policies and practices. For
    example, mental healthcare is divided into the following components:
    screening and assessment, treatment, counseling, suicide prevention
    training program, suicide precautions, use of restraints,
    detoxification and training, medical and mental health staffing, and
    risk management.\39\
    ---------------------------------------------------------------------------
        \39\ Consent Judgment, at ii-iii.
    ---------------------------------------------------------------------------
        Within each subject and component, the substantive provisions are a
    mix of broad guidelines and specific benchmarks. For example, under
    ``screening and assessment'' for mental health issues, the consent
    judgment requires that the Orleans Parish Sheriff's Office (``OPSO'')
    ``[d]evelop and implement an appropriate screening instrument that
    identifies mental health needs, and ensures timely access to a mental
    health professional when presenting symptoms requiring such care.''
    \40\ In particular, the consent judgment requires that inmates ``with
    urgent mental health needs'' receive an assessment by a qualified
    mental health professional within 48 hours.\41\
    ---------------------------------------------------------------------------
        \40\ Consent Judgment, at 20.
        \41\ Consent Judgment, at 20-21.
    ---------------------------------------------------------------------------
        With respect to oversight, the consent judgment provides that the
    parties to the agreement ``will jointly select a Monitor to oversee
    implementation of the Agreement,'' with the Court resolving selection
    disputes.\42\ Among other duties, the Monitor is responsible for
    providing the parties to the agreement, the City, and the Court with
    periodic reports on the Sheriff's compliance with the consent
    judgment.\43\ The consent judgment provides that the Monitor will
    receive ``full and complete'' access to OPP facilities, records, staff,
    and inmates.\44\
    ---------------------------------------------------------------------------
        \42\ Consent Judgment, at 40-41. Monitor is defined to include ``an
    individual and his or her team of professionals.'' Consent Judgment, at
    3.
        \43\ Consent Judgment, at 42. The consent judgment also requires
    the Sheriff to provide periodic compliance reports to the Monitor,
    although the Monitor is ``responsible for independently verifying
    representations from [the Sheriff] regarding progress toward
    compliance, and examining supporting documentation.'' Consent Judgment,
    at 42.
        \44\ Consent Judgment, at 41.
    ---------------------------------------------------------------------------
        Separate from the appointment of a Monitor, the consent judgment
    obligates OPSO to ``hire and retain, or reassign a current OPSO
    employee for the duration of this Agreement, to serve as a full-time
    OPSO Compliance Coordinator.'' \45\ According to the consent judgment:
    ---------------------------------------------------------------------------
        \45\ Consent Judgment, at 39.

            At a minimum, the Compliance Coordinator will: coordinate
            OPSO's compliance and implementation activities; facilitate the
            provision of data, documents, materials, and access to OPSO's
            personnel to the Monitor, SPLC, DOJ, and the public, as needed;
            ensure that all documents and records are maintained as
            provided in this Agreement; and assist in assigning compliance
            tasks to OPSO personnel, as directed by the Sheriff or his or
            her designee.\46\
    ---------------------------------------------------------------------------
        \46\ Consent Judgment, at 39.

    In addition, the Compliance Coordinator is responsible for collecting
    the information the Monitor requires from OPSO.\47\
    ---------------------------------------------------------------------------
        \47\ Consent Judgment, at 39.
    ---------------------------------------------------------------------------
        As to funding, the consent judgment sets forth a process by which
    the Court will ``determine the initial funding needed to ensure
    constitutional conditions of confinement at OPP, in accordance with the
    terms of this Agreement, and the source(s) responsible for providing
    that funding at an evidentiary hearing (`funding trial')'' at which the
    parties to the agreement, as well as the City, shall have the right to
    participate.\48\ After this time, the funding amount ``may be
    adjusted'' through a process by which the Monitor attempts to resolve
    disagreements between the Sheriff and the City.\49\ If the Monitor is
    unable to do so within 45 days, the dispute is submitted to the
    Court.\50\
    ---------------------------------------------------------------------------
        \48\ Consent Judgment, at 38.
        \49\ Consent Judgment, at 38.
        \50\ Consent Judgment, at 38.
    ---------------------------------------------------------------------------
        The Consent Judgment provides specific procedures with respect to
    enforcement. For example, ``if the Monitor, SPLC, or DOJ determines
    that Defendant has not made material progress toward Substantial
    Compliance with a significant obligation under the Agreement, and such
    failure constitutes a violation of prisoners' constitutional rights,
    SPLC or DOJ may initiate contempt or enforcement proceedings against
    Defendant . . . .'' \51\ Before taking such action, however, ``SPLC or
    DOJ shall give Defendant written notice of its intent to initiate such
    proceedings,'' the parties shall work in good faith to resolve the
    dispute, and ``Defendant shall have 30 days from the date of such
    notice to cure the failure . . . .'' \52\ In the event of an emergency
    that poses ``an immediate threat to the health or safety of any
    prisoner or staff member at OPP, however, DOJ or SPLC may omit the
    notice and cure requirements'' and immediately pursue an enforcement
    proceeding.\53\
    ---------------------------------------------------------------------------
        \51\ Consent Judgment, at 43.
        \52\ Consent Judgment, at 43.
        \53\ Consent Judgment, at 43.
    ---------------------------------------------------------------------------
        With respect to termination, the consent judgment provides that it
    ``shall terminate when Defendant has achieved Substantial Compliance
    with each provision of the Agreement and has maintained Substantial
    Compliance with the Agreement for a period of 2 years.'' \54\ As for
    severability, if any consent judgment provision ``is declared invalid
    for any reason by a court of competent jurisdiction, said finding shall
    not affect the remaining provisions of the Agreement.'' \55\
    ---------------------------------------------------------------------------
        \54\ Consent Judgment, at 43.
        \55\ Consent Judgment, at 44.
    ---------------------------------------------------------------------------
        After Class Plaintiffs, the United States, and the Sheriff filed
    their motion for approval of the consent judgment, briefing and
    conferences addressed the need for a fairness hearing.\56\ Ultimately,
    it became clear that the City of New Orleans must also be given the
    opportunity to litigate the issue of whether the proposed consent
    judgment exceeds minimum constitutional standards, arguably absolving
    the City of its funding obligation pursuant to state law and violating
    the Prison Litigation Reform Act's narrow tailoring requirement.\57\
    Accordingly, the City was given the opportunity to participate in the
    fairness hearing not just as an affected third party, but also as a
    party pursuant to its status as a third-party defendant.\58\ In the
    interim, Class Plaintiffs filed an unopposed motion to certify a
    settlement class, which superseded the original, presumably opposed,
    motion for class certification.\59\
    ---------------------------------------------------------------------------
        \56\ E.g., R. Doc. Nos. 113, 126.
        \57\ E.g., R. Doc. Nos. 107, 113.
        \58\ E.g., R. Doc. No. 126.
        \59\ R. Doc. No. 145; see also R. Doc. No. 2.
    ---------------------------------------------------------------------------
                              the fairness hearing
        At a fairness hearing commencing on April 1, 2013, the Court
    considered whether the proposed consent judgment was consistent with
    constitutional and statutory law and jurisprudence such that it should
    be approved as between Class Plaintiffs, the United States, and the
    Sheriff.\60\ The fairness hearing lasted four full days, and the
    parties introduced nearly 400 exhibits into evidence.\61\ Plaintiffs
    called four current and former OPP inmates, E.S., D.W., D.R., and
    A.S.\62\ Plaintiffs called four experts: Jeffrey Schwartz, an expert in
    ``security and operations'' of jails and prisons; \63\ Manuel Romero,
    an expert in ``jail administration, with a particular emphasis on
    security, staffing, environmental conditions, food service and
    sanitation, fire conditions, and Limited English Proficiency (``LEP'')
    services''; \64\ Dr. Bruce Gage, an expert in ``correctional mental
    healthcare''; \65\ and Dr. Daphne Glindmeyer, an expert in ``mental
    health and psychiatry, as well as juvenile mental health in
    corrections.'' \66\ Plaintiffs also called the twin sister of an inmate
    who committed suicide at OPP while at the Intake Processing Center.\67\
    The City called Andrew Kopplin, the City's First Deputy Mayor and Chief
    Administrative Officer.\68\ The Sheriff's only witness was Sheriff
    Marlin Gusman.\69\
    ---------------------------------------------------------------------------
        \60\ R. Doc. Nos. 384, 386, 389, 390.
        \61\ The Court has provided record citations for its findings, but
    these citations are not exhaustive lists of the evidence considered for
    a particular point. For example, the staggering level of violence at
    OPP is evidenced by the testimony of the experts and inmates, the
    number of investigated assaults, the high threshold required for such
    investigations, the records of hospital transports, and inmate
    grievances.
        \62\ These witnesses testified under their full names. As Katharine
    Schwartzmann, lead counsel for Class Plaintiffs, summarized: ``It has
    taken enormous bravery for the plaintiffs to come forward and to tell
    the Court about their experiences. They have opened themselves up,
    their lives, their criminal histories up to review, to scrutiny, to
    cross-examination, and . . . none of them stand to make a dollar out of
    this case.'' R. Doc. No. 412, at 34.
        \63\ R. Doc. No. 405, at 66.
        \64\ R. Doc. No. 407, at 25.
        \65\ R. Doc. No. 408, at 82.
        \66\ R. Doc. No. 409, at 174-75.
        \67\ R. Doc. No. 410, at 57-58.
        \68\ R. Doc. No. 409, at 7.
        \69\ R. Doc. No. 411, at 6.
    ---------------------------------------------------------------------------
        The parties provided extensive briefing on the legal issues
    implicated by the pending motions prior to the hearing.\70\ They also
    provided supplemental briefing after the hearing.\71\ In addition to
    the evidence presented at the hearing, the Court considered
    approximately 150 public comments submitted by both class members and
    non-class members.\72\ The Court addresses the motion for approval of
    the consent judgment and the motion for certification of a settlement
    class in turn.
    ---------------------------------------------------------------------------
        \70\ E.g., R. Doc. Nos. 399, 416, 427.
        \71\ E.g., R. Doc. Nos. 149, 197, 226-374, 387.
        \72\ E.g., R. Doc. Nos. 138-40, 153-55, 159, 173, 177, 179, 219-23,
    367.
    ---------------------------------------------------------------------------
                           consent judgment analysis
    I. Standard of Law
        Generally, before entering a consent judgment, also called a
    consent decree, courts must decide whether it ``represents a reasonable
    factual and legal determination based on the facts of record, whether
    established by evidence, affidavit, or stipulation.'' Williams v. City
    of New Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984) (quoting United
    States v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981)). Courts
    must also ascertain that the settlement is fair and that it does not
    violate the Constitution, statutes, or jurisprudence. Id. (citing City
    of Miami, 664 F.2d at 441). ``In assessing the propriety of giving
    judicial imprimatur to the consent decree, the court must also consider
    the nature of the litigation and the purposes to be served by the
    decree.'' City of Miami, 664 F.2d at 441.
        If a consent judgment potentially affects third parties, courts
    must carefully scrutinize it to ensure that the effect ``is neither
    unreasonable nor proscribed.'' Williams, 729 F.2d at 1560 (quoting City
    of Miami, 664 F.2d at 441). Courts must ``safeguard the interests of
    those individuals who [are] affected by the decree but were not
    represented in the negotiations.'' Id.
        Because the proposed consent judgment involves prospective relief
    with respect to prison conditions, an additional level of review
    applies. The Prison Litigation Reform Act (``PLRA'') provides:

            Prospective relief in any civil action with respect to prison
            conditions shall extend no further than necessary to correct
            the violation of the Federal right of a particular plaintiff or
            plaintiffs. The court shall not grant or approve any
            prospective relief unless the court finds that such relief is
            narrowly drawn, extends no further than necessary to correct
            the violation of the Federal right, and is the least intrusive
            means necessary to correct the violation of the Federal right.
            The court shall give substantial weight to any adverse impact
            on public safety or the operation of a criminal justice system
            caused by the relief.\73\
    ---------------------------------------------------------------------------
        \73\ 18 U.S.C. Sec. 3626(a)(1)(A).

    Through the PLRA, ``Congress sought to curtail Federal courts' long-
    term involvement in prison reform and halt Federal courts from
    providing more than the constitutional minimum necessary to remedy
    Federal rights violations.'' Frazar v. Ladd, 457 F.3d 432, 438 n. 19
    (5th Cir. 2006) (citing 18 U.S.C. Sec. Sec. 3626(a)(1)(A), (b)(3),
    (c)(1)). Compliance with the PLRA generally presents a higher bar to
    approval of a consent judgment than that imposed by caselaw.\74\ The
    parties to the consent judgment have stipulated that it complies with
    the PLRA,\75\ but the Court conducts an independent inquiry.\76\
    ---------------------------------------------------------------------------
        \74\ The Court remains mindful of the different standards, but
    concurrently addresses the constitutional and statutory claims pursuant
    to both the jurisprudential standard and that set forth in the PLRA.
        \75\ Consent Judgment, at 44.
        \76\ The parties have not suggested the Court do otherwise. See R.
    Doc. No. 151, at 16 (arguing that such a stipulation is insufficient);
    R. Doc. No. 156-2, at 2 (noting that ``Plaintiffs will provide a robust
    evidentiary record from which the Court can make the requisite findings
    under the [PLRA]. The Court need not rely on the PLRA stipulation . . .
    .'').
    ---------------------------------------------------------------------------
        The U.S. Supreme Court addressed the PLRA's narrow tailoring
    requirement in Brown v. Plata, 131 S. Ct. 1910 (2011), a prisoner
    release order case. In that case, the Court explained: ``Narrow
    tailoring requires a fit between the remedy's ends and the means chosen
    to accomplish those ends. The scope of the remedy must be proportional
    to the scope of the violation, and the order must extend no further
    than necessary to remedy the violation.'' Plata, 131 S. Ct. at 1939-40
    (internal quotations and modification omitted) (quoting Bd. of Trustees
    v. Fox, 492 U.S. 469, 480 (1989)). Narrow tailoring does not require
    perfection. See Fox, 492 U.S. at 480 (Narrow tailoring requires ``a fit
    that is not necessarily perfect, but reasonable; that represents not
    necessarily the single best disposition but one whose scope is in
    proportion to the interest served.'') (internal quotations omitted).
    The Court must ensure that the relief provided in the proposed consent
    judgment is narrowly drawn, extends no further than necessary to
    correct the violation of a Federal right, and is the least intrusive
    means of doing so.
        The Court must also ``give substantial weight to any adverse impact
    on public safety or the operation of a criminal justice system caused
    by the relief,'' although the PLRA ``does not require the court to
    certify that its order has no possible adverse impact on the public.''
    Sec. 3626(a)(1)(A); Plata, 131 S. Ct. at 1941. ``Whenever a court
    issues an order requiring the State to adjust its incarceration and
    criminal justice policy, there is a risk that the order will have some
    adverse impact on public safety in some sectors.'' Plata, 131 S. Ct. at
    1941. Accordingly, ``[a] court is required to consider the public
    safety consequences of its order and to structure, and monitor, its
    ruling in a way that mitigates those consequences while still achieving
    an effective remedy of the constitutional violation.'' Id. at 1942.
    II. Analysis
        In asserting that conditions at OPP are unconstitutional,
    Plaintiffs face a high bar. To demonstrate a violation of inmates'
    constitutional rights, Plaintiffs must show a substantial risk of
    serious harm to which prison officials were deliberately indifferent.
    Farmer v. Brennan, 511 U.S. 825, 834 (1994). Demonstrating deliberate
    indifference requires that prison officials must ``both be aware of
    facts from which the inference could be drawn that a substantial risk
    of serious harm exists, and must also draw the inference.'' Id. at 837.
    ``[A] factfinder may conclude that a prison official knew of a
    substantial risk from the very fact that the risk was obvious.'' Gates
    v. Cook, 376 F.3d 323, 333 (5th Cir. 2004); see also Marsh v. Butler
    Cnty., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc) (``Plaintiffs'
    allegations that the County received many reports of the conditions but
    took no remedial measures is sufficient to allege deliberate
    indifference to the substantial risk of serious harm faced by inmates
    in the Jail.'').
        Pretrial detainees and convicted prisoners ``look to different
    constitutional provisions for their respective rights to basic needs
    such as medical care and safety.'' Hare v. City of Corinth, 74 F.3d
    633, 639 (5th Cir. 1996) (en banc), rev'd on other grounds, 135 F.3d
    320, 324 (5th Cir. 1998). However, ``no constitutionally relevant
    difference exists between the rights of pretrial detainees and
    convicted prisoners to be secure in their basic human needs.'' Id. at
    647. Plaintiffs rely on the Eighth Amendment standard for conditions of
    confinement.\77\ Because ``a pretrial detainee's due process rights are
    said to be `at least as great as the Eighth Amendment protections
    available to a convicted prisoner,' '' this standard sets the minimal
    constitutional protections afforded to all OPP inmates. Id. at 639
    (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983));
    see also Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986)
    (``Where dealing with the constitutionally rooted duty of jailers to
    provide their prisoners reasonable protection from injury at the hands
    of fellow inmates, we need not dwell on the differences in rights
    enjoyed by pre-trial detainees and convicted persons or the maturation
    of prisoners' rights in general.'') (quotation omitted).
    ---------------------------------------------------------------------------
        \77\ E.g., R. Doc. No. 140, at 105.
    ---------------------------------------------------------------------------
        The underlying constitutional violations alleged in this matter are
    systemic. As in Plata, ``[P]laintiffs do not base their case on
    deficiencies'' that occurred ``on any one occasion,'' and the Court
    ``has no occasion to consider'' whether any individual deficiency would
    ``violate the Constitution . . . if considered in isolation.'' 131 S.
    Ct. at 1925 n. 3. Rather, ``Plaintiffs rely on systemwide
    deficiencies'' that allegedly subject inmates to a ``substantial risk
    of serious harm'' and cause conditions in OPP ``to fall below the
    evolving standard of decency that would mark the progress of a maturing
    society.'' Id.; see also Gates v. Cook, 376 F.3d at 333 (It is
    ``important to note that the inmate need not show that death or serious
    illness has occurred.'').
        Specific examples of dysfunction at OPP are representative of
    systemic deficiencies. The Court's inquiry is not focused on whether
    any one of these examples demonstrates the violation of a
    constitutional right. See Plata, 131 S. Ct. at 1925 n. 3; see also
    Alberti, 790 F.2d at 1225 (``We need not determine whether any of these
    incidents individually constituted an Eighth Amendment violation, for
    the evidence established that the totality of the circumstances in the
    jails were condemnable.''). The Court must determine, however, whether
    the proposed consent judgment is consistent with the PLRA.
        ``The Constitution does not mandate comfortable prisons, but
    neither does it permit inhumane ones.'' Gates v. Cook, 376 F.3d at 332.
    The Constitution requires that inmates receive adequate food, clothing,
    shelter, medical care, and mental healthcare, and that detention
    facilities ``take reasonable measures to ensure the safety of the
    inmates.'' Id. (citing Farmer, 511 U.S. at 832). The Fifth Circuit has
    held that, with respect to conditions of confinement, even where
    ``[e]ach factor separately, i.e., overcrowding dormitory barracks, lack
    of classification according to severity of offense, [ ] inmates with
    weapons, lack of supervision by [ ] guards, absence of a procedure for
    confiscation of weapons, may not rise to constitutional dimensions [ ],
    the effect of the totality of these circumstances [may be] the
    infliction of punishment on inmates violative of the Eighth Amendment .
    . . .'' Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1974).
    ``Conditions of confinement may establish an Eighth Amendment violation
    `in combination . . . only when they have a mutually enforcing effect
    that produces the deprivation of a single, identifiable human need such
    as food, warmth, or exercise--for example, a low cell temperature at
    night combined with a failure to issue blankets.'' Gates v. Cook, 376
    F.3d at 333 (quotation omitted). Remedying unconstitutional conditions
    of confinement is a ``necessarily aggregate endeavor, composed of
    multiple elements that work together to redress violations of the
    law.'' Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir.
    2010).
        These principles indicate that it is appropriate to consider the
    proposed consent judgment's provisions grouped according to subject
    matter. This approach recognizes the multiple circumstances that have a
    ``mutually enforcing effect'' with respect to deficient conditions at
    OPP. Additionally, it permits the Court to consider in the aggregate
    the proposed remedies relevant to each underlying Federal right.
    Accordingly, the Court will analyze the proposed consent judgment's
    provisions with respect to the following alleged deficiencies at OPP:
    (1) safety and security, (2) medical care and mental healthcare, (3)
    environmental conditions, and (4) fire safety.\78\
    ---------------------------------------------------------------------------
        \78\ In many cases, there is considerable overlap in the evidence
    relevant to different categories. For example, OPP's deficiencies in
    medication administration are relevant to inmate medical care, inmate
    suicide, contraband practices, and inmate-on-inmate violence.
    ---------------------------------------------------------------------------
                A. Safety and Security
        Manuel Romero, an expert in jail administration, with a particular
    emphasis on security, staffing, and use of force,\79\ concluded that
    OPP is ``totally dysfunctional in terms of overall security,'' and that
    it is an ``unsafe facility for both staff and inmates.'' \80\
    ---------------------------------------------------------------------------
        \79\ R. Doc. No. 407, at 25. Romero has evaluated and assessed
    ``well over a hundred prisons and jails in the United States.'' R. Doc.
    No. 407, at 22.
        \80\ R. Doc. No. 407, at 44.
    ---------------------------------------------------------------------------
        Jeffrey Schwartz, an expert in security and operations of jails and
    prisons, has worked with more than 40 of the 50 state departments of
    corrections and toured hundreds of prisons and jails.\81\ He concluded
    that, in over 35 years of working with and reviewing jails and prisons,
    ``OPP is the worst jail I've ever seen,'' and ``it is likely the worst
    large city jail in the United States.'' \82\ Schwartz described an
    ``extraordinary and horrific situation,'' \83\ in which OPP is
    ``plagued'' by ``suicides and other in-custody deaths, rapes and other
    sexual assaults, stabbings, and severe beatings.'' \84\
    ---------------------------------------------------------------------------
        \81\ Schwartz founded a non-profit criminal justice training and
    consulting organization in 1972. Since that time, he has worked with
    law enforcement and correctional agencies in the United States and
    Canada. Pl. Ex. 372, at 1. Schwartz has evaluated and assessed
    approximately 300 prisons and jails. R. Doc. No. 405, at 61-62.
        \82\ R. Doc. No. 405, at 67-69; see also Pl. Ex. 372, at 5.
        \83\ Pl. Ex. 372, at 69.
        \84\ Pl. Ex. 372, at 11.
    ---------------------------------------------------------------------------
        In 2012, OPP had over 600 transports to local emergency rooms for
    physical injuries, of which far more than half were related to
    violence.\85\ A similarly sized jail in the Memphis, Tennessee area had
    7 emergency room transports related to violence in a comparable period
    of time.\86\ OPP's alarming levels of violence are directly
    attributable to numerous policies and practices that are gravely
    deficient,\87\ including policies and practices associated with
    staffing and supervision, contraband, classification, sexual assault,
    and training and accountability.
    ---------------------------------------------------------------------------
        \85\ R. Doc. No. 405, at 77.
        \86\ R. Doc. No. 405, at 78-77.
        \87\ Pl. Ex. 374, at 16-17.
    ---------------------------------------------------------------------------
                    1. Staffing and Supervision
        Inadequate staffing is one of the most significant causes of the
    runaway violence at OPP.\88\ Schwartz concluded that OPP facilities
    ``are the most poorly staffed correctional facilities I have ever
    encountered.'' \89\ Schwartz testified that while most correctional
    agencies might use the term ``understaffed'' to indicate that perhaps
    10 percent more staff are needed, OPP's ``realistic need'' may be at
    least 75 percent or 100 percent more staff.\90\ The Court questioned
    Schwartz as to how he reached these estimates, and he replied that,
    after looking at a master roster and schedules, he tried to determine
    ``just roughly how many staff would it take just, not to fill all
    positions, but just to put a deputy every shift in every tier. And that
    was my very rough estimate.'' \91\ The original OPP, for example, often
    operates with between 25-50 percent of its direct security posts
    unfilled.\92\ A single officer is sometimes left responsible for
    supervising multiple floors of inmates.\93\ Shift after shift, across
    facilities, security posts are left unstaffed.\94\
    ---------------------------------------------------------------------------
        \88\ R. Doc. No. 412, at 38.
        \89\ Pl. Ex. 372, at 8.
        \90\ Pl. Ex. 372, at 8.
        \91\ R. Doc. No. 405, at 78-79.
        \92\ Pl. Ex. 85; Pl. Ex. 370.
        \93\ Pl. Ex. 85; Pl. Ex. 370; Pl. Ex. 372, at 15; Pl. Ex. 374, at
    11.
        \94\ Pl. Ex. 372, at 16.
    ---------------------------------------------------------------------------
        Even with an exceptionally low level of staffing, administrators
    prioritize staffing nonsecurity posts before security posts, a practice
    opposite that used in most prisons and jails.\95\ Certain nonsecurity
    assignments may be staffed and operating in a relatively normal
    fashion, while staff are not present to patrol living units and common
    areas or to perform escort or transport services.\96\
    ---------------------------------------------------------------------------
        \95\ Pl. Ex. 372, at 9.
        \96\ Pl. Ex. 372, at 9.
    ---------------------------------------------------------------------------
        OPP does not maintain any policy or procedure with respect to
    minimum staffing levels where, for example, staff may be required to
    work overtime to ensure that inmates are at least minimally
    supervised.\97\ Watch commanders may be forced to schedule a shift with
    insufficient officers, and merely ``hope that nothing terrible
    happens.'' \98\
    ---------------------------------------------------------------------------
        \97\ Pl. Ex. 372, at 15-16.
        \98\ Pl. Ex. 372, at 15.
    ---------------------------------------------------------------------------
        The absence of staff at security posts means that staff members may
    not physically enter housing units when doing routine security checks
    because OPP policy prohibits them from entering housing units
    alone.\99\ It is a ``rare occasion'' for staff members conducting a
    security round to ``actually go in . . . and view all the inmates and
    view the cells and into the showers and the activity areas.'' \100\ The
    evidence indicates that security rounds are neither frequent enough nor
    thorough enough to even minimally deter or detect inmate violence.\101\
    Inmates ``kick on the cell'' or ``take something and ram it across the
    bars'' with the hope that staff members will respond when assistance is
    needed.\102\ As one inmate testified, this can take ``30 minutes, maybe
    an hour, 40 minutes, whenever they get ready to come upstairs and see
    what's going on.'' \103\ The record is replete with examples of inmate-
    on-inmate violence that demonstrate the manner in which a lack of
    supervision permits such violence to flourish.
    ---------------------------------------------------------------------------
        \99\ R. Doc. No. 407, at 71-73, 83; Pl. Ex. 374, at 11.
        \100\ R. Doc. No. 407, at 71; Pl. Ex. 374, at 11-13.
        \101\ Pl. Ex. 372, at 16-19; Pl. Ex. 374, at 10.
        \102\ R. Doc. No. 406, at 113.
        \103\ R. Doc. No. 406, at 113.
    ---------------------------------------------------------------------------
        For instance, OPP records show that, on one particular evening, a
    deputy heard what he believed to be inmates fighting on a tier, as well
    as statements like ``stick your finger in his butt and piss on him.''
    \104\ The deputy could not see what was going on, but he reported that
    he did not investigate because OPP policy prohibits staff members from
    venturing onto the tiers alone.\105\ A sergeant arrived ``later in the
    night,'' but there is no indication in the record that any OPP staff
    member attempted to intervene at the time of the ``altercation.'' \106\
    ---------------------------------------------------------------------------
        \104\ Pl. Ex. 11; Pl. Ex. 374, at 11-12.
        \105\ Pl. Ex. 11; Pl. Ex. 374, at 11-12; see also R. Doc. No. 407,
    at 71-72.
        \106\ Pl. Ex. 11.
    ---------------------------------------------------------------------------
                    2. Contraband
        Although the Court recognizes that possession of contraband in a
    correctional facility is not necessarily unusual, OPP is plagued to a
    marked degree with contraband, including phones, weapons, and
    drugs.\107\ Weapons, in particular, are ``widespread and readily
    available to inmates.'' \108\ Shanks are ``rampant,'' and the number of
    stabbings is ``extremely high'' and ``very disturbing'' for a facility
    the size of OPP.\109\ Inmates report having access to street drugs and
    contraband prescription drugs.\110\ Despite repetitive problems with
    assaults and weapons, OPSO does not conduct regular shakedowns in a
    manner that would minimize the presence of contraband.\111\ Compare
    Gates v. Collier, 501 F.2d at 1308 (``Although many inmates possess
    weapons, there is no established procedure for discovering and
    confiscating weapons, nor is possession of weapons reported or
    punished.'').
    ---------------------------------------------------------------------------
        \107\ See Pl. Ex. 374, at 20, 23-24; City Ex. 13; R. Doc. No. 406,
    at 63; see also R. Doc. No. 411, at 82.
        \108\ R. Doc. No. 405, at 86; see also R. Doc. No. 406, at 63, 161.
    The evidence shows that items like mops, brooms, buckets, and coolers
    are frequently used in assaults. There is no effective system for
    preventing inmates from using such items as weapons. See Pl. Ex. 372,
    at 21, 60.
        \109\ Pl. Ex. 374, at 23-24, 24 n.6.
        \110\ R. Doc. No. 406, at 63, 132-33.
        \111\ Pl. Ex. 374, at 37.
    ---------------------------------------------------------------------------
        Three videos, apparently filmed by inmates around the calendar year
    2009 \112\ and unearthed the weekend before the fairness hearing, show
    inmates brandishing a loaded gun, using intravenous drugs, gambling
    with handfuls of cash, displaying cell phones, drinking cans of beer,
    and cavorting on Bourbon Street, having escaped OPP for an evening of
    leisure.\113\ These videos appear to have been filmed at the now-closed
    House of Detention (``HOD''), in part to highlight the absence of
    supervision and the poor environmental conditions.\114\ Whatever the
    history behind the videos, inmates were able to blatantly engage in
    criminal conduct, which they literally announced was occurring,\115\
    without showing any concern for staff intervention. There was no
    suggestion that the staff members responsible for supervising these
    inmates were ever identified, much less disciplined.\116\ The conduct
    in the video may have occurred several years ago, but the policies,
    practices, and culture that enabled the outrageous conduct remain
    relevant.\117\
    ---------------------------------------------------------------------------
        \112\ R. Doc. No. 407, at 5.
        \113\ City Ex. 13.
        \114\ City Ex. 13 (``CNN, y'all gonna get first bid on this tape .
    . . Orleans Parish Prison exposed.'').
        \115\ City Ex. 13 (``Pop me one of them beers open . . . Snort all
    that dope . . . .'').
        \116\ Romero testified that he would expect some staff involvement
    given the level of dysfunction. R. Doc. No. 407, at 39-40. Such
    involvement would not be without precedent. In one documented instance,
    a female staff member, who was engaged in a ``romantic relationship''
    with an inmate, warned the inmate to conceal a cell phone because of an
    upcoming shakedown. The staff member also sent text messages to the
    same inmate on his cell phone both while she was on and off duty. The
    staff member subsequently resigned. Pl. Ex. 58.
        \117\ R. Doc. No. 407, at 35-36.
    ---------------------------------------------------------------------------
                    3. Classification
        The failure to classify a substantial number of inmates risks
    ``intermingling of inmates convicted of aggravated violent crimes with
    those who are first offenders or convicted of nonviolent crimes.''
    Gates v. Collier, 501 F.2d at 1308; see Stokes v. Delcambre, 710 F.2d
    1120, 1124 (5th Cir. 1983) (``[F]ailure to control or separate
    prisoners who endanger the physical safety of other prisoners can
    constitute cruel and unusual punishment.''). A functioning
    classification system ensures that inmates are housed in a manner that
    increases the safety of inmates and staff by, for example, identifying
    and separating inmates likely to be predators from inmates likely to be
    victims.\118\ In conjunction with a lack of direct supervision, OPP's
    utterly ineffective classification system is a significant cause of the
    unprecedented levels of violence at OPP.\119\
    ---------------------------------------------------------------------------
        \118\ Pl. Ex. 372, at 12-14; Pl. Ex. 374, at 30-33; R. Doc. No.
    407, at 46-47.
        \119\ Pl. Ex. 372, at 14; R. Doc. No. 407, at 46-50, 53, 57-62.
    ---------------------------------------------------------------------------
        On a sample date in December 2012, of the inmates who had proceeded
    past intake, approximately 35 percent had not been classified in any
    manner.\120\ The unclassified inmates were ``scattered across all of
    the facilities and in just about all of the tiers.'' \121\ Of the
    approximately 2,400 inmates at OPP on that date, only one inmate was
    classified as a known victim and only four inmates were classified as
    known predators, notwithstanding the staggering frequency of violence
    at OPP.\122\ Of the inmates who were classified, potential predators
    were mixed with potential victims, and high, medium, and low security
    inmates were housed together, undermining the purpose of the
    classification system.\123\ A sample four-person cell on the same date
    held a high security potential predator, a high security nonpredator, a
    medium security nonpredator, and a low security nonpredator.\124\
    Schwartz testified that such housing should ``not ever happen'' because
    ``it could be explosive'' given the ``obvious potential'' that ``the
    two high security inmates, especially the one that's a potential
    predator, could be preying on the one that's the lower security, or
    perhaps even on the medium security.'' \125\ See also Marsh, 268 F.3d
    at 1025 (``[P]retrial detainees were housed with convicted inmates,
    nonviolent offenders with violent offenders, juveniles with adults, and
    mentally ill persons with those in good mental health.''). OPP also
    does not effectively separate youth and adult inmates.\126\
    ---------------------------------------------------------------------------
        \120\ Pl. Ex. 380; R. Doc. No. 406, at 82-85.
        \121\ Pl. Ex. 380; R. Doc. No. 406, at 82-85.
        \122\ Pl. Ex. 380; R. Doc. No. 405, at 83.
        \123\ E.g., Pl. Ex. 380; R. Doc. No. 407, at 46-50, 53, 57-62.
    Staff members acknowledged to Romero that correct placement of inmates
    was complicated by limitations associated with the number of beds
    available for certain types of inmates. Accordingly, inmates may be
    placed where there is space available, even if this placement is
    inconsistent with their classification. E.g., R. Doc. No. 407, at 53-
    54; see also Pl. Ex. 372, at 33 (noting that a juvenile requested a
    transfer because his roommate ``gets aggressive,'' but deputies
    responded that ``there is nowhere for him to go'').
        \124\ R. Doc. No. 407, at 56-57.
        \125\ R. Doc. No. 407, at 56-58.
        \126\ Pl. Ex. 372, at 10; Pl. Ex. 378, at 41; see R. Doc. No. 1, at
    35.
    ---------------------------------------------------------------------------
        Because OPP does not have an effective system for reclassification,
    inmates who have violently assaulted other inmates may remain
    classified as ``nonpredators.'' \127\ The risk related to such
    inaccurate information is compounded by the fact that an inmate's
    disciplinary record does not become part of his permanent record.\128\
    Rather, an inmate receives a new disciplinary folder for each OPP
    facility he stays in, and these folders do not follow the inmates
    during transfers.\129\ Facilities do not always maintain an inmate's
    disciplinary record once he leaves, and determining whether the record
    was maintained requires a ``time consuming search.'' \130\ These
    practices indicate that staff cannot rely on either an inmate's
    classification or his disciplinary record when evaluating the inmate's
    risk of violence.\131\ The absence of such information plainly
    increases the risk of harm to staff and to other inmates. Moreover, as
    discussed below, the classification process does not identify or
    consider an inmate's English proficiency.\132\
    ---------------------------------------------------------------------------
        \127\ R. Doc. No. 405, at 83.
        \128\ Pl. Ex. 372, at 49.
        \129\ Pl. Ex. 372, at 49.
        \130\ Pl. Ex. 372, at 49.
        \131\ See R. Doc. No. 405, at 108 (``The same inmates who are a
    danger to other inmates are typically the most dangerous inmates for
    staff.''); R. Doc. Nos. 228-29 (describing E.L.'s attacks on staff
    members). The Court is not familiar with E.L.'s classification status,
    as he was apparently not present at OPP on the date for which the
    classification census was sampled. See Pl. Ex. 380.
        \132\ See R. Doc. No. 407, at 109, 112.
    ---------------------------------------------------------------------------
        The importance of classification was illustrated by the following
    arc of one inmate's violent actions, which ultimately caused another
    inmate to suffer severe and permanent brain damage:
      --In August 2011, E.L., a 20-year-old male inmate, was observed
            repeatedly striking a 50-year-old inmate in the face and back
            of the head in one of the Tents. The victim stated that E.L.
            ``needed his medication.'' E.L. was too ``hostile and
            combative'' to be interviewed about the event, and he threw a
            large trash can at one deputy and spit on another deputy's
            face. In a separate incident, he threw a wet towel at a third
            deputy's back, angry that she was moving his belongings to
            another Tent in response to the assault.\133\
    ---------------------------------------------------------------------------
        \133\ Pl. Ex. 223; Pl. Ex. 225; Pl. Ex. 227.
    ---------------------------------------------------------------------------
      --In September 2011, at HOD, E.L. began punching a 24-year-old inmate
            in the face because the other inmate was using a toilet that
            E.L. wanted to use. He threw the inmate into the bars of the
            cell hard enough to cause a head injury that required hospital
            treatment.\134\
    ---------------------------------------------------------------------------
        \134\ Pl. Ex. 226.
    ---------------------------------------------------------------------------
      --In October 2011, another inmate requested to be moved to a
            different HOD tier because E.L. was antagonizing him by
            throwing ice and water on him and attempting to fight him. The
            grievance was denied because the inmate ``had enemies'' on the
            other side of the same tier, and the record does not suggest
            the inmate was offered any relief.\135\
    ---------------------------------------------------------------------------
        \135\ Pl. Ex. 224.
    ---------------------------------------------------------------------------
      --In December 2011, E.L. had been antagonizing a certain deputy at
            HOD. At some point, E.L. was able to defeat the locking
            mechanism on his cell door, arm himself with a broken
            broomstick, and attack the deputy, hitting him in the face with
            the broomstick and fracturing his jaw. He also struck another
            deputy with the broomstick, possibly fracturing the deputy's
            hand.\136\
    ---------------------------------------------------------------------------
        \136\ Pl. Ex. 229.
    ---------------------------------------------------------------------------
      --On June 18, 2012, K.M., a Templeman V inmate, reported via a sick
            call request that he had his ``two teeth knocked out in a
            physical altercation on my tier.'' \137\ On June 26, K.M.
            reported the attack to the Special Operations Division
            (``SOD'') and identified E.L. as his attacker.\138\ He stated
            that he had not come forward sooner because E.L. ``bullies all
            the older inmates,'' and K.M. was scared for his life.\139\
    ---------------------------------------------------------------------------
        \137\ Pl. Ex. 246.
        \138\ Pl. Ex. 230.
        \139\ Pl. Ex. 230. The Court notes that there is no suggestion in
    the record that anyone investigated the identity of K.M.'s assailant
    despite the fact that his sick call request expressly cited an
    altercation as the source of his injuries. OPP does not utilize the
    data recorded by medical services to identify acts of violence, and
    medical staff are not subject to any policy that would encourage them
    to report injuries resulting from violence. Pl. Ex. 259, at 57-62; Pl.
    Ex. 372, at 56.
    ---------------------------------------------------------------------------
      --On June 23, 2012, at Templeman V's A-3 tier, a ``step down
            psychiatric tier,'' \140\ E.L. punched T.S., a 65-year-old man,
            several times in the face hard enough to knock him backwards.
            T.S. struck his head on a metal bench as he fell. A detective
            conducting a routine security check discovered T.S. lying on
            the ground with a pool of blood around his head. The punches
            and the strike to the back of the head caused T.S.'s brain to
            hemorrhage, resulting in a permanent, nearly ``brain dead''
            state.\141\
    ---------------------------------------------------------------------------
        \140\ Pl. Ex. 371.
        \141\ Pl. Ex. 222. E.L. subsequently trapped a deputy at Templeman
    V by grabbing his hand through a cell door food slot, and punching him
    in the face. The deputy was routed to the hospital. Pl. Ex. 228.
    ---------------------------------------------------------------------------
    E.L., an aggressive and predatory inmate with a penchant for
    administering blows to the head and face and for preying upon older
    inmates, ultimately caused T.S.'s severe and permanent brain damage.
        E.L.'s attacks, which occurred across a variety of prison
    facilities, illustrate that, in the absence of adequate staffing and
    supervision, ``even a low security housing unit with an unsophisticated
    inmate population will sink toward the lowest common denominator.''
    \142\ A lack of staff supervision and a lack of effective inmate
    classification result in OPP's most vulnerable inmates, including the
    mentally ill and elderly, falling prey to OPP's most dangerous
    inmates.\143\
    ---------------------------------------------------------------------------
        \142\ Pl. Ex. 372, at 15. Staffing records for Templeman V were
    provided with respect to a period ranging from May 2012 to December
    2012. These records reflect that, more often than not, there was no
    deputy even assigned to A-3, the tier on which T.S. was attacked. Pl.
    Ex. 371.
        \143\ See also R. Doc. No. 405, at 82-83 (describing mentally ill
    and developmentally disabled inmates as vulnerable); R. Doc. No. 406,
    at 153 (describing mentally ill or developmentally disabled inmate
    forced to do ``sexual dances'').``A substantial number of inmates on
    suicide watch'' claim suicidality to avoid disciplinary segregation.
    Pl. Ex. 372, at 50. ``That produces a toxic stew of acute psychiatric
    inmates, acute suicidal inmates and disciplinary segregation inmates.
    It is an accident waiting to occur.'' Pl. Ex. 372, at 50; see also Pl.
    Ex. 260, at 106-07 (OPP's medical director estimates that at least 90
    percent of inmates who report being suicidal are not, in fact,
    suicidal).
    ---------------------------------------------------------------------------
                    4. Sexual Assault
        OPP has an extraordinarily high level of rapes and sexual assaults,
    unprecedented in the many facilities toured by Romero.\144\ However,
    the number of investigations into such conduct is ``minuscule.'' \145\
    A DOJ Review Panel (``Panel'') on prison rape selected OPP as a
    representative high-incidence facility for discussion at a public
    hearing.\146\ The Panel was ``deeply disturbed by the apparent culture
    of violence at OPP.'' \147\
    ---------------------------------------------------------------------------
        \144\ Pl. Ex. 374, at 38.
        \145\ R. Doc. No. 405, at 121.
        \146\ Pl. Ex. 4, at 4. Although the Panel began with a focus on the
    now-closed South White Street Jail, it shifted its focus to OPP
    operations as a whole. Pl. Ex. 4, at 73. The Panel acknowledged that
    the shift in focus was, in part, related to the United States'
    allegations underlying this lawsuit. Pl. Ex. 4, at 73. The Court is
    mindful of the relationship between the Panel's report, follow-up
    measures, and the United States' complaint in intervention, and it has
    weighed the evidence accordingly.
        \147\ Pl. Ex. 4, at 82.
    ---------------------------------------------------------------------------
        Calculating the incidence rate of sexual assault at OPP is
    difficult.\148\ The grievance logs for July 20, 2012, through December
    19, 2012, were missing entries.\149\ In October, the only full month
    for which data is available, there were 30 grievances reporting sexual
    assault and no investigations.\150\ The most investigations occurred in
    November, when there were two investigations and 26 grievances
    reporting sexual assault, not including missing entries.\151\ OPP staff
    members have a pattern of tolerating sexual misconduct, as demonstrated
    by the lack of repercussions for inmates who engage in such misconduct
    in plain view of deputies.\152\
    ---------------------------------------------------------------------------
        \148\ The Court does not rely on the sexual assault rate suggested
    by Plaintiffs, as its applicability to current OPP facilities has not
    been established. See R. Doc. No. 416, at 42. In any case, however,
    sexual assault at OPP is all too common, and in part directly
    attributable to the absence of inmate supervision.
        \149\ Pl. Ex. 353.
        \150\ Pl. Ex. 353.
        \151\ Pl. Ex. 353.
        \152\ Pl. Ex. 374, at 38-41.
    ---------------------------------------------------------------------------
        There is no consistent practice by which staff respond to inmate
    reports of sexual assault.\153\ While in some cases inmates are quickly
    assessed and treated, Schwartz testified that, in ``far too many cases,
    none of the right things happen.'' \154\ Most often, nothing
    happens.\155\ ``The standard used by OPP investigators seems to be
    that, short of having forensic evidence in the form of DNA or
    documented injury to a body orifice, there was no sexual misconduct.''
    \156\ Staff sometimes publicly make derisive comments when an inmate
    reports a sexual assault, resulting in an announcement of the victim's
    status and a strong display of tolerance for sexual assault.\157\
    ---------------------------------------------------------------------------
        \153\ R. Doc. No. 405, at 112-13.
        \154\ R. Doc. No. 405, at 113; see also Pl. Ex. 60.
        \155\ Pl. Ex. 372, at 38.
        \156\ Pl. Ex. 374, at 38.
        \157\ R. Doc. No. 405, at 112-13.
    ---------------------------------------------------------------------------
        A video admitted into evidence portrays an interview with an inmate
    who reported a sexual assault.\158\ The inmate is ``Mirandized,'' \159\
    repeatedly told that nothing happened,\160\ and further informed that
    the absence of detectable physical injury one week after the alleged
    assault proved it did not occur.\161\ Identifying false reports is a
    valid objective, but the testimony and other evidence presented at the
    hearing suggest that the practices used to investigate sexual assaults
    have the effect of discouraging bona fide reports, embarrassing inmates
    who come forward, and instilling in staff and inmates the impression
    that such reports can be quickly discounted.\162\
    ---------------------------------------------------------------------------
        \158\ Pl. Ex. 5 (video and transcript).
        \159\ See Pl. Ex. 5, at 54. According to Schwartz, it is common for
    OPP inmates who report sexual assaults to be Mirandized. R. Doc. No.
    405, at 115 (``Before hello or anything else, the first thing that the
    investigator does is to Mirandize the victim.'').
        \160\ Pl. Ex. 5, at 41-42, 51.
        \161\ Pl. Ex. 5, at 41-42, 51.
        \162\ See R. Doc. No. 406, at 89. Schwartz asked staff members
    about inmates who report sexual assaults. According to Schwartz,
    ``nobody said every inmate is lying,'' but staff suggested ``most of
    these inmates are fabricating,'' to some extent. Schwartz also noted
    that ``SOD staff continually violate the most crucial principle of
    medical care and mental healthcare in jails[:] custody and security
    staff may not act as gatekeepers for health or mental health
    services.'' When SOD members determine a sexual assault report is
    unfounded, they refuse to provide the inmate with even a ``cursory
    medical assessment.'' Pl. Ex. 372, at 39.
    ---------------------------------------------------------------------------
        E.S., a former OPP inmate, testified that, on a daily basis at the
    original OPP, he saw violence, including ``[f]ights, stabbings, people
    being sexually assaulted, just, you know, your average violence on the
    streets taken to the jailhouse.'' \163\
    ---------------------------------------------------------------------------
        \163\ R. Doc. No. 405, at 26-27.
    ---------------------------------------------------------------------------
        One night, after the lights were turned out at 10:30 p.m., E.S. was
    attacked by a group of 10-14 inmates.\164\ They ripped off his clothes
    and attempted to tie him up with pieces of string, but he was able to
    break free.\165\ They then used a razor to cut strips of fabric from an
    inmate uniform.\166\ After they hog-tied E.S. with the fabric, they
    sexually assaulted him.\167\ E.S. testified that one inmate ``stuck his
    finger into my anal area,'' another inmate ``stuck a toothbrush into my
    anal area,'' and another inmate ``actually stuck his tongue in my anal
    area.'' \168\ The attackers ``took toothpaste and put it between my
    buttocks area.'' \169\ Next, they tied a blanket around E.S.'s face and
    continued beating him.\170\ E.S.'s gasps for air were worrisome enough
    that one inmate retrieved an ``asthma puffer'' for him, although E.S.
    did not have asthma, but the beating continued.\171\ The inmates kicked
    E.S. in the stomach and ribs and struck the back of his head with a mop
    and bucket.\172\
    ---------------------------------------------------------------------------
        \164\ R. Doc. No. 405, at 30.
        \165\ R. Doc. No. 405, at 31.
        \166\ R. Doc. No. 405, at 31.
        \167\ R. Doc. No. 405, at 31-32.
        \168\ R. Doc. No. 405, at 32.
        \169\ R. Doc. No. 405, at 32.
        \170\ R. Doc. No. 405, at 32.
        \171\ R. Doc. No. 405, at 32-33.
        \172\ R. Doc. No. 405, at 31, 33.
    ---------------------------------------------------------------------------
        At some point, the assailants picked up E.S. and carried him to a
    new location at the back of the dormitory, where they released him from
    the hog-tied position and tied him to a post, with his back to the
    post.\173\ At this point, four to six inmates began punching him
    repeatedly.\174\ He was subsequently untied and repositioned to face
    the post.\175\ The attackers threw hot water and possibly urine on
    E.S., and beat him so severely with a mop stick that the skin was
    ripped from his back and buttocks.\176\ E.S. was still naked.\177\ At
    some point during this phase of the attack, a guard performed a routine
    check, but he did not walk far enough down the hall to notice E.S.,
    naked, bound, and beaten.\178\ E.S. reported that he did not cry out
    because he was certain that he would be killed if he did so.\179\
    ---------------------------------------------------------------------------
        \173\ R. Doc. No. 405, at 33-34.
        \174\ R. Doc. No. 405, at 34.
        \175\ R. Doc. No. 405, at 34.
        \176\ R. Doc. No. 405, at 34-35.
        \177\ R. Doc. No. 405, at 35.
        \178\ R. Doc. No. 405, at 38-39. E.S. testified that he would have
    been ``shocked'' if the guard actually walked down the tier but, had
    the guard done so, ``[i]t would have probably saved me.'' R. Doc. No.
    405, at 41.
        \179\ R. Doc. No. 405, at 39.
    ---------------------------------------------------------------------------
        In the final phase of the attack, the inmates fashioned ``some type
    of thong, like a woman's thong'' from strips of uniform fabric.\180\
    They forced E.S. to put it on and, E.S. testified, in an attempt to be
    ``comical'' or to ``embarrass me or something in front of the dormitory
    . . . they made me dance. I don't even know how to dance. So I just
    basically was just moving my hands . . . If I would do anything crazy I
    knew they were going to kill me for sure. There's no doubt in my
    mind.'' \181\ E.S. reported that ``90 percent of the crowd had knives
    in their hands visible.'' \182\
    ---------------------------------------------------------------------------
        \180\ R. Doc. No. 405, at 36.
        \181\ R. Doc. No. 405, at 36.
        \182\ R. Doc. No. 405, at 36.
    ---------------------------------------------------------------------------
        After the episode in which the attackers made E.S. dance, they made
    him shower.\183\ They forced him to sit in a mop bucket and ``pushed it
    to the front of the shower, everybody laughing, ha, ha, ha . . . .''
    \184\ E.S. indicated the assault lasted hours.\185\ While E.S.'s
    assault resulted in an investigation, where OPP staff ``brought the
    whole dorm down,'' E.S. did not receive medical treatment for nearly a
    year.\186\
    ---------------------------------------------------------------------------
        \183\ R. Doc. No. 405, at 36-37.
        \184\ R. Doc. No. 405, at 37.
        \185\ R. Doc. No. 405, at 37-38.
        \186\ Additional details from E.S.'s testimony reveal other
    troubling circumstances surrounding his assault, including that it may
    have been foreseeable and preventable as an act of retaliation against
    E.S., organized by someone against whom E.S. was a witness in a
    criminal trial. R. Doc. No. 405, at 47-48.
    ---------------------------------------------------------------------------
        E.S.'s testimony parallels a report by another inmate, A.A.,\187\
    in which a group of inmates tied A.A. to a bunk using strips of inmate
    clothing and then sexually assaulted him.\188\ After A.A. reported the
    assault on January 4, 2012, SOD's investigation included photographing
    A.A.'s wrist abrasions, which a nurse confirmed were ``consistent with
    [ ] having been tied up.'' \189\ Another inmate, whom A.A. identified
    as a witness, confirmed that he knew something was happening because
    inmates were going in and out of the area where A.A. was
    restrained.\190\ A.A. identified five attackers using photographs of
    other inmates in the tier.\191\ A.A. was transferred to a mental health
    hospital in Baton Rouge one week later, and the SOD investigation was
    closed.\192\
    ---------------------------------------------------------------------------
        \187\ These initials are used for convenience. The inmate's name
    has been obscured in the record, although other identifying information
    is available.
        \188\ The record suggests that this was one of two sexual assaults
    A.A. experienced at OPP. Pl. Ex. 324.
        \189\ The abrasions were still visible on January 11, 2013. Pl. Ex.
    324.
        \190\ Pl. Ex. 324. Schwartz's testimony suggested this witness was
    a deputy. R. Doc. No. 405, at 11718. The Court discounts this
    suggestion as a likely misstatement because it is inconsistent with the
    underlying evidence.
        \191\ Pl. Ex. 324.
        \192\ Pl. Ex. 324.
    ---------------------------------------------------------------------------
        While the incident was referred to the office of the Orleans Parish
    District Attorney, that office determined that ``based on the
    circumstances and statements given, we would not likely prosecute this
    case if an arrest was made.'' \193\ Aside from this referral, there is
    no evidence that action was taken to protect other inmates on the tier
    from the individuals who had forcibly bound and sexually assaulted
    A.A.\194\ OPP's practice of terminating a sexual assault investigation
    when a victim leaves a facility permits sexual predators to continue to
    prey on other inmates.\195\
    ---------------------------------------------------------------------------
        \193\ Pl. Ex. 324.
        \194\ R. Doc. No. 405, at 118-19.
        \195\ E.g., Pl. Ex. 67; R. Doc. No. 405, at 119. According to A.A.,
    he was ``not the only one being tied up'' and subjected to such
    attacks. Pl. Ex. 324.
    ---------------------------------------------------------------------------
        The Court reiterates that the details of the described assaults are
    not discussed because they are brutal, although they are that, but
    because they are emblematic of systemic deficiencies in inmate safety
    and security. See Alberti, 790 F.2d at 1225 (``We recite the incidents
    of violence and sexual assault which follow not to exhaustively catalog
    conditions in the jails but to provide examples of the nature of
    evidence presented at the hearings.''). As far as the Court is aware,
    no staff members were identified, confronted, or otherwise held
    accountable for their absence during the nights in which E.S. and A.A.
    were assaulted.
                    5. Training and Accountability
        Accountability systems are fundamental to prisoner and staff
    safety.\196\ Such systems include use of force policies,
    investigations, incident reporting, and grievance procedures.\197\
    Many, and perhaps even most, of OPP's accountability systems are
    ignored or directly contravened on a ``wholesale basis.'' \198\ The
    Court addresses in turn OPP's grievance system, use of force policy and
    investigations, and reliance on tier reps.
    ---------------------------------------------------------------------------
        \196\ Pl. Ex. 374, at 33.
        \197\ Pl. Ex. 374, at 33.
        \198\ Pl. Ex. 372, at 11.
    ---------------------------------------------------------------------------
                        a. Grievance System
        A grievance system permits inmates to make a written report to
    address anything from minor complaints to sexual assaults.\199\
    Grievances alert administrators to individual problems as well as to
    potential patterns of problems.\200\
    ---------------------------------------------------------------------------
        \199\ R. Doc. No. 405, at 122-23.
        \200\ R. Doc. No. 405, at 123.
    ---------------------------------------------------------------------------
        Grievances at OPP are sometimes effectively ignored because they
    are not addressed until an inmate leaves, at which time they are
    closed.\201\ For example, in a February 17, 2011 grievance, an inmate
    reported that he had been beaten and stabbed and that his fingers had
    been broken.\202\ The inmate requested a transfer, stating that he
    feared for his life.\203\ The grievance was closed on March 1, when the
    inmate was discharged, but his transfer request and reports of assaults
    were never addressed.\204\ In another instance, an inmate reported
    being beaten by deputies on October 25, 2011.\205\ He described knots
    on his head related to the beating and a sick call request that was
    ignored.\206\ The grievance sought medical attention, and the inmate
    specifically requested x-rays of his head.\207\ Approximately 3 months
    later, the grievance was closed because the inmate left OPP.\208\ His
    sick call request--and allegations of staff misconduct--were apparently
    never addressed.\209\ OPP staff suggested that, with respect to inmate-
    on-inmate violence, there is only an investigation when an inmate
    requires stitches.\210\
    ---------------------------------------------------------------------------
        \201\ R. Doc. No. 405, at 125-26.
        \202\ Pl. Ex. 302; R. Doc. No. 405, at 123.
        \203\ Pl. Ex. 302; R. Doc. No. 405, at 123.
        \204\ Pl. Ex. 302; R. Doc. No. 405, at 123-24.
        \205\ Pl. Ex. 305.
        \206\ Pl. Ex. 305.
        \207\ Pl. Ex. 305.
        \208\ Pl. Ex. 305.
        \209\ Pl. Ex. 305; R. Doc. No. 405, at 124.
        \210\ Pl. Ex. 374, at 37.
    ---------------------------------------------------------------------------
        The failure of OPP to address even emergency grievances in a timely
    manner is inexplicable.\211\ Grievance procedures have improved in the
    last year but they still fall far short, and the Court requires
    assurance that these improvements will continue.\212\
    ---------------------------------------------------------------------------
        \211\ R. Doc. No. 405, at 125-26.
        \212\ Pl. Ex. 372, at 47.
    ---------------------------------------------------------------------------
                        b. Use of Force & Investigations
        OPP has deeply ingrained problems with respect to staff members'
    uncontrolled use of force on inmates.\213\ OPP's investigative process
    for staff and prisoner misconduct fails to address, and is itself part
    of, the many operational breakdowns in OPP's accountability
    systems.\214\ As with any jail or prison, use of force is a legitimate
    and ``necessary component'' of maintaining order at OPP.\215\ A use of
    force policy ensures that staff are aware of the level of force that is
    appropriate in a given situation and provides guidance with respect to
    the use of force needed to avoid unnecessary injuries.\216\
    ---------------------------------------------------------------------------
        \213\ Pl. Ex. 372, at 11, 40; Pl. Ex. 374, at 34.
        \214\ Pl. Ex. 374, at 37.
        \215\ Pl. Ex. 374, at 33.
        \216\ R. Doc. No. 405, at 88.
    ---------------------------------------------------------------------------
        While OPP staff members report efforts to implement change, these
    efforts are in their infancy.\217\ OPP's use of force policy was
    rewritten somewhat recently, but it remains ineffective because staff
    members are not familiar with it and supervisors do not hold staff
    members accountable to the policy.\218\ In short, the policy is
    routinely ignored altogether.\219\ For example, while the Internal
    Affairs Division (``IAD'') is charged with use of force investigations
    pursuant to the new policy, SOD continues to handle such
    investigations.\220\ Similarly, while the new policy calls for a use of
    force ``review board,'' there is no such board, despite the fact that
    the policy is more than a year old.\221\
    ---------------------------------------------------------------------------
        \217\ Pl. Ex. 372, at 40; Pl. Ex. 374, at 34.
        \218\ R. Doc. No. 405, at 87.
        \219\ Pl. Ex. 372, at 28.
        \220\ R. Doc. No. 405, at 92.
        \221\ R. Doc. No. 406, at 87.
    ---------------------------------------------------------------------------
        One of the most egregious allegations of use of force suggested
    that an officer ordered ``hits'' on particular inmates, either by
    instructing a tier rep to arrange a hit or by placing the inmate in an
    area where known enemies made violence likely.\222\ The same officer
    was later arrested after punching an inmate, who additionally reported
    that the officer had threatened to have the inmate assaulted.\223\ See
    Cantu v. Jones, 293 F.3d 839, 845 (5th Cir. 2002) (``The jury found
    that the appellants essentially orchestrated the attack. This is in no
    way reasonable behavior for a prison official.''). The same officer had
    previously been accused of punching a restrained inmate, but the
    investigator did not question any of the witnesses, including the
    officer, about whether it occurred.\224\ Not surprisingly, given the
    absence of elicited evidence, the prior allegation had not been
    sustained.\225\
    ---------------------------------------------------------------------------
        \222\ R. Doc. No. 405, at 101-02; Pl. Ex. 56.
        \223\ R. Doc. No. 405, at 101-02; Pl. Ex. 56.
        \224\ R. Doc. No. 405, at 102.
        \225\ R. Doc. No. 405, at 102.
    ---------------------------------------------------------------------------
        As noted above, SOD investigates use of force reports, including
    reports of force by SOD members.\226\ In at least one documented
    instance, the same officer who used force on an inmate authored the
    report that determined such level of force was appropriate.\227\
    Training records suggest that SOD members do not receive any in depth
    or specialized training relative to investigations.\228\ The training
    that OPSO staff members generally receive includes materials focused on
    police investigations and car stops, but there is no indication of
    regular or in-service training relative to the conduct of
    investigations in a jail or prison environment.\229\ OPP does not
    effectively track use of force or reports of staff misconduct.\230\
    ---------------------------------------------------------------------------
        \226\ Pl. Ex. 372, at 40. Schwartz describes SOD as a tightly knit
    unit, which staff members perceive as elite. Pl. Ex. 372, at 40.
        \227\ R. Doc. No. 405, at 90-91; Pl. Ex. 275.
        \228\ Pl. Ex. 372, at 40.
        \229\ Pl. Ex. 372, at 40.
        \230\ Pl. Ex. 372, at 40.
    ---------------------------------------------------------------------------
                        c. Tier Reps
        Tier representatives (``tier reps'') are inmates in charge of
    maintaining order on their tiers.\231\ OPP staff members report that
    tier reps help with communication and represent their living units when
    inmates are given a say in decisionmaking.\232\ OPP inmates report that
    tier reps control phone time, make decisions about inmate housing, and
    occasionally administer beatings to other inmates at the behest of
    staff.\233\ Tier reps have the power to distribute food, including
    determining how much food to distribute per serving and whether to dole
    out ``seconds.'' \234\ As Schwartz stated, ``food is one of the small
    number of `hot button' items for almost all inmates,'' so this kind of
    power can be ``used to extort other inmates and also be a source of
    confrontation or violence.'' \235\
    ---------------------------------------------------------------------------
        \231\ Pl. Ex 372, at 43; Pl. Ex. 374, at 17; R. Doc. No. 406, at
    136-37. Although discussed in this subsection, the use of tier reps is
    relevant to several aspects of inmate safety and security.
        \232\ Pl. Ex. 372, at 43.
        \233\ Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17. Public comments
    from inmates endorsing the proposed consent judgment also discuss such
    ``hits.'' See, e.g., R. Doc. No. 240.
        \234\ Pl. Ex. 372, at 43.
        \235\ Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17; see also Pl. Exs.
    43, 47, 55 (describing stabbings related to food distribution); R. Doc.
    No. 406, at 138 (noting fights resulted from tier rep's manipulation of
    food distribution); R. Doc. No. 407, at 43.
    ---------------------------------------------------------------------------
        Given the fundamental flaws in OPP's classification system,
    predatory or aggressive inmates may become tier reps.\236\ Testimony
    from D.R., an inmate sexually harassed and assaulted by a tier rep,
    illustrates that tier reps have the opportunity to assault other
    inmates and to discourage reporting of such assaults.\237\ D.R.
    testified that his tier rep, C.C., would ``sometimes, early in the
    morning, take the television from Cell 1 and turn it towards the shower
    and put the aerobics channel on so he could go into the shower and
    masturbate.'' \238\ One morning, C.C. ordered D.R. to get in the
    shower.\239\ C.C. followed him, carrying a shank,\240\ and proceeded to
    sexually assault D.R.\241\ D.R. waited for approximately one week to
    report the assault, because ``I had to think of a way to get around the
    immediate sergeants or officers that were in the building'' so that the
    report would not reach C.C. before D.R. could be transferred.\242\
    Ultimately, after reporting the assault, D.R. was successful in his
    request to be transferred to another tier, although while on the ``at
    risk'' tier at Conchetta he suffered an additional physical
    assault.\243\
    ---------------------------------------------------------------------------
        \236\ See, e.g., Pl. Ex. 32; see also Pl. Ex. 372, at 44. This
    statement assumes that OPP would not knowingly choose such inmates to
    be tier reps. But see Pl. Ex. 372, at 44 (``A male inmate casually
    referred to the fact that the staff usually picked the person they
    perceived to be the toughest inmate on the unit as the tier rep.'').
        \237\ R. Doc. No. 406, at 136-42.
        \238\ R. Doc. No. 406, at 138.
        \239\ R. Doc. No. 406, at 138.
        \240\ R. Doc. No. 406, at 138-39.
        \241\ R. Doc. No. 406, at 139.
        \242\ R. Doc. No. 406, at 141-42. In another instance, female
    inmates reported tier reps openly engaging in sexual activities with
    other inmates, which an investigation confirmed. Pl. Ex. 374, at 18.
        \243\ R. Doc. No. 406, at 142-43.
    ---------------------------------------------------------------------------
        At Conchetta, D.R. attempted to break up a fight because of a
    concern that another inmate ``was about to get really beat up.'' \244\
    Before he could reach the fight, ``I felt someone strike me in the back
    of the head . . . . I balled up on the ground and I felt blows to my
    forehead, to my back, and to my legs.'' \245\ After he reported the
    assault, D.R. cooperated by describing his attacker's physical
    appearance.\246\ SOD staff initially brought an individual to D.R. in
    order to determine if D.R. could identify that individual as his
    attacker.\247\ D.R. testified that he believed that individual had been
    physically assaulted by SOD in retaliation for the attack on D.R.\248\
    The individual had blood around his teeth and blood was also trickling
    from his mouth.\249\ D.R. informed SOD that the individual was not his
    attacker, and D.R. was returned to the tier, notwithstanding the fact
    that his true attacker remained on the tier.\250\ D.R. learned his
    assailant's name at roll call the next morning, and reported that
    discovery in a grievance.\251\ Although D.R. and the attacker were both
    moved, they were ``moved together at the same time'' and left alone
    together in a holding cell.\252\ D.R. reported ``I was just sitting
    there kind of on pins and needles, hoping that he didn't realize
    exactly what was going on.'' \253\
    ---------------------------------------------------------------------------
        \244\ R. Doc. No. 406, at 143.
        \245\ R. Doc. No. 406, at 143.
        \246\ R. Doc. No. 406, at 144.
        \247\ R. Doc. No. 406, at 145-46.
        \248\ R. Doc. No. 406, at 145.
        \249\ R. Doc. No. 406, at 145.
        \250\ R. Doc. No. 406, at 146.
        \251\ R. Doc. No. 406, at 146-47.
        \252\ R. Doc. No. 406, at 147.
        \253\ R. Doc. No. 406, at 147.
    ---------------------------------------------------------------------------
        According to Romero, OPP has established an informal culture in
    which tier reps ``make up for deficient staffing realities to help
    supplement facility order, which is a dangerous and reckless
    practice.'' \254\ As Schwartz stated, the ``use of tier reps is a
    corrupt practice,'' in which it is ``inevitable that some of the tier
    reps will abuse their positions.'' \255\ The risk of ``arbitrary
    infliction'' of ``physical and economic injury'' is present whenever an
    inmate has ``unchecked authority'' over other inmates. Gates v.
    Collier, 501 F.2d at 1307.
    ---------------------------------------------------------------------------
        \254\ Pl. Ex. 374, at 19.
        \255\ Pl. Ex. 372, at 44.
    ---------------------------------------------------------------------------
        One especially troubling situation illustrates deficiencies
    associated with the use of tier reps, but also broader deficiencies
    related to staff accountability. OPP records show that a high-ranking
    male security officer regularly observed a female tier rep showering
    and escorted her to a private office after hours for ``prolonged
    periods of time.'' \256\ His actions were reported and confirmed by two
    staff members.\257\ Inmates also witnessed the shower viewings, as well
    as the private office visits.\258\ Inmate witnesses reported that the
    tier rep would frequently engage in physical altercations with other
    inmates, but the tier rep was never included in the corresponding
    incident reports.\259\ The inmate at issue reportedly said that the
    officer promised to transfer money into her account once she left OPP
    for a new facility.\260\
    ---------------------------------------------------------------------------
        \256\ Pl. Ex. 26.
        \257\ Pl. Ex. 26.
        \258\ Pl. Ex. 26.
        \259\ Pl. Ex. 26.
        \260\ Pl. Ex. 26.
    ---------------------------------------------------------------------------
        Despite the witnessed sexual misconduct, the officer was permitted
    to resign, and there was never an investigation because of
    ``insufficient evidence, the lack of witnesses and the statements
    taken.'' \261\ The extent to which other staff members, including those
    tasked with supervising the female inmates, knew of the conduct is
    unclear because of the lack of an investigation.\262\ This is not the
    only documented instance of a staff member engaging in sexual conduct
    with an inmate.\263\ The Court notes that, while not addressed in the
    sexual assault section of this opinion, sexual or romantic
    ``relationships'' between staff members and inmates are never
    acceptable and are, at best, implicitly coercive.
    ---------------------------------------------------------------------------
        \261\ Pl. Ex. 26. The same staff member was involved in an
    altercation with an inmate in which the staff member admitted to using
    shackles to choke the inmate. Pl. Ex. 7.
        \262\ Pl. Ex. 26.
        \263\ See Pl. Ex. 41; Pl. Ex. 61.
    ---------------------------------------------------------------------------
                    6. Conclusion
        ``It is well established that prison officials have a
    constitutional duty to protect prisoners from violence at the hands of
    their fellow inmates.'' Longoria v. Texas, 473 F.3d 586, 592 (5th Cir.
    2006) (citing Farmer, 511 U.S. at 832-33). The proposed consent
    judgment addresses the proven deficiencies relative to inmates' safety
    and security. For example, it requires OPSO to ensure adequate
    staffing, regular security rounds, and direct supervision in units
    designed for this type of supervision.\264\ It also requires the
    development of a classification system that takes into account factors
    including security needs, suicide risk, and risk of violence or self-
    harm.\265\ The proposed consent judgment also requires that the
    classification system be updated to reflect an inmate's history at
    OPP.\266\ These provisions directly address OPP's deficiencies with
    respect to inmate-on-inmate violence, including sexual assault.
    ---------------------------------------------------------------------------
        \264\ Consent Judgment, at 12-13.
        \265\ Consent Judgment, at 17-18.
        \266\ Consent Judgment, at 18.
    ---------------------------------------------------------------------------
        With respect to training and accountability, the consent judgment
    provides that OPSO ``shall develop, implement, and maintain
    comprehensive policies and procedures (in accordance with generally
    accepted correctional standards) relating to the use of force'' and
    shall ``develop and implement a single, uniform reporting system.''
    \267\ An ``Early Intervention System'' will document and track staff
    members involved in use of force incidents.\268\ The consent judgment
    requires ``timely and thorough investigation of alleged staff
    misconduct, sexual assaults, and physical assaults of prisoners
    resulting in serious injury.'' \269\
    ---------------------------------------------------------------------------
        \267\ Consent Judgment, at 5.
        \268\ Consent Judgment, at 10-11.
        \269\ Consent Judgment, at 16.
    ---------------------------------------------------------------------------
        OPP inmates are subject to an epidemic of violence.\270\ The
    operational and administrative dysfunction of OPP's accountability
    systems put staff members and inmates at risk on a daily basis. Compare
    Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en
    banc) (``[C]onditions in a jail facility that allow prisoners ready
    access to weapons, fail to provide an ability to lock down inmates, and
    fail to allow for surveillance of inmates pose a substantial risk of
    serious harm to inmates.''). The Court concludes that with respect to
    safety and security, the proposed consent judgment ``represents a
    reasonable factual and legal determination based on the facts of
    record.'' Williams, 729 F.2d at 1559. Considering the evidence
    presented, the Court further concludes that the consent judgment is
    narrowly drawn to remedy the violation of Plaintiffs' Federal rights,
    is the least intrusive means of doing so, and extends no further than
    necessary. See Plata, 131 S. Ct. at 1939-40 (discussing
    Sec. 3626(a)(1)).
    ---------------------------------------------------------------------------
        \270\ Pl. Ex. 352, at 11.
    ---------------------------------------------------------------------------
                B. Medical and Mental Health Care
        During the course of the fairness hearing, the evidence, including
    credible witness testimony, exposed stark, sometimes shocking,
    deficiencies in OPP's medical and mental healthcare system. Inmates
    with mental health issues are housed in deplorable conditions.\271\
    Mental health units smell strongly of feces, urine, and rotting organic
    matter.\272\ Several inmates had floors and walls smeared with feces
    when Dr. Gage visited, and many cells had ``evidence of the detritus of
    several days' food and utensils.'' \273\ Compare Gates v. Cook, 376
    F.3d at 338 (Living in ``extremely filthy'' cells with ``crusted fecal
    matter, urine, dried ejaculate, peeling and chipping paint, and old
    food particles on the walls . . . would present a substantial risk of
    serious harm to inmates.''). Such unsanitary conditions can cause or
    exacerbate illness.\274\ Moreover, ``mental health units, including
    those designed for suicide monitoring, were patently not suicide
    proof.'' \275\
    ---------------------------------------------------------------------------
        \271\ R. Doc. No. 408, at 156-57.
        \272\ Pl. Ex. 376, at 27.
        \273\ R. Doc. No. 408, at 156; see Pl. Ex. 378, at 38 (describing
    individual with ``psychotic symptoms'' ``with approximately ten plates
    of molded rotten food lying on the unoccupied upper bunk,'' in a
    ``dirty, malodorous'' environment).
        \274\ Pl. Ex. 376, at 28.
        \275\ Pl. Ex. 376, at 27.
    ---------------------------------------------------------------------------
        The consent judgment aims to remedy broad areas of medical and
    mental healthcare, including intake services, access to care,
    medication, staffing, suicide prevention, and records. The Court
    addresses each in turn.
                    1. Intake
        At intake, prisoners with clear histories of self-harm, mental
    illness, or potential withdrawal from prescribed or illicitly acquired
    substances are cleared for placement in the general population without
    any medical or mental health consultation.\276\ Agitated inmates are
    shackled or chained to an ordinary chair, which may permit them to
    manipulate their shackles or chains to cause self-harm.\277\
    ---------------------------------------------------------------------------
        \276\ Pl. Ex. 376, at 35.
        \277\ Pl. Ex. 376, at 38; Pl. Ex. 378, at 31; R. Doc. No. 408, at
    98-99.
    ---------------------------------------------------------------------------
        Dr. Bruce Gage, a correctional mental healthcare expert,\278\ has
    been the Chief of Psychiatry for the Washington State Department of
    Corrections since 2008.\279\ He concluded that OPP's mental health
    services are largely inadequate ``in all regards,'' ``from screening
    through assessment, treatment, suicide policies and practices,
    restraint, medication, medical records, continuity of care, and access
    to care.'' \280\
    ---------------------------------------------------------------------------
        \278\ R. Doc. No. 408, at 82.
        \279\ Pl. Ex. 376. From 1993 to 2000, he was involved in a
    University of Washington/Department of Corrections collaboration
    project that established an inpatient residential mental health program
    at one of the prisons. R. Doc. No. 408, at 80. Between 1990 and 2008,
    Dr. Gage worked at Western State Hospital in Lakewood, Washington,
    setting up continuity of care between jails and the state hospital and
    consulting with jails on issues such as involuntary medication. R. Doc.
    No. 408, at 79; see also Pl. Ex. 376.
        \280\ R. Doc. No. 408, at 83.
    ---------------------------------------------------------------------------
        In his report, Dr. Gage stated that in several cases, including
    instances of inmate suicide, an initial referral to psychiatry could
    have changed the outcome of the cases.\281\ For example, M.H. committed
    suicide while still in the Intake Processing Center, notwithstanding
    that he had previously reported ingesting crack cocaine and he had
    recently been hospitalized for suicidality.\282\ At intake, he was
    wandering around, and ``gravitated toward the exit doors,'' but he was
    ``herded back to the seats'' by staff members.\283\ Because he
    attempted to leave through an exit door, he was placed in an isolation
    cell.\284\ In the isolation cell, he hung himself with his t-
    shirt.\285\ Dr. Gage testified that M.H.'s death could have been
    prevented with proper mental health assessment and treatment.\286\ When
    asked by the Court whether his testimony reflected a ``medical
    certainty,'' Dr. Gage responded affirmatively, testifying that an
    assessment would have, at a minimum, prevented the isolation that
    facilitated M.H.'s suicide.\287\
    ---------------------------------------------------------------------------
        \281\ Pl. Ex. 376, at 35.
        \282\ R. Doc. No. 410, at 58-60; see also Pl. Ex. 80-2.
        \283\ Pl. Ex. 80-2.
        \284\ Pl. Ex. 80-2.
        \285\ Pl. Ex. 80-2.
        \286\ R. Doc. No. 408, at 110.
        \287\ R. Doc. No. 408, at 110.
    ---------------------------------------------------------------------------
        T.W. provides a representative example with respect to the lack of
    intake screening and follow-up psychiatric services.\288\ T.W. set her
    house on fire.\289\ After she was treated for burns at Baton Rouge
    General Hospital, she was sent to OPP on September 7, 2012.\290\ At
    intake, she described depression that had occurred within the last year
    and three prior suicide attempts.\291\ In addition, her hospital
    records indicated that she carried a diagnosis of bipolar disorder and
    that she was currently prescribed lithium and mirtazapine, an
    antidepressant.\292\ At intake, T.W. was ordered pain medication and
    referred to psychiatry for ``eval. for meds.'' \293\ Despite this
    referral, T.W. was apparently not given any access to psychiatric care
    until November 15, 2012.\294\ The events of that date are unclear.\295\
    ---------------------------------------------------------------------------
        \288\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
        \289\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
        \290\ Pl. Ex. 376, at 20.
        \291\ Pl. Ex. 376, at 20.
        \292\ Pl. Ex. 376, at 20.
        \293\ Pl. Ex. 376, at 20.
        \294\ Pl. Ex. 376, at 20.
        \295\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
    ---------------------------------------------------------------------------
        On November 16, 2012, T.W. received a psychiatric chronic care
    treatment plan from an OPP psychiatrist.\296\ While the plan notes T.W.
    felt suicidal because she missed her children, the plan shows little
    awareness of her three previous suicide attempts, her prior diagnosis,
    or her prior psychotropic medications.\297\ With respect to OPP's
    psychiatry services, T.W. received no diagnosis and no
    medications.\298\ When Dr. Gage visited in December 2012, T.W. reported
    auditory hallucinations of ``people out to get me,'' to whom she
    sometimes talked back.\299\ She also spoke about ``people being sent to
    hurt her.'' \300\ Other inmates said that T.W. paces a lot, cries a
    lot, and ``sleeps all day.'' \301\ The record is devoid of evidence
    that T.W. received the mental health treatment that was obviously
    needed while she was at OPP.
    ---------------------------------------------------------------------------
        \296\ Pl. Ex. 376, at 20.
        \297\ Pl. Ex. 376, at 20-21.
        \298\ Pl. Ex. 376, at 21.
        \299\ Pl. Ex. 376, at 21.
        \300\ Pl. Ex. 376, at 21.
        \301\ Pl. Ex. 376, at 21.
    ---------------------------------------------------------------------------
                    2. Access to Care & Treatment
        After Dr. Gage reviewed the records provided, ``[t]here was not one
    example of a thorough psychiatric assessment by the OPP psychiatrist in
    any of the records and most were not even minimally adequate.'' \302\
    None of the records included an assessment of suicide risk, rather,
    ``this portion of the assessment consisted in simply noting whether the
    person expressed suicidal ideation or not. The same was true of
    homicidal ideation and consideration of danger to others in general.''
    \303\ This is consistent with the testimony of an inmate that the
    extent of psychiatric exams is often limited to: ``Are you suicidal or
    homicidal?'' \304\
    ---------------------------------------------------------------------------
        \302\ Pl. Ex. 376, at 37.
        \303\ Pl. Ex. 376, at 37.
        \304\ Pl. Ex. 376, at 32; R. Doc. No. 408, at 169. T.W. also told
    Dr. Gage, without being asked, that the OPP psychiatrist sometimes asks
    her, ```Are you suicidal or homicidal?' and that's it.'' Pl. Ex. 376,
    at 21.
    ---------------------------------------------------------------------------
        OPP has one full-time psychiatrist who works 40 hours per
    week.\305\ Inmates may wait weeks or months for psychiatric
    appointments.\306\ With respect to emergency care during the day, the
    psychiatrist is contacted and inmates are transferred to the mental
    health unit for suicide monitoring.\307\ Accordingly, suicide tiers are
    the primary site of emergency services during the day.\308\ After
    hours, the psychiatrist may sometimes be reached by telephone, but
    there is no mental health provider actually on call or present at OPP
    facilities.\309\ An inmate who needs mental healthcare after hours or
    on weekends will either be sent to the mental health unit for suicide
    watch or to the emergency room.\310\ Inmates who harm themselves or who
    are suicidal are typically not seen until the next working day, while
    those with less serious, but still urgent, complaints--including
    suicidal ideation without a plan--are not seen for several days.\311\
    ---------------------------------------------------------------------------
        \305\ R. Doc. No. 408, at 122-23; see also Pl. Ex. 259, at 102-03.
        \306\ Pl. Ex. 312; Pl. Ex. 376, at 39-40; R. Doc. No. 405, at 124-
    25; R. Doc. No. 408, at 126-27.
        \307\ Pl. Ex. 376, at 38.
        \308\ Pl. Ex. 376, at 38.
        \309\ Pl. Ex. 376, at 38.
        \310\ Pl. Ex. 376, at 38; R. Doc. No. 408, at 114.
        \311\ Pl. Ex. 376, at 39.
    ---------------------------------------------------------------------------
        The experiences of D.R. and R.S. illustrate compounding
    inadequacies in mental and medical healthcare. D.R. testified as to the
    abhorrent conditions experienced by H.T., an inmate whom D.R. testified
    ``seemed partially handicapped and mentally handicapped also,'' based
    on the ``things he would say,'' ``the way he got around,'' and his
    inability to care for himself.\312\ H.T. utilized a colostomy bag, and
    ``[e]very morning his colostomy bag would come off and there would be
    feces all in his cell and all over his jumper.'' \313\ H.T. would leave
    the soiled jumper on the ground, ``[a]nd someone would have to go in
    [his cell] and get his jumper and bring it to the gate and set it down
    and help him clean himself and somehow reattach the bag.'' \314\ Other
    inmates, not staff members, would assist H.T. by cleaning and
    reattaching his colostomy bag and carrying his soiled jumper to the
    gate, where staff members would retrieve it.\315\ While this daily
    routine seems inconsistent with basic care, perhaps more disturbing is
    that H.T. had to rely on other inmates' compassion and willingness to
    provide untrained nursing care to ensure he had an unsoiled jumper and
    an attached colostomy bag.\316\ According to D.R., who witnessed H.T.'s
    treatment for more than 2 months, staff members who took roll call
    would, on a daily basis, see fecal matter that had spilled from the
    colostomy bag into H.T.'s cell and sometimes see H.T., sitting in his
    bed nude or wrapped in a towel.\317\ Yet this offensive routine
    continued, and some staff members even joked about it.\318\
    ---------------------------------------------------------------------------
        \312\ R. Doc. No. 405-06.
        \313\ R. Doc. No. 406, at 408.
        \314\ R. Doc. No. 406, at 148.
        \315\ R. Doc. No. 406, at 148-150.
        \316\ D.R. testified that he was not sure how other inmates
    reattached the bag. ``I didn't have the stomach for it.'' R. Doc. No.
    406, at 148. The Court notes that the inmates who took it upon
    themselves to care for H.T. were subject to the health risks
    potentially associated with direct exposure to fecal matter. ``Frequent
    exposure to the waste of other persons can certainly present health
    hazards that constitute a serious risk of substantial harm.'' Gates v.
    Cook, 376 F.3d at 341.
        \317\ R. Doc. No. 406, at 150; see also Pl. Ex. 376, at 20
    (describing instance in which a different inmate was ``not given his
    antipsychotic medication on at least one occasion because he was in a
    towel rather than jail clothing'').
        \318\ R. Doc. No. 406, at 150.
    ---------------------------------------------------------------------------
        Another inmate's slow suicidal decline similarly illustrates the
    deficiencies with respect to both medical and mental healthcare. R.S.
    came to OPP after a standoff with the police.\319\ R.S. expressed
    ``wanting the cops to kill him,'' and an emergency room note describes
    suicidal ideation.\320\ OPP staff notes reflect that R.S. stated: ``I
    don't want to kill myself. I just wish I would die.'' \321\ While on
    suicide watch, R.S. refused treatment, food, and water.\322\ He became
    profoundly dehydrated, for which he was taken to the emergency room
    several times.\323\
        R.S.'s extreme depression caused a ``failure to thrive,'' which Dr.
    Gage described as occurring when people with severe depression or
    terminal illnesses stop eating and drinking, resulting in dehydration
    complications, including urinary tract infections, and complications
    related to inactivity, including pneumonia.\324\ Records document that
    medical staff observed R.S. refusing food, while ``saturated in urine
    and feces stating he can't get up.'' \325\ On another instance, staff
    described him as ``unwilling or unable to get up off of floor.'' \326\
    Records also show that R.S. ``experienced an episode of incontinence,
    requiring his cell mate to clean him up.'' \327\ Despite his refusal of
    basic sustenance, documented suicidality, and repeated
    hospitalizations, the Court has been provided with no evidence that OPP
    authorities undertook efforts that would facilitate and permit them to
    involuntarily treat R.S.\328\
    ---------------------------------------------------------------------------
        \319\ R. Doc. No. 408, at 150; Pl. Ex. 76-1.
        \320\ Pl. Ex. 76-2.
        \321\ Pl. Ex. 76-1.
        \322\ Pl. Ex. 76-1.
        \323\ R. Doc. No. 408, at 150.
        \324\ R. Doc. No. 408, at 151.
        \325\ Pl. Ex. 76-1.
        \326\ Pl. Ex. 76-1.
        \327\ Pl. Ex. 76-2.
        \328\ R. Doc. No. 408, at 150-51.
    ---------------------------------------------------------------------------
        OPP staff observed and documented R.S.'s decline. He was seen daily
    by nurses and eight times by physicians.\329\ Nonetheless, R.S. died of
    urosepsis and pneumonia while still on suicide watch.\330\ It is
    egregious that R.S. died after announcing his passive suicidality \331\
    and after spending days refusing food and lying on the floor, with no
    effort to provide involuntary treatment or otherwise actively intervene
    in R.S.'s slow suicide.\332\ However, the internal OPP mortality report
    concluded that the standard of care was met, emphasizing that R.S.
    refused treatment.\333\
    ---------------------------------------------------------------------------
        \329\ Pl. Ex. 76-2.
        \330\ R. Doc. No. 408, at 150-51.
        \331\ See Pl. Ex. 167 (defining, in OPP's suicide lecture
    materials, ``passive suicidality'' as ``wanting to be dead'').
        \332\ R. Doc. No. 408, at 151.
        \333\ Pl. Ex. 76-2.
    ---------------------------------------------------------------------------
        Dr. Daphne Glindmeyer, an expert in mental health and psychiatry
    and juvenile mental health in corrections,\334\ is the medical director
    for Assertive Community Treatment, a program that provides in-home care
    to individuals with ``chronic persistent severe mental illness.'' \335\
    ---------------------------------------------------------------------------
        \334\ R. Doc. No. 409, at 174-75.
        \335\ R. Doc. No. 409, at 174. For approximately the last 9 years,
    she has also served as a consent judgment compliance monitor with
    respect to mental healthcare in Mississippi's juvenile correctional
    facilities. Pl. Ex. 379, at 4-5. She has previously served as the
    Director of Psychiatry for Louisiana State University Health Science
    Center's Juvenile Corrections Program. Pl. Ex. 379, at 5.
    ---------------------------------------------------------------------------
        Dr. Glindmeyer conducted a site visit at the unit housing youth
    inmates.\336\ The population of youth inmates at the time was
    approximately 24, and these inmates ranged from approximately 14 years
    old to 18 years old.\337\ Just over half of the youth inmates were
    housed in protective custody because of issues including prior sexual
    assault.\338\ Those in protective custody were confined for 23 hours
    per day.\339\ Youth inmates and staff advised Dr. Glindmeyer to see a
    youth inmate who had symptoms including ``bizarre behavior'' and a
    history of suicidal ideation.\340\ Although the inmate had been seen by
    a psychiatrist 10 months earlier, he received no diagnosis for his
    apparent mood disorder and he was not receiving any medication or
    treatment.\341\ Dr. Glindmeyer persuasively opined that his treatment
    or lack thereof was worsening his condition,\342\ and his isolation was
    increasing his risk of suicide.\343\
    ---------------------------------------------------------------------------
        \336\ R. Doc. No. 409, at 213.
        \337\ R. Doc. No. 409, at 213.
        \338\ R. Doc. No. 410, at 7; see also Pl. Ex. 378, at 41-42.
        \339\ Pl. Ex. 378, at 42, 45; R. Doc. No. 410, at 11-12.
        \340\ R. Doc. No. 410, at 13-14.
        \341\ R. Doc. No. 410, at 14.
        \342\ R. Doc. No. 410, at 15.
        \343\ R. Doc. No. 410, at 15.
    ---------------------------------------------------------------------------
                    3. Medication
        Even where records demonstrated that medications are provided by
    agencies such as hospitals, and even when that fact is documented
    through reputable sources of information in the record, psychotropic
    medications are frequently discontinued at OPP.\344\
    ---------------------------------------------------------------------------
        \344\ R. Doc. No. 408, at 102.
    ---------------------------------------------------------------------------
        At intake, psychotropic medications are stopped approximately 75-80
    percent of the time, with some OPP treatment providers refusing to
    order them in any circumstance.\345\ While there are legitimate
    concerns associated with the potential abuse of such medications, the
    wholesale discontinuation of all medications creates a risk that
    inmates will deteriorate psychiatrically, develop a discontinuation
    syndrome, or experience withdrawal, all of which can cause unnecessary
    pain and suffering.\346\ Moreover, the abrupt discontinuation of
    psychotropic medication can increase the likelihood of suicide and
    assault and worsen inmates' long-term prognosis.\347\
    ---------------------------------------------------------------------------
        \345\ R. Doc. No. 408, at 101, 114-16.
        \346\ R. Doc. No. 408, at 101-02.
        \347\ R. Doc. No. 408, at 101-02; R. Doc. No. 408, at 102-03. As
    Schwartz noted, cessation of medication may be ``logical if there was a
    reliable system for reassessing those inmates at a predetermined time,
    and if inmates could reliably get to sick call.'' Pl. Ex. 372, at 25-
    26. The evidence demonstrates that there are no such reliable systems
    in place.
    ---------------------------------------------------------------------------
                        a. Detoxification and Withdrawal
        OPP inmates who require a detoxification protocol are not
    consistently identified or effectively treated. For example, C.F.'s
    intake questionnaire indicates that she was taking 2 milligrams of a
    benzodiazepine, Xanax, four times daily, an amount and frequency which
    Dr. Glindmeyer characterized as ``a lot,'' pursuant to a prescription
    to treat her mental illness.\348\ At intake, C.F. specifically
    identified the pharmacy that filled her prescriptions and the hospital
    where she received mental health treatment.\349\ OPP discontinued the
    benzodiazepine.\350\ C.F. was monitored for only five days, despite the
    fact that benzodiazepine withdrawal can occur up to ten days after
    cessation of use.\351\ During those five days, her vital signs would
    occasionally meet the criteria for providing detoxification medication;
    sometimes such medication was provided, sometimes it was not.\352\
    ---------------------------------------------------------------------------
        \348\ R. Doc. No. 409, at 185; see also Pl. Ex. 180.
        \349\ R. Doc. No. 409, at 185-86; see also Pl. Ex. 180.
        \350\ Pl. Ex. 378, at 36-37.
        \351\ R. Doc. No. 409, at 189-90.
        \352\ R. Doc. No. 409, at 190; see also Pl. Ex. 378, at 37; Pl. Ex.
    180.
    ---------------------------------------------------------------------------
        During Dr. Glindmeyer's visit on December 20, 2012, she observed
    C.F. ``screaming very loudly'' that she ``needed to go to a wedding and
    that she had a baby in her tubes and they needed to come cut it out
    right away.'' \353\ Staff and other inmates indicated C.F. had been in
    that state or a similar state for several days prior to Dr.
    Glindmeyer's site visit.\354\ Dr. Glindmeyer spoke with C.F., who was
    ``extremely paranoid,'' ``screaming, cursing,'' and ``very agitated.''
    \355\ Dr. Glindmeyer took C.F.'s pulse, and found it to be ``over a
    hundred. And her skin was just wet. Clammy.'' \356\ C.F. was
    experiencing delirium tremens, which Dr. Glindmeyer testified, is
    ``very, very dangerous with a relatively high risk of mortality.''
    \357\ Given the severity of the situation, Dr. Glindmeyer reported her
    concerns directly to nursing staff, who then reportedly routed C.F. to
    the emergency room.\358\ A subsequent review of C.F.'s records showed
    that her delirium or psychosis was never noted before Dr. Glindmeyer's
    visit.\359\ She had received no medication, despite the fact that staff
    and inmates indicated she had been in this disturbing, ``obviously
    acutely ill,'' state for days.\360\ Dr. Glindmeyer persuasively
    attributed C.F.'s state to OPP's detoxification protocol.\361\ Gates v.
    Cook, 376 F.3d at 343 (noting ``testimony that prisoners seldom see
    medical staff and that monitoring of medication was sporadic, with
    prisoners potentially being prescribed the wrong medication or no
    medication for long periods of time, potentially leading to extremely
    dangerous physical side effects or psychotic breakdowns'').\362\
    ---------------------------------------------------------------------------
        \353\ Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
        \354\ Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
        \355\ R. Doc. No. 409, at 191.
        \356\ R. Doc. No. 409, at 191.
        \357\ R. Doc. No. 409, at 192.
        \358\ R. Doc. No. 409, at 192.
        \359\ Pl. Ex. 378, at 22.
        \360\ Pl. Ex. 378, at 22. R. Doc. No. 409, at 191.
        \361\ R. Doc. No. 409, at 192.
        \362\ Dr. Gage's report suggests that he witnessed C.F. being
    removed for evaluation, but his subsequent review of her records showed
    no evidence of any such evaluation or hospitalization. Pl. Ex. 376, at
    48.
    ---------------------------------------------------------------------------
                        b. Untreated Mental Illness
        OPP does not provide appropriate treatment to mentally ill inmates,
    even when they pose a danger to themselves or others. For example,
    S.T.\363\ entered OPP in November 2012, but he was subsequently routed
    to the emergency room several times in a seven-day period.\364\ The
    behavior that led to these visits generally included ``climbing on
    ceiling and pulling light fixtures, throwing tile, spreading feces on
    windows,'' and ``swinging from light fixtures.'' \365\ S.T. reported
    auditory hallucinations.\366\ At one point, S.T. was found ``naked in
    his cell, with abrasions and signs of trauma.'' \367\ An emergency room
    physician noted that S.T. would be discharged and ``can follow up with
    psychiatry in jail, as it certainly appears that he will require
    medication to decrease his disruptive behavior.'' \368\ When Dr. Gage
    observed S.T. in December 2012, ``[h]e was mute and hid himself under a
    blanket, refusing to speak to me.'' \369\ Dr. Glindmeyer also observed
    S.T. on two occasions in December 2012.\370\ ``On the first
    observation, he declined to speak,'' and he was lying on a mattress on
    the floor, with a ``flat affect, slow movements, and poor eye
    contact.'' \371\ Staff members reported that he had a history of
    refusing to eat.\372\ On the second observation, S.T. demonstrated
    psychomotor retardation, moving in slow motion.\373\ He spoke softly
    and slowly, and his affect remained flat.\374\ Despite S.T.'s
    persistently bizarre behavior, OPP records reflect that the only
    psychotropic medication OPP ever provided to S.T. was a single
    emergency dose of an antipsychotic medication.\375\ In short, S.T.
    remained symptomatic and untreated.\376\
    ---------------------------------------------------------------------------
        \363\ The initials of this inmate are actually T.S., but they are
    not used here so as to avoid conflation with the other T.S., who was
    attacked by E.L.
        \364\ Pl. Ex. 73.
        \365\ Pl. Ex. 73.
        \366\ Pl. Ex. 73.
        \367\ Pl. Ex. 73.
        \368\ Pl. Ex. 73.
        \369\ Pl. Ex. 376, at 19.
        \370\ Pl. Ex. 378, at 15.
        \371\ Pl. Ex. 378, at 15.
        \372\ Pl. Ex. 378, at 15.
        \373\ Pl. Ex. 378, at 15.
        \374\ Pl. Ex. 378, at 15.
        \375\ Pl. Ex. 376, at 19; Pl. Ex. 378, at 16.
        \376\ Pl. Ex. 376, at 19; Pl. Ex. 378, at 15-16.
    ---------------------------------------------------------------------------
        Another inmate, R.C., was transferred to the mental health unit on
    November 27, 2012, less than a week after arriving at OPP.\377\ The
    record indicates this transfer may have been related to a prior history
    of schizophrenia and ongoing suicidal and homicidal ideation, which
    included statements such as ``I feel people are trying to kill me . . .
    I'll hurt somebody [by] cutting their throat off.'' \378\ An OPP
    medical doctor, who was not part of the mental healthcare team,
    documented R.C. as ``being extremely belligerent and bizarre, thinking
    that [the doctor] will harm him'' and ``soiled in stool.'' \379\ The
    doctor noted that R.C. had a history of psychiatric issues and
    ``defer[red] to psych. for further management of psychosis, before
    dealing w/medical issues.'' \380\ When Dr. Gage toured the facility in
    mid-December, R.C. was ``overtly responding to internal stimuli
    (indicative of hallucinations),'' talking to people who were not there,
    and otherwise acting ``grossly psychotic.'' \381\ Dr. Gage later saw
    R.C. ``lying under the bed, lying in his own excrement,'' with ``shards
    of tile . . . arrayed on the sill of the window in plain sight.'' \382\
    R.C. later ingested the shards of tile.\383\ According to Dr. Gage,
    R.C. was ``simply allowed to languish in psychosis, untreated,''
    despite the fact that evidence of psychosis was documented in R.C.'s
    record by other physicians.\384\
    ---------------------------------------------------------------------------
        \377\ Pl. Ex. 91.
        \378\ R. Doc. No. 376, at 16; R. Doc. No. 408, at 160-61; see also
    Pl. Ex. 91. R.C. submitted a sick call request on November 26, 2012,
    stating, ``I would like to receive my medicine that helps to keep my
    mind calm. I was being housed at Allen Correctional Facility. I was
    taking Haldol and Benadryl. Thank you & God Bless.'' Pl. Ex. 91. The
    timing of this request suggests it may have been associated with his
    transfer.
        \379\ R. Doc. No. 408, at 160-61; see also Pl. Ex. 376, at 15; Pl.
    Ex. 91.
        \380\ Pl. Ex. 91.
        \381\ Pl. Ex. 376, at 15; R. Doc. No. 408, at 161.
        \382\ R. Doc. No. 408, at 161.
        \383\ R. Doc. No. 408, at 161.
        \384\ Pl. Ex. 376, at 43. Dr. Gage described R.C. as someone who
    ``would have readily qualified for involuntary treatment with
    antipsychotics.'' R. Doc. No. 408, at 161. In his report, Dr. Gage
    detailed numerous additional examples of inmates at OPP who were left
    untreated. See Pl. Ex. 376, at 9-27.
    ---------------------------------------------------------------------------
                    4. Staffing
        As with security and safety, OPP's severe deficiencies in mental
    health and medical care are largely attributable to dramatically
    insufficient staffing.\385\ Dr. Glindmeyer concluded that OPP's mental
    health staffing is ``woefully inadequate.'' \386\ There is one
    psychiatrist and one social worker for approximately 2,500
    inmates.\387\ According to Dr. Gage, OPP needs at least one additional
    psychiatrist or psychiatric prescriber to meet minimum standards.\388\
    Nurses report that there is no time to provide any formal mental health
    treatment, and that they engage in minimal contact usually only in the
    context of mandatory evaluations.\389\ Given the number of inmates and
    the number of nurses, it is impossible for the nurses to adequately
    evaluate and chart patients, administer medications, respond to
    emergencies, provide suicide monitoring, gather sick call information,
    and provide basic nursing services.\390\
    ---------------------------------------------------------------------------
        \385\ Pl. Ex. 376, at 29.
        \386\ R. Doc. No. 409, at 196. Dr. Glindmeyer also testified that
    youth inmates seem to be controlled by another youth inmate, as opposed
    to by the deputies. This youth inmate was physically the largest
    inmate, and the other youth inmates appeared to wait for his
    acquiescence before responding to Dr. Glindmeyer's questions. R. Doc.
    No. 410, at 8-9.
        \387\ Pl. Ex. 376, at 29.
        \388\ R. Doc. No. 408, at 132.
        \389\ Pl. Ex. 376, at 42.
        \390\ Pl. Ex. 376, at 29.
    ---------------------------------------------------------------------------
        The Court questioned Dr. Gage as to certain statements in his
    report characterizing the relationship between staff and inmates at
    OPP.

            THE COURT: You have a statement in your report which states,
            ``There's a general pattern of reckless and callous disregard
            for the suffering and treatment needs of the mentally ill and
            chemically dependent in OPP.'' That's a very strong statement.
            Do you want to explain that at all?

            THE WITNESS: Well, I would stand by that. I guess that would be
            the first thing that I would say. I mean, I've seen a number of
            jails and I have not seen conditions as deplorable as I have
            seen in this jail, and I have not seen such absence of mental
            health services in the context of just abysmal physical
            environments and the kind of failure to monitor people and so
            on that I was speaking about. It was just more dramatic than I
            have ever seen in any other institution.\391\
    ---------------------------------------------------------------------------
        \391\ R. Doc. No. 408, at 186-187.

        While the Sheriff and City have suggested that an inmate population
    reduction may occur in just a few months, the evidence suggests that
    OPP has inadequate staffing to treat even a reduced population.\392\
    ---------------------------------------------------------------------------
        \392\ R. Doc. No. 408, at 187.
    ---------------------------------------------------------------------------
                    5. Suicide Prevention
        According to Dr. Gage, ``[OPP] records and interviews with staff
    and inmates demonstrate a level of disregard and disrespect on the part
    of most staff towards the mentally and chemically dependent'' that is
    made plain by the conditions on the residential mental health unit and
    ``especially the approach to suicide monitoring.'' \393\ The evidence
    supports this characterization.
    ---------------------------------------------------------------------------
        \393\ Pl. Ex. 376, at 50.
    ---------------------------------------------------------------------------
        Suicide assessments at OPP are cursory and repetitive. Psychiatric
    contact with inmates is extremely brief, generally lasting less than
    five minutes.\394\ OPP policy requires that staff members monitor
    inmates on suicide watch at all times.\395\ But the staffing
    deficiencies and physical structures of OPP facilities make it nearly
    impossible to conduct adequate assessments and to directly observe
    inmates on suicide watch.\396\ Those written assessments that are
    actually completed are perfunctory, and some appear to have been filled
    out in advance.\397\ OPP does not have any suicide proof cells, and
    records demonstrate that inmates on suicide watch have access to
    medications that can be used to overdose.\398\ Staff and inmates on the
    suicide watch unit could not recall the last time cells were searched
    for contraband, and there was no log of any such searches.\399\
    ---------------------------------------------------------------------------
        \394\ Pl. Ex. 376, at 45.
        \395\ R. Doc. No. 408, at 171.
        \396\ Pl. Ex. 376, at 45.
        \397\ Pl. Ex. 376, at 46.
        \398\ See also Pl. Ex. 378, at 23.
        \399\ Pl. Ex. 376, at 45-46.
    ---------------------------------------------------------------------------
        On the suicide watch tier, records demonstrate that significant
    self-harm events were not listed as ``sentinel events'' that would
    trigger staff review.\400\ These events included ``head banging severe
    enough to require sutures,'' swallowing pills, chemicals, and pieces of
    tile, and ``countless episodes of tying cloth around necks, sometimes
    anchored to objects.'' \401\ Inmates who commit suicide are sometimes
    not discovered for quite some time.\402\ Compare Plata, 131 S. Ct. at
    1934 (noting that ``prison staff did not even learn of [an inmate's
    death] for several hours'').
    ---------------------------------------------------------------------------
        \400\ Pl. Ex. 376, at 47.
        \401\ Pl. Ex. 376, at 47.
        \402\ Pl. Ex. 376, at 30; see e.g., Pl. Ex. 78; Pl. Ex. 81.
    ---------------------------------------------------------------------------
        OPP staff members' ignorance of cut-down tools is particularly
    alarming. A cut-down tool is a type of knife ``made to cut through
    layers of something that has been fashioned as a rope,'' such as the
    ``thick material that uniforms are made of.'' \403\ Suicide is a
    leading cause of death in correctional settings,\404\ and approximately
    95 percent of suicides in jails and prisons are committed by
    hanging.\405\ Cutting someone down without a cut-down tool may take
    more time, decreasing the chance of survival.\406\ Virtually none of
    OPP's staff, including the staff members responsible for suicide watch,
    could locate cut-down tools when the experts visited.\407\
    ---------------------------------------------------------------------------
        \403\ R. Doc. No. 406, at 85.
        \404\ E.g., R. Doc. No. 410, at 46.
        \405\ R. Doc. No. 406, at 85-86.
        \406\ R. Doc. No. 406, at 85-86.
        \407\ R. Doc. No. 406, at 86; R. Doc. No. 408, at 159.
    ---------------------------------------------------------------------------
                    6. Records
        Dr. Gage testified, and the Court has observed firsthand in
    connection with its own review, that record keeping at OPP is very
    poor.\408\ For example, while medical forms may be reasonably
    constructed, they are often left blank or incomplete or are simply not
    present in inmates' medical records.\409\ These are not mere clerical
    oversights. In numerous instances, inmates are sent to the emergency
    room, but there is no indication in the inmates' medical records
    regarding the outcome of their visits.\410\
    ---------------------------------------------------------------------------
        \408\ R. Doc. No. 408, at 89, 94.
        \409\ Pl. Ex. 376, at 30.
        \410\ Pl. Ex. 376, at 31.
    ---------------------------------------------------------------------------
        Notes are undated, misdated, unsigned, and otherwise
    deficient.\411\ There is a consistent pattern of incompletion.\412\ The
    serious deficiencies in record keeping make it difficult to
    comprehensively assess the quality of care at OPP and to render
    emergency care to inmates.\413\ Moreover, the absence of consistent
    medication administration records contributes to the risk of
    overprescription, overdose, contraband trade, and inmate-on-inmate
    violence.\414\
    ---------------------------------------------------------------------------
        \411\ R. Doc. No. 409, at 100.
        \412\ R. Doc. No. 409, at 100.
        \413\ R. Doc. No. 408, at 179-80.
        \414\ R. Doc. No. 408, at 177-78; see Pl. Ex. 376, at 34-35; Pl.
    Ex. 378, at 23. An inmate on suicide watch showed Schwartz a large bag
    of pills and a cup full of pills, totaling approximately 75 pills,
    which he had been stockpiling. Pl. Ex. 372, at 24-25. Schwartz reported
    the situation to OPP's medical director. Pl. Ex. 372, at 25.
    ---------------------------------------------------------------------------
                    7. Conclusion
        The Court has reviewed the voluminous evidence regarding medical
    and mental healthcare at OPP and the measures in the amended proposed
    consent judgment that the signatories agree are necessary to address
    deficiencies. The evidence presented was largely targeted towards
    deficiencies in mental healthcare, although the evidence also shows
    deficiencies in non-mental healthcare treatment, in particular sick
    call requests, medication administration, and emergency room visits,
    that relate to the risk of suicide, violence, and contraband
    trade.\415\ The evidence presented shows that a lack of treatment
    altogether, rather than inadequate treatment, contributes to severe
    deficiencies in medical and mental healthcare at OPP.\416\
    ---------------------------------------------------------------------------
        \415\ R. Doc. No. 410, at 52-53.
        \416\ Pl. Ex. 376, at 50.
    ---------------------------------------------------------------------------
        The consent judgment directly addresses OPP's deficiencies with
    respect to medical and mental healthcare. For example, it requires that
    an inmate's risk of suicide or other self-harm be evaluated within
    eight hours of arriving at OPP and it prohibits placing inmates in
    isolation who have not been screened.\417\ It requires that an inmate
    receive a mental health assessment no later than the next working day
    following an ``adverse triggering event,'' such as a suicide attempt or
    self-injury.\418\ It also requires that ``psychotropic medications are
    administered in a clinically appropriate manner as to prevent misuse,
    overdose, theft, or violence related to the medication.'' \419\
    ---------------------------------------------------------------------------
        \417\ Consent Judgment, at 20.
        \418\ Consent Judgment, at 21.
        \419\ Consent Judgment, at 22, 30.
    ---------------------------------------------------------------------------
        ``Just as a prisoner may starve if not fed, he or she may suffer or
    die if not provided adequate medical care. A prison that deprives
    inmates of basic sustenance, including adequate medical care, is
    incompatible with the concept of human dignity and has no place in
    civilized society.'' Plata, 131 S. Ct. at 1928. OPP's deficiencies with
    respect to medical and mental healthcare are widespread, and the
    deficiencies with respect to mental healthcare are particularly obvious
    and pervasive. Dr. Gage testified that OPP's absence of mental health
    services is ``dramatic'' when compared to any other institution he has
    seen.\420\ Considering the allegations of system-wide constitutional
    violations and the evidence presented of ``complex and intractable''
    deficiencies, the Court concludes that the ``scope of the remedy''
    presented in the proposed consent judgment is ``proportional to the
    scope of the violation.'' Id. at 1937, 1940. The consent judgment
    provisions on mental and medical healthcare are necessary to remedy the
    violation of Federal rights, and they are the least intrusive means of
    doing so. See id.
    ---------------------------------------------------------------------------
        \420\ R. Doc. No. 408, at 187.
    ---------------------------------------------------------------------------
                C. Environmental Conditions
        OPP facilities are in a state of disrepair.\421\ Ventilation
    throughout OPP facilities is very poor, in part because inmates plug
    the vents.\422\ Rusted and poorly secured fixtures can be used to
    create and conceal weapons.\423\ Inmates, including inmates on suicide
    watch, have easy access to shards of broken tile, which may be
    ingested, thrown, or used as a weapon.\424\ Compare Marsh, 268 F.3d at
    1027 (``The structure of the Jail was so dilapidated that inmates could
    fashion weapons from pieces of the building.''). Old locks in disrepair
    allow inmates to lock and unlock their cells at will.\425\ Compare id.
    (``[L]ocks on the doors to cells did not work, preventing inmates from
    being locked down.''). Many toilets, sinks, and showers are not
    functional.\426\ Sewage seeps into cells, including cells where inmates
    eat.\427\ Compare Gates v. Cook, 376 F.3d at 341 (``[E]xposure to human
    waste `evokes both the health concerns emphasized in Farmer and the
    more general standards of dignity embodied in the Eighth Amendment.''')
    (quoting DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)). The
    acute psychiatric unit's showers have large amounts of black mold on
    the ceilings and walls.\428\ Clouds of gnats have resulted in an
    increased incidence of skin problems.\429\ Cells housing mentally ill
    inmates have feces spread on the walls.\430\ Inmates, including inmates
    on the acute psychiatric unit, sometimes sleep on the floor or on bare
    steel bunks because they are not given mattresses.\431\
    ---------------------------------------------------------------------------
        \421\ R. Doc. No. 407, at 98.
        \422\ R. Doc. No. 407, at 100.
        \423\ R. Doc. No. 407, at 98, 101; see Pl. Ex. 374, at 45.
        \424\ E.g., Pl. Ex. 90; Pl. Ex. 374, at 46.
        \425\ Pl. Ex. 372, at 55.
        \426\ R. Doc. No. 407, at 98.
        \427\ Pl. Ex. 372, at 54; R. Doc. No. 412, at 26-27; City Ex. 13;
    see also R. Doc. No. 407, at 45 (unsanitary conditions portrayed in
    City Ex. 13 persist).
        \428\ Pl. Ex. 372, at 54.
        \429\ Pl. Ex. 372, at 56; Several inmate letters described showers
    with ``leech like'' or ``slug like'' creatures, which one inmate
    described as ``gnats before they transform.'' E.g., R. Doc. Nos. 274,
    294.
        \430\ R. Doc. No. 409, at 103-04.
        \431\ Pl. Ex. 372, at 26-27.
    ---------------------------------------------------------------------------
        OPP's environmental conditions pose a security risk, and this risk
    endangers the lives of staff members and inmates, while also
    endangering the community through potential escapes.\432\ OPP's
    environmental conditions also create a health hazard for staff members
    and inmates. See Alberti v. Sheriff of Harris Cnty., 937 F.2d 984,
    1000-01 (5th Cir. 1991) (observing that ``problems with the jails'
    plumbing, ventilation, fire safety, supplies, food service, and medical
    care'' could ``weigh in favor'' of a finding of deliberate
    indifference). The consent judgment addresses these risks by requiring,
    for example, that OPP adequately install and maintain fixtures and that
    OPP's food service staff, including inmates, receive training on food
    safety.\433\ The Court has closely reviewed the measures in the
    proposed consent judgment, and finds them narrowly drawn and no more
    intrusive than necessary to remedy the violation of inmates'
    constitutional rights.
    ---------------------------------------------------------------------------
        \432\ Pl. Ex. 372, at 56; Pl. Ex. 374, at 47.
        \433\ Consent Judgment at 31-32.
    ---------------------------------------------------------------------------
                D. Fire Safety
        With respect to fire safety, Romero observed fire hazards,
    including electrical sockets that had been ``burnt out, perhaps by
    inmates tampering with them . . . to ignite something.'' \434\ Romero
    reported that staff members were unable to locate emergency exit keys
    in a timely manner, if at all.\435\ A key control program is
    ``foundational to jail security,'' \436\ but there is no reliable key
    control program at OPP.\437\ According to Romero, ``[s]taff and
    prisoners reported that emergency doors are frequently locked with
    shackles because during power outages, these doors pop open.'' \438\ At
    the time of Romero's visit, the fire alarm system for the last 3 months
    at several facilities had consisted of a ``fire watch,'' in which a
    person walked through units looking for fire hazards or signs of fire.
    \439\ In September 2012, the Louisiana State Fire Marshal's office and
    the New Orleans Fire Department conducted a joint surprise
    inspection.\440\ The OPP staff member assigned to the fire watch had,
    by 10:30 a.m., filled out the fire watch check log for the entire
    day.\441\
    ---------------------------------------------------------------------------
        \434\ R. Doc. No. 407, at 102-03.
        \435\ Romero requested that staff members locate an emergency key
    for one of the housing units. Staff members located a key within about
    ten minutes, but it was the wrong key. A key located after an hour
    worked for one door but not for another. Ultimately, Romero concluded
    that the keys were kept in the warden's office, but the warden is only
    there during the day and the keys are not otherwise available to staff.
    Romero suspected the locks had been sabotaged by inmates. R. Doc. No.
    407, at 104-07.
        \436\ Pl. Ex. 374, at 21.
        \437\ Pl. Ex. 372, at 21, 45.
        \438\ Pl. Ex. 374, at 46.
        \439\ R. Doc. No. 407, at 103-04.
        \440\ Pl. Ex. 62.
        \441\ Pl. Ex. 62. The staff member was suspended for 5 days.
    ---------------------------------------------------------------------------
        The inability of staff to operate emergency exits is deeply
    worrisome and poses the type of problem that could result in a large-
    scale catastrophic fire event with many fatalities.\442\ While the
    Sheriff's testimony suggested that improvements have been made in
    recent months, the proposed consent judgment will ensure that such
    improvements remain consistent.\443\ For example, the consent judgment
    requires that fire equipment be maintained and inspected quarterly and
    that staff be trained in the use of emergency keys.\444\ In conjunction
    with the presence of contraband, including lighters \445\ and
    ``stingers,'' \446\ the dysfunctional emergency exit system, and the
    inadequate supervision at OPP, fire related issues pose a risk to the
    security and safety of inmates and staff. The remedies in the proposed
    consent judgment with respect to fire safety are narrowly drawn to
    remedy the violation of the Federal rights addressed herein, and they
    are no more intrusive than necessary to do so.
    ---------------------------------------------------------------------------
        \442\ E.g., R. Doc. No. 405, at 137; see also Pl. Ex. 372, at 44-
    46.
        \443\ R. Doc. No. 441, at 87-88.
        \444\ Consent Judgment, at 34.
        \445\ R. Doc. No. 405, at 86.
        \446\ Stingers are constructed by cutting a live electrical wire
    with a shank and attaching a washer to the end of the wire. Inmates use
    stingers to heat up food. R. Doc. No. 406, at 101-02.
    ---------------------------------------------------------------------------
    III. Statutory Rights
        The United States alleges that OPP discriminates against Limited
    English Proficiency (``LEP'') \447\ inmates by failing to provide LEP
    inmates with meaningful access to OPP's intake, processing, housing,
    medical, and other services.\448\
    ---------------------------------------------------------------------------
        \447\ Limited English Proficiency (``LEP'') characterizes
    individuals who cannot speak, write, or understand the English language
    such that their ability to communicate is limited. R. Doc. No. 407, at
    108.
        \448\ R. Doc. No. 70, at 12. While conditions at OPP appear
    obviously inconsistent with the Prison Rape Elimination Act (``PREA''),
    PREA is not one of Plaintiffs' underlying causes of action. See, e.g.,
    Ball v. Beckworth, No. 11-37, 2011 WL 4375806, at *4 (D. Mont. Aug. 31,
    2011). Nonetheless, the parties appear to agree that the consent
    judgment should be tailored to remedy PREA violations. Compare R. Doc.
    No. 416, at 48 (filing by Plaintiffs, asserting: ``The proposed Consent
    Judgment's remedies regarding sexual abuse and sexual assault are the
    minimum necessary to correct OPP's PREA-related deficiencies.''); R.
    Doc. No. 154, at 8 (suggesting that the consent judgment is not
    narrowly tailored to remedy PREA violations). The Court concludes that
    the consent judgment is narrowly drawn with respect to constitutional
    standards. To the extent PREA standards are relevant, the consent
    judgment is PLRA compliant with respect to those standards as well. In
    any case, the only statutory right before the Court arises under Title
    VI.
    ---------------------------------------------------------------------------
        Section 601 of Title VI of the Civil Rights Act of 1964 provides
    that ``No person in the United States shall, on the ground of race,
    color, or national origin, be excluded from participation in, be denied
    the benefits of, or be subjected to discrimination under any program or
    activity receiving Federal financial assistance.'' See also N.Y. Urban
    League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); United
    States v. Maricopa Cnty., Ariz., No. 12-00981, 2012 WL 6742314 (D.
    Ariz. Dec. 12, 2012). ``[L]ongstanding case law, Federal regulations
    and agency interpretation of those regulations hold language-based
    discrimination constitutes a form of national origin discrimination
    under Title VI.'' Maricopa Cnty., 2012 WL 6742314, at *4.
        A policy guidance document issued by DOJ states that an entity's
    obligation with respect to a particular service can be evaluated
    through an ``individualized assessment that balances the following four
    factors: (1) [t]he number or proportion of LEP persons eligible to be
    served or likely to be encountered by the program or grantee; (2) the
    frequency with which LEP individuals come in contact with the program;
    (3) the nature and importance of the program, activity, or service
    provided by the program to people's lives; and (4) the resources
    available to the grantee/recipient and costs.'' Dep't of Justice,
    Guidance to Federal Financial Assistance Recipients Regarding Title VI
    Prohibition Against National Origin Discrimination Affecting Limited
    English Proficient Persons, 67 Fed. Reg. 4145501, 41459 (June 18,
    2002); see also Maricopa Cnty., 2012 WL 6742314, at *4 (``DOJ
    coordinates government-wide compliance with Title VI and its
    interpretation of Title VI is entitled to special deference.'')
    (citations omitted).
        While OPP has LEP inmates,\449\ OPP has virtually no services for
    LEP inmates.\450\ This creates problems with respect to classification,
    medical treatment, and emergency situations.\451\ See 67 Fed. Reg. at
    41469-70. At intake, LEP inmates sign forms and other documents without
    knowing their contents.\452\ Staff members informed Romero that they
    have a ``catch phrase type book,'' but they were unable to locate it
    after searching for 20 minutes.\453\ The number of LEP inmates is
    unknown because OPP does not keep a record, whether through intake
    classification or through some other process, of inmates that do not
    speak English.\454\
    ---------------------------------------------------------------------------
        \449\ R. Doc. No. 407, at 109.
        \450\ R. Doc. No. 407, at 112-13.
        \451\ R. Doc. No. 407, at 108-11.
        \452\ R. Doc. No. 407, at 110; see also R. Doc. No. 81-1, at 11
    (English translation of declaration describing inability to obtain
    medical care because of language barrier).
        \453\ R. Doc. No. 407, at 111.
        \454\ R. Doc. No. 407, at 109, 112.
    ---------------------------------------------------------------------------
        OPP also does not keep a record or otherwise identify staff members
    who are bilingual.\455\ Romero was informed that only one staff member
    at intake speaks Spanish.\456\ Accordingly, when that officer is not on
    duty, there is no one to communicate with Spanish-speaking
    inmates.\457\ While other inmates may provide translation services in
    some circumstances, in ``many circumstances'' such an arrangement fails
    to comply with Title VI and its implementing regulations because of
    issues relative to confidentiality and physical safety. See 67 Fed.
    Reg. 4145501 at 41462 (``[O]ther inmates . . . are not competent to
    provide quality and accurate interpretations.'').
    ---------------------------------------------------------------------------
        \455\ R. Doc. No. 407, at 113.
        \456\ R. Doc. No. 407, at 113.
        \457\ R. Doc. No. 407, at 113.
    ---------------------------------------------------------------------------
        The proposed consent judgment provides for language assistance
    policies and procedures that will ensure compliance with Title VI. It
    requires, for example, that OPP provide Spanish translations of vital
    documents, including sick call forms and inmate handbooks, and that an
    appropriate number of bilingual staff members be available for
    translation or interpretation.\458\ There is little doubt that the
    proposed consent judgment's provisions addressing LEP inmates are
    narrowly drawn to remedy the violation of inmates' rights pursuant to
    Title VI, and the provisions are no more intrusive than necessary.\459\
    ---------------------------------------------------------------------------
        \458\ Consent Judgment, at 36-37.
        \459\ E.g., Pl. Ex. 374, at 49-50.
    ---------------------------------------------------------------------------
    IV. Objections to Approval
        The City has raised several objections to the proposed consent
    judgment. ``A party potentially prejudiced by a decree has a right to a
    judicial determination of the merits of its objection.'' City of Miami,
    664 F.2d at 447. However, ``[c]omplete accord on all issues [ ]is not
    indispensable to the entry of [a consent judgment].'' Id. at 440. In
    ``multiparty litigation, two parties may resolve all of the issues that
    do not affect a third party, ask the court to include only this
    settlement in a consent decree, and submit to the court for
    adjudication the remaining issues, disputed between them and the third
    party.'' Id.
        Although its legal arguments have been elusive at times, the City's
    overarching objection is that the consent judgment has an unreasonable
    and proscribed effect on third parties as a result of the consent
    judgment's funding provision, its unknown costs, its indirect effect on
    public safety, and its allegedly collusive history. The City also
    contends that the consent judgment extends further than necessary, in
    violation of the PLRA and state law. Finally, the City challenges
    particular provisions that require the Sheriff to ``continue to'' take
    certain actions and, relatedly, contends that the consent judgment
    cannot be approved absent a plainly worded concession of liability on
    the part of the Sheriff.
                A. Provision-by-Provision Approach
        The City asserts that the Court must examine the proposed consent
    judgment ``provision by provision,'' making particularized findings
    that a Federal right has been violated and injunctive relief is
    narrowly drawn and necessary with respect to each and every provision.
    In support of this argument, the City cites cases addressing the
    termination of consent judgments.\460\ But the Fifth Circuit has
    rejected such reliance on ``provision-by-provision'' cases as
    ``misplaced'' because the statutory subsection addressing termination
    of a consent decree, Sec. 3626(b)(3), ``on its face requires such
    written findings. Conversely, [Sec. 3626(a)(1)], which applies to the
    approval of prospective relief, does not.'' Gates v. Cook, 376 F.3d at
    336 n.8 (distinguishing Castillo v. Cameron Cnty., 238 F.3d 339, 351
    (5th Cir. 2001)). Because this case involves Sec. 3626(a)(1), no such
    approach is required here.
    ---------------------------------------------------------------------------
        \460\ R. Doc. No. 427, at 11 (citing Cason v. Seckinger, 231 F.3d
    777, 785 (11th Cir. 2000)).
    ---------------------------------------------------------------------------
        Nonetheless, the Court has taken great care to compare the evidence
    in support of the alleged violations of Federal rights to the remedial
    provisions proposed in the consent judgment. Moreover, the City
    received the opportunity to challenge specific provisions of the
    consent judgment, ensuring they received even greater scrutiny.\461\
    Although not required to do so, the Court has carefully combed through
    the consent judgment and concludes that its provisions are narrowly
    drawn to remedy the violation of inmates' Federal rights in light of
    the evidence presented at the fairness hearing.
    ---------------------------------------------------------------------------
        \461\ E.g., R. Doc. No. 126, at 3.
    ---------------------------------------------------------------------------
                B. Effect on Third Parties
                    1. Funding Provision
        The City argues that the proposed consent judgment's funding
    provision, Section V, has an impermissible effect on third parties. The
    City initially contended that Section V ``impermissibly infringes on
    the City's rights as a non-party,'' by permitting ``the Sheriff, the
    Plaintiff Inmates, and the Civil Rights Division [to] decide what is
    the appropriate level for funding for the Sheriff's office without
    affording the City an opportunity to be heard or a means to even have
    an evidentiary hearing.'' \462\ In response, the parties to the consent
    judgment amended it ``to ensure (a) that the City can fully participate
    in all proceedings relating to the funding and cost of implementing the
    Proposed Consent Judgment, and (b) that the City will receive complete
    information regarding compliance and conditions at OPP.'' \463\ The
    City now contends that the Sheriff and Plaintiffs ``took it upon
    themselves to `resolve the concerns of . . . the City''' through the
    amendments. \464\ In doing so, the City argues, they inserted
    amendments which impermissibly ``obligate the City to certain actions
    to which the City does not consent.'' \465\ The City additionally
    argues that the amendments interfere with the City's preparation of a
    balanced budget.\466\
    ---------------------------------------------------------------------------
        \462\ R. Doc. No. 153, at 7; see also R. Doc. No. 427, at 9-10.
        \463\ See R. Doc. No. 183, at 1-2.
        \464\ R. Doc. No. 219, at 1 (quoting R. Doc. No. 183).
        \465\ R. Doc. No. 219, at 2.
        \466\ R. Doc. No. 219, at 3-4.
    ---------------------------------------------------------------------------
        For the sake of clarity, all of the amendments to the proposed
    consent judgment are set forth below. Deletions are indicated through
    bold text and insertions are within BOLD BRACKETS and italic text.
                                   v. funding
    [A. ]The Court shall determine the [initial] funding needed to ensure
    constitutional conditions of confinement at OPP, in accordance with the
    terms of this Agreement, and the source(s) responsible for providing
    that funding [at an evidentiary hearing (``funding trial''). Defendant,
    third-party Defendant City of New Orleans (``City''), and Plaintiffs
    shall have the right to participate fully in the funding trial,
    including producing expert testimony and analysis regarding the cost of
    implementing this Agreement].

    A.[B.] Defendant shall be responsible for implementation of this
    Agreement upon a definitive judgment with regard to such [initial]
    funding [for this Agreement].

    B.[C.] Once the funding is determined pursuant to Paragraph A, the
    funding amount thereafter may be adjusted on an annual basis to account
    for changes in the size of the prisoner population, inflation, or other
    operating costs. If the Parties[Defendant and the City] are unable to
    agree upon such adjustments to the annual budget, the Monitor will
    intervene and resolve the dispute. If the Monitor cannot resolve the
    dispute within 45 days, the dispute will be submitted to the district
    judge for resolution. [Defendant, the City, and Plaintiffs]The Parties
    agree to work in good faith to determine available cost savings
    measures that may result from the ongoing implementation of this
    Agreement or otherwise.

    C.[D.] Defendant will provide an annual budget for the expenditure of
    the funds for operation of OPP and an annual audited financial
    statement to the Monitor[, the City,] and the Parties[Plaintiffs]. The
    Monitor will assist in conducting oversight to ensure that funds for
    implementing this Agreement are allocated to achieve compliance with
    this Agreement.
                                 ix. monitoring
        F. Monitor Distribution of OPSO Documents, Reports, and
    Assessments: Within seven days of receipt, the Monitor shall distribute
    all OPSO assessments and reports to SPLC[,] and DOJ[, and the City].
    The Monitor also shall provide any OPSO compliance-related documents
    within seven days to DOJ[,] and SPLC, [and the City] upon request.\467\
    ---------------------------------------------------------------------------
        \467\ R. Doc. No. 183-2. Although the City did not object to the
    amendment of the monitoring provision, the Court includes it because it
    is relevant to the Court's determination that additional notice to the
    class members was not required. The City has also not objected to the
    provision requiring that it ``work in good faith to determine available
    cost saving measures.'' See City of Miami, 664 F.2d at 442-44 (noting
    which provisions had been objected to by a third party); id. at 444
    (The district court's ``approval of the decree, insofar as it affected
    [the parties] and, patently, insofar as it is not objected to by the
    [third party] must be affirmed.'').
    ---------------------------------------------------------------------------
        The City specifically objects to the amendments because they
    ``require the City to subject itself to the `assistance' of the Monitor
    to set funding levels for the Sheriff's office.'' \468\ But if the City
    does not want to participate in a process in which the Monitor resolves
    disputes, it need not do so. While the funding provision now expressly
    includes the City, the Sheriff, and the Plaintiffs in the funding
    decisionmaking process, this modification merely provides the City with
    ``the right,'' rather than the obligation, ``to participate'' in the
    Monitor's dispute resolution. Ultimately, ``[i]f the Monitor cannot
    resolve the dispute within 45 days, the dispute will be submitted to
    the district judge for resolution.'' \469\ Nothing in the cited
    provision permits the Sheriff and Plaintiffs to impose any obligation
    upon the City without a hearing.
    ---------------------------------------------------------------------------
        \468\ R. Doc. No. 219, at 3.
        \469\ R. Doc. No. 183-2, at 1.
    ---------------------------------------------------------------------------
        The City also objects on the basis that it cannot be required to
    appear in Court to settle funding disputes. There is a pending third-
    party complaint against the City. This claim and the law defining the
    relationship between the City and the Sheriff, including any funding
    obligations, are the source of any such requirement.
                    2. Effect on Public Safety Funding
        The City next contends that the proposed consent judgment requires
    a ``diversion of funds'' that will adversely affect public safety and
    the welfare of the citizens of New Orleans who are not inmates at
    OPP.\470\
    ---------------------------------------------------------------------------
        \470\ R. Doc. No. 153, at 4.
    ---------------------------------------------------------------------------
        First Deputy Mayor Andrew Kopplin testified relative to the effects
    that the proposed consent judgment could have on the City's budget.
    Because the cost of implementing the proposed consent judgment and the
    party responsible for paying any additional costs have not yet been
    determined, the Court permitted the City to offer testimony regarding
    the effect that a price tag of $22.5 million would have on the City's
    budget, should the City be required to pay such costs in full. Kopplin
    stated that the $22.5 million figure was based on a request from the
    Sheriff.\471\
    ---------------------------------------------------------------------------
        \471\ R. Doc. No. 409, at 15.
    ---------------------------------------------------------------------------
        It is important to emphasize that, at this stage of the
    proceedings, the Court does not know whether any additional revenue is
    needed to ensure that OPP inmates are afforded the full protections of
    the Constitution and Title VI. The Court has not yet heard argument on
    the City's state law funding obligation or heard evidence relative to
    the funds available to the Sheriff and the Sheriff's spending of any
    such funds. Determining whether the City has an additional funding
    obligation and the amount of any such obligation is impossible at this
    stage. Accordingly, the Court will assume, for the sake of argument,
    that the City could be obligated to spend an additional $22.5 million
    on implementation of the consent judgment.
        Kopplin testified that either significant layoffs and furloughs or
    a drastic reduction in the number of police officers and fire
    department employees available to respond to public emergencies would
    be necessary if the City was forced to spend an additional $22.5
    million to remedy the conditions at OPP.\472\ Such measures, Kopplin
    concluded ``would put all of the citizens of the City at risk.'' \473\
    ---------------------------------------------------------------------------
        \472\ R. Doc. No. 409, at 17-19.
        \473\ R. Doc. No. 409, at 19.
    ---------------------------------------------------------------------------
        The PLRA requires courts to ``give substantial weight to any
    adverse impact on public safety'' caused by the entry of a consent
    judgment. 18 U.S.C. Sec. 3626(a)(1). Plaintiffs assert that legislative
    history and caselaw demonstrate that this requirement is oriented
    towards the more direct effects on public safety associated with
    prisoner release orders and population caps.\474\ See, e.g., Plata, 131
    S. Ct. at 1941-42. The Court has considered the ``difficult and
    sensitive'' question of the proposed consent judgment's effect on
    public safety, especially insofar as it may indirectly lead to
    decreased services in other areas. Id. at 1942.
    ---------------------------------------------------------------------------
        \474\ R. Doc. No. 179, at 6.
    ---------------------------------------------------------------------------
        The Court is well aware of New Orleans' high homicide rate\475\ and
    budgetary constraints,\476\ but the evidence shows that violent crime
    is endemic within OPP as well. See id. at 1942. OPP inmates, and
    particularly inmates with mental health issues, leave the facility more
    damaged, and perhaps more dangerous, than when they arrived.\477\
    Compare id. Experts opined that OPP poses ``clear and present dangers''
    of ``life and death proportions'' with respect to suicide and inmate
    violence, and the risk of a tragic fire is unacceptable.\478\ Inmate
    escapes are not uncommon, and the prospect of armed inmates, whether
    outside or inside prison walls, is alarming.\479\ The evidence shows
    that OPP itself presents a public safety crisis, which endangers
    inmates, staff, and the community at large.\480\
    ---------------------------------------------------------------------------
        \475\ R. Doc. No. 412, at 62.
        \476\ E.g., R. Doc. No. 409, at 17-18.
        \477\ As counsel for the Sheriff articulated, ``it's meant to be a
    jail. It's not a hospital, it's not a mental health ward, but that's
    what's coming into the jail more and more because all the health
    services are being cut everywhere else. So they are dumping them at the
    Sheriff's doorstep.'' R. Doc. No. 412, at 45; see also 42 U.S.C.A.
    Sec. 15601(3) (``America's jails and prisons house more mentally ill
    individuals than all of the Nation's psychiatric hospitals combined. As
    many as 16 percent of inmates in State prisons and jails, and 7 percent
    of Federal inmates, suffer from mental illness.'').
        \478\ R. Doc. No. 405, at 135-37.
        \479\ Schwartz testified that, while the videos portraying inmates
    armed with a loaded gun, gambling, using intravenous drugs, and freely
    exiting and entering OPP to wander Bourbon Street are several years
    old, ``my concern is that some of that could reoccur or is
    reoccurring'' such that inmates could be endangering the non-
    incarcerated residents of New Orleans. R. Doc. No. 412, at 32.
        \480\ R. Doc. No. 412, at 42; R. Doc. No. 407, at 44 (``The
    security failures of the jail extend to the community.''); Pl. Ex. 372,
    at 5 (OPP facilities are ``significantly more dangerous for staff than
    most jails, and for no good reason.'').
    ---------------------------------------------------------------------------
        The Court concludes that, even were it to give substantial weight
    to the public safety issues outside OPP, ignore the public safety
    issues inside OPP, and assume that the consent judgment will cost the
    City an additional $22.5 million, the proposed consent judgment
    complies with the PLRA.
        Notwithstanding this conclusion, the Sheriff's funding claim will
    be subject to a rigorous examination through two hearings, and any
    future funding claims will be addressed through a process that includes
    the participation of the City and, potentially, the Court. The consent
    judgment, and the Court's approach to its approval, are structured in a
    manner designed to minimize any indirect adverse effects on public
    safety. See Sec. 3626(a)(1).
                    3. Cost & Taxes
        Related to its argument that the proposed consent judgment's
    implementation costs will draw resources from other areas of public
    safety, the City argues that it cannot afford the consent judgment. In
    particular, the City argues, ``any increase in funding to the
    Sheriff['s] Office inevitably will require the City to increase taxes
    imposed against the citizens of the City of New Orleans.'' \481\ Even
    assuming that the City will have to provide additional revenue in the
    future to implement the consent judgment, a finding that the Court does
    not make at this juncture, ``[i]t is well established that inadequate
    funding will not excuse the perpetuation of unconstitutional conditions
    of confinement, nor will an allegedly contrary duty at state law.''
    Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980) (internal
    citations omitted). ``That it may be inconvenient or more expensive for
    the [local government] to run its prison in a constitutional fashion is
    neither a defense to this action or a ground for modification of the
    judgment rendered in this case.'' Gates v. Collier, 501 F.2d at 1322.
    ---------------------------------------------------------------------------
        \481\ R. Doc. No. 153, at 5.
    ---------------------------------------------------------------------------
        The City has had the opportunity to put forth evidence that the
    conditions at OPP meet constitutional muster or that the proposed
    consent judgment extends farther than constitutionally necessary. The
    City has not presented any evidence, including expert testimony,
    showing that conditions at OPP do not violate the Constitution or Title
    VI. The City has also not offered evidence with respect to an
    alternative, less costly or less intrusive, approach to remedying
    conditions at OPP. See Armstrong, 622 F.3d at 1071.
        The Court anticipates that staffing will be one of the greatest
    costs associated with the proposed consent judgment. When it comes to
    staffing levels, the consent judgment provides the City with continuing
    opportunities to put forth evidence regarding the staffing and salaries
    needed to run a facility that meets constitutional and statutory
    requirements, including the PLRA. The uncontroverted evidence, however,
    is that some increase in staffing is necessary to ensure that
    conditions at OPP meet constitutional minimum requirements.\482\
    ---------------------------------------------------------------------------
        \482\ See, e.g., R. Doc. No. 412, at 38.
    ---------------------------------------------------------------------------
        The City's proposed finding of law that ``[t]he Court may not
    approve a proposed consent decree that results in the raising of
    taxes'' is disingenuous.\483\ The City cites 18 U.S.C.
    Sec. 3626(a)(1)(C), but that statute provides: ``Nothing in this
    section shall be construed to authorize the courts, in exercising their
    remedial powers, to order the construction of prisons or the raising of
    taxes.'' The Court has no intention of ordering the City, the Sheriff,
    or any other political entity, for that matter, to raise taxes or to
    construct yet another facility. To the extent our elected political
    leaders intend to house inmates at OPP facilities, however, these
    facilities must meet constitutional and statutory minimum requirements.
    ---------------------------------------------------------------------------
        \483\ R. Doc. No. 153, at 6; R. Doc. No. 427, at 11.
    ---------------------------------------------------------------------------
                    4. Negotiating History
        The City argues that the parties have colluded in drafting a
    consent judgment that fails to recognize the Sheriff's revenue streams
    and that treats the City as ``an unlimited bank account for the benefit
    of the inmates and the Sheriff.'' \484\ The City appears to suggest
    that the Sheriff and Plaintiffs colluded by leaving the City out of the
    process while drafting a consent judgment that is broader and more
    expensive than necessary to remedy the conditions at OPP.\485\
    ---------------------------------------------------------------------------
        \484\ R. Doc. No. 151, at 14-15.
        \485\ In Williams, the Fifth Circuit observed that ``the district
    court had to bear the full responsibility in this case to safeguard the
    interests of those individuals who were affected by the decree but were
    not represented in the negotiations.'' 729 F.2d at 1560. The Court has
    not interpreted Williams to indicate that the City's participation in
    negotiations excuses the Court from its ``full responsibility'' to
    safeguard the City's interests as a third party.
    ---------------------------------------------------------------------------
        The City describes as ``unorthodox'' the legislative landscape in
    which the City must finance a jail which is run by the Sheriff.\486\
    The literature suggests that such arrangements are not uncommon. E.g.,
    Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of
    Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550, 562-63 (2006).
    Whether or not common, however, this financial relationship could
    incentivize sheriffs to seek out broad, expensive consent
    judgments.\487\ The Court has been vigilant about ensuring compliance
    with the PLRA, however, and the City has assisted through its vigorous
    adversarial participation in this process. Nonetheless, at this stage,
    the City has not identified ways in which the proposed consent
    judgment's objectives--namely, compliance with the Constitution--could
    be obtained for a lesser cost, and the expert testimony was persuasive
    that the remedies included in the consent judgment are the minimum
    necessary to remedy conditions at OPP.
    ---------------------------------------------------------------------------
        \486\ R. Doc. No. 159, at 2.
        \487\ See Schlanger, 81 N.Y.U. L. Rev. at 562-63, 623 (noting ``not
    so very hard fought'' litigation involving sheriffs).
    ---------------------------------------------------------------------------
        The City also objects to the Plaintiffs' characterization of its
    role in negotiating the proposed consent judgment. Plaintiffs have
    asserted: ``Since November 2011, the Sheriff and the City participated
    in negotiations to formulate a comprehensive remedy to [ ] unlawful
    conditions.'' \488\ The City responds that it ``did not participate in
    negotiations to formulate what is termed a comprehensive remedy for
    alleged unlawful conditions.'' \489\ However, the record shows that
    attorneys for the City actively participated in the negotiations.
    ---------------------------------------------------------------------------
        \488\ R. Doc. No. 140, at 2.
        \489\ R. Doc. No. 154, at 6.
    ---------------------------------------------------------------------------
        After the Sheriff filed his two third-party complaints, the Court
    was advised that all parties, including the City, were prepared to
    enter into an interim consent judgment, subject to a dispute over the
    cost and funding of the interim consent judgment's reforms.\490\ An
    October 12 filing by Plaintiffs shows that the parties, including the
    City, had been successful in reaching ``agreement on all of the
    substantive provisions in the proposed Settlement Agreement,'' with the
    exception of an interim funding amount to ``be in effect until
    completion of a staffing analysis.'' \491\ The accuracy of this filing
    was confirmed at an October 15 status conference, in which the City
    Attorney at the time, Richard Cortizas, and the current City Attorney,
    Sharonda Williams, participated.\492\ The Court was advised by counsel
    for all parties that:
    ---------------------------------------------------------------------------
        \490\ See R. Doc. Nos. 77, 81.
        \491\ R. Doc. No. 81; see also R. Doc. No. 156-6 (May 31, 2012
    email from the City's then-Chief of Litigation, Sharonda Williams, to
    counsel for the United States and the Sheriff) (``I made some proposed
    edits to the last version that was circulated. Please see attached.'');
    R. Doc. No. 156-7 (July 11, 2012 email from the City's then-Chief of
    Litigation, Sharonda Williams, to counsel for the United States and
    Sheriff) (``See [ ] my redline of the most recent draft.'').
        \492\ R. Doc. No. 82 (listing participants).

            [T]here is no dispute with respect to those portions of the
            proposed consent judgment detailing unconstitutional conditions
            at Orleans Parish prison facilities as well as efforts that
            need to be undertaken to ensure that prison facilities satisfy
            constitutional standards. There is also no dispute that the
            City of New Orleans is responsible for funding those efforts
            that must be undertaken, pursuant to the proposed consent
            judgment, to remedy existing conditions. The only remaining
            issue before the Court is the level of interim and permanent
            funding required to remedy the unconstitutional
            conditions.\493\
    ---------------------------------------------------------------------------
        \493\ R. Doc. No. 82.

    The Court specifically confirmed the substance of this paragraph with
    counsel at the status conference. The confirmation was obtained through
    querying counsel for each party and receiving individual verbal
    affirmation that the parties were ready to sign the agreement.
        Counsel were ordered to appear in person at the next status
    conference, ostensibly to provide the Court with the signed consent
    judgment, which would permit future development of the interim funding
    amount, and to discuss the appointment of a special master.\494\ At the
    conference, notwithstanding numerous express assertions to the contrary
    by the City's counsel, the Mayor of the City of New Orleans announced
    that he was unwilling to sign any such agreement.\495\ The Mayor
    advised the Court that when he signed the New Orleans Police Department
    (``NOPD'') consent decree, the City was unaware that it was facing
    additional, significant revenue requests in connection with the OPP
    litigation.\496\ Despite the persistent and skilled efforts of retired
    Judge Terry Q. Alarcon, who put in countless hours free of charge to
    facilitate negotiations, the parties could not reach an agreement.\497\
    ---------------------------------------------------------------------------
        \494\ R. Doc. No. 82.
        \495\ R. Doc. No. 86; see also R. Doc. No. 92.
        \496\ Another section of the Court has rejected this assertion. See
    United States v. City of New Orleans, No. 12-1924, 2013 WL 2351266, at
    *10 (E.D. La. May 23, 2013) (Morgan, J.) (``The City's argument that it
    had no knowledge of the potential cost ramifications for the OPP
    Consent Decree at the time it signed the NOPD Consent Decree is
    patently false. At least as early as July 19, 2012, several days before
    the City signed the NOPD Consent Decree on July 24, 2012, the City was
    on notice that the Sheriff intended to request `$22.5 million of
    ``new'' estimated costs' that would `bring the total budget for OPP to
    $45 million' for 2013.'') (modifications omitted).
        \497\ See R. Doc. No. 86.
    ---------------------------------------------------------------------------
        To be clear, the City's negotiations with respect to the consent
    judgment carry no weight whatsoever in the Court's analysis of the
    proposed consent judgment outside of its collusion analysis. The City
    had the right to refuse to sign the proposed consent judgment at any
    point, notwithstanding its prior apparent willingness to agree to the
    proposed reforms subject to a future resolution of the cost and funding
    dispute. The point of recounting this litigation history is to identify
    the persuasive evidence, including the procedural history of the case,
    that contradicts the City's argument that it was left out of the
    negotiations process.
                C. Louisiana Rev. Stat. Ann. Sec. 15:738
        The City argues that the proposed consent judgment is inconsistent
    with La. Rev. Stat. Ann. Sec. 15:738, which provides:

            No incarcerated state prisoner, whether before trial, during
            trial or on appeal, or after final conviction, who is housed in
            any jail, prison, correctional facility, juvenile institution,
            temporary holding center, or detention facility within the
            state shall have a standard of living above that required by
            the constitutions of the United States and the state of
            Louisiana, as ordered or interpreted by the appropriate courts
            of last resort, or by the standards set by the American
            Correctional Association. It is the intention of this
            legislature that, to the extent permitted by law, no inmate
            shall have a standard of living better than the state poverty
            level. Citizens should not be worse off economically and living
            in conditions that are below those granted to inmates whose
            living standards are being paid for and subsidized by the hard-
            working and law-abiding people of the state of Louisiana.

        At the fairness hearing and in its briefing, the City makes much of
    the fact that the proposed consent judgment would provide inmates with
    medical and mental healthcare to an extent that exceeds that provided
    to certain non-incarcerated citizens.\498\
    ---------------------------------------------------------------------------
        \498\ E.g., R. Doc. No. 412, at 53-54; R. Doc. No. 427, at 16.
    ---------------------------------------------------------------------------
        No one disputes that La. Rev. Stat. Sec. 15:738 does not negate
    constitutional minimum standards. Moreover, the parties are well aware
    that governments carry a special responsibility for those in their
    custody. ``To incarcerate, society takes from prisoners the means to
    provide for their own needs. Prisoners are dependent on the State for
    food, clothing, and necessary medical care. A prison's failure to
    provide sustenance for inmates may actually produce physical torture or
    a lingering death.'' Plata, 131 S. Ct. at 1928 (quotation omitted). The
    Court notes that the statute's reliance on American Correctional
    Association standards implicates a higher level of care in some
    situations than that required by the Constitution.\499\
    ---------------------------------------------------------------------------
        \499\ R. Doc. No. 407, at 32 (``In terms of the American
    Correctional Association, it does take it up to a little bit higher
    level because they have other things in those standards that go beyond
    the minimal required to operate a safe jail.'').
    ---------------------------------------------------------------------------
        The City argues, however, that in evaluating what the Constitution
    requires, the Court should take into account the unfortunate living
    conditions experienced by some impoverished non-incarcerated citizens
    of Louisiana.\500\ While constitutional standards reflect ``the
    evolving standards of decency that mark the progress of a maturing
    society,'' Plata, 131 S. Ct. at 1925 n. 3 (quoting Farmer, 511 U.S. at
    834), the Court has never before heard it argued that constitutional
    standards vary depending on the poverty level existing in the state or
    community in which one lives. As counsel for Class Plaintiffs
    highlighted during closing statements, such an interpretation has the
    effect of affording lessened constitutional protections to citizens of
    Louisiana.\501\ The law does not support this argument. A state's
    inability or unwillingness to provide certain services to its non-
    incarcerated citizens does not excuse it from the constitutional
    obligation to provide basic care to those in its custody.
    ---------------------------------------------------------------------------
        \500\ R. Doc. No. 412, at 54.
        \501\ R. Doc. No. 412, at 39-40.
    ---------------------------------------------------------------------------
                D. Specific Provisions
        Because the nature of the City's objections to the proposed consent
    judgment remained amorphous even as the fairness hearing was imminent,
    the Court ordered the City to clarify its position: ``The City shall
    identify with particularity the provisions of the proposed consent
    decree that it is challenging.'' \502\
    ---------------------------------------------------------------------------
        \502\ R. Doc. No. 126, at 3 (emphasis in original). In the same
    order, the Court ensured the City was on notice of its obligation to
    argue at the fairness hearing any state-law funding defenses related to
    the overbreadth of the proposed consent judgment or the
    constitutionality of the conditions at OPP. The purpose of this
    approach was to avoid having to call the same expert witnesses and hear
    the same testimony at the funding hearing.
    ---------------------------------------------------------------------------
        In response, the City identified the funding provisions and
    fourteen substantive provisions beginning with the phrase ``continue
    to.'' \503\ The City did not argue that these fourteen provisions
    extended further than constitutionally required, but rather argued that
    they were unnecessary because they ``obligate the Sheriff merely to
    `continue' to follow policies and procedures that he has already
    implemented according to the language of the proposed Consent Decree.''
    \504\ ``It cannot be reasonably argued,'' the City contends, that these
    provisions are ```narrowly drawn,' if they simply order the Sheriff to
    continue to do what he already does.'' \505\ Plaintiffs respond that
    the ``continue to'' language is ``the product of extensive
    negotiations, during which the Sheriff represented, without
    verification, that improvements had been made in certain areas.'' \506\
    ---------------------------------------------------------------------------
        \503\ R. Doc. No. 153, at 8-11.
        \504\ R. Doc. No. 153, at 8.
        \505\ R. Doc. No. 159, at 19.
        \506\ R. Doc. No. 156-2, at 6.
    ---------------------------------------------------------------------------
        The Court has carefully examined the ``continue to'' provisions to
    which the City objects. These provisions address direct supervision and
    rounds; detection of contraband; inmate classification; grievances;
    training for special populations, including inmates with mental health
    issues; and building maintenance. The evidence was compelling that OPP
    suffers from serious deficiencies in these areas such that the consent
    judgment's provisions are narrowly drawn, are necessary to remedy the
    violation of a Federal right, and are the least intrusive means of
    doing so.
        Moreover, even if the Sheriff's good faith efforts have resulted in
    recent changes, the proposed consent judgment remains necessary. The
    Fifth Circuit observed in Gates v. Cook, with respect to a state
    correctional department: ``It is well settled that a defendant's
    voluntary cessation of a challenged practice does not deprive a Federal
    court of its power to determine the legality of the practice. . . . The
    fact that many of these conditions have persisted for years despite
    MDOC's purported efforts leads us to likewise conclude that MDOC has
    not met the heavy burden of showing that its voluntary conduct has
    mooted any of the issues presented here.'' 376 F.3d at 337; see also
    Gates v. Collier, 501 F.2d at 1321 (``Changes made by defendants after
    suit is filed do not remove the necessity for injunctive relief, for
    practices may be reinstated as swiftly as they were suspended.''). A
    defendant's assurance that it is ``already on the path towards
    compliance is insufficient to moot the issue.'' Gates v. Cook, 376 F.3d
    at 343-42. According to Schwartz, ``almost all of [the] problems given
    to OPSO in writing'' in the 2008 National Institute of Corrections
    report ``remain unmitigated today.'' \507\
    ---------------------------------------------------------------------------
        \507\ Pl. Ex. 372, at 20.
    ---------------------------------------------------------------------------
        The Court permitted the parties to add record citations to their
    proposed findings of fact and conclusions of law after the
    hearing.\508\ The City did so, but it also attempted to ``revise'' its
    proposed findings of fact and conclusions of law to introduce arguments
    that were not raised when the City responded to the Court's order to
    ``identify with particularity the provisions of the proposed consent
    decree that it is challenging.'' \509\ In the same paragraph, the Court
    expressly stated that ``[d]efenses related to the constitutionality of
    existing conditions or the overbreadth of the proposed consent decree
    that are not raised shall be deemed waived.'' \510\ While not expressly
    invited, the Court welcomes the City's additional citations to legal
    authority.\511\ The Court mentions only briefly those arguments that
    were not raised until weeks after the hearing and that are,
    accordingly, waived.
    ---------------------------------------------------------------------------
        \508\ R. Doc. No. 391.
        \509\ R. Doc. No. 126, at 3; R. Doc. No. 395.
        \510\ R. Doc. No. 126, at 3.
        \511\ See, e.g., R. Doc. No. 427, at 14.
    ---------------------------------------------------------------------------
        For example, in its proposed conclusions of law, the City
    challenges as overbroad the provision stating that the consent judgment
    shall ``terminate when the [Sheriff] has achieved substantial
    compliance with each provision of the Agreement and [has] maintained
    Substantial Compliance with the Agreement for a period of 2 years.''
    \512\ Because the City did not raise this argument until several weeks
    after the hearing, opposing counsel did not have an opportunity to
    address it. Nonetheless, in light of the evidence of longstanding
    deficiencies at OPP facilities arising from deep-rooted and systemic
    weaknesses, the Court finds the two-year provision narrowly drawn and
    otherwise compliant with the PLRA.
    ---------------------------------------------------------------------------
        \512\ R. Doc. No. 427, at 14 (citing R. Doc. No. 101-3, at 43).
    ---------------------------------------------------------------------------
        The City additionally raises a new challenge to the failure to
    define ``substantial compliance'' with objective, quantifiable
    targets.\513\ The consent judgment defines substantial compliance as
    ``compliance with most or all components of the relevant provision of
    the Agreement.'' \514\ In light of the components of the proposed
    consent judgment, which include both general guidelines and specific
    baseline requirements, and the evidence admitted at the hearing, the
    Court concludes that this objection is without merit. See also M.D. ex
    rel. Stukenberg v. Perry, 675 F.3d 832, 848 (5th Cir. 2012) (``Named
    Plaintiffs must make an effort to give content to what it would mean to
    provide adequate or appropriate levels of services, so that final
    injunctive relief may be crafted to describe in reasonable detail the
    acts required.'') (quotation and modification omitted).
    ---------------------------------------------------------------------------
        \513\ R. Doc. No. 427, at 14-15.
        \514\ Consent Judgment, at 9.
    ---------------------------------------------------------------------------
                E. Admission of Liability
        The City contends that ``[u]nless [the Sheriff] admits to operating
    an unconstitutional facility, [ ] the decree is overly broad.'' \515\
    In particular, the City demands that the Sheriff provide a ``plainly-
    worded and straightforward admission of `deliberate indifference.' ''
    \516\ Some inmates, including one of the Class Representatives,
    similarly contend that the proposed consent judgment is inadequate
    because it does not require an admission of liability from the Sheriff
    or a finding to that effect.\517\
    ---------------------------------------------------------------------------
        \515\ R. Doc. No. 405, at 21.
        \516\ R. Doc. No. 159, at 23.
        \517\ E.g., R. Doc. No. 229, at 4-7; R. Doc. No. 237, at 2.
    ---------------------------------------------------------------------------
        While the Court is aware of the fact that the City and certain
    inmates may be dissatisfied with a ruling that does not require a plain
    admission of liability, this is an inherent part of a settlement, as
    opposed to a matter litigated through a full trial. By choosing to
    enter into a consent judgment, the parties may ``avoid the collateral
    effects of adjudicated guilt. United States v. City of Jackson, 519
    F.2d 1147, 1152 n. 9 (5th Cir. 1979) (quoted in City of Miami, 664 F.2d
    at 441-42).
        In the consent judgment, Class Plaintiffs, the United States, and
    the Sheriff stipulate that the consent judgment ``complies in all
    respects with the provisions of 18 U.S.C. Sec. 3626(a)'' and,
    specifically, ``that the prospective relief in this Agreement is
    narrowly drawn, extends no further than necessary to correct the
    violations of the Federal rights as alleged by Plaintiffs in the
    Complaints, is the least intrusive means necessary to correct these
    violations, and will not have an adverse impact on public safety or the
    operation of a criminal justice system. . . . Any admission made for
    purposes of this Agreement is not admissible if presented by Third
    Parties in another proceeding.'' \518\
    ---------------------------------------------------------------------------
        \518\ Consent Judgment, at 44.
    ---------------------------------------------------------------------------
        ``The requirements for the entry of relief in 18 U.S.C.
    Sec. 3626(a)(1) may appear in some tension with any attempt by
    defendants to continue to deny legal liability while agreeing to the
    entry of the relief sought by plaintiffs.'' Elizabeth Alexander,
    Getting to Yes in a PLRA World, 30 Pace L. Rev. 1672, 1684 (2010).
    Neither the PLRA nor caselaw requires a plainly worded concession of
    liability, and the Sheriff's stipulation with respect to the consent
    judgment parallels the language in the PLRA. The Court must focus on
    whether the proposed relief complies with the Constitution, statutory
    law, including the PLRA, and jurisprudence. Whether the Sheriff's
    stipulation amounts to a ``cryptic'' concession is not the Court's
    concern. See Margo Schlanger, Plata v. Brown and Realignment: Jails,
    Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165, 173-74
    (2013); see also H.R. Rep. No. 104-21, at 24 n.2 (1995).
    IV. Public Comments
        The Court invited the general public, as well as OPP inmate class
    members, to comment on the proposed consent judgment. The Court
    received numerous public comments from individuals who are not
    incarcerated. Virtually every comment endorsed the proposed consent
    judgment.
        The Court heard from a broad cross section of the community.\519\
    Community groups, law professors, and religious leaders similarly
    described the necessity and urgency of injunctive relief.\520\ The
    public comments consistently expressed that conditions at OPP have been
    deficient, to say the least, for a very long time. The Chief District
    Defender for Orleans Parish and the Louisiana Public Defender Board
    wrote to express support for the proposed consent judgment and express
    their concern for the safety of OPP staff members and inmates.\521\
    Family members of incarcerated individuals, including individuals who
    died in OPP, implored the Court to enter an order approving the consent
    judgment,\522\ describing as ``shocking and offensive'' the City's
    characterization of Plaintiffs' suit as seeking ``steaks and cognac''
    for inmates.\523\ The public comments also expressed the opinion that
    politicians, including the Sheriff of Orleans Parish and the Mayor of
    New Orleans, have failed and will continue to fail to take action
    absent court approval of the consent judgment.\524\
    ---------------------------------------------------------------------------
        \519\ R. Doc. Nos. 327, 329.
        \520\ R. Doc. Nos. 264, 320, 325.
        \521\ R. Doc. Nos. 256, 319, 322.
        \522\ E.g., R. Doc. Nos. 238, 251-54, 373.
        \523\ See R. Doc. No. 159, at 14 (``While the City does not
    question that constitutional standards must be satisfied, the Federal
    Courts, like the Legislature, have recognized that serving steaks and
    cognac to inmates is not a constitutional entitlement.''); R. Doc. No.
    250, at 2 (``We are not asking for `steaks and cognac.' We are asking
    that the over 2,000 people who continue to be held in the Orleans
    Parish jail be held in a safe, secure, and humane environment, with
    appropriate medical and mental health services and conditions fit for
    human habitation.'').
        \524\ E.g., R. Doc. No. 241; R. Doc. No. 250, at 2-3; R. Doc. No.
    260; R. Doc. No. 331.
    ---------------------------------------------------------------------------
        The consent judgment represents a reasonable factual and legal
    determination based on the extensive factual record. It is fair and
    consistent with the Constitution, statutes, including the PLRA, and
    jurisprudence. Its effect on third parties is not unreasonable or
    proscribed. Having concluded that the consent judgment is
    overwhelmingly supported by the evidence, including OPP records and
    persuasive trial testimony, the Court turns to the determination of
    whether the consent judgment is additionally a fair, adequate, and
    reasonable class settlement.
                           class settlement analysis
        Class Plaintiffs have filed an unopposed motion \525\ for
    certification of a settlement class consisting of all people who are
    currently or will be incarcerated at the Orleans Parish Prison.''\526\
    The terms of the proposed settlement, which is the same document as the
    consent judgment, have already been discussed.
    ---------------------------------------------------------------------------
        \525\ R. Doc. No. 145.
        \526\ R. Doc. No. 145-1, at 6-7; see also R. Doc. No. 1, at 11;
    Consent Judgment, at 1. The City contends that the other parties have
    ``marginalized'' the City, such that ``the City is not in a position to
    address'' the certification issue. The City contends, however, that
    ``it is inordinate, and tantamount to overkill, to certify a class in
    this case.'' R. Doc. No. 159, at 8-9.
    ---------------------------------------------------------------------------
    I. Standard of Law
        When determining whether to certify a settlement class, courts must
    determine whether the requirements for certification are met and
    whether the settlement is fair, adequate, and reasonable, especially
    insofar as it affects inmates who are not named plaintiffs in the
    lawsuit.
        Rule 23(a) of the Federal Rules of Civil Procedure permits
    certification of a plaintiff class only if four requirements are met:
    (1) the class is so numerous that joinder of all members is
    impracticable (``numerosity''); (2) there are questions of law or fact
    common to the class (``commonality''); (3) the claims or defenses of
    the representative plaintiffs are typical of the claims or defenses of
    the class (``typicality''); and (4) the representative plaintiffs will
    fairly and adequately protect the interests of the class
    (``representation''). Although courts need not consider the likely
    difficulties in managing a class action when considering a settlement
    class, courts must be cognizant when considering the other factors that
    there will not be a ``later opportunity for class adjustments.'' In re
    OCA, No. 05-265, 2008 WL 4681369, at *6 (E.D. La. Oct. 17, 2008)
    (Vance, J.) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620
    (1997)). ``The existence of a settlement class may even `warrant more,
    not less, caution on the question of certification.''' Id. (quoting
    Amchem, 521 U.S. at 620).
        Class certification is appropriate when a ``rigorous analysis''
    confirms that the requirements of Rule 23(a) are met. Wal-Mart Stores,
    Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Courts must ``look beyond
    the pleadings to `understand the claims, defenses, relevant facts, and
    applicable substantive law in order to make a meaningful determination
    of certification issues.' '' M.D. ex rel. Stukenberg v. Perry, 675 F.3d
    832, 837 (5th Cir. 2012) (quoting McManus v. Fleetwood Enters., Inc.,
    320 F.3d 545, 548 (5th Cir. 2003)). Certification also requires that a
    class meets the requirements of one of the subsections in Rule 23(b).
        Plaintiffs seek certification pursuant to Rule 23(b)(2), which
    applies where a defendant has ``acted or refused to act on grounds that
    apply generally to the class'' such that injunctive or declaratory
    relief is appropriate. ``Rule 23(b)(2) was created to facilitate civil
    rights class actions.'' Thorn v. Jefferson-Pilot Life Ins. Co., 445
    F.3d 311, 330 (4th Cir. 2006) (citation omitted). ``The key to the
    (b)(2) class is `the indivisible nature of the injunctive or
    declaratory remedy warranted--the notion that the conduct is such that
    it can be enjoined or declared unlawful only as to all of the class
    members or as to none of them.''' Dukes, 131 S. Ct. at 2557 (quoting
    Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84
    N.Y.U. L. Rev. 97, 132 (2009)). The claims at issue present a
    paradigmatic case for Rule 23(b)(2) relief. If an individual plaintiff
    successfully brought a lawsuit raising the systemic claims at issue
    here, the injunctive relief sought, ``as a practical matter, would be
    dispositive of the interests of the other members not parties to the
    individual adjudications or would substantially impair or impede their
    ability to protect their interests.'' Fed. R. Civ. P. 23(b)(2).
        If certification requirements are met, the Court must still
    determine whether to approve the settlement. As a threshold matter, the
    Court looks to whether notice was provided ``in a reasonable manner to
    all class members who would be bound by the proposal.'' Fed. R. Civ. P.
    23(e). With respect to the substance of the settlement, the Court
    inquires whether the settlement is fair, adequate, and reasonable
    pursuant to Rule 23(e). The Fifth Circuit has advised courts to
    consider six factors in making this assessment: ``(1) the existence of
    fraud or collusion behind the settlement; (2) the complexity, expense,
    and likely duration of the litigation; (3) the stage of the proceedings
    and the amount of discovery completed; (4) the probability of
    plaintiffs' success on the merits; (5) the range of possible recovery;
    and (6) the opinions of class counsel, class representatives, and
    absent class members.'' Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir.
    2004) (citing Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982)).
    II. Certification Analysis
                A. Numerosity
        ``To satisfy the numerosity prong, `a plaintiff must ordinarily
    demonstrate some evidence or reasonable estimate of the number of
    purported class members.''' Pederson v. La. State Univ., 213 F.3d 858,
    868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott & Co., 651
    F.2d 1030, 1038 (5th Cir. 1981)). OPP has approximately 2,500
    inmates,\527\ and joinder of these inmates would be impracticable,
    weighing in favor of certification. Moreover, the population is
    constantly in flux. ``[T]he fact that the class includes unknown,
    unnamed future members also weighs in favor of certification.'' Id. at
    868 n. 11.
    ---------------------------------------------------------------------------
        \527\ Pl. Ex. 380.
    ---------------------------------------------------------------------------
                B. Commonality
        The common questions of law or fact required by Rule 23(a)(2) must
    be able to ``generate common answers apt to drive the resolution of the
    litigation.'' Dukes, 131 S. Ct. at 2551 (quoting Nagareda, 84 N.Y.U. L.
    Rev. at 132. ``Before and after Wal-Mart, courts have certified classes
    of incarcerated persons challenging specific, written, acknowledged,
    official policies.'' Mathis v. GEO Grp., No. 08-CT-21, 2012 WL 600865,
    at *6 (E.D.N.C. Feb. 23, 2012) (citing cases). In M.D. ex rel.
    Stukenberg, the Fifth Circuit expressly disagreed with the proposition
    that a policy must injure each class member to provide the foundation
    for class wide relief. 675 F.3d at 847-48. ``Rather, the class claims
    could conceivably be based on an allegation that the [defendant]
    engages in a pattern or practice of agency action or inaction--
    including a failure to correct a structural deficiency within the
    agency, such as insufficient staffing--`with respect to the class,' so
    long as the declaratory or injunctive relief `settling the legality of
    the [defendant's] behavior with respect to the class as a whole is
    appropriate.' '' Id. (quoting R. 23(b)(2)(1966 Amendments advisory
    committee note)). The Court considers each of the Plaintiff Class's
    claims to determine whether the commonality requirement is met.\528\
    ---------------------------------------------------------------------------
        \528\ The Court need not address the Title VI claim brought by the
    United States because Class Plaintiffs alleged only constitutional
    claims.
    ---------------------------------------------------------------------------
        The mere incantation of the words ``systemic violation'' does not
    justify class certification. See id. at 844. For example, in M.D. ex
    rel. Stukenberg, plaintiffs alleged systemic violations of substantive
    due process, which defendants contended were not capable of resolution
    because they required an individualized ``shocks the conscience''
    inquiry. Id. at 843. Here, however, Class Plaintiffs present claims
    that are susceptible to common answers. See Logory v. Cnty. of
    Susquehanna, 277 F.R.D. 135, 143 (M.D. Pa. 2011) (``Unlike Dukes, where
    commonality was destroyed where there was no `common mode of exercising
    discretion that pervade[d] the entire company,' here there is a solid
    [prison] policy that applied directly to all potential class
    members.'') (quoting Dukes, 131 S. Ct. at 2554).
        The claims, defenses, relevant facts, and applicable substantive
    law demonstrate that certification is warranted with respect to Class
    Plaintiffs' Eighth and Fourteenth Amendment protection from harm
    claims. Whether certain conditions at OPP either by themselves, or
    through a ``mutually enforcing effect,'' put inmates at a substantial
    risk of harm is amenable to a common answer. See Gates v. Cook, 376
    F.3d at 333. Plaintiffs have identified practices with respect to
    staffing, contraband, supervision, and classification, for example,
    that uniformly create a substantial risk of harm for all class
    members.\529\ See M.D. ex rel. Stukenberg, 675 F.3d at 848 & n. 7
    (suggesting that staffing levels are the type of condition that is
    generally applicable to a class of plaintiffs); see also Gates, 376
    F.3d at 333. Similarly, whether OPP officials have been deliberately
    indifferent to any such risk can be demonstrated in a manner that is
    applicable to all class members.
    ---------------------------------------------------------------------------
        \529\ The Court notes that this case involves a single
    administrative entity responsible for multiple facilities. The evidence
    shows that the proposed consent judgment's relief is appropriately
    applied to all seven facilities.
    ---------------------------------------------------------------------------
        The facts and law also demonstrate that Class Plaintiffs' Eighth
    and Fourteenth Amendment medical and mental healthcare claims warrant
    certification.\530\ These claims do not allege ``amorphous'' systemic
    deficiencies. Compare M.D. ex rel. Stukenberg, 675 F.3d at 844. Class
    Plaintiffs have identified ``discrete and particularized practices''
    including, for example, medication and suicide prevention practices, as
    well as staffing inadequacies, that are mutually enforcing causes of
    OPP's deficient conditions.\531\ Compare id. at 844. Accordingly, a
    class action is an appropriate vehicle for these claims.
    ---------------------------------------------------------------------------
        \530\ As discussed above, the details relevant to Plaintiffs'
    medical and mental healthcare claims, and the associated remedies,
    largely overlap. Accordingly, the Court considers the two claims
    together.
        \531\ R. Doc. No. 1, at 2-3.
    ---------------------------------------------------------------------------
                C. Typicality
        The typicality inquiry ``focuses on the similarity between the
    named plaintiffs' legal and remedial theories and the theories of those
    whom they purport to represent.'' Stirman v. Exxon Corp., 280 F.3d 554,
    562 (5th Cir. 2002). Typicality is established where ``the class
    representative's claims have the same essential characteristics of
    those of the putative class.'' Id. Here, Class Representatives consist
    of both pre- and post-trial detainees, and they present legal and
    remedial theories common to the class members. Compare Hawkins v.
    Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001). While class
    members' experiences at OPP may differ, ``the claims arise from a
    similar course of conduct and share the same legal theory'' and,
    therefore, ``factual differences will not defeat typicality'' in this
    case. Stirman, 280 F.3d at 562 (quotation omitted).
                D. Adequacy of Representation
        ``Rule 23(a)'s adequacy requirement encompasses class
    representatives, their counsel, and the relationship between the two.''
    Id. at 563 (quotation omitted). Class Representatives and class counsel
    have demonstrated that they will fairly and adequately protect the
    interests of the class. The Court is satisfied with the ``zeal and
    competence'' of class counsel and ``the willingness and ability of the
    representatives to take an active role in and control the litigation.''
    \532\ Id. (quotation omitted).
    ---------------------------------------------------------------------------
        \532\ E.g., R. Doc. Nos. 229, 235-37.
    ---------------------------------------------------------------------------
    III. Settlement Analysis
                A. Notice
        Rule 23(e) requires that class members be notified of a settlement,
    but notice ``need only satisfy the broad reasonableness standards
    imposed by due process.'' In re Katrina Canal Breaches Litig., 628 F.3d
    185, 197 (5th Cir. 2010) (internal quotations and citation omitted).
    Due process is satisfied if the notice provides class members with the
    ``information reasonably necessary for them to make a decision whether
    to object to the settlement.'' Id.
        The Court approved a procedure in which a notice document and copy
    of the consent judgment were distributed to all inmates at OPP on a
    given date.\533\ In addition, 50 copies of the notice were posted in
    common areas in the seven OPP facilities, indicating how inmates could
    obtain a full copy of the consent judgment.\534\ An abbreviated notice
    also ran in The Times-Picayune on two different days and it was also
    posted on the newspaper's website, NOLA.com.\535\ The abbreviated
    notice was posted by the Court on its website, as well as on class
    counsel's website, DOJ's website, and the Sheriff's website.\536\ The
    City was also invited to post a copy on its website. The Court finds
    these procedures easily satisfy Rule 23(e)'s requirements by providing
    class members with more than enough information to determine whether
    the settlement is objectionable.
    ---------------------------------------------------------------------------
        \533\ See R. Doc. No. 129; 131.
        \534\ See R. Doc. No. 129.
        \535\ See R. Doc. No. 129.
        \536\ See R. Doc. No. 129.
    ---------------------------------------------------------------------------
        The Court previously determined that the amendments to the proposed
    consent judgment did not require new notice. The Court ruled, ``the
    amendments do not alter the original Proposed Consent Judgment's
    substance or effect in a manner that would require new briefing before
    the April 1, 2013 fairness hearing or a revised class notice.'' \537\
    After reviewing the parties' supplemental briefing,\538\ the Court
    remains convinced that no additional notice was necessary. The minor
    modifications with respect to the City, described supra, did not impair
    class members' rights even indirectly, and the modifications certainly
    did not constitute a material change with respect to the class members.
    See, e.g., In re Baby Products Antitrust Litig., 708 F.3d 163, 175 n.
    10, 182 (3d Cir. 2013) (supplemental notice required only if settlement
    is ``materially altered''); In re Integra Realty Res., Inc., 262 F.3d
    1089, 1111 (10th Cir. 2001) (no additional notice needed where
    amendment ``merely expanded the rights of class members'').
    ---------------------------------------------------------------------------
        \537\ R. Doc. No. 213.
        \538\ E.g., R. Doc. Nos. 395, 399.
    ---------------------------------------------------------------------------
                B. Fraud or Collusion
        The consent judgment is the product of a protracted period of
    litigation between Class Plaintiffs, DOJ, the Sheriff, and the
    City.\539\ The relief offered in the consent judgment demonstrates that
    SPLC has been unwavering in fulfilling its obligations to Class
    Plaintiffs. For these reasons, as well as those discussed above with
    respect to the City's participation in the process, the Court is
    satisfied that the consent judgment is not tainted by fraud or
    collusion.
    ---------------------------------------------------------------------------
        \539\ See R. Doc. No. 138, at 8; R. Doc. No. 411, at 22-23.
    ---------------------------------------------------------------------------
                C. Complexity, Expense, and Duration of Litigation
        Class Plaintiffs observe that the expenses associated with this
    case are high because demonstrating deliberate indifference would
    require ``significant statistical, anecdotal, and expert evidence.''
    \540\ While Class Plaintiffs further believe that they have obtained
    such evidence, they accurately acknowledge that a failure to settle the
    case would require a protracted motions practice and potential appeals
    that would delay the relief requested.\541\ Such delays would prolong
    Class Plaintiffs' exposure to the safety risks at OPP, weighing in
    favor of settlement.
    ---------------------------------------------------------------------------
        \540\ R. Doc. No. 138, at 9.
        \541\ R. Doc. No. 138, at 9.
    ---------------------------------------------------------------------------
                D. Stage of the Proceedings
        With respect to the stage of the proceedings, including the
    depositions and expert reports completed, this case has progressed to a
    marked degree. Class counsel notes that four staff paralegal
    investigators, as well as multiple law clerks and interns, have spent
    ``thousands of hours documenting conditions in the jail by interviewing
    people housed there.'' \542\ ``There has not been a single point, in
    the last year and a half of this litigation, that Plaintiffs stopped
    doing client intake, responding to calls from the jail, and gathering
    evidence.'' \543\
    ---------------------------------------------------------------------------
        \542\ R. Doc. No. 138, at 11 (citing R. Doc. No. 138-1).
        \543\ R. Doc. No. 138, at 11 (citing R. Doc. No. 138-1).
    ---------------------------------------------------------------------------
        The City asserts that an absence of evidence at the fairness
    hearing supporting class certification and settlement prohibits the
    Court from certifying the settlement class and approving the
    settlement.\544\ This argument is flawed because the Court never
    indicated that it required an evidentiary hearing for class
    certification and because the evidence presented at the fairness
    hearing was directly relevant to the certification and class settlement
    inquiry. Moreover, the evidence presented at the hearing was consistent
    with the evidence presented prior to the hearing, including the
    declarations submitted by class counsel.\545\
    ---------------------------------------------------------------------------
        \544\ R. Doc. No. 427, at 8.
        \545\ E.g., R. Doc. No. 137-4.
    ---------------------------------------------------------------------------
                E. Plaintiffs' Probability of Success & Possible Recovery
        The Court concludes that Class Plaintiffs' probability of success
    and the possible recovery associated with success supports approval of
    the consent judgment. As discussed with respect to the PLRA's narrow
    tailoring inquiry, the Court concludes that the remedies set forth in
    the consent judgment address the allegations in Class Plaintiffs'
    complaint. Moreover, class counsel notes that the injunctive relief
    addressed in areas relevant to the United States' complaint in
    intervention will provide an additional benefit to many class
    members.\546\
    ---------------------------------------------------------------------------
        \546\ R. Doc. No. 138, at 11.
    ---------------------------------------------------------------------------
        The City contends that the Court should consider ``a defendant's
    financial condition when deciding whether to approve a class action
    settlement.'' \547\ In light of the evidence presented at trial,
    neither the City's nor the Sheriff's financial condition defeats the
    class settlement. Moreover, the cases cited by the City are not
    persuasive in the context of a class action solely for injunctive
    relief.\548\
    ---------------------------------------------------------------------------
        \547\ R. Doc. No. 427, at 8.
        \548\ See Cody v. Hillard, 88 F. Supp. 2d 1049, 1059 (D.S.D. 2000)
    (``This factor is not particularly important in the present case
    because the action is not for monetary damages.'').
    ---------------------------------------------------------------------------
                F. Opinions of Class Counsel, Class Representatives, and
                        Absent Class Members
        The opinions of class counsel strongly support entry of the
    proposed consent judgment.\549\ The Court has received many comments
    from class members in support of the proposed consent judgment.
    Inmates' comments describe numerous deficiencies, including poor
    environmental conditions, inadequate staffing and absent staff members,
    classification and housing problems, illicit drug use, sexual assault
    and other violence, staff use of excessive force, and inadequate
    medical and mental healthcare, including inadequate suicide
    prevention.\550\ Although many inmates wrote solely about the current
    conditions at OPP,\551\ those inmates that commented on the proposed
    settlement were generally positive.\552\ Some inmates objected to the
    lack of financial compensation,\553\ but the proposed consent judgment
    does not limit the ability of inmates to bring claims for damages and
    the complaint never sought such damages.\554\
    ---------------------------------------------------------------------------
        \549\ E.g., R. Doc. No. 138.
        \550\ E.g., R. Doc. Nos. 227, 229, 269, 270, 274, 275-76, 334, 353.
        \551\ E.g., R. Doc. No. 235.
        \552\ E.g., R. Doc. No. 227 (generally approving of proposed
    consent judgment, but noting concerns about noncompliance).
        \553\ E.g., R. Doc. No. 228.
        \554\ R. Doc. No. 1, at 37.
    ---------------------------------------------------------------------------
        One recurrent objection is that the proposed consent judgment does
    not go far enough because the Sheriff's compliance will be in
    appearance only, while the deficient conditions at OPP will persist or
    worsen.\555\ Some class members assert that the Sheriff will present a
    facade of compliance during visits by experts or the Court, but not
    engage in substantive change.\556\ These objectors ask for the Monitor
    to be ``in house'' or ``on hand at all times within the jail'' to
    ensure compliance.\557\ One of the Class Representatives objects on the
    basis that the proposed consent judgment ``reads like a Standard Policy
    [ ]Book issued by the Fed. Bureau of Prisons, La. Dept. of Corrections,
    and American Correctional Association (ACA),'' and fails to set forth
    ``specific details'' on correcting the underlying problems.\558\
    ---------------------------------------------------------------------------
        \555\ E.g., R. Doc. Nos. 227, 229. While some inmates appear to no
    longer reside at OPP, the Court will address their contentions as
    objections without ruling on class standing.
        \556\ R. Doc. No. 229.
        \557\ E.g., R. Doc. No. 227.
        \558\ R. Doc. No. 229, at 10.
    ---------------------------------------------------------------------------
        The Fifth Circuit's ``jurisprudence [ ] makes clear that a
    settlement can be approved despite opposition from class members,
    including named plaintiffs.'' Ayers, 358 F.3d at 373. The proposed
    consent judgment ``gives OPP officials discretion in establishing the
    details of facility-specific policies designed to address
    constitutional infirmities,'' but it also creates ``concrete, baseline
    requirements.'' \559\ Freeman v. Berge, 68 F. App'x 738, 742-43 (7th
    Cir. 2003) (``[I]f defendants have not lived up to their end of the
    bargain, [ ] inmates' remedy is to enforce the agreement, not attack
    it.''). The Court is aware that in other cases, whether because of
    inability or unwillingness to comply, prison administrators have failed
    to implement consent judgments. Should this happen, appropriate
    measures will be considered.\560\ At this point, however, these
    objections do not preclude approval of the class settlement.
    ---------------------------------------------------------------------------
        \559\ R. Doc. No. 140, at 123.
        \560\ See, e.g., R. Doc. No. 392.
    ---------------------------------------------------------------------------
        The Court finds that the proposed class satisfies the numerosity,
    typicality, commonality, and adequacy of representation requirements
    set forth in Rule 23(a) and additionally meets the requirements for
    certification pursuant to Rule 23(b)(2). Moreover, the proposed
    settlement fulfills the requirements associated with Rule 23(e).
    Accordingly, the Court certifies the class, defined as ``all people who
    are currently or will be incarcerated at the Orleans Parish Prison,''
    and approves the class settlement.
                                   conclusion
        Whether ``budget shortfalls, a lack of political will in favor of
    reform,'' and/or other factors are responsible for OPP's deficiencies,
    these deficiencies must be remedied. Plata, 131 S. Ct. at 1936. Such
    conditions ``are rarely susceptible of simple or straightforward
    solutions,'' but the consent judgment presents a narrowly drawn yet
    comprehensive means of ensuring the protection of inmates' Federal
    rights. Id.
        The Federal rights at issue here, particularly with respect to the
    Constitution, establish minimum standards rather than ideals to which a
    correctional institution may aspire. These minimum standards are
    nonnegotiable. The Constitution guarantees that inmates, including
    convicted inmates and pretrial detainees who are presumed innocent,
    receive certain minimum levels of medical care and mental healthcare.
    It also guarantees that inmates will not be subject to a substantial
    risk of physical injury, sexual assault, or death to which officials
    are deliberately indifferent. The Court finds that the proposed consent
    judgment is the only way to overcome the years of stagnation that have
    permitted OPP to remain an indelible stain on the community, and it
    will ensure that OPP inmates are treated in a manner that does not
    offend contemporary notions of human decency. After carefully
    considering the tremendous amount of evidence, the parties' arguments,
    including the City's objections, and the law, the Court concludes that
    the consent judgment should be approved.
        IT IS ORDERED that the motions are GRANTED.
        New Orleans, Louisiana, June 6, 2013.

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                             (End of Attachment #1)

                                     ______

        Specifically, Judge Africk explained that the consent judgment sets
    forth a process by which the Court will ``determine the initial funding
    needed to ensure constitutional conditions of confinement at OPP, in
    accordance with the terms of this agreement, and the source(s)
    responsible for providing that funding at an evidentiary hearing
    (`funding trial')'' at which the parties to the agreement, as well as
    the city, shall have the right to participate. After this time, the
    funding amount ``may be adjusted'' through a process by which the
    monitor attempts to resolve disagreements between the Sheriff and the
    city. If the monitor is unable to do so within 45 days, the dispute is
    submitted to the Court. Order at 9.
        In addition, Judge Africk held:
        ``Whether budget shortfalls, a lack of political will in favor of
    reform,'' and/or other factors are responsible for OPP's deficiencies,
    these deficiencies must be remedied. Plata, 131 S. Ct. at 1936. Such
    conditions ``are rarely susceptible of simple or straightforward
    solutions,'' but the consent judgment presents a narrowly drawn yet
    comprehensive means of ensuring the protection of inmates' Federal
    rights. Id. The Federal rights at issue here, particularly with respect
    to the Constitution, establish minimum standards rather than ideals to
    which a correctional institution may aspire. These minimum standards
    are nonnegotiable. The Constitution guarantees that inmates, including
    convicted inmates and pretrial detainees who are presumed innocent,
    receive certain minimum levels of medical care and mental healthcare.
    It also guarantees that inmates will not be subject to a substantial
    risk of physical injury, sexual assault, or death to which officials
    are deliberately indifferent. The Court finds that the proposed consent
    judgment is the only way to overcome the years of stagnation that have
    permitted OPP to remain an indelible stain on the community, and it
    will ensure that OPP inmates are treated in a manner that does not
    offend contemporary notions of human decency. Order at 103-104.
        The United States will continue to work with all parties in the OPP
    case to design and implement a comprehensive, workable framework for
    sustainable reform to address the deplorable conditions at OPP.
        On October 21, 2013, the court entered the attached order
    (attachment #2) after the city and the Sheriff settled for $1.88
    million for the fiscal year 2013 costs to begin implementing the
    consent decree. This order triggered the effective date of the June 6
    consent decree, so the consent decree is also effective as of October
    21. (see Attachment #2)
                                     ______

                                 ATTACHMENT #2

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                          UNITED STATES DISTRICT COURT
                         EASTERN DISTRICT OF LOUISIANA

    LASHAWN JONES, KENT                      CIVIL ACTION NO. 12-859
    ANDERSON, STEVEN DOMINICK,
    ANTHONY GIOUSTAVIA, JIMMIE               JUDGE LANCE M. AFRICK
    JENKINS, GREG JOURNEE,
    RICHARD LANFORD, LEONARD                 MAGISTRATE JUDGE CHASEZ
    LEWIS, EUELL SYLVESTER, and
    MARK WALKER, on behalf of
    themselves and all other similarly
    situated, et al.

    VERSUS

    MARLIN GUSMAN, Sheriff, Orleans
    Parish

                 joint motion for entry of settlement agreement
        NOW INTO COURT, through undersigned counsel, comes Third-Party
    Plaintiff Marlin N. Gusman, Sheriff of Orleans Parish (the ``Sheriff')
    and Third-Party Defendant the City of New Orleans (the ``City''), who
    moves this Honorable Court to enter the release and settlement
    agreement reached by the Sheriff and the City regarding funding for the
    remainder of fiscal year 2013 into the record in this matter. During a
    settlement conference on October 16, 2013, the Sheriff and the City
    agreed in principle to a settlement of the Sheriff's Third-Party Demand
    against the City with respect to funding for the remainder of fiscal
    year 2013. The release and settlement agreement between the Sheriff and
    the City is attached is this motion as Exhibit ``A.''
        The definition of the term ``Effective Date'' set forth in the
    Consent Judgment \1\ states that the Consent Judgment shall be
    effective upon ``a definitive judgment regarding the amount of funding
    needed'' in order to comply with the terms of the Consent Judgment.
    Both the Sheriff and the City agree that the entry of an Order entering
    this settlement into the record satisfies this condition precedent in
    order for the Consent Judgment to be deemed ``effective.''
    ---------------------------------------------------------------------------
        \1\ Rec. Doc. 466.
    ---------------------------------------------------------------------------
        WHEREFORE, third-party plaintiff Marlin N. Gusman, Sheriff of
    Orleans Parish and Third-Party Defendant, the City of New Orleans,
    respectfully requests that this Honorable Court grant its Joint Motion
    to Approve Settlement.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                             certificate of service
        This is to certify that a copy of the foregoing was filed on this
    21st day of October, 2013 with the Clerk of Court by using the CM/ECF
    system, which will send a notice of electronic filing to all
    participating counsel of record.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                        release and settlement agreement
        This Release and Settlement Agreement (hereinafter, the
    ``Agreement'') is made on this 21st day of October, 2013, by and
    between Marlin N. Gusman, Sheriff of Orleans Parish (the ``Sheriff'),
    on behalf of the Orleans Parish Sheriff's Office (the ``OPSO'') and the
    City of New Orleans (the ``City'') (the aforementioned parties being
    sometimes referred to as the ``Parties''). The Parties hereby agree as
    follows:
        WHEREAS, the Sheriff filed a third-party complaint naming the City
    as a third-party defendant as part of the litigation captioned Lashawn
    Janes, et al. v. Marlin N. Gusman, et al., Case No. 12-859 (the
    ``Third-Party Complaint''); and
        WHEREAS, the Parties have agreed to resolve and compromise all
    differences and claims between them with respect to funding for fiscal
    year 2013 in the Third-Party Complaint ; and
        NOW THEREFORE, in view of the foregoing, and in consideration of
    the payments and obligations set forth below, the Sheriff and the City
    give the following releases, and promise, represent, and acknowledge
    the following:
        1. The following definitions shall apply to the Agreement:
              a. The ``Sheriff Released Parties'' shall mean Marlin N.
            Gusman, the Sheriff of Orleans Parish, the Orleans Parish
            Sheriffs' Office, and all of their respective present, former,
            and future elected officials, officers, employees, agents,
            consultants, servants, representatives, attorneys, insurers,
            successors, and assigns.
              b. The ``City Released Parties'' shall mean the City of New
            Orleans and all of its present, former, and future elected
            officials, officers, employees, agents, consultants, servants,
            representatives, attorneys, insurers, successors, and assigns.
              c. The ``Third-Party Complaint'' shall mean the third-party
            litigation commenced by the Sheriff against the City, as part
            of the lawsuit captioned Jones, et at. v. Gusman, et al., Case
            No. 12-859.
              d. ``Subject Matter'' shall mean (1) all current and future
            claims by the Sheriff and/or the OPSO against the City, in
            their entirety, arising out of the claims alleged in the Third-
            Party Complaint related to the funding for the OPSO for fiscal
            year 2013, (2) all claims by the Sheriff and/or the OPSO
            against the City relating to the funding of the OPSO for fiscal
            year 2013, in their entirety, asserted or that could have been
            asserted in the Third-Party Complaint, and (3) all current and
            future claims by the City against the Sheriff and/or the OPSO,
            in their entirety, that could have been asserted by the City
            regarding funding for the OPSO for fiscal year 2013 and/or
            those that could have been asserted by the City in connection
            with the Third-Party Complaint.
        2. The Sheriff, for himself and on behalf of the OPSO, agrees to
    dismiss all claims asserted against the City with respect to funding
    for fiscal year 2013 in the Third-Party Complaint with prejudice.
        3. In consideration of the agreements, promises, and
    representations contained in this Agreement, the Parties agree as
    follows:
              a. The City shall pay the sum of ONE MILLION EIGHT HUNDRED
            EIGHTY-EIGHT THOUSAND SIX HUNDRED FIFTY-TWO U.S. DOLLARS AND
            SEVEN CENTS ($1,888,652.07) in interim funding for fiscal year
            2013 to the OPSO.
              b. It is expected that the funds provided by the City
            pursuant to this Agreement shall be expended by the Sheriff in
            accordance with the following allocation:
                      i. FIVE HUNDRED THOUSAND U.S. DOLLARS ($500,000.00)
                    for the hiring and of and contracting for additional
                    medical staff;
                      ii. FOUR HUNDRED TWENTY-FIVE THOUSAND NINE HUNDRED
                    SEVENTY-FOUR U.S. DOLLARS ($425,974.00) for increasing
                    the minimum salary for individuals employed by the OPSO
                    at the ranks of Recruit, Deputy 1, and Deputy 2 that
                    are performing jail security functions at the
                    Conchetta, House of Detention, Old Parish Prison,
                    Templeman V, Temporary Detention Center, the ``Tents,''
                    and the Female facilities.
                      iii. THREE HUNDRED SEVENTY THOUSAND NINE HUNDRED
                    THREE U.S. DOLLARS AND NINETY-EIGHT CENTS ($370,903.98)
                    for overtime directly related to jail personnel
                    shortages at the jail facilities.
                      iv. TWO HUNDRED FIFTY THOUSAND EIGHT HUNDRED THIRTY-
                    EIGHT U.S. DOLLARS AND TWENTY-SEVEN CENTS ($250,838.27)
                    for the hiring of forty-two (42) individuals to perform
                    jail security functions.
                      v. ONE HUNDRED THIRTY-EIGHT THOUSAND U.S. DOLLARS
                    ($138,000.00) for the purchase of medical supplies.
                      vi. SEVENTY-FIVE THOUSAND U.S. DOLLARS ($75,000.00)
                    for the purchase of the ``Watch Tour'' software system.
                      vii. FORTY THOUSAND U.S. DOLLARS ($40,000.00) for
                    additional personnel issues at the discretion of the
                    Sheriff.
                      viii. TWENTY-FOUR THOUSAND NINE HUNDRED SIXTY-NINE
                    U.S. DOLLARS AND THIRTY-NINE CENTS ($24, 969.39) for
                    uniforms for new recruits.
                      ix. TWENTY-THOUSAND U.S. DOLLARS ($20,000.00) for an
                    increase of the minimum salary of fourteen (14)
                    previously identified individuals currently taking part
                    in the OPSO's training academy, or employed in the
                    OPSO's transportation division and medical
                    transportation division.
                      x. TWENTY THOUSAND U.S. DOLLARS ($20,000.00) for the
                    OPSO's recruiting budget.
                      xi. SEVENTEEN THOUSAND NINE HUNDRED SIXTY-SIX U.S.
                    DOLLARS AND FORTY-THREE CENTS ($17,966.43) in
                    connection with the cost of OPSO's hiring of a
                    qualified Jail Administrator as required by the Consent
                    Decree.
                      xii. FIVE THOUSAND U.S. DOLLARS ($5,000.00) for
                    increasing the salary for five (5) individuals
                    previously identified and employed by the OPSO at the
                    rank of Lieutenant.
              c. The Sheriff and the OPSO shall strictly adhere to this
            Allocation.
              d. The Sheriff and the OPSO shall provide to the City an
            accounting within the last ten (10) days of the month for the
            remainder of 2013 detailing (i) all amounts expended by the
            Sheriff of the funds provided pursuant to this Agreement, (ii)
            the category from which the Sheriff drew such funds, and (iii)
            the remaining balance for each category. All supporting
            documentation for the Sheriffs expenditures of funds provided
            pursuant to this Agreement shall be made available to the City
            at its request.
              e. In connection with the Sheriffs accounting for the month
            of December 2013, the Sheriff shall return to the City all of
            the funds provided under this Agreement that have not otherwise
            been spent for the above described expenses and/or needed to
            pay those obligations incurred during 2013.
        4. The Sheriff and the City agree that nothing in this Agreement
    obligates the City to provide specific levels of funding for 2014 and
    beyond.
        5. The Sheriff and the OPSO have agreed that they shall refrain
    from making any claim or demand or commencing or causing any action in
    law or equity regarding the funding of the OPSO by the City for fiscal
    year 2013 against any City Released Party.
        6. The Parties agree that this Agreement does not constitute an
    admission of liability or the validity of any claim by the Sheriff but
    has been reached by the Parties to conserve resources, to amicably
    resolve differences, to avoid the risks and uncertainty inherent in
    litigation, and to allow for the process of needed reforms regarding
    the conditions of confinement at Orleans Parish Prison to begin as soon
    as possible.
        7. No change or modification of this Agreement shall be valid
    unless it is made in writing and signed by the Parties.
        8. The Parties agree to submit to the jurisdiction of the United
    States District Court for the Eastern District of Louisiana in the
    event of any dispute requiring the interpretation and/or enforcement of
    this Agreement.
        IN WITNESS WHEREOF, the parties have executed this Release and
    Settlement Agreement as of the first date written above.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              [Signature Page to Release and Settlement Agreement]

                                     ______

                          UNITED STATES DISTRICT COURT
                         EASTERN DISTRICT OF LOUISIANA

    LASHAWN JONES, KENT                      CIVIL ACTION NO. 12-859
    ANDERSON, STEVEN DOMINICK,
    ANTHONY GIOUSTAVIA, JIMMIE               JUDGE LANCE M. AFRICK
    JENKINS, GREG JOURNEE,
    RICHARD LANFORD, LEONARD                 MAGISTRATE JUDGE CHASEZ
    LEWIS, EUELL SYLVESTER, and
    MARK WALKER, on behalf of
    themselves and all other similarly
    situated, et al.

    VERSUS

    MARLIN GUSMAN, Sheriff, Orleans
    Parish

                                     order
        Considering the foregoing Joint Motion for Entry of Settlement
    Agreement,
        IT IS ORDERED, that the motion is GRANTED, and
        IT IS FURTHER ORDERED that the Release and Settlement Agreement,
    attached to the Joint Motion for Approval of Settlement Agreement, is
    acknowledged and made a part of the record in this case;
        IT IS FURTHER ORDERED that by the agreement of all the parties and
    as a result of the consensual resolution of these issues by the Sheriff
    and the City, this Order authorizing the entry of the Release and
    Settlement shall satisfy the condition precedent set forth in the
    definition of ``Effective Date'' in the Consent Judgment.\*\
    ---------------------------------------------------------------------------
        \*\ Rec. Doc. 466, p. 2.
    ---------------------------------------------------------------------------
        New Orleans, Louisiana, this 21st day of October, 2013.

                                       ___________________

                                       UNITED STATES DISTRICT JUDGE
                                     ______

                          UNITED STATES DISTRICT COURT
                         EASTERN DISTRICT OF LOUISIANA
     LASHAWN JONES ET AL.                     CIVIL ACTION                                         No. 12-859
    VERSUS                                   c/w 12-138
                                             REF: 12-859MARLIN GUSMAN ET AL.                     SECTION I
                               order and reasons
        Before the Court is the joint motion for entry of settlement
    agreement filed by the Sheriff of Orleans Parish (``Sheriff'') and the
    City of New Orleans (``City'').
        The complaint in this case was filed on April 2, 2012.\1\
    Subsequent legal proceedings brought to light longstanding and grave
    deficiencies at Orleans Parish Prison. The Court entered a Consent
    Judgment on June 6, 2013, recognizing that ``years of stagnation . . .
    have permitted OPP to remain an indelible stain on the community.'' \2\
    Since that date, the focus of the legal proceedings has been on the
    Sheriff's third-party claims against the City. In these claims, the
    Sheriff asserted that additional funding is required to ensure
    constitutional conditions at Orleans Parish Prison.
    ---------------------------------------------------------------------------
        \1\ R. Doc. No. 1.
        \2\ R. Doc. No. 465, at 104.
    ---------------------------------------------------------------------------
        After voluminous briefing, nearly 30 hours of testimony in open
    court, and the submission of many highly technical and detailed
    exhibits, the Court took these claims under advisement. While the Court
    weighed the evidence and drafted an opinion, the parties continued
    settlement efforts. The Court was gratified that the parties were able
    to agree on a lead monitor, Ms. Susan McCampbell, and that the Sheriff
    and the Mayor agreed to split the cost of the monitoring team through
    the end of the year. However, notwithstanding the tireless and diligent
    efforts of Judge Martin L.C. Feldman, who volunteered to act as a
    settlement coordinator over the last several months, the parties were
    unable to reach any type of broader settlement.
        At the end of September, however, the Court was notified that the
    Sheriff and the Mayor believed that a settlement was still possible.
    The parties requested to meet with this Court in a final settlement
    effort.\3\ On October 16, 2013, the parties informed the Court that
    they had reached substantive agreement as to funding for the remainder
    of the fiscal year and expected to be able to formally enter into an
    agreement today.
        The Court commends the efforts of counsel for the United States of
    America and for the Plaintiff Class, which consists of all current and
    future Orleans Parish Prison inmates, for their diligent efforts to
    ensure that the settlement does not compromise the goals of the Consent
    Judgment. These efforts assured the Court that today's settlement
    adequately protects the rights of Orleans Parish Prison inmates.
        Both the Sheriff and the Mayor had to make difficult decisions in
    this case that will influence the citizens of this community on a daily
    basis. These decisions, which required working together to reconcile
    sometimes-divergent interests, are the type of challenge that citizens
    entrust to their elected leaders. The government has an obligation to
    provide inmates with a safe and secure institution as well as adequate
    medical and mental healthcare. Of course, if the government fails to
    fulfill this obligation, the Court must act to remedy the resulting
    constitutional violations. The Court was prepared to act imminently in
    this case if a settlement was not reached, and it will be prepared to
    do so in the future if necessary. The Court commends the Sheriff and
    the Mayor, however, for rising to the challenge and reaching a
    compromise on this matter. Focusing on remedying conditions at Orleans
    Parish Prison, rather than on pointing fingers, is the only way to
    begin immediate implementation of the Consent Judgment.
    ---------------------------------------------------------------------------
        \3\ See R. Doc. No. 569.
    ---------------------------------------------------------------------------
        While today marks an important milestone, the hard work is only now
    beginning. Entry of the settlement today triggers the Consent
    Judgment's effective date. The Consent Judgment's provisions are
    narrowly tailored to remedy violations of inmates' Federal rights, but
    they require a great deal of effort by the parties. Many of the changes
    address conditions at Orleans Parish Prison that have been present for
    generations. The Court is optimistic, however, that the parties and
    their attorneys are committed to working with the Monitor and the Court
    to make certain that the Consent Judgment effects meaningful change.
        Accordingly,
        IT IS ORDERED that the motion is GRANTED.
        IT IS FURTHER ORDERED that the release and settlement agreement,
    which is attached to the joint motion, is acknowledged and made a part
    of the record in this case.
        IT IS FURTHER ORDERED that with the agreement of all of the parties
    and as a result of the consensual resolution of these issues by the
    Sheriff and the City, this Order authorizing the entry of the release
    and settlement agreement shall satisfy the condition precedent set
    forth in the definition of ``Effective Date'' in the Consent Judgment.
        New Orleans, Louisiana, October 21, 2013.

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                             (End of Attachment #2)

                                     ______

        Currently, the city is conducting budget hearings to formulate the
    fiscal year 14 budget, which will take effect on Jan. 1. If the Sheriff
    is not satisfied with the city's budget amount, the monitor will
    attempt to resolve the disagreement and if the monitor is unable to do
    so within 45 days, it will be submitted to the Court.
        Question. Has the Department of Justice made any request or taken
    any steps to obligate Sheriff Gusman to prioritize his funds/spending?
    Why or why not? Why or why not?
        Answer. As noted in question 1, the process for determining how to
    fund the reforms necessary to correct the constitutional violations at
    OPP is being led by Judge Africk. Please see response to question 1
    above for a detailed outline of the process as set forth by Judge
    Africk. The United States will continue to comply with the Court's
    directives in this case.
        Question. Did the Department of Justice take steps to evaluate the
    city of New Orleans' financial situation? Why or why not?
        Answer. The Department of Justice is very mindful of the city of
    New Orleans' financial situation. As a result, the Department of
    Justice, as noted above in response to question 1, has provided tens of
    millions of dollars to the city of New Orleans to assist in reforming
    the criminal justice system. In addition, other Federal agencies have
    provided tens of millions of dollars in additional resources to reform
    the criminal justice system in New Orleans, including the construction
    of a new jail. The United States has also provided technical assistance
    on ways in which the city can reduce the costs of compliance with its
    legal obligations vis a vis New Orleans Police Department and the
    Orleans Parish Prison. At the same time, the United States has an
    obligation to ensure that the New Orleans Police Department and the
    Orleans Parish Prison are operated in a constitutional manner. The
    continuing costs of noncompliance, both in human terms and in financial
    terms (e.g. tort liability) are significant, and the Department
    continues to look forward to working with all parties to transform the
    criminal justice system in New Orleans into a national model.
                      bossier parish young marine program
        Question. Based on difficulties experienced by the Bossier Parish
    Young Marine Program in trying to secure grant funding; my constituents
    feel the Department of Justice, Office of Civil Rights, in Washington,
    D.C. is going to great lengths to prevent even the mere mention of God
    in any way to the youth in these programs.
        Does voluntary prayer or a moment of silence during a youth program
    render the program ineligible for funding? Please describe the
    Department's process for determining what constitutes an inherently
    religious activity.
        Answer. The Department's regulations on Equal Treatment for Faith-
    Based Organizations prescribe that ``[o]rganizations that receive
    direct financial assistance from the Department of Justice may not
    engage in inherently religious activities, such as worship, religious
    instruction, or proselytization, as part of the programs or services
    funded with direct financial assistance from the Department.'' 28
    C.F.R. 38.2(b)(1). ``If an organization conducts such activities, the
    activities must be offered separately, in time or location, from the
    programs or services funded with direct financial assistance from the
    Department, and participation must be voluntary for beneficiaries of
    the programs or services funded with such assistance.'' Id.; see also
    Exec. Order No. 13279, 2(f), 67 Fed. Reg. 77,141 (Dec. 12, 2002), as
    amended by Exec. Order No. 13559, 1(b), 75 Fed. Reg. 71,319 (Nov. 22,
    2010).
        Voluntary prayer during a youth program, while an inherently
    religious activity for purposes of 28 C.F.R. 38.2(b)(1), does not
    render the program ineligible for funding, as long as the program is
    properly structured in compliance with Federal civil rights laws which
    require that these activities must be voluntary and conducted
    separately in time or location from Department of Justice (DOJ)-funded
    activities. A moment of silence could be subject to the same
    restrictions if in context it is apparent that the grantee's purpose in
    providing the moment of silence is to encourage prayer or religious
    reflection on the part of program participants, or if the grantee's
    policy has the primary effect of advancing religion.
        In 2012, the Bossier Parish Sheriff's Office's Young Marines
    Program, described in its handbook as a youth education and service
    program for youth ages 8 through 18 years old, received a Juvenile
    Accountability Block Grant award through the Louisiana Commission on
    Law Enforcement (LCLE), the State Administering Agency for Louisiana.
    The curriculum for the program included a voluntary prayer at the
    beginning of each class session. The Office of Justice Programs' (OJP)
    Office for Civil Rights at DOJ, which is responsible for ensuring that
    recipients of funding from the OJP comply with applicable civil rights
    statutes and regulations, informed the LCLE that it must ensure that
    the Sheriff's Office is conducting prayer in compliance with DOJ's
    Equal Treatment regulations.
        Question. What steps are taken to ensure that communication between
    the Department and the State agencies truly reflect the Department's
    regulations and do not result in overly burdensome scrutiny?
        Answer. The State Administering Agencies (SAA) administer
    Department of Justice (DOJ) funding and are responsible for ensuring
    that their DOJ-funded subrecipients comply with all applicable civil
    rights laws. The Office for Civil Rights (OCR), in the Office of
    Justice Programs (OJP), is responsible for ensuring SAAs are fulfilling
    this responsibility. The OCR provides the same level of monitoring and
    oversight to all SAAs and their subrecipients. The OCR provides
    technical assistance as needed to SAAs to assist them in ensuring that
    subrecipients are complying with their civil rights obligations. If
    there is a concern that a subrecipient is implementing or intends to
    implement DOJ funding in a manner that appears to violate civil rights
    laws, the OCR provides guidance to the SAA on the conditions under
    which the subrecipient may implement DOJ funding consistent with civil
    rights laws and regulations.
        In the case of the Young Marines Program, once the Louisiana
    Commission on Law Enforcement (LCLE) notified the OCR that the program
    included voluntary prayer, the OCR informed the LCLE that the Sheriff's
    Office must ensure that prayer is conducted separately, in either time
    or location, from the class sessions (i.e., conducting prayer in a
    separate location from the DOJ-funded activities or ensuring that there
    is a break in time between prayer and the DOJ-funded activities).
    Funding for the Young Marines Program expired in December 2012 before
    the LCLE could confirm how the Sherriff's Office planned to conduct
    prayer separately in time or location from the DOJ-funded activities.
    However, OJP has been working closely with the LCLE to ensure that the
    Bossier Parish Sherriff's Office would meet the civil rights
    requirements that may come with any new OJP funding.
                                     ______

                Questions Submitted by Senator Richard C. Shelby
        Question. The 2014 budget request includes $100 million to double
    the existing capacity of the Federal Bureau of Investigation's (FBI)
    National Criminal Background Check System. In your testimony before the
    House Commerce, Justice, Science, and Related Agencies (CJS)
    Subcommittee, you stated that this funding was requested in
    anticipation of the adoption of a universal background check
    requirement; however your testimony today makes no mention of such a
    requirement.
        Attorney General Holder, could you please provide the details
    relating to the $100 million increase that has been requested? Is the
    funding necessary to simply support the existing system, which I
    understand is experiencing an uptick in background checks, or is the
    funding only necessary if a new, universal background check was
    adopted?
        Answer. While the request was originally predicated upon the
    enactment of a universal background check requirement, the number of
    background checks has been increasing since 2002, as reflected in the
    chart below. Based on historical growth and anticipated need, the FBI
    requests a total of $100 million and 524 positions to keep pace with
    anticipated workload requirements of the National Instant Criminal
    Background Check System (NICS). The chart below summarizes the yearly
    NICS workload from 1998 through March 2013.

    ------------------------------------------------------------------------
                                                     Total NICS
                         Year                        Background     Daily
                                                       Checks      Average
    ------------------------------------------------------------------------
    1998..........................................      892,840          n/a
    1999..........................................    9,138,123       25,105
    2000..........................................    8,543,037       23,470
    2001..........................................    8,910,191       24,479
    2002..........................................    8,454,322       23,226
    2003..........................................    8,481,588       23,301
    2004..........................................    8,687,671       23,867
    2005..........................................    8,952,945       24,596
    2006..........................................   10,036,933       27,574
    2007..........................................   11,177,335       30,707
    2008..........................................   12,709,023       34,915
    2009..........................................   14,033,824       38,554
    2010..........................................   14,409,616       39,587
    2011..........................................   16,454,951       45,206
    2012..........................................   19,592,303       53,825
    1/1-3/31/2013.................................    7,014,240       77,936
    ------------------------------------------------------------------------

        Question. What specific activities or technology will be supported
    with the $100 million?
        Answer. The requested funding provides for an additional 524
    positions, including NICS examiners, auditors, appeals and supervisory
    personnel; build out and rent costs for additional call center space;
    increased system capacity; and additional telecommunications equipment
    including routers, switches and Public Branch Exchange (PBX) equipment
    and associated installation and operations and maintenance costs.
        Question. Attorney General Holder, in your testimony, you discuss
    the measures the Department undertook, working with Congress, to
    address some of the budget shortfalls resulting from sequestration in
    2013. Additionally, you share your continued concern about your ability
    to ``keep Department of Justice employees on the job to respond to
    emergencies and safeguard the American people in the days ahead.'' This
    statement troubles me given the significant effort that went into
    working with the Department to ensure that there was adequate funding
    to support the overall mission and prevent furloughs.
        Could you explain this statement and cite specific areas of concern
    for 2013 and help the subcommittee understand how and why they were not
    adequately covered by the reprogramming request or the spend plan?
        Answer. The full statement from the testimony does not conclude
    with the quote above but continues with ``the solutions that we used to
    alleviate sequestration cuts in fiscal year 2013 will no longer be
    available to mitigate fiscal year 2014 funding shortfalls.'' While the
    reprogramming request and spend plan adequately mitigated the need for
    furloughs during fiscal year 2013, our concern remains that if Congress
    does not act to restore the Department's funding for fiscal year 2014,
    we will face the continued loss of critical personnel, accelerated by
    furloughs we were able to avoid this fiscal year. The Department's
    mission and its employees are inextricably linked: we cannot fulfill
    our mission without our employees. And as our employees address a
    multitude of important areas, from national security and cybersecurity
    to civil rights and safeguarding the most vulnerable members of
    society, our concerns about long-term impacts generated by inadequate
    funding extend to all areas of the Department's work. The President's
    fiscal year 2014 budget alleviates these concerns and provides the
    necessary funding to keep our employees on the job, and meet the
    Department's mission.
        Question. The budget requests $150 million to support a
    comprehensive school safety proposal through the Community Oriented
    Policing Services (COPS) program. However, the request does not appear
    to settle on a specific approach and it is not accompanied by a plan
    that details the proposal. Additionally, in conversations with your
    staff at the Department as well as conversations with staff at the
    Office of Management and Budget (OMB), we have learned that there is in
    fact, a disparity between the Department's concept for using these
    funds and OMB's concept for using these funds. This troubles me.
        Could you outline for us any guidance the Department has been given
    in terms of administering these funds and what requirements will be
    placed upon the recipients?
        Answer. This Comprehensive School Safety Program would provide
    funding for holistic, integrated, and individually tailored school
    safety and security resources for primary and secondary schools. The
    program aims to bring the law enforcement, mental health, and education
    disciplines together to provide a comprehensive approach to school
    safety. Law enforcement and school districts, in consultation with
    school mental health professionals, should come together to apply for
    funding that fills the gaps in their own school safety and security
    efforts.
        Under this program, funding would be available for the hiring of
    school safety personnel, as well as school safety assessments,
    technical assistance, and/or training. School safety personnel includes
    sworn school resource officers (SROs) and non-sworn school safety
    personnel, such as civilian public safety personnel; school counselors;
    school psychologists; other qualified psychologists; school social
    workers; and child and adolescent psychiatrists.
        With assistance from the Department of Education (and flexible
    transfer authority), the program will support demand-driven grants,
    permitting the flexible use of funds for safety assessments, personnel,
    and equipment. Applications will be driven by local needs and the
    quality of the comprehensive safety plans submitted with the
    applications that show how all of the funding requests and proposed
    activities are linked together. Funding may also be used to support
    training for any personnel hired to ensure that their presence in the
    schools does not lead to unnecessarily harsh discipline and arrests for
    youth misbehaving, and that they will support other school personnel in
    implementing evidence-based positive behavior strategies.
        The COPS Office, in partnership with the Department of Education,
    is currently working to establish the program parameters and
    requirements. The COPS Office has a near 20-year history of program
    development and will work to ensure that, if Congress approves the $150
    million request, these scarce taxpayer resources are spent wisely and
    monitored fully. If appropriated, the program would open in the spring
    of 2014, and the full scope of the program would be outlined in the
    application materials. The COPS Office and Department of Justice staff
    welcome the opportunity to work with your staff throughout the program
    development phase to ensure your concerns are adequately addressed.
        Question. Will the funds be available for technology enhancements,
    infrastructure investments or simply school resource officers? If the
    funds are available for more than just school resource officers, will
    schools be required to execute some sort of needs or vulnerability
    assessment prior to receiving funds in order to inform funding
    decisions?
        Answer. Funding may also be used to purchase school safety
    equipment; develop and update public safety plans; conduct threat
    assessments; and train ``crisis intervention teams'' that span the law
    enforcement, education, and mental health communities to respond to and
    assist students in crisis.
        The program will be ``needs based,'' which means that applicants
    would only apply for items based on their self-assessed need for those
    items to fill the existing gaps in their comprehensive school safety
    efforts. Applicants would be evaluated on the quality of their proposed
    programs and how closely they address all aspects of comprehensive
    school safety models, both in terms of their current activities and how
    grant funding would further enhance and complement these existing
    efforts.
        The requirements of the proposed fiscal year 2014 program are still
    in development. However, in fiscal year 2013, the COPS Office will
    develop a model for, as well as a training curriculum on, the effective
    use of school resource officers in school safety programs for
    application to the proposed fiscal year 2014 Comprehensive School
    Safety Program. The training curriculum will incorporate best practices
    in the development and implementation of the school threat assessment
    process and threat assessment teams. While threat assessment can be
    funded under the proposed fiscal year 2014 Comprehensive School Safety
    Program, a decision has not yet been made as to whether threat
    assessments will be a requirement for grant recipients.
        Question. Cybersecurity is a significant issue facing the Federal
    Government, the private sector and the global economy. Ensuring that we
    protect our critical infrastructure is of paramount importance. It is
    also imperative that we work collaboratively with the private sector to
    do so. The Department of Justice plays a critical role in the
    cybersecurity arena and the budget request includes additional
    resources to support further efforts.
        The request discusses enhancing the Department's cyber policy
    scope, improving the sharing of information and increasing cyber
    collection and data analysis. Could you provide a detailed description
    of what kinds of investments the Department will make with these
    increased resources?
        Answer. The Department must continue to evolve and adapt to address
    complex cyber threats. We have already made significant changes at FBI
    and the Department of Justice (DOJ) just in the last year to refocus
    and adapt our strategies to make our efforts as effective as possible.
    To coordinate investigations, the Department participates in the
    National Cyber Investigative Joint Task Force (NCIJTF), a multi-agency,
    national focal point for which the FBI serves as executive agent that
    coordinates, integrates, and shares pertinent information relative to
    cyber threat investigations. The Department also just recently launched
    a new, nationwide program focused on combating cyber-based terrorism
    and state sponsored computer intrusions, the National Security Cyber
    Specialist (NSCS) network. The NSCS network, which consists of nearly
    100 prosecutors from U.S. Attorney's Offices nationwide and cyber
    experts from the National Security and Criminal Divisions, is a
    critical part of the Department's efforts to better address cyber
    intrusions and attacks carried out by nation states or terrorist
    organizations. This network is modeled in part on the existing Computer
    Hacking and Intellectual Property (CHIP) coordinator network, which has
    brought together prosecutors across the country to address cybercrime
    and enforce intellectual property laws for over 15 years.
        The Department's fiscal year 2014 Budget request provides a total
    of $669 million to continue our Cyber efforts and $92.6 million in
    program increases for FBI, National Security Division (NSD), and
    Criminal Division (CRM).
        For FBI, $86.6 million (152 positions, 60 agents) is provided to
    support the Next Generation Cyber Initiative to increase coordination
    with victims and increase investigative capacity (100 positions, 50
    agents), improve cyber collection and analysis (36 positions, 10
    agents), and extend centralized capabilities to the field (16
    positions). These resources will help promote a whole of Government
    approach to cybersecurity, as well as address critical gaps in the
    FBI's current ability to investigate computer intrusions and identify,
    mitigate, and disrupt cyber threat actors. Requested resources will
    allow for the next phase of the Binary Analysis Characterization and
    Storage System (BACSS) malware analysis system, an FBI enterprise-wide
    malware triage tool that enhances the FBI's ability to exigently
    analyze and investigate malware infections.
        For NSD, $3.5 million (26 positions, 16 attorneys) is provided to
    recruit, hire and train additional cyber specialists to support the
    growing area of cyber threats to national security. Because cyber-based
    terrorism, cyber-based espionage, and other state-sponsored cyber
    intrusions threaten national security, NSD is involved in the full
    range of U.S. cyber and cybersecurity efforts, including cyber threat
    prevention, detection, investigation, and prosecutions, cybersecurity
    program development and oversight, cybersecurity vulnerability
    management, and cyber policy development. These resources will allow
    NSD to enhance current cyber capabilities in the areas of
    Counterespionage (3 positions, 2 attorneys), Foreign Investment Review
    (4 positions, 3 attorneys), Counterterrorism (3 positions, 2
    attorneys), Office of Intelligence (12 positions, 8 attorneys), and Law
    and Policy (4 positions, 1 attorney).
        For CRM, $2.6 million (25 positions, 9 attorneys) is provided to
    enhance four vital areas that CRM provides efforts; investigations,
    prosecutions, and disruption efforts; support and advocacy for legal
    tools, international assistance and outreach; and forensic support. In
    addition to these operational support activities, these resources will
    increase the policy capacity of the Department of Justice as the
    Government continues to grow its interaction and interface with
    cybersecurity and cyberspace issues.
        Question. Will these resources assist the Department in
    collaborating with other Federal agencies responsible for
    cybersecurity? If so, how?
        Answer. Yes, these resources will assist the Department in
    collaborating with other Federal agencies responsible for
    cybersecurity. These resources will encompass and expand on the
    existing efforts to electronically and in real time connect the
    following entities: the seven security centers to enhance situational
    awareness; the Department of Homeland Security (DHS) deployed EINSTEIN
    Information Sharing and Analytics Government-wide system; and the FBI's
    Binary Analysis Characterization and Storage System (BACSS). These
    currently disparate efforts will be synchronized to develop a
    comprehensive coordinated cybersecurity information sharing system
    capable of leveraging ongoing activities and best practices of the
    Program Manager for the Information Sharing Environment (PM-ISE),
    including its work with fusion centers and privacy guidelines. The
    Information Security Architecture (ISA) will serve as the foundation
    for cybersecurity information sharing requirements across the
    Government. FBI will work with DHS and other impacted agencies, the PM-
    ISE and the National Institute of Standards and Technology (NIST) to
    develop machine readable interoperable technical standards that will
    allow for automated information sharing.
        These resources will also support the Department's continued
    participation in the National Cyber Investigative Joint Task Force
    (NCIJTF) and its recently launched National Security Cyber Specialist
    (NSCS) network which is a nationwide program focused on combating
    cyber-based terrorism and state sponsored computer intrusions.
        Question. Additionally, could you outline the efforts being
    undertaken by the Department to eliminate the stovepipes that exist
    across Government agencies with respect to the sharing of information
    and analysis?
        Answer. The Department and the FBI are committed to working with
    interagency partners to eliminate the stovepipes that have historically
    limited capacity to most effectively counter cyber threats. Over the
    last year, the FBI and other key U.S.Government agencies have come
    together to define roles and responsibilities to maximize appropriate
    sharing of intelligence and analysis efforts. As a recent example, the
    FBI and DHS have refined and streamlined joint intelligence products to
    ensure they can be used effectively across public and private sectors.
        At the FBI-led National Cyber Investigative Joint Task Force
    (NCIJTF), all 19 member agencies work in collaboration on operations.
    The NCIJTF is tasked with the responsibility for coordinating,
    integrating, and sharing pertinent cyber threat investigations, and
    cases and targets are de-conflicted on a daily basis in this multi-
    agency environment. This is not limited to just U.S. Government
    participants; the NCIJTF has expanded its membership to include
    personnel from Australia and the United Kingdom, in addition to
    personnel from local law enforcement departments around the country.
    The FBI also has detailees embedded with the National Security Agency's
    (NSA) National Threat Operations Center (NTOC), the CIA's Information
    Operations Center (IOC), and DHS's National Cybersecurity
    Communications and Integration Center (NCCIC), who are responsible for
    coordinating and de-conflicting operations and initiatives with the
    interagency groups in real time.
        In addition, the FBI actively participates in initiatives that
    bring together interagency resources to take action against advanced
    cyber adversaries. For example, the FBI initiated Operation Clean
    Slate, in which interagency and private sector partners conducted
    coordinated operations to successfully disrupt more than 1,000 botnets
    infected with malware known as Citadel. The botnets were part of a
    global crime operation estimated to be responsible for more than half a
    billion dollars in financial fraud. Efforts like this involve
    substantial coordination with interagency partners on a daily basis,
    and while this particular operation focuses on criminal actors,
    ultimately it will evolve to become a whole-of-government approach to
    target botnets controlled by national security actors.
        Question. A significant impediment to future successes against
    cyber attacks is a lack of information from private companies about
    cyber attacks they have experienced. Obtaining such information would
    allow the Government to have a better understanding of the types of
    attacks that are occurring, what emerging threats look like and be
    better prepared to address them. Private companies however; are often
    weary of allowing the Federal Government to access their technology
    infrastructure.
        Do you believe that there is a path forward that could provide a
    level of comfort to private companies such that the Government could
    have greater insight into these types of attacks?
        Answer. The FBI has enhanced its information sharing practices to
    ensure that the private sector is getting information from the FBI that
    may be needed to protect systems and networks. In the past, private
    companies were hesitant to provide information or access because there
    was no reciprocity in information sharing. The FBI's enhanced approach
    to outreach and victim notification has drastically changed its
    relationship with private industry because the focus has changed to
    arming these companies with as much information as possible to enable
    them to repel malicious cyber intrusions.
        When the FBI works with companies during intrusion investigations,
    it is often accompanied by relevant interagency members who play
    different, necessary roles during an incident. If necessary, the FBI
    will grant appropriate members of the private sector temporary security
    clearances to give them important incident information. This process
    has benefitted both the FBI and the private sector because the
    individual companies are appropriately informed.
        The FBI has formalized its management of these important
    relationships through the establishment of its Outreach Section within
    the Cyber Division. This section is committed to developing
    relationships that will enhance the ability of the FBI and the U.S.
    Government to combat cyber threats. One component of this section is
    focused on developing, protecting, and supporting prioritized
    relationships, while another manages the national InfraGard program.
    The InfraGard program is a partnership started in the late 1990's
    between the FBI, other law enforcement agencies, and private sector
    entities where information regarding cyber threats is shared. As the
    FBI continues to develop the cyber outreach program, including the
    iGuardian portal which will allow private sector entities to quickly
    report cyber threats and incidents to the FBI, the information sharing
    relationship between the FBI and the private sector will become even
    more robust.
        Question. What is the Department doing to allay the concerns that
    private companies have expressed?
        Answer. Through numerous discussions with major U.S. companies, it
    has become evident that one impediment to information sharing is
    uncertainty regarding, among other things, certain statutory provisions
    regarding information sharing. To allay these concerns, the FBI
    participates in programs and initiatives aimed at educating the private
    sector about FBI structure, processes, and protocol. Beyond this, the
    FBI has a long history of protecting sensitive information, and it is
    committed to working with the private sector to address concerns and
    develop safeguards that protect cybersecurity information.
        Question. In your testimony, you state that you will ``pursue
    appropriate action to recover civil penalties under the Clean Water
    Act'' for those responsible for the Deepwater Horizon oil spill. Much
    work and coordination by the Gulf States and Federal agencies has begun
    to standup the Gulf Coast Ecosystem Restoration Council. The Gulf Coast
    needs a reliable stream of funding to allow communities damaged by the
    spill to recover from the economic and environmental impacts.
        What actions can the Department take to expedite the assessment of
    civil penalties on those responsible?
        Answer. The Department's civil action arising out of the Deepwater
    Horizon oil spill is being litigated in Federal district court in New
    Orleans. The Department and other Federal agencies (led by Coast Guard,
    EPA, and the Department of the Interior) have already entered into a
    settlement with the Transocean defendants that has secured $1 billion
    in civil penalties that will provide funding for the Gulf Coast
    Ecosystem Restoration Council. The settlement proceeds will be paid in
    three installments over 2 years; the first payment has already been
    made. Consistent with the Resources and Ecosystems Sustainability,
    Tourist Opportunities, and Revived Economies of the Gulf Coast States
    Act of 2012 (the RESTORE Act), 80 percent of that settlement will be
    deposited into the Gulf Coast Ecosystem Trust Fund.
        In the ongoing litigation, the United States has pressed for trial
    schedules that will yield civil penalty judgments as quickly as
    practicable, consistent with the many, many claims also being pressed
    by individuals and businesses for private damages as well as claims by
    the Gulf States. For example, we have resisted large extensions of time
    in the trial schedules and have supported trial schedules that would
    resolve all the factors necessary for penalty assessment as soon as
    practicable. We have also prioritized case development and trial work
    on this matter, including deploying substantial litigation support
    funding and resources to this case, funds that are necessary for the
    massive case development and document productions called for in this
    high-stakes matter. (The United States has collected and produced over
    90 million pages of documents, and well over 577 days of depositions
    have been completed so far, with more to come in the months ahead). The
    Phase One trial, which addressed liability and culpability questions
    (and which is relevant to ultimate penalty amount) is complete and was
    submitted to the court for decision on June 21, 2013, with the filing
    of necessary post-trial materials. The Phase Two trial, which will
    determine how many barrels of oil were discharged into the Gulf
    (another area in dispute that also is relevant to ultimate penalty
    amounts) concluded on October 18, 2013; opening post-trial briefs and
    other materials are due December 20, 2013, with responses due January
    24, 2014. The Department's pending proposal to the court calls for a
    Phase Three trial to resolve all other issues necessary to assess civil
    penalties.
        Question. Do you anticipate an extensive legal battle to resolve
    civil penalties that are due?
        Answer. Yes. To date, the defendants against whom the United States
    filed a civil lawsuit who have not settled civil penalties claims (BP
    and Anadarko Petroleum Corporation) have vigorously litigated all
    aspects of this case, including those relevant to determine the amounts
    of civil penalties due.
        Question. Are you determined to fight for the maximum amount
    allowed under the law?
        Answer. Yes. As the Attorney General has said, the Department
    intends to hold the parties responsible for the Deepwater Horizon oil
    spill fully accountable for their violations of the law, and to ensure
    that the American taxpayers are not forced to bear the costs of
    restoring the Gulf region. To that end, we will seek the maximum amount
    of civil penalties allowed under the law.
        The Joint Explanatory Statement to accompany Public Law 113-6
    addresses the issue of prescription drug abuse which has become a
    pervasive problem in the United States. In particular the language
    urges you to collaborate with State and local organizations, including
    experienced nonprofits, as a means of sharing best practices for
    reducing prescription drug diversion and abuse, including establishment
    of prescription drug monitoring programs, proper drug disposal, and
    increased enforcement on pill mills and doctor shopping.
        Question. Could you detail for the Committee the collaborations
    that are ongoing to specifically address this problem?
        Answer. As you know, prescription drug abuse is the Nation's
    fastest-growing drug problem. The administration's Prescription Drug
    Abuse Prevention Plan expands upon the National Drug Control Strategy
    and includes action in four major areas to reduce prescription drug
    abuse: education, monitoring, proper disposal, and enforcement. The
    Department of Justice is fully engaged in all four action items and we
    routinely work with our State and local counterparts on these measures
    as appropriate. Department activities in the three specific areas about
    which you inquire are detailed below.
                     prescription drug monitoring programs
        One of the best ways to combat the rising tide of prescription drug
    abuse is the implementation and use of Prescription Drug Monitoring
    Programs (PDMPs). PDMPs help prevent and detect the diversion and abuse
    of pharmaceutical controlled substances, particularly at the retail
    level where no other automated information collection system exists.\1\
    However, most States do not require practitioners to use the PDMP, and
    use rates for some State PDMPs remain low.
    ---------------------------------------------------------------------------
        \1\ This statement applies to all schedules. However, while many
    prescription monitoring programs cover all schedules, some programs
    apply only to controlled substances in Schedule II.
    ---------------------------------------------------------------------------
        While PDMPs are valuable tools for prescribers, pharmacists, and
    law enforcement agencies to identify, detect, and prevent prescription
    drug abuse and diversion, we know that diversion still exists,
    especially across State lines. Interconnectivity remains a challenge,
    as many drug traffickers and drug seekers willingly travel hundreds of
    miles to gain easy access to unscrupulous pain clinics and prescribers
    and to avoid detection by PDMPs. Also, improving interoperability
    between State systems and data sharing among States would increase the
    effectiveness of PDMPs. The Department supports efforts to enhance the
    benefits of State PDMPs by providing the means for prescribers and
    pharmacists to more easily identify drug abuse and misuse when patients
    cross State lines to obtain drugs.
                              proper drug disposal
        The Secure and Responsible Drug Disposal Act (Disposal Act),
    enacted in October 2010, amends the Controlled Substances Act (CSA) to
    authorize ultimate users to deliver pharmaceutical controlled
    substances to another authorized person for the purpose of disposal in
    accordance with regulations promulgated by the Drug Enforcement
    Administration (DEA), without violating the law. Prior to the passage
    of the Disposal Act, the CSA provided no legal means for patients to
    transfer possession of controlled substance medications to other
    individuals for disposal. DEA issued a Notice of Proposed Rulemaking to
    implement the Disposal Act on December 21, 2012. The public comment
    period closed on February 19, 2013. DEA is currently in the process of
    drafting the final rule.
        Additionally, DEA-coordinates National Prescription Drug Take-Back
    Days to provide a safe, convenient, and responsible means of disposal,
    while also educating the public about the potential for abuse and
    diversion of these medications. Prescription Take-Back Days are
    convenient opportunities for the public to rid their medicine cabinets
    of unused, unwanted or expired medications. Since fiscal year 2011, DEA
    has conducted six National Take-Back Days. Each Take-Back Day provides
    the public with thousands of sites nationwide to turn in their unwanted
    or expired prescription drugs safely and securely. As a result of all
    six National Take-Back Initiatives, the DEA, in conjunction with its
    State, local and tribal law enforcement partners, has removed a total
    of approximately 2.8 million pounds (1,409 tons) of medication from
    circulation. Until the disposal regulations become permanent, DEA will
    continue to coordinate Take-Back Days.
            increased enforcement on pill mills and doctor shopping
        The DEA Diversion Control Program is using all criminal and
    regulatory tools available to identify, target, disrupt and dismantle
    individuals and organizations responsible for the illicit manufacture
    and distribution of pharmaceutical controlled substances in violation
    of the CSA.
        Question. What types of enforcement measures are currently ongoing
    with respect to identifying and shutting down pill mills and
    unscrupulous doctors who support this problem?
        Answer. Addressing this issue is a top priority for the DEA. As a
    result of the combined efforts to eliminate pharmaceutical diversion
    via the Internet, drug traffickers and drug seekers have turned to
    unscrupulous pain clinics, or ``pill mills'' for drugs. These
    ``clinics'' are often staffed by and sometimes owned by physicians, who
    dispense addictive opioids outside the course of professional practice
    and without a legitimate medical purpose. When pain clinics cannot
    dispense directly from the pain clinic, unscrupulous pharmacies,
    sometimes affiliated with the pain clinics, dispense these same
    substances in violation of the CSA.
        To combat this problem, DEA substantially expanded its Tactical
    Diversion Squads (TDS) beginning in 2008. As of June 1, 2013, there are
    58 operational TDS's throughout the United States and Puerto Rico.
    Eight more squads are expected to become operational before the end of
    this fiscal year. These TDS's incorporate the enforcement,
    investigative, and regulatory skill sets of DEA Special Agents,
    Diversion Investigators, and other Federal law enforcement officers,
    and State and Local Task Force Officers. The expansion of the TDS
    groups has enabled the Diversion Groups to concentrate on the
    regulatory aspects of the Diversion Control Program, thus ensuring that
    DEA's nearly 1.4 million registrants meet their obligations under the
    CSA. For example, DEA increased the frequency of compliance inspections
    of specific registrant categories such as manufacturers, distributors,
    importers, exporters, narcotic treatment programs, DATA-waived
    practitioners, researchers, and chemical handlers.
        Question. A recent press release from the Department applauds the
    United Parcel Service (UPS) for halting its distribution of controlled
    substances and prescription drugs from illegal online pharmacies.
    According to the press release, UPS entered into a Non-Prosecution
    Agreement in which the company agree to forfeit $40 million in payments
    it received from illicit online pharmacies and to implement a
    compliance program designed to ensure that illegal online pharmacies
    will not be able to use UPS's services to distribute drugs in the
    future.
        While I believe this is a step in the right direction I am
    interested in learning how UPS, or other shippers, know or can learn
    that they are in fact shipping illegal substances or that illegal
    pharmacies are using their services? Does the DEA or Food and Drug
    Administration (FDA), or someone with actual knowledge about these
    entities, provide a list to shippers so that they can assist in curbing
    the distribution?
        Answer. DEA is committed to serving as a resource for shipping
    companies to use when considering questions of the legality of
    shipments from Internet pharmacies. To that end, law enforcement
    agencies including DEA have made themselves available in the past to
    discuss Internet pharmacy risks and curtailing illegal shipments of
    pharmaceuticals. For example, as was detailed in Attachment A of the
    Non-Prosecution Agreement between DOJ and UPS, ``On five occasions in
    January 2004 through May 2006, UPS's Corporate Security Manager and a
    UPS Public Affairs Vice President met with DEA and other law
    enforcement agencies to discuss the parcel carrier industry's and UPS's
    role in assisting Federal authorities in curtailing illegal Internet
    pharmacies.''
        While package delivery companies have a history of cooperation in
    law enforcement efforts, providing a comprehensive list of all
    pharmacies that DEA believes may be operating illegally could raise
    significant legal issues. In addition, the Administrative Procedure Act
    requires DEA to provide notice and an opportunity to be heard before
    DEA may take administrative action against a pharmacy's registration.
        Shippers have a variety of resources to avoid business with illegal
    Internet pharmacies. Final decisions revoking DEA registrations are
    published in the Federal Register and are available on DEA's website.
    The National Association of Boards of Pharmacies (NABP) provides
    accreditation of Internet pharmacies and a service for the public,
    including shipping companies such as UPS, to verify that an Internet
    pharmacy is accredited. The accreditation program is Verified Internet
    Pharmacy Practice Sites (VIPPS). In addition, NABP provides a list of
    criteria which are indicators of a rogue Internet drug outlet. In the
    course of entering into business with an Internet pharmacy, shipping
    companies could conduct research, identifying accreditation or possible
    risk indicators, to ensure that the pharmacy opening an account with a
    shipping company is in compliance with the shipping company's terms of
    service, i.e., that shipments do not violate Federal, State, or local
    laws. These NABP resources are listed for information purposes only and
    do not reflect a determination of the absence of culpability of a party
    availing themselves of those resources.
        UPS and other shippers should conduct appropriate due diligence on
    all accounts employees know or should know are being used to ship
    pharmaceuticals ordered online to determine whether the businesses are
    operating legally. For additional details see the non-prosecution
    agreement, Attachment A, and Attachment B.
        Question. The press release also states ``[f]rom 2003 through 2010,
    UPS was on notice, through some of its employees, that Internet
    pharmacies were using its services to distribute controlled substances
    and prescription drugs without valid prescriptions in violation of the
    law. ... Despite being on notice that this activity was occurring, UPS
    did not implement procedures to close the shipping accounts of Internet
    pharmacies.''
        I am not clear what, if any ``official'' notification was provided
    to UPS. Were they notified by State or local law enforcement or Federal
    law enforcement authorities that specific ``Internet pharmacies'' were
    using their shipping services? After learning about the suspicions of
    some of their employees, did UPS reach out to law enforcement
    authorities for confirmation about these pharmacies? In other words,
    how did the process work?
        Answer. Please see the attached statement of facts, in particular
    paragraphs 5, 22, 24, and 25. UPS was notified by its own employees and
    met with the DEA and other law enforcement agencies between January
    2004 and June of 2006 regarding the issue. (see Attachment A)
        Question. More importantly, I am interested in what work is being
    done to collaborate with and provide information to all shippers moving
    forward, so that they can be partners in this effort? Are there
    existing relationships with UPS, DHL, FedEx, the USPS, and others, to
    provide them this important information and provide guidance in
    establishing the procedures that the press release mentions was lacking
    for UPS?
        Answer. The Department of Justice is actively engaged throughout
    the country in the prosecution of rogue Internet pharmacies that
    dispense and distribute controlled substances in violation of the
    Controlled Substances Act. The Department has longstanding
    relationships with private shipping companies and the U.S. Postal
    Service and we are pleased with the steps UPS has taken to stop the use
    of its shipping services by illegal on-line pharmacies. Please see
    attached UPS Online Pharmacy Compliance Program as an example of
    procedures implemented to combat illegal Internet pharmacies. (see
    Attachment B)
        Question. Could you discuss the compliance program that UPS is
    implementing pursuant to the Non-Prosecution Agreement; is it being
    developed and implemented with the assistance of the U.S. Attorney's
    office and/or the DEA and is there any requirement for continued
    oversight or reporting?
        Does the Department intend to use the UPS compliance program as a
    model that other shippers will be encouraged to adopt?
        Answer. The Department is hopeful that the leadership displayed by
    UPS through this compliance program will set the standard for the
    parcel delivery industry and will materially assist the Federal
    Government in its battle against illegal Internet pharmacies.
        Please see the attached press release and the Non-Prosecution
    Agreement, the statement of facts and the UPS compliance program for
    additional information.
                                     ______

    ATTACHMENTS--Press Release, Non-Prosecution Agreement, Agreed Statement
              of Facts, and UPS Online Pharmacy Compliance Program

                                     ______

                      the united states attorney's office
                        northern district of california
                                 press release

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

       UPS Agrees To Forfeit $40 Million In Payments From Illicit Online
                        Pharmacies For Shipping Services

    FOR IMMEDIATE RELEASE                                    March 29, 2013

    San Francisco.--United Parcel Service, Inc. (``UPS'') and the United
    States Attorney's Office for the Northern District of California
    (``USAO-NDCA'') entered into a Non-Prosecution Agreement (``NPA'')
    today in which UPS agreed to forfeit $40 million in payments it has
    received from illicit online pharmacies and to implement a compliance
    program designed to ensure that illegal online pharmacies will not be
    able to use UPS's services to distribute drugs, U.S. Attorney Melinda
    Haag, Drug Enforcement Administration (DEA) Administrator Michele M.
    Leonhart, and Food and Drug Administration (FDA) Director of the Office
    of Criminal Investigations John Roth announced.

        UPS has cooperated fully with the investigation and has already
    taken steps to ensure that illegal Internet pharmacies can no longer
    use its services to ship drugs. These voluntary improvements will be
    strengthened by the compliance program UPS will implement as a
    condition of this NPA.

        U.S. Attorney Melinda Haag commented: ``We are pleased with the
    steps UPS has taken to stop the use of its shipping services by illegal
    on-line pharmacies. Good corporate citizens like UPS play an important
    role in halting the flow of illegal drugs that degrade our Nation's
    communities. We are hopeful that the leadership displayed by UPS
    through this compliance program will set the standard for the parcel
    delivery industry and will materially assist the Federal Government in
    its battle against illegal Internet pharmacies.''

        From 2003 through 2010, UPS was on notice, through some of its
    employees, that Internet pharmacies were using its services to
    distribute controlled substances and prescription drugs without valid
    prescriptions in violation of the law. Internet pharmacies operate
    illegally when they distribute controlled substances and prescription
    drugs that are not supported by valid prescriptions. A prescription
    based solely on a customer's completion of an on-line questionnaire is
    not valid. Despite being on notice that this activity was occurring,
    UPS did not implement procedures to close the shipping accounts of
    Internet pharmacies.

        ``DEA is aggressively targeting the diversion of controlled
    substances, as well as those who facilitate their unlawful
    distribution,'' said DEA Administrator Michele M. Leonhart. ``This
    investigation is significant and DEA applauds UPS for working to
    strengthen and enhance its practices in order to prevent future drug
    diversion.''

        John Roth, Director of the FDA Office of Criminal Investigations
    added: ``The results of this investigation will prompt a significant
    transformation of illicit Internet pharmacy shipping and distribution
    practices, limiting the chances of potentially unapproved, counterfeit
    or otherwise unsafe prescription medications from reaching U.S.
    consumers. The FDA is hopeful that the positive actions taken by UPS in
    this case will send a message to other shipping firms to put public
    health and safety above profits.''

        Kirstin M. Ault is the Assistant U.S. Attorney who is prosecuting
    the case with the assistance of Legal Technician Rawaty Yim. The
    prosecution is the result of an investigation by the Financial
    Investigative Team of the DEA, with the assistance of the FDA Office of
    Criminal Investigations. This investigation is part of USAO-NDCA's
    Health Care Fraud program and was initiated as an investigation with
    the Organized Crime and Drug Enforcement Task Force. Substantial
    assistance was provided by the North Carolina Board of Pharmacy.
                                     ______

                           non-prosecution agreement

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         11th Floor, Federal Building                 (415)
    436-7200
                         450 Golden Gate Avenue, Box 36055
                         San Francisco, California 94102-3495   FAX: (415)
    436-7234

                         March 29, 2013

    Eugene Illovsky
    Morrison Foerster LLP
    425 Market Street
    San Francisco, CA 94105-2842
    Eillovsky@mofo.com

              Re: United Parcel Service

    Dear Mr. Illovsky:
        This letter sets forth the Non-Prosecution Agreement
    (``Agreement'') between the United States Department of Justice (the
    ``Government'') and United Parcel Service, Inc., a Delaware Corporation
    headquartered in Atlanta, Georgia, and any and all subsidiaries of
    United Parcel Service (collectively ``UPS, Inc.'' or the ``Company'').
    UPS, Inc., by its undersigned attorney, pursuant to the authority
    granted by UPS, Inc.'s Board of Directors, enters into this Agreement
    with the Government. As used in this Agreement, ``UPS, Inc.'' shall be
    read to include UPS, Inc. and all of its subsidiaries, unless otherwise
    stated.
        The Government has notified UPS, Inc. that, based upon an
    investigation by the Government and the Drug Enforcement Administration
    (``DEA''), in its view, UPS, Inc., engaged in the conduct described in
    Attachment A hereto. UPS, Inc. admits, acknowledges and accepts
    responsibility for the conduct set forth in Attachment A.
        In exchange for a non-prosecution agreement, the parties have
    agreed to the following terms and conditions:
                     non-prosecution for criminal liability
        1. In consideration of the Company's entering into this Agreement
    and its commitment to: (a) accept corporate responsibility for the
    conduct described in Attachment A; (b) forfeit $40,000,000 to the
    United States; (c) enforce the Compliance Program set forth in
    Attachment B; and (d) otherwise comply with the terms of this
    Agreement, the Government agrees not to prosecute UPS, Inc. for (1) the
    conduct described in Attachment A; or (2) any other conduct relating to
    the transportation or distribution of controlled substances and
    prescription drugs for illegal Internet pharmacies from January 2002
    through the date of this Agreement that was either the subject matter
    of the investigation that led to this Agreement or known to the
    Government as of the date of this Agreement, including but not limited
    to, conspiracy, 18 U.S.C. Sec. 371, 21 U.S.C. Sec. 846, 18 U.S.C.
    Sec. 1956(h); distribution of controlled substances, 21 U.S.C.
    Sec. 841(a)(1); money laundering, 18 U.S.C. Sec. Sec. 1956 or 1957; and
    misbranding of pharmaceuticals, 21 U.S.C. Sec. Sec. 331, et seq. This
    Paragraph does not provide any protection against prosecution for
    illegal activities, if any, committed in the future by UPS, Inc. or its
    subsidiaries, nor does it apply to any illegal conduct that may have
    occurred in the past which is not described in this Paragraph.
                              breach of agreement
        2. It is understood that if, in the 2 years following execution of
    this Agreement, the Government determines in the reasonable exercise of
    its sole discretion, that the Company or any of its employees, officers
    or directors: (a) has deliberately given false, incomplete, or
    misleading testimony or information in the investigation that led to
    this Agreement, (b) has committed any knowing and intentional criminal
    conduct relating to the distribution of controlled substances or
    prescription drugs by illegal Internet pharmacies after the date of
    this Agreement, or (c) has otherwise deliberately violated any
    provision of this Agreement, including that set forth in Attachment B,
    the Company shall, in the sole discretion of the Government, be subject
    to prosecution for any Federal criminal violation of which the
    Government has knowledge, including a prosecution based upon the
    conduct specified in Attachment A. Conduct by a UPS, Inc. employee who
    is not an officer or director will not constitute breach of this
    Agreement unless that employee acted in the course and scope of his or
    her employment, received the training concerning this agreement
    required by the Compliance Program contained in Attachment B, and
    intended to benefit the company.
        3. The Company agrees that it is within the sole discretion of the
    Government to determine whether there has been a deliberate violation
    of this Agreement. The Company understands and agrees that the exercise
    of discretion by the Government under this Agreement is not reviewable
    by any court. In the event that the Government preliminarily determines
    that the Company has deliberately violated this Agreement, the
    Government shall provide written notice to the Company of that
    preliminary determination sufficient to notify the Company of the
    conduct that constitutes the breach and shall provide the Company with
    thirty calendar days from the date of that written notice in which to
    make a presentation to the Government to demonstrate that no deliberate
    breach has occurred, or to the extent applicable, that the breach has
    been cured, or that the Government should, in any event, neither revoke
    the Agreement nor prosecute the Company. The Government shall
    thereafter provide written notice to the Company of its final
    determination regarding whether a deliberate breach has occurred and
    has not been cured and whether the Government will revoke the
    Agreement.
        4. UPS, Inc. further understands and agrees that any prosecution
    following such determination may be premised on any information
    provided by UPS, Inc. and its employees, officers and directors to the
    Government and any leads derived therefrom. UPS, Inc. agrees that, in
    any such proceeding, it will not seek to suppress the use of any such
    information, or any leads derived therefrom, under the United States
    Constitution, Federal Rule of Evidence 410, Federal Rule of Criminal
    Procedure 11(f), or any other rule; that it will not contradict in any
    such proceeding the Agreed Statement of Facts in Attachment A; and that
    it will stipulate to the admissibility of the Agreed Statement of Facts
    in Attachment A. UPS, Inc. further agrees that it shall not contest the
    authenticity of documents and materials provided to the Government by
    UPS, Inc. and/or UPS, Inc.'s subsidiaries in the course of the
    Government's investigation, but UPS, Inc. otherwise may challenge the
    admissibility of any such materials in any prosecution of UPS, Inc. By
    signing this Agreement, UPS, Inc. waives all rights in the foregoing
    respects.
                     tolling of the statute of limitations
        5. UPS, Inc. agrees to toll and to exclude from any calculation of
    time the running of the statute of limitations for any criminal conduct
    relating to the distribution of controlled substances or prescription
    drugs by illegal Internet pharmacies for 2 years from the date of
    execution of this Agreement. By this Agreement, the Company expressly
    intends to and hereby does waive its rights to make a claim premised
    upon the statute of limitations, as well as any constitutional,
    statutory, or other claim concerning pre-indictment delay. Such waivers
    are knowing, voluntary, and in express reliance upon the advice of the
    Company's counsel.
                          acceptance of responsibility
        6. UPS, Inc. accepts and acknowledges responsibility for the acts
    of its present and former employees, as set forth in the Agreed
    Statement of Facts in Attachment A. UPS, Inc. further agrees that the
    factual statements set forth in the Agreed Statement of Facts in
    Attachment A are accurate. UPS, Inc. condemns and does not condone the
    conduct set forth in the Agreed Statement of Facts in Attachment A, and
    has taken steps to prevent such conduct from occurring in the future,
    including the creation and implementation of the Corporate Compliance
    Agreement set forth in Attachment B.
                                  cooperation
        7. During the term of this Agreement, UPS, Inc. will continue to
    cooperate fully with the Government and the DEA in any ongoing
    investigation of individuals or entities who may have been involved in
    the distribution of controlled substances and prescription drugs by
    illegal Internet pharmacies, including the conduct described in
    Attachment A. UPS, Inc. agrees that its cooperation shall include, but
    is not limited to, the following:
              a. timely provision to the Government and the DEA of all non-
            privileged documents and other materials, including documents
            and materials located outside the United States (and not
            otherwise prohibited from disclosure to the Government by
            foreign law), that the Government and the DEA may request; and
              b. its best efforts upon sufficient notice to make available
            in a timely and voluntary manner to the Government and/or the
            DEA all present officers, directors and employees for sworn
            testimony before a Federal grand jury or in a Federal trial and
            interviews with Federal law enforcement authorities.
            Cooperation under this paragraph will include identification of
            witnesses not previously identified who, to the knowledge of
            UPS, Inc., may have material information regarding the matters
            under investigation.
        8. UPS, Inc.'s obligation to cooperate pursuant to the preceding
    paragraph is not intended to apply if a prosecution by the Government
    is commenced against UPS, Inc. as a result of a breach of this
    Agreement.
        9. Nothing in this Agreement is intended to request or require UPS,
    Inc. to waive its attorney-client privilege or work production
    protections and no such waiver shall be deemed effected by any
    provision herein.
        10. With respect to any information, testimony, document, record,
    or tangible evidence provided to the Government pursuant to this
    Agreement, UPS, Inc. consents to any and all disclosures to other
    Government agencies, whether agencies of the United States or a foreign
    government, of such materials as the Government, in its sole
    discretion, shall deem appropriate.
                             notice of cooperation
        11. The Government agrees to bring to the attention of governmental
    authorities the facts and circumstances relating to the nature of the
    conduct underlying this Agreement, including the nature and quality of
    UPS, Inc.'s cooperation and remediation, upon request. By agreeing to
    provide this information to any such authorities, the Government is not
    agreeing to advocate on UPS, Inc.'s behalf, but rather is providing
    facts to be evaluated independently by those authorities.
                                monetary payment
        12. UPS, Inc. agrees to make the above-described $40,000,000
    payment to the Federal Government as a result of the conduct described
    in Attachment A. UPS, Inc. shall pay this sum by certified check or
    bank cashier's check made payable to the United States of America
    within five (5) business days of the date of execution of this
    Agreement by the parties. As a result of UPS, Inc.'s conduct, including
    the conduct set for the in Attachment A, the parties agree that the
    United States could institute a civil forfeiture action against certain
    funds held by UPS, Inc. and that such funds would be forfeitable
    pursuant to Title 21, United States Code, Section 881. UPS, Inc. hereby
    acknowledges that the forfeited amount was involved in the conduct
    described Attachment A. UPS, Inc. hereby agrees that the funds paid by
    UPS, Inc. pursuant to this Agreement shall be considered substitute res
    for the purpose of administrative forfeiture to the United States
    pursuant to Title 21, United States Code, Section 881, and UPS, Inc.
    releases any and all claims it may have to such funds. The total amount
    paid is a final payment and shall not be refunded should the Government
    later determine that UPS, Inc. has breached this Agreement and commence
    a prosecution against UPS, Inc. Further, nothing in this Agreement
    shall be deemed an agreement by the Government that this amount is the
    maximum criminal fine or forfeiture that may be imposed in any such
    prosecution and the Government shall not be precluded in such a
    prosecution from arguing that the Court should impose a higher fine or
    forfeiture. The Government agrees, however, that in the event of a
    subsequent breach and prosecution, it will recommend to the Court that
    the amount paid pursuant to this Agreement be offset against whatever
    fine or forfeiture the Court shall impose as part of its judgment. UPS,
    Inc. understands that such a recommendation will not be binding on the
    Court. UPS, Inc. acknowledges that no tax deduction or insurance claim
    may be sought in connection with this payment.
                         corporate compliance agreement
        13. UPS, Inc. agrees to implement the Corporate Compliance
    Agreement set forth in Attachment B. UPS, Inc. will begin to implement
    the measures set forth in Attachment B within thirty (30) days of the
    date of execution of this Agreement by the parties. UPS, Inc. agrees
    that it will maintain these measures at least through the term of this
    Agreement.
                              basis for agreement
        14. The Government enters into this Agreement based upon the
    following facts and circumstances: (a) UPS, Inc.'s ongoing cooperation
    with the Government and the DEA since May of 2007; (b) UPS, Inc.'s
    willingness to accept responsibility for the conduct of its present and
    former officers and employees; (c) UPS, Inc. has undertaken, and has
    agreed to undertake, remedial measures to ensure that this conduct will
    not recur; and (d) UPS, Inc.'s demonstration of compliance with Federal
    drug and money laundering laws.
                       statements to the media and public
        15. The Company and the Government agree that this Agreement will
    be disclosed to the public.
        16. UPS, Inc. agrees that it will not make any public statement
    contradicting Attachment A. If the Government notifies the Company that
    it has preliminarily determined, in its sole discretion, that the
    Company has made any such contradictory statement, the Company may
    avoid a finding of breach of this Agreement by repudiating such
    statement, in a manner satisfactory to the Government, both to the
    recipients of such statement and to the Government within 48 hours
    after receipt of notice from the Government. The Company consents to
    the public release by the Government of any such repudiation.
    Consistent with the above, the Company may avail itself of any legal or
    factual arguments available to it in any litigation, investigation or
    proceeding (not involving the Government), as long as doing so does not
    otherwise violate any term of this Agreement. This paragraph is not
    intended to apply to any statement made by any individual in the course
    of any actual or contemplated criminal, regulatory or administrative
    proceeding or civil case initiated by any governmental or private party
    against such individual.
                               term of agreement
        17. This Agreement shall be in effect for a period of 2 years from
    the date of its execution. UPS, Inc. may petition the Government to
    shorten the term of the Agreement after 1 year. The Government has sole
    discretion to determine whether a shorter term is warranted.
                              corporate authority
        18. UPS, Inc. hereby warrants and represents that it is authorized
    to enter into this Agreement on behalf of itself and its subsidiaries,
    and that the person signing on behalf of UPS, Inc. has been granted
    authority by the UPS, Inc. Board of Directors to bind UPS, Inc. and its
    subsidiaries.
                        binding nature of the agreement
        19. It is understood that this Agreement is binding on UPS, Inc.
    and the United States Attorney's Office for the Northern District of
    California, the United States Attorneys' Offices for each of the other
    ninety-three judicial districts of the United States and the United
    States Department of Justice, but that this Agreement does not bind any
    other Federal agencies, or any state or local enforcement or regulatory
    agencies. The Government will bring the cooperation of UPS, Inc. and
    its compliance with its obligations under this Agreement, its remedial
    actions and proactive measures to the attention of such agencies and
    authorities if requested to do so by UPS, Inc.
                              successor liability
        20. UPS, Inc. agrees that in the event it sells, merges or
    transfers all or substantially all of its business operations as they
    exist during the term of this Agreement, whether such sale is
    structured as a stock or asset sale, merger, or transfer, it shall
    include in any contract for sale, merger or transfer provisions binding
    the purchaser or any successor-in-interest thereto to the obligations
    described in this Agreement. UPS, Inc. expressly understands that the
    protections provided under this Agreement shall not apply to any
    acquirer or successor entities unless and until such acquirer or
    successor formally adopts and accepts this Agreement.
                                     notice
        21. Any notice to UPS, Inc. under this Agreement shall be given by
    personal delivery, overnight delivery by a recognized courier service,
    or registered or certified mail, addressed to the General Counsel of
    UPS, Inc., 55 Glenlake Parkway NE, Atlanta, GA 30328, with a copy to
    Eugene Illovsky, Morrison & Foerster LLP, 425 Market Street, San
    Francisco, California 94105.
             required signatures, authorization and corporate seal
        22. By signing this Agreement, UPS, Inc.'s duly authorized
    representative and UPS, Inc.'s counsel acknowledge that the terms set
    forth above accurately reflect the parties' understanding of the Non-
    Prosecution Agreement between UPS, Inc. and the Government.
        23. Two original copies of this Agreement shall be executed, one of
    which shall be delivered to the General Counsel of UPS, Inc., and one
    of which shall be delivered to Kirstin M. Ault, Assistant United States
    Attorney, Northern District of California.
                               complete agreement
        24. This Agreement sets forth the terms of the Non-Prosecution
    Agreement between LIPS, Inc. and the Government. No promises,
    agreements, or conditions have been entered into other than those set
    forth in this Agreement. This Agreement supersedes prior
    understandings, if any, of the parties, whether written or oral.
        25. No amendments or modifications to this Agreement shall be valid
    unless they are in writing and signed by the Government, the attorneys
    for UPS, Inc., and a duly authorized representative of UPS, Inc.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

                                  ATTACHMENT A

                           agreed statement of facts
        1. United Parcel Service, Inc. (``UPS'') is a corporation organized
    under the laws of Ohio and headquartered in Atlanta, Georgia. UPS
    operates as a common carrier.
        2. The provision of UPS's services is governed by the UPS Tariff/
    Terms and Conditions of Service for Package Shipments in the United
    States which constitutes part of the shipping contract between UPS and
    shippers. In relevant part, the UPS Tariff/Terms and Conditions of
    Service currently states:

            3.14 Pharmaceuticals
            The shipper shall comply with and shall ensure that each
            shipment containing pharmaceutical products complies with all
            applicable Federal, State, provincial, and local laws and
            regulations governing the shipment or tender of shipment of
            pharmaceutical products.

            3.3 Prohibited by Law
            No service shall be rendered by UPS in the transportation of
            any shipment that is prohibited by applicable law or regulation
            of any Federal, State, provincial, or local government in the
            origin or destination country. It is the responsibility of the
            shipper to ensure that a shipment tendered to UPS, and any UPS
            Shipping System entry that the shipper prepares for that
            shipment, does not violate any Federal, State, provincial, or
            local laws or regulations applicable to the shipment.

        3. Beginning in approximately 1999, companies began offering
    consumers controlled substances and prescription drugs based on the
    provision of information over the Internet. These companies came to be
    known as Internet pharmacies. Some Internet pharmacies illegally
    distribute controlled substances and prescription drugs because
    customers are allowed to obtain these drugs without a valid
    prescription authorized by a licensed physician acting within the usual
    scope of professional medical practice who is providing the drugs for a
    valid medical purpose. UPS provided transportation and related services
    to some of those entities.
        4. By approximately January 2004, UPS was on notice that many
    Internet pharmacies operated outside the law. Some of those illegally-
    operating Internet pharmacies were UPS customers.
        5. On five occasions in January 2004 through May 2006, UPS's
    Corporate Security Manager and a UPS Public Affairs Vice President met
    with the DEA and other law enforcement agencies to discuss the parcel
    carrier industry's and UPS's role in assisting Federal authorities in
    curtailing illegal Internet pharmacies. In one such meeting on June 23,
    2005, law enforcement discussed the problem of illicit pharmaceutical
    sales over the Internet and the traffickers' reliance on key business
    sectors, especially the express parcel carriers for delivery of
    packages to customers. The agents further discussed relevant laws
    controlling the legitimate sales of controlled substances in the United
    States and possible actions to prevent the illicit use of shipping
    services by Internet pharmacies.
        6. On two occasions, UPS's Corporate Security Manager testified
    before Congress regarding the illegal sale of controlled substances
    over the Internet and UPS's efforts to ensure that UPS was not
    transporting illegally-sold controlled substances and prescription
    drugs. The first testimony occurred on July 22, 2004, before the
    Senate's Governmental Affairs Permanent Subcommittee on Investigations
    and the second on December 13, 2005, before the House of
    Representatives' Oversight and Investigations Committee on Energy and
    Commerce. During both sessions, the Corporate Security Manager
    testified: ``It is the clear policy of UPS, as stated in our tariff,
    that illegal products of any type are prohibited from being transported
    through our system.''
        7. On December 13, 2005, the Corporate Security Manager testified
    before the House Subcommittee on Oversight and Investigations Committee
    on Energy and Commerce and stated, ``We support legislation that would
    establish clear standards for Internet pharmacies. In particular, we
    support requiring Internet pharmacies to be licensed . . . . In
    addition, we support provisions that would prohibit Internet sales of
    pharmaceuticals to individuals without a prescription obtained from a
    practitioner with a qualifying medical relationship, which requires at
    least one in-person medical evaluation . . . . As a carrier, we can
    take actions such as those I have described in conjunction with law
    enforcement agencies, but we do not have the independent ability to
    judge the validity of a prescription or the legitimacy of a particular
    drug.''
        8. A group of five UPS marketing employees within the Southeast
    Region, one of eight UPS regions, began in approximately 2002 to
    research business opportunities within the healthcare industry. They
    identified five distinct sectors that included medical and hospital
    equipment, laboratories/research, healthcare providers,
    pharmaceuticals, and hospitals as opportunities for growth in the
    southeast part of the United States. In 2003, these marketing employees
    created a dedicated sales team of approximately twelve sales employees,
    and launched a Southeast Region healthcare marketing initiative to
    target and win this healthcare business. This team consisted of nine
    Account Executives and five National Account Executives (collectively
    ``HCAEs''), as well as a marketing supervisor (``Marketing
    Supervisor''). This group identified Internet pharmacies as a sub-
    sector within the healthcare industry.
        9. In a September 4, 2003 e-mail, a HCAE described opportunities in
    the Internet pharmaceutical sector, how Internet pharmacies operated,
    and the high shipping volume and revenue potential present with these
    accounts. The HCAE noted the importance of winning these accounts from
    the customer's current carrier.
        10. In an email dated December 10, 2003, the Marketing Supervisor
    received from a Florida marketing and sales employee a copy of a
    December 4, 2003 Miami Herald news article describing the indictment of
    a South Florida owner of an Internet pharmacy that sold controlled
    substances ``illegally by not requiring customers to be physically
    examined by doctors.'' The employee advised the Marketing Supervisor
    that if online pharmacies were in violation of state or Federal laws,
    UPS may want to discontinue pursuing the business.
        11. On December 16, 2003, an Internet pharmacy owner informed a
    HCAE that its business was closing ``due to the recent policies enacted
    by the Federal Government'', and that ``this industry has been flooded
    with companies that offer easy access to narcotics and other dangerous
    medications.'' In response to this email, a marketing manager in the
    Southeast Region (``Marketing Manager'') wrote to the Marketing
    Supervisor and a HCAE that ``it appears that we are making the right
    decision to remove the on-line pharmacies from the Critical Customer
    targets.''
        12. In a December 19, 2003 email, the Marketing Supervisor wrote to
    the Marketing Manager, ``[t]his issue [about illegally operating
    Internet pharmacies] has also heated up in the press--I heard the end
    of a report on NPR this week--both UPS and FedEx were brought into
    question on this issue in the report.'' The Marketing Supervisor
    further stated that the Southeast Region healthcare marketing
    initiative needed to make sure it was only targeting legitimate
    Internet pharmacies. The Marketing Supervisor also stated in the email
    that he had learned that the National Association of Boards of
    Pharmacies (``NABP'') had developed a Verified Internet Pharmacy
    Practice Sites (``VIPPS'') program, and that through this program, the
    NABP certified Internet pharmacies as legitimate, but that the process
    was new and only 14 Internet pharmacies had been certified. The
    Marketing Supervisor further stated that NABP also lists ``rules of
    thumb'' for identifying whether or not an Internet pharmacy is
    legitimate. The Marketing Supervisor wrote that they would probably
    want to do their own research on their current customers, and ones UPS
    planned to target, to determine whether they seemed to be doing
    anything illicit.
        13. In January of 2004, marketing employees in the Southeast Region
    involved in the healthcare marketing initiative developed a Southeast
    Region Healthcare Reference Guide (the ``Guide'') that provided an
    overview of the healthcare industry based on publicly available
    information. The Guide stated that illegitimate Internet pharmacies
    were being shut down by the Federal Government where no doctor visit
    was required and/or the drugs were imported illegally.
        14. In January of 2004, marketing employees in the Southeast Region
    provided training about the Southeast Region Healthcare Initiative to
    Southeast Region Area Sales Managers who supervised HCAEs. This
    training identified suspiciously-operated Internet pharmacies as those
    for which there was no valid doctor patient relationship and required
    only an online or phone consultation with a doctor, the sole means of
    communication with the consumer was by e-mail, the site did not provide
    toll-free numbers, the consumer could not contact the pharmacist with
    questions, and noted that many pharmacies that sold a limited number of
    medications (particularly ``lifestyle'' drugs) were not legitimate. The
    talking points to the training materials stated that there must be a
    valid pre-existing doctor-patient relationship, that HCAEs should not
    target any Internet pharmacy that violated this rule, and that UPS did
    not want to be targeted as ``an enabler of illegal activity.''
        15. After the training, on January 9, 2004, the Marketing
    Supervisor forwarded a January 9, 2004 Wall Street Journal article to
    the HCAEs and their Area Sales Managers stating that, as discussed in
    the training, the Southeast Region Healthcare Initiative needed to make
    sure that it was not targeting any online pharmacies that did not
    require a prescription resulting from a valid doctor-patient
    examination. The email stated that online pharmacies that fulfilled
    prescriptions based on a questionnaire only, or a questionnaire and
    phone consultation with an online pharmacy supplied doctor were not
    considered legal. This email was forwarded to a UPS Vice President of
    Sales and several Southeast Region district sales directors.
        16. In February of 2004, the Marketing Supervisor requested help in
    quantifying the sales opportunity from online pharmacies in the
    Southeast Region, ``both legit and not legit,'' to find out how much
    revenue UPS would be walking away from if the company decided not to
    target these businesses. Notes from a March 19, 2004 Southeast Region
    Healthcare Initiative conference call indicated that the HCAEs were
    told that they could continue to sell UPS services to Internet
    pharmacies as long as they did not actively target these businesses.
    According to the notes of the call, the Southeast Region Healthcare
    Initiative did not want the HCAEs to target Internet pharmacies in part
    because they were being shut down by law enforcement and it would be a
    waste of time and resources to win a customer that would soon go out of
    business.
        17. On June 11, 2004, the Marketing Supervisor conducted background
    research on two Internet pharmacies for a HCAE in connection with
    attempting to win their business. The Marketing Supervisor identified
    one as prescribing drugs based on a phone consultation with a doctor
    provided by the Internet pharmacy and stated ``Our stance has been that
    if the online pharmacy does not require you to have seen the
    prescribing doctor in person, we will not support any special
    [discount] pricing to get the business. If you can win it through
    regular district pricing or POS, [Point of Sale] that is fine. But,
    Marketing will not support any pricing appeals.''
        18. On that same date, a UPS marketing analyst sent an internal
    memorandum to the South Florida district sales director, an Area Sales
    Manager and a Southeast Region Marketing Director discussing the
    Internet pharmacy industry in South Florida and how UPS's revenue had
    been impacted by law enforcement and competitive activity. According to
    the analyst, ``Most accounts, if not all of the accounts we had have
    gone out of business due to illegal practice within the pharmaceutical
    industry.'' The memorandum listed four Internet pharmacies that were
    closed due to illegal dispensing of prescription medication and
    concluded that South Florida's business plan results for 2004 were
    impacted by these events. When a HCAE attempted to reestablish a
    shipping account for one of the illegal Internet pharmacies identified
    in this memorandum, a marketing specialist reminded the HCAE that he
    could attempt to win the business but could not provide discounted
    pricing.
        19. In February 2005, marketing employees in the Southeast Region
    provided training to HCAEs. The training materials identified
    pharmacies that require face-to-face visits as a ``best practice.''
    Nevertheless, accounts were established for Internet pharmacies that
    did not meet this best practice. The training materials instructed the
    HCAEs that they could expect minimal region and corporate pricing
    support for Internet pharmacies that did not require face-to-face
    visits.
        20. On May 18, 2005, a marketing analyst sent an email to a HCAE
    and a marketing employee listing questions for the HCAE to ask a
    potential Internet pharmacy customer. The email stated that a Florida-
    based Internet pharmacy was required to have an Internet Pharmacy
    Permit from the Florida Board of Pharmacy, and that Florida, Kentucky
    and Nevada had laws specifically regulating Internet pharmacies
    shipping or operating in their States. The email included a suggestion
    to call the Board of Pharmacy to verify a customer but that ``this
    could however lead to us being a whistle blower on a customer.''
        21. Appropriate due diligence was not conducted on all accounts UPS
    employees knew or should have known were being used to ship
    pharmaceuticals ordered online to determine whether the businesses were
    operating legally. For example, on August 18, 2005, a UPS sales
    employee received a sales lead regarding United Care Pharmacy
    (``UCP''), a customer that had requested a meeting with a UPS
    representative. Subsequently, the sales employee secured UCP's business
    after meeting with the customer at the customer's location, and
    receiving information from the customer about UCP's business model. UCP
    was a fulfillment pharmacy that filled orders exclusively for Internet
    pharmacies. This account was established in late September 2005.
    Although the sales employee knew that UCP was shipping pharmaceuticals
    for Internet pharmacies, neither the sales employee nor others at UPS
    conducted research into UCP's business practices. Had UPS employees
    conducted due diligence on UCP, they would have learned that UCP was
    not VIPPS certified, was not registered in all States to which it
    shipped controlled substances and prescription drugs, and would be
    filling orders for Internet pharmacies based solely upon those
    pharmacies' customers' completion of an online questionnaire.
        22. On September 30, 2005, the Kentucky Bureau of Investigations
    Drug Unit sent to a UPS district security manager and others a list of
    illegal pharmacies that shipped to their State. An affiliate of UCP was
    one of the illegal Internet pharmacies included on this list. UPS
    shipped packages from this entity into Kentucky after September 30,
    2005.
        23. In November of 2005, a UPS sales employee for UCP and his
    immediate supervisor traveled with the owner of UCP to Costa Rica. This
    trip was approved and paid for by UPS. While in Costa Rica, the sales
    employee and his immediate supervisor learned about the business model
    used by Internet pharmacies, including those for which UCP shipped
    pharmaceuticals. This business model was based on the fulfillment of
    prescriptions based upon either an online questionnaire or a telephone
    call where no valid doctor-patient relationship existed. The sales
    employee and his immediate supervisor established subaccounts under
    UCP's master account for Internet pharmacies that were located outside
    of the United States. At least one of the Internet pharmacies
    established as a subaccount under UCP shipped from three different
    locations in the State of Florida.
        24. UCP was closed by State law enforcement in March 2006 for
    illegally distributing controlled substances for Internet pharmacies.
    UPS shipped packages for various offshore Internet pharmacies under
    UCP's master UPS shipping account after March 2006. UPS continued to
    ship packages under UCP's account until April 20, 2007, when a UPS
    District Controller for the North Carolina District advised the UPS
    sales employee and his immediate supervisor that UCP's leadership had
    been arrested and that the account needed to be suspended immediately.
        25. On or about August 30, 2005, a UPS Southeast Region security
    manager received a fax from a group called the Southwest Drug Task
    Force in Big Stone Gap, Virginia. It stated in relevant part:

            We the members of the Southwest Virginia Drug Task Force and
            other Wise County Virginia law enforcement officials feel a
            problem exist in our area and in other areas that your company
            has been made aware of the problem. Our area has been
            overwhelmed in the past year with pharmaceutical drugs being
            ordered over the Internet or by phone. Companies such as yours
            and other companies are in the delivery service business are
            delivering these drugs into our area.

            One problem, which concerns us, is delivery drivers are
            delivering packages to the same person who is using several
            different names. Delivery drivers are allowing these packages
            to be picked up in parking lots, and beside the highway and not
            making deliveries to the address listed on the package.

            We are concerned as to the health and safety of the citizens in
            this area. We are concerned that these drugs many of which are
            mind altering pain medication and nerve medication are being
            misused, and abused by citizens. These citizens then may drive
            vehicles, and cause accidents.

            They may become so addicted these medications they commit
            property crimes such as larceny, burglary, and robbery to
            obtain money to pay for these drugs, which are delivered COD by
            delivery companies.

            For that reason we respectful request steps be taken by your
            company to help correct this problem. We request your company
            suspend all shipments of drugs to subjects, or residences that
            are suspicious in nature. Your drivers and managers already
            know who these people and locations are. That drugs be shipped
            in separate and distinctive packaging. That your company
            requires proof of identity of any recipient of packages
            containing drugs. That packages containing drugs not be
            delivered to any location other than a residence or place of
            business.

            Most of all we request officials of your company join local law
            enforcement in joint announcements in newspapers, radio and
            television making the public aware of the fact obtaining drugs
            over the Internet or by phone is not legal. That local law
            enforcement and your company are joining forces to make sure
            the public safety is watched after. And anyone who is caught
            obtaining these drugs will be arrested and prosecuted to the
            fullest extent of the law. We hope your company will join us in
            this effort and we can have your company beside us, talking
            with us as a partner and not being identified as part of the
            problem.

    This fax was circulated to, among others, UPS's Corporate Security
    Manager and a Vice President of Public Affairs. UPS delivered packages
    in Virginia shipped by Internet pharmacies after receiving this request
    from the Southwest Virginia Drug Task Force.
        26. UPS offered certain Internet pharmacies C.O.D. Enhancement
    Services. Through these services, C.O.D. (``Collect On Delivery'')
    payments for thousands of packages shipped to individual Internet
    pharmacy customers were consolidated and deposited into a UPS bank
    account and then available funds were electronically transferred to the
    bank accounts of the Internet pharmacy shippers. In a June 8, 2005
    email, the Marketing Supervisor wrote to a Vice President of Sales, a
    Marketing Manager, and a Business Development Manager at UPS Capital,
    in relevant part:

            UPS Capital did in fact withdraw COD Automatic from three
            online pharmacy accounts in SFL. They were concerned about the
            financial risk of serving these pharmacies due to the history
            of these types of businesses getting shut down by the
            Government. When UPS Capital withdrew the COD Automatic, these
            accounts withdrew their small package business from UPS. These
            accounts were producing an average of $3,500--$5,000 per day
            before their accounts were closed in May.

            [Name Redacted] does not feel that UPS Capital is exposing
            themselves to a high degree of risk by serving online pharmacy
            accounts, and he is in favor of continuing to do business with
            them.

        27. UPS, through some of its employees, was on notice that Internet
    pharmacies violated the law when distributing controlled substances and
    prescription drugs without a valid prescription. Despite being on
    notice that such Internet pharmacies were using its services, UPS did
    not implement procedures to close the accounts of those pharmacies,
    permitting them to ship controlled substances and prescription drugs
    from 2003 to 2010.
                                     ______

                                  ATTACHMENT B

                     ups online pharmacy compliance program
        The following United Parcel Service, Inc. (``UPS'') Online Pharmacy
    Compliance Program (hereinafter ``Compliance Program'') has been
    prepared pursuant to a Non-Prosecution Agreement dated this same date
    between UPS (the ``Company'') and the United States Attorney's Office
    for the Northern District of California (``United States'' or ``the
    Government''). Compliance with all the terms and standards of the
    Compliance Program is a condition of the Non-Prosecution Agreement.
                          i. applicability and purpose
        A. The Compliance Program applies to the Company's small package
    transportation service for packages containing prescription drugs
    shipped by or on behalf of online pharmacies to customers. The purpose
    of the Compliance Program is to ensure (1) that the Company does not
    intentionally or knowingly pursue the business of online pharmacies
    that are violating state and Federal laws regarding the distribution of
    prescription pharmaceuticals and (2) that the Company has established
    processes for detecting, reporting to law enforcement, and closing the
    accounts of online pharmacies that it becomes aware are violating State
    and Federal laws regarding the distribution of prescription
    pharmaceuticals. The terms ``online pharmacy'' and ``OLP'' are herein
    defined as: a) an intemet website that permits a consumer to obtain
    prescription drugs without any written prescription, or b) a pharmacy
    that provides prescription drugs to consumers where the prescription
    was issued solely through the completion of an on-line questionnaire,
    without an in-person medical evaluation. The term does not include
    those persons or entities excluded from the on-line pharmacy definition
    pursuant to 21 C.F.R. Sec. 1300.04(h).
        B. The Compliance Program is not intended to replace any other
    United States statute or regulation.
        C. This Compliance Program shall be incorporated into the Non-
    Prosecution Agreement by reference, and compliance with the terms of
    the Compliance Program will be a condition of the Non-Prosecution
    Agreement. Deliberate, intentional or knowing failure to comply with
    any part of this Compliance Program may be a basis on which the
    Government may seek to revoke or modify the Non-Prosecution Agreement.
        D. Any documents required by this Compliance Program shall be
    provided to the designated signatory for the Government upon request.
    The Government agrees that such documents will be treated as
    proprietary records that may contain privileged and confidential
    commercial or financial information.
        E. Any proposed modifications to this Compliance Program must be
    made in writing and signed by the Company and the designated signatory
    for the Government.
        F. The Government recognizes that the Company has a contract with
    the United States Postal Service (``USPS'') under which the Company
    provides domestic air transportation for USPS express shipments and
    does not pick up from the shipper or deliver to the recipient. The
    Government acknowledges that the Company has no responsibility for
    packages tendered to the USPS for which the Company is only providing
    air transportation services.
                           ii. the compliance program
        As part of the Compliance Program, the Company shall implement the
    following requirements:
    A. Online Pharmacy (OLP) Compliance Officer
        1. Within 60 days of signing the Non-Prosecution Agreement, the
    Company shall designate an OLP Compliance Officer. The OLP Compliance
    Officer shall communicate directly and make reports directly to the
    Chief Executive Officer and the Audit Committee of the Board of
    Directors on matters relating to this Compliance Program. The OLP
    Compliance Officer shall be tasked with responsibility for the
    Compliance Program.
        2. The OLP Compliance Officer shall be responsible for coordinating
    with the Program Auditor, as more fully described below; developing and
    implementing all of the processes described herein, including those
    recommended or developed in consultation with the Program Auditor;
    designing and implementing training programs; ensuring that reports of
    potentially unlawful activity by OLP shippers are investigated;
    ensuring that audits and surveys are carried out as required; ensuring
    that all Company documents and records are properly maintained; and
    ensuring that all Company reports required under this Compliance
    Program are made on a timely basis.
        3. The OLP Compliance Officer will cause a procedure to be
    established that requires all officers, managers, and employees of the
    Company involved in the transportation of prescription pharmaceuticals
    to notify the OLP Compliance Officer of any violations of applicable
    requirements of this Compliance Program, and to cooperate fully with
    the Program Auditor and the United States in carrying out their
    auditing and oversight functions required by applicable law and this
    Non-Prosecution Agreement. The Company agrees to not retaliate against
    any officer, manager or employee solely for making any such report.
        4. The OLP Compliance Officer position must be filled by an
    individual who possesses the authority to ensure full implementation of
    this Compliance Program, and who is thoroughly familiar with the
    requirements of this Compliance Program.
        5. The OLP Compliance Officer shall be authorized to access all
    records, documents, and facilities throughout the Company's
    organization for the purpose of implementing this Compliance Program.
        6. The OLP Compliance Officer shall take all reasonable steps to
    ensure the employee cooperation during all activities required by this
    Compliance Program. The Compliance Officer shall ensure that the
    Program Auditor and any other inspection, auditing or monitoring
    personnel involved in the auditing of the Company's operations under
    this Compliance Program has complete unrestricted access to all areas,
    documentation, personnel and material equipment necessary to perform
    its function under this Compliance Program. Private locations for one-
    on-one interviews between employees and various inspection, auditing or
    monitoring personnel shall be provided, as needed.
        7. The OLP Compliance Officer may designate one or more individuals
    to assist in the execution of his/her responsibilities.
        8. Any change in personnel designated as the OLP Compliance Officer
    must be reported within thirty (30) days to the designated signatory of
    the Government.
    B. OLP Compliance Officer Responsibilities
        The OLP Compliance Officer is required to cause the following to
    occur:
        1. Develop and provide training regarding OLPs oriented for all
    employees and managers engaged in the pick-up and delivery of
    prescription pharmaceutical packages, and relevant sales, security,
    revenue operations, and any other groups identified by the Company;
        2. Develop and provide training regarding OLPs to be included as
    part of new hire training given to all employees and managers engaged
    in the pick-up and delivery of prescription pharmaceutical packages and
    relevant sales, security, revenue operations, and any other groups
    identified by the Company;
        3. Monitor and validate that the training is being given;
        4. Develop and implement channels whereby employees can report
    instances of potentially unlawful activity by prescription
    pharmaceutical shippers;
        5. Develop and implement a process for the investigation of reports
    of potentially unlawful activity by prescription pharmaceutical
    shippers, including anonymous reporting;
        6. Review reports of investigation, and where warranted, ensure
    that appropriate action has been taken and that referrals have been
    made to law enforcement;
        7. Oversee the implementation and operation of the Compliance
    Program;
        8. Act as a principal point of contact for law enforcement and
    regulatory officials relating to OLP matters.
    C. OLP Compliance Officer Reporting Responsibilities
        1. The OLP Compliance Officer shall make quarterly reports to the
    Company's Chief Executive Officer concerning compliance with this
    Compliance Program. Annually, the OLP Compliance Officer shall provide
    a summary of these reports to the Audit Committee of the Company's
    Board of Directors. All issues of non-compliance will be communicated,
    along with any corrective action taken. Copies of these reports will be
    provided to the designated signatory of the Government. The Government
    agrees that such reports will be treated as proprietary records that
    may contain privileged and confidential commercial or financial
    information.
        2. The OLP Compliance Officer shall ensure immediate notification
    to the designated signatory of the Government of any circumstances
    whereby the Company fails to provide resources necessary to support
    this Compliance Program.
    D. Program Auditor
        1. Within thirty (30) days following the signing of the Non-
    Prosecution Agreement, the Company shall nominate a Compliance Program
    Auditor (``Program Auditor'') who meets the qualifications below to
    conduct the activities described in this Compliance Program. The
    nomination shall be made in writing to the signatories below. The
    Government will notify the Company in writing of its approval or
    disapproval within thirty (30) days, unless additional time for
    evaluation is requested in writing. The nominee shall be approved if
    the Government fails to provide notice within the period. The
    Government's approval shall not be unreasonably withheld.
        2. Qualified candidates for the position must have expertise and
    competence in the regulatory programs under Federal and State laws
    relating to the distribution and shipment of prescription
    pharmaceuticals. The Program Auditor shall also have sufficient
    expertise and competence to assess whether the Company has adequate
    systems in place to assess Company compliance with the Compliance
    Program, correct non-compliance and prevent future non-compliance. The
    Company and the Government acknowledge that the functions of the
    Program Auditor may, by mutual agreement, be fulfilled by one or more
    individuals.
        3. The Program Auditor must exercise independent judgment. The
    Company and the Program Auditor shall disclose to the Government any
    past, existing or planned future contractual relationships between the
    Program Auditor and the Company or the Company's parent company,
    subsidiaries, or affiliated business entities (other than the
    relationship contemplated by this Compliance Program).
        4. If the Government determines that the proposed Program Auditor
    does not meet the qualifications set forth in the previous paragraphs,
    or that past, existing or planned future relationships with the Program
    Auditor would affect the Program Auditor's ability to exercise the
    independent judgment and discipline required to conduct the Compliance
    Program review and evaluation, such Program Auditor shall be
    disapproved and another Program Auditor shall be proposed by the
    Company within thirty (30) days of the Company's receipt of the
    disapproval.
        5. Within one hundred and eighty (180) days of the signing of the
    Non-Prosecution Agreement, the Company shall implement all training and
    reporting processes and procedures discussed in Sections II.E-G,
    inclusive. One hundred eighty (180) days following the signing of the
    Non-Prosecution Agreement, the Company shall submit to the Government a
    written Compliance Program Implementation Certification that describes
    the steps the Company has undertaken to meet the requirements of this
    Compliance Agreement.
        6. Upon submission of the Compliance Program Implementation
    Certification, the Program Auditor shall review the Company's
    implementation of the processes and procedures set forth in Sections
    II.E-G and the Company's attainment of the goals set forth in Paragraph
    I.A of this Compliance Program. No later than ninety (90) days
    following the commencement of such review, the Program Auditor shall
    generate a Compliance Confirmation Report (``Report'') addressing the
    results of the review. The Report shall be submitted to the Company
    upon its completion. The Report shall be submitted to the Government
    fourteen (14) days after submission to the Company.
        7. The Report shall present the following information:
              a. Review scope, including the time period covered by the
            review;
              b. The date(s) the on-site portion of the review was
            conducted;
              c. Identification of the review team members;
              d. Identification of the company representatives and
            regulatory personnel observing the review;
              e. The distribution list for the Report;
              f. A summary of the review process, including any obstacles
            encountered;
              g. Findings, including whether the Company has implemented
            the processes and procedures set forth in Sections ILE-G and
            attained the goals set forth in Section LA of this Compliance
            Program;
              h. Recommendations, if any, for measures to improve the
            processes and procedures undertaken by the Company pursuant to
            Sections II.E-G and to assist the Company in achieving the
            goals set forth in Section I.A; and
              i. Certification by the Program Auditor that the review was
            conducted in accordance with this document.
        8. The Government acknowledges that any processes and procedures
    recommended by the Program Auditor:
              a. Must be consistent with the Health Insurance Portability
            and Accountability Act of 1996 (Public Law 104-191)
            (``HIPAA'');
              b. Should not place an unreasonable burden on the ability to
            ship validly obtained pharmaceuticals to consumers;
              c. Should not place an unreasonable burden on the ability to
            ship other goods to consumers; and
              d. Must be consistent with Federal laws applicable to
            carriers.
        9. If recommendations are made in the Report pursuant to section
    ll.D.7.h, the Company will implement such recommendations and notify
    the Government of implementation; provided, however, if the Company
    disagrees with a recommendation, it will notify the Government of its
    disagreement and non-implementation within thirty (30) days of receipt
    of the Report. The Government will review the recommendation, in
    consultation with the Company and Program Auditor, and after such
    consultation, may relieve the Company from implementation. If the
    Government does not relieve the Company from implementation, the
    Company may file a miscellaneous case in the U.S. District Court from
    the Northern District of California, to seek a determination as to
    whether the Company must implement the recommendation. The parties
    consent to proceed before a United State Magistrate Judge in such case,
    and agree that the Magistrate Judge's decision shall be final and
    binding upon the parties.
    E. Training
        The Company will conduct OLP training for employees, as determined
    by the OLP Compliance Officer.
        1. The training should be offered to employees and managers engaged
    in pick-up and delivery of prescription pharmaceutical packages and
    relevant sales, security, revenue operations, and other groups
    identified by the Company, through channels used to communicate
    significant matters related to policies, procedures and practices.
        2. As part of new hire training, new employees and managers engaged
    in the pick-up and delivery of prescription pharmaceutical packages and
    relevant sales, security and revenue operations, and any other
    organizations identified by the Company, will be given OLP training.
        3. Training will be targeted to reflect how different employees may
    encounter potentially unlawful OLPs.
        4. All training shall include, at a minimum, the following
    elements:
              a. An overview of OLPs;
              b. A discussion of ``red flags'' appropriate to the audience
            being trained that may be indicative of potentially unlawful
            OLPs;
              c. Information on how to report a potentially unlawful OLP to
            the OLP Compliance Officer;
              d. A statement consistent with II.A.3 above, that there will
            be no retaliation solely for making a report of a potentially
            unlawful OLP.
              e. Information concerning the existence of the Non-
            Prosecution Agreement and the general terms of the Compliance
            Program.
        5. Various training methods and materials may be used, such as
    group presentations; videos; online interactive training modules and
    internal website publications.
        6. Records must be kept of all training, including the dates,
    locations, names and positions of the participants and attendees, and
    the substance of the training, including any training materials.
    F. Reports of Potentially Unlawful Activity by OLPs
        1. All reports of potentially unlawful activity by prescription
    pharmaceutical shippers reported to the OLP Compliance Officer shall be
    investigated by the Company. Investigations should typically be
    completed within 30 days of receipt.
        2. In addition, any issues regarding prescription pharmaceutical
    shippers that are reported through existing Company reporting channels,
    such as the Company's Help Line, shall be forwarded to the OLP
    Compliance Officer for investigation.
        3. Investigations may include one or more of the following
    elements:
              a. Internet or other research on the shipper;
              b. Review of the account's shipment history, volume, credit
            history, related accounts and other relevant Company
            information;
              c. Interviews with Company personnel familiar with the
            shipper and/or shipments;
              d. Consultation with Federal, state or local law enforcement;
              e. Site visits to the shipping location;
              f. Requests for licensure information from the shipper.
        4. If, as a result of the Company's investigation, the Company
    concludes that the shipper is in violation of the UPS Tariff/Terms and
    Conditions of Service governing the shipment of pharmaceuticals, the
    Company will forward the information to local DEA and close the
    shipper's account.
        5. At the conclusion of an investigation, the OLP Compliance
    Officer shall ensure that a Summary of Investigation has been prepared.
    The Summary of Investigation shall include:
              a. the identity of the person making the report (unless
            reported anonymously);
              b. the date the report was made;
              c. a synopsis of the investigation;
              d. action taken, and, if no action taken, the rationale;
              e. a statement of whether the matter was reported to law
            enforcement;
              f. remedial actions taken to minimize recurrence.
        6. Any materials collected or created as part of the investigation
    shall be maintained with the summary.
    G. Reporting by the Company to Federal Authorities
        The Company will report to local DEA any shipper that the Company
    believes is delivering controlled substances in violation of the
    Controlled Substances Act, 21 U.S.C. Sec. 801, et seq., or other laws
    governing the shipment of pharmaceuticals.
                              iii. non-compliance
        This Compliance Program does not in any way release the Company
    from complying with any applicable state or Federal statutes and/or
    regulations, and does not limit imposition of any sanctions, penalties,
    or any other actions, available under those State or Federal statutes
    and regulations. The Compliance Program shall be part of the Non-
    Prosecution Agreement and adherence to it will be an enforceable
    condition. Deliberate, intentional or knowing failure to comply with
    any part of this Compliance Program (including but not limited to
    refusal to pay valid charges for the Program Auditor and failure to
    provide the Program Auditor access to facilities, personnel or
    documents as provided in this Compliance Program) may be a violation of
    the Non-Prosecution Agreement and may be grounds for the revocation or
    modification of the Non-Prosecution Agreement. Should the Government
    seek to revoke or modify the Non-Prosecution Agreement based on the
    Company's refusal to pay valid charges for the Program Auditor and/or
    its failure to provide the Program Auditor access to facilities,
    personnel, or documents, and/or as a result of any disagreement
    regarding any of the provisions of this Compliance Program, the Company
    shall have the right to contest the reasonableness of such revocation
    or modification.
                   iv. documentation available for inspection
        The OLP Compliance Officer shall ensure that all documentation
    required by this Compliance Program is maintained and available for
    inspection by the Program Auditor and a designated representative of
    the Government.
                                    v. term
        This Compliance Program shall be in effect for the term of the Non-
    Prosecution Agreement.
                              vi. self-enforcement
        The Company further agrees that it will undertake and implement the
    necessary procedures to ensure that this Compliance Program is
    diligently complied with by all employees, managers, and other
    employees during the term of the Non-Prosecution Agreement.
                          vii. revisions/modifications
        The requirements of this Compliance Program, including the dates
    and time periods mentioned herein, shall be strictly complied with.
    Should the Company be unable to comply with any of the deadlines, the
    Company shall immediately notify the designated representative of the
    Government in writing of the reasons for non-compliance.
                                 viii. reports
        All reports, documents and correspondence required under this
    Compliance Program to be sent to the Government shall be sent to the
    following offices:

          1. U.S. Attorney's Office
            Northern District of California
            ATTN: Kirstin Ault
            450 Golden Gate Avenue, 11th Floor
            San Francisco, CA 94102

          2. Drug Enforcement Administration
            ATTN: Deputy Assistant Administrator Office of Diversion
    Control
            8701 Morrissette Drive
            Springfield, VA 22152

          3. Food and Drug Administration--Office of Criminal
    Investigations
            Special Agent in Charge
            Investigative Operations Division Headquarters
            7500 Standish Place, Suite 250N
            Rockville, MD 20855
            (240) 276-9500

        All reports, documents, notices and correspondence from the
    Government to the Company concerning this Compliance Program shall be
    sent to the following office:

          Eugene Illovsky
          Morrison Foerster
          425 Market Street
          San Francisco, CA 94105
                               ix. certifications
        The Company has read this Compliance Program carefully and
    understands it thoroughly. The Company enters into this Compliance
    Program knowingly and voluntarily, and therefore agree to abide by its
    terms. By her signature below, the corporate representative agrees that
    she is duly authorized by the Company's Board of Directors to enter
    into and comply with all of the provisions of this Non-Prosecution
    Agreement.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        As counsel for UNITED PARCEL SERVICE, INC., I have discussed with
    my corporate client and its duly authorized representative the terms of
    this Compliance Program and have fully explained its requirements. I
    have no reason to doubt that my client is knowingly and voluntarily
    entering into this Compliance Program.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        On behalf of the United States, the following agree to the terms of
    the Compliance Program:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

                 Questions Submitted by Senator Lamar Alexander
                                    sebelius
        Question. The Department of Health and Human Services (HHS) has
    admitted to me in a letter dated June 3, 2013, that Secretary Sebelius
    has asked private entities, including at least three she regulates, to
    contribute funds or assistance to Enroll America, a nonprofit headed by
    a former White House aide, that is working to help her implement the
    Affordable Care Act.
        Such private fundraising for an entity she is working closely with
    circumvents the constitutional requirement that only Congress may
    appropriate funds and raises serious ethical issues since she is also
    soliciting those who will be affected by her decisions.
        In July 1987, President Reagan's Secretary of State, George Shultz,
    testified before Congress:
              ``You cannot spend funds the Congress doesn't either
            authorize you to obtain or appropriate. That is what the
            Constitution says, and we have to stick to it. Now, I will join
            everybody in saying that sometimes it gets doggone frustrating
            with what the Congress does or doesn't do, and I can be
            critical. However, that's the system, and we have to accept it,
            and then we have an argument about it and try to persuade you
            otherwise.''
        Do you agree with former Secretary Shultz?
        Answer: Yes, the Department agrees that, under the Constitution,
    ``[n]o Money shall be drawn from the Treasury, but in Consequence of
    Appropriations made by Law,'' and that, under Government fiscal law, an
    agency may accept and spend funds from sources other than
    appropriations only when Congress has authorized it to do so. Congress
    has enacted such authorizations for a number of agencies.
        Question. Has the Department, including the Office of Legal
    Counsel, issued an advisory opinion or consulted with HHS or the White
    House to make sure the Secretary's solicitation activities do not
    violate Federal laws?
        Answer. As a general matter, the Department of Justice does not
    disclose whether it has provided confidential legal advice, in order to
    protect the confidentiality of attorney-client communications and
    internal executive branch deliberations.
        In testimony on June 4th, 2013, before the House Education and
    Workforce Committee, Health and Human Services Secretary Sebelius
    discussed the lobbying restrictions on State and local grantees and
    subgrantees for HHS grants through the Prevention and Public Health
    Fund. The Secretary appeared to suggest at the hearing that the
    provisions in 18 U.S.C. section 1913 regarding limitations on lobbying
    with Federal funds would only apply if the individuals involved in
    lobbying violations were registered lobbyists at the State or local
    level.
        Question. Given that your department enforces section 1913, what is
    the Department of Justice's position on lobbying with Federal funds by
    State or local grantees, subgrantees and their contractors? Can you
    please provide a copy of any interpretative materials, including
    letters to Congress or Office of Legal Counsel opinions, regarding the
    scope of this provision?
        Answer. The Department's Office of Legal Counsel has published
    several opinions about the scope of section 1913: Applicability of
    Antilobbying Statute (18 U.S.C. 1913) Federal Judges, 2 Op. O.L.C. 30
    (1978); Antilobbying Laws (18 U.S.C. 1913, Public Law 95-465, 92 Stat.
    1291) Department of the Interior, 2 Op. O.L.C. 160 (1978); Anti-
    Lobbying Restrictions Applicable to Community Services Administration
    Grantees, 5 Op. O.L.C. 180 (1981); Legal Constraints on Lobbying
    Efforts in Support of Contra Aid and Ratification of the INF Treaty, 12
    Op. O.L.C. 30 (1988); Constraints Imposed by 18 U.S.C. 1913 on Lobbying
    Efforts, 13 Op. O.L.C. 300 (1989); Executive Branch Encouragement of
    Contributions to a Nicaraguan Opposition Party, 14 Op. O.L.C. 7 (1990);
    Application of 18 U.S.C. 1913 to ``Grass Roots'' Lobbying by Union
    Representatives, 2005 WL 5913291. None of these opinions addresses,
    under the current version of section 1913, the issue you raise.
        In addition, in response to a Question for the Record asked by
    Chairman Lamar Smith in connection with the June 7, 2012 House
    Judiciary Committee Hearing ``Oversight of the United States Department
    of Justice,'' the Department described the general statutory framework
    that applies in this area as follows:
              The Anti-Lobbying Act prohibits the use of appropriated
            funds, directly or indirectly, ``to influence in any manner a
            Member of Congress, a jurisdiction, or an official of any
            government'' with respect to ``any legislation, law,
            ratification, policy or appropriation.'' The pre-2002 version
            of this statute also provided that ``[w]hoever, being an
            officer or employee of the United States or of any department
            or agency thereof, violates or attempts to violate this
            section,'' is subject to criminal fines and imprisonment.
            Citing this language, a Federal district court concluded in
            1982 that the Anti-Lobbying Act applied only to Federal
            officers and employees. Grassley v. Legal Services Corp., 535
            F. Supp. 818, 826 n.6 (D.C. Iowa 1982).
              In 2002, Congress amended the Anti-Lobbying Act by replacing
            the criminal sanction with civil penalties and making a
            violation of the Act a violation of 31 U.S.C. 1352, the Byrd
            Amendment. The Byrd Amendment expressly prohibits ``the
            recipient of a Federal contract, grant, loan, or cooperative
            agreement'' from using appropriated funds to ``influenc[e] or
            attempt[ ] to influence an officer or employee of any agency, a
            Member of Congress, an officer or employee of Congress, or an
            employee of a member of Congress'' in connection with specified
            ``Federal action[s].'' How these laws will apply in any given
            case depends on the particular facts, and the Department will
            appropriately pursue every serious allegation of illegal
            lobbying to the full extent of the law. Typically, such
            allegations would be investigated in the first instance by an
            agency's Office of the Inspector General.
        Question. Does section 1913 apply to state and local grantees and
    subgrantees and their contractors whether they are registered lobbyists
    or not?
        Answer. The Department has not developed a view about the
    relevance, under section 1913, of whether a State or local grantee is a
    registered lobbyist or ought to register as a lobbyist, either as a
    dispositive fact under the statute or as an indication of the nature of
    the grantees' activities. As noted above, how these laws will apply in
    any given case depends on the particular facts.
                          methamphetamine in tennessee
        Question. In 2010 Tennessee had the highest number of
    methamphetamine lab seizures in the Nation, and is on track to regain
    that infamous title this year.
        The average cost to clean up a methamphetamine lab is $2,300, and
    these costs put tremendous strain on State and local law enforcement.
    Without cleanup funds, there is a real incentive to avoid seizing these
    labs.
        In Tennessee in early 2011, when Federal cleanup funding was about
    to run out, lab seizures dropped 75 percent--but not because the meth
    labs went away. When a new cleanup program started later that year,
    seizures rose by 73 percent.
        Faced with less Federal support, Tennessee developed a ``central
    storage container program'' to find an affordable way to pay for
    cleanup. They were able to drop the average cost from $2,300 to $500
    per lab. However, given the growing number of lab seizures they are
    facing they simply can't keep up.
        Tennessee is grateful for the assistance that the Department of
    Justice and the Drug Enforcement Agency has provided, and I support the
    Department's request for $12.5 million this year to help dispose of
    hazardous and explosive chemicals used in meth labs.
        Given that this is one of, if not the most urgent drug problem
    facing our Nation, especially in rural communities with limited
    resources, why isn't the Department requesting more funding to help
    address this problem?
        Answer. The Department expects the $12.5 million requested for COPS
    to reimburse the Drug Enforcement Administration (DEA) for State and
    local meth lab cleanup and training assistance to be sufficient to
    cover all State and cleanup requirements for Tennessee and other States
    in fiscal year 2014. In fiscal year 2013, DEA received a $12.5 million
    transfer from COPS, which leaves $11.87 million after the sequestration
    is applied to the transfer. DEA expects this amount to be sufficient to
    support the program. DEA has been able to reduce cleanup costs by
    working with its State and local partners to expand the use of the
    Container Program. As of June 2013, there are 10 States with
    operational container programs: Illinois, Alabama, Virginia, Indiana,
    Oklahoma, North Carolina, Kentucky, Arkansas, Tennessee, and Michigan.
    DEA has signed letters of agreement with an additional 6 States to
    implement the program: Mississippi, New York, Florida, Pennsylvania,
    Kansas, and Ohio. DEA is working with these States to identify
    container sites, procure equipment and supplies, and schedule training
    for law enforcement. This timeframe typically takes 9-12 months to go
    from a signed Letter of Agreement to fully operational. We expect three
    of the six States (Ohio, Florida, Mississippi) to become operational in
    fiscal year 2013 and the other three states (Kansas, Pennsylvania, New
    York) to become operational in fiscal year 2014.
                  justice department enforcement & wind farms
        Question. At the end of January, I sent you a letter in an effort
    to better understand the Department of Justice's policy for prosecuting
    alleged violations of the Migratory Bird Treaty Act. More than 4 months
    later, I have yet to receive a response so I think it would be worth
    looking at this topic today.
        My understanding is that the Department of Justice has held a
    number of oil and gas producers criminally liable for unintentional
    killing of migratory birds. Are you aware of any prosecutions of wind
    energy producers for migratory bird deaths?
        There are a number of different estimates about the hundreds of
    thousands of birds killed by windmills each year, but in the U.S. Fish
    and Wildlife's fiscal year 2013 budget justification it estimated
    440,000, and yes this would include protected birds such as gold and
    bald eagles. Despite that huge number of bird mortalities, there have
    been zero prosecutions by the administration for those deaths. At the
    same time, I am aware of a number of instances where the Department of
    Justice has prosecuted oil and gas producers.
        Can you explain your prosecution strategy for these cases? Why has
    the Department of Justice given wind energy producers a pass at the
    same time you prosecute oil and gas companies?
        Answer. On November 22, 2013 the Department responded to your
    earlier letter. The November 22 letter (attached here to for your
    convenience) addresses the questions you raise. (see Attachment #1)
        Question. In a letter I sent to you on January 30, I asked 4 basic
    questions. First, how many criminal prosecutions has the Department of
    Justice undertaken against oil and gas producers who have allegedly
    violated the Migratory Bird Treaty Act? Second, how many criminal
    prosecutions has the Department of Justice undertaken against wind
    energy producers who have allegedly violated the Migratory Bird Treaty
    Act? Third, does the Department have guidelines for prosecutions under
    the MBTA and do those guidelines distinguish between oil and gas
    producers and wind producers? And, finally, do you believe it is
    inconsistent to prosecute producers of one type of energy for
    incidental killing of common species at the same time the
    administration considers a permit that would allow an energy product to
    kill between 8 and 15 bald eagles?
        Please answer those questions.
        Answer. On November 22, 2013 the Department responded to your
    earlier letter. The November 22 letter (attached here to for your
    convenience) addresses the questions you raise. (see Attachment #1)
                                     ______

                                 ATTACHMENT #1

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     Office of the Assistant Attorney General    Washington, D.C. 20530

                                               November 22, 2013
    The Honorable David Vitter
    Ranking Member
    Committee on Environment and Public Works
    United States Senate
    Washington, D.C. 20510

    The Honorable Lamar Alexander
    United States Senate
    Washington, D.C. 20510

    Dear Senators Alexander and Vitter:

        This responds to your letter to the Attorney General dated January
    30, 2013, regarding the Department of Justice's (the Department) policy
    for prosecuting violations of the Migratory Bird Treaty Act (MBTA). We
    apologize for our delay in responding to your letter.
        The Department shares your view that fair and consistent
    application of Federal enforcement authority is fundamental to equal
    justice under the law. Please be assured that the Department neither
    targets energy businesses for enforcement nor excuses them from
    enforcement because of the type of energy they produce. The Department
    has no enforcement guidelines or policy directives that distinguish
    between oil and gas producers and wind energy producers.
        The MBTA provides that it is ``unlawful at any time, by any means
    or in any manner,'' to ``take,'' which includes wounding or killing,
    any migratory bird protected by the act, unless and except as permitted
    by regulations issued by the Department of the Interior (DOI). 16
    U.S.C. Sec. 703. The MBTA establishes a Class B misdemeanor penalty for
    any ``person, association, partnership, or corporation'' who violates
    this statutory prohibition.
        In light of the statute's broad, unqualified prohibition of take,
    it has long been the position of the Department and the Fish and
    Wildlife Service (FWS), that the unpermitted take of protected birds
    outside the hunting context--including take that is incidental to
    industrial or agricultural activities--can violate the MBTA. A contrary
    reading of the MBTA would be inconsistent not only with the plain
    language of the act but also with the act's purpose of conserving and
    protecting migratory birds. The explicit application of the MBTA's
    Class B misdemeanor provision to ``any . . . corporation'' that takes a
    migratory bird would be hard to reconcile with reading the statute to
    cover only hunting or similar activities. A substantial body of case
    law supports application of the MBTA where take is proximately caused
    by industrial or agricultural activities, although a few courts have
    disagreed with this interpretation of the act.\1\
    ---------------------------------------------------------------------------
        \1\ Courts have upheld convictions under the MBTA for take that is
    incidental to industrial or agricultural activities in many
    jurisdictions. See, e.g., United States v. Apollo Energies, Inc., 611
    F.3d 679 (10th Cir. 2010); United States v. Moon Lake Electric Ass'n,
    45 F. Supp. 2d 1070 (D. Colo. 1999); United States v. Van Fossan, 899
    F.2d 636 (7th Cir. 1990); United States v. FMC Corp., 572 F.2d 902 (2d
    Cir. 1978); United States v. Corbin Farm Servs., 444 F. Supp. 510 (E.D.
    Cal.), aff'd on other grounds, 578 F.2d 259 (9th Cir. 1978). But see,
    e.g., United States v. Brigham Oil and Gas, 840 F. Supp.2d 1202 (D.N.D.
    2012).
    ---------------------------------------------------------------------------
        The MBTA cases that we consider for prosecution are ordinarily
    referred to us by the FWS. Before referring cases, the FWS seeks to
    ensure that companies are aware of the risks posed by their facilities
    and of ways they can avoid or reduce the killing of migratory birds or
    mitigate unavoidable takes. The FWS works with companies to bring them
    into compliance with the law without need for prosecution. Violations
    of the MBTA are referred to the Department only when companies fail to
    make good-faith efforts to avoid, minimize, and mitigate avian take.
        The FWS has worked with the oil and gas industry for a quarter
    century to develop practicable solutions to prevent migratory birds
    from dying in oil field reserve pits and evaporation ponds. These
    solutions are broadly known throughout the industry; indeed, the wide
    adoption of these measures is thought to have cut the industry's take
    of migratory birds by 50-75 percent. More recently, and consistent with
    the best practices guidelines issued last year, the FWS has been
    working with the growing wind energy industry to develop guidance on
    how wind projects can minimize the harm done to migratory bird
    populations. In determining whether to prosecute a company for its
    violations of the MBTA, both the Department and the FWS consider
    whether the company has knowingly failed to adopt industry-specific
    practices to improve their compliance with the law.
        The Department addresses each case based on the particular facts
    presented. When a case against a corporate entity is referred to the
    Department, prosecutors are guided by the Principles of Federal
    Prosecution of Business Organizations in deciding whether to bring
    charges and what charges to bring. U.S. Attorneys' Manual 9-28.000.
    Under these principles, prosecutors may consider, among other things,
    the corporation's history of similar conduct and its adoption of
    meaningful remedial measures in order to ensure that violations of the
    law do not recur. Id at 9-28.600, 9-28.900. Consistent with these
    principles, prosecution for MBTA violations typically is reserved for
    cases in which companies are aware that their conduct will take
    migratory birds but nonetheless fail to implement reasonable and
    effective measures known to avoid, minimize, or mitigate the harms
    proximately caused by their activities.
        The Department does not handle cases alleging violations by oil and
    gas producers differently from cases alleging violations by members of
    any other industry. The prosecutions referenced in your letter are
    consistent with the enforcement approach described above. The FWS
    notified the companies involved in those cases that their facilities
    were killing migratory birds in violation of the MBTA. Prosecutions
    were pursued only where the company at issue continued to violate the
    law and failed to adopt available remedial measures to fix known
    problems. Failure to prosecute companies that deliberately flout the
    law would undermine the deterrent effects of the law and could lead
    others to view compliance with the law as optional.
        You have asked how many criminal prosecutions the Department has
    undertaken against oil and gas producers and wind energy producers for
    MBTA violations in the past 4 years. Although your letter asks about
    felony prosecutions of oil and gas or wind energy producers for
    violations of the MBTA, the MBTA's felony provisions apply only to the
    intended or actual commercialization of migratory birds or bird parts.
    These provisions are not implicated by the take of migratory birds
    through industrial activities, and so the only MBTA charges the
    Department has filed against energy companies are for misdemeanor
    violations.
        Aside from the cases whose filing led to the district court
    decision cited in your letter,\2\ we have completed prosecutions
    against six oil and gas companies and two electrical utilities during
    the relevant time period.\3\ Over the relevant time period, we have
    declined to pursue charges against several oil and gas companies and
    electrical utilities; the Department also declined to pursue charges
    under the Bald and Golden Eagle Protection Act (BGEPA) that had been
    referred against one of those companies. The decision to decline or
    pursue criminal charges in any particular referred investigation is
    guided by the quantum of admissible evidence and by the Principles of
    Federal Prosecution of Business Organizations, as discussed above;
    based on these considerations, the Department may decline criminal
    prosecution in favor of civil or administrative remedies, as
    appropriate. The Department and the FWS fully recognize the risks that
    wind energy technology pose for migratory birds. We are currently
    evaluating referrals that we have received from the FWS against wind
    energy companies for violations of the MBTA and BGEPA and are pursuing
    further investigation and prosecution in the appropriate matters. We
    will follow the facts wherever they lead and decide whether enforcement
    action is appropriate based upon those facts, the law, and the
    Principles of Federal Prosecution. Today, in the District of Wyoming,
    Duke Energy Renewables, Inc., pleaded guilty to violations of the MBTA
    and was sentenced pursuant to an agreement stemming from its
    unauthorized takings of protected birds, including golden eagles, at
    two wind power projects.
    ---------------------------------------------------------------------------
        \2\ In addition to the three companies your letter mentions,
    similar charges were filed against four other defendants; three of
    those defendants pled guilty before charges against all seven companies
    were dismissed as a result of the district court decision.
        \3\ The case information we are providing is based on a review of
    cases identified in searches of the case management systems maintained
    by the Environment and Natural Resources Division and the Executive
    Office for United States Attorneys as MBTA or BGEPA cases against
    business entities that were referred, filed, or declined between
    January 1, 2009, and June 25, 2013 (the ``relevant time period'').
    Please note that these case management systems are designed to manage
    case information for internal purposes. Because information is entered
    manually on a periodic basis, these systems may not have complete
    information and may contain occasional data entry errors or other
    flaws. We reviewed all cases that the systems identified to determine
    which involved conventional or wind energy companies.
    ---------------------------------------------------------------------------
        Finally, as referenced in your letter, in 2009, the FWS promulgated
    regulations under the BGEPA that allow applications for permits for the
    take of bald and golden eagles associated with (or incidental to)
    otherwise lawful activities, including long-term permits for take
    associated with ongoing activities. To obtain a permit, an applicant
    must work with FWS biologists to assess the potential for take,
    minimize the likelihood of take by adopting advanced conservation
    measures or mitigation actions, and monitor its operations on an
    ongoing basis. Permits may be available to companies in all types of
    industries. The preamble to the regulations explains that programmatic
    take permits ``can be extended to industries, such as electric
    utilities or transportation industries, that currently take eagles in
    the course of otherwise lawful activities but who can work with the
    Service to develop and implement additional, exceptionally
    comprehensive measures to reduce take to the level where it is
    essentially unavoidable.'' 74 Fed. Reg. 46838. These permits authorize
    take only under the BGEPA and not the MBTA, although practices that
    minimize eagle take may well protect other migratory birds. As a
    result, consistent with FWS guidance, the Department regards adherence
    to the parameters of an eagle take permit and other applicable FWS
    guidance, such as the FWS Wind Energy Guidelines, as a reasonable and
    effective measure to reduce avian mortality of species protected solely
    under the MBTA and focuses our enforcement resources accordingly.
        We hope this information is helpful. Please do not hesitate to
    contact this office if we may provide additional assistance regarding
    this or any other matter.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                             (End of Attachment #1)

                                     ______

                 Question Submitted by Senator Susan M. Collins
        Question. Attorney General Holder, there is substantial evidence
    that prescription drug abuse is a major contributing factor in military
    and veteran suicides.
        A January 2012 Army report found that 29 percent of suicides
    involved individuals with a known history of psychotropic medication
    use. In addition, the Center for a New American Security (CNAS)
    released a report in October 2011 which found that there is excess
    prescription medication in the military community. Both reports
    recommended that the Drug Enforcement Administration (DEA) should grant
    the Department of Defense (DOD) authority to accept and dispose of
    prescription medication from servicemembers.
        Last July, I wrote you a letter requesting your support to address
    the epidemic of military suicides by allowing military treatment
    facilities to participate in drug take-back programs, as authorized by
    the Secure and Responsible Drug Disposal Act of 2010. This would
    satisfy the recommendation made in the Army and CNAS reports.
        In March of this year, 8 months later, I finally received a
    response from your office. In that time period, nearly 200 additional
    servicemembers had lost their lives to suicide. According to the
    Veterans Benefits Administration (VA), based off data collected from 21
    States, an estimated 22 veterans lose their lives to suicide each day
    as well.
        In your response to my letter, you wrote that the DEA was in the
    rulemaking process to implement the Disposal Act and that the DEA was
    hopeful that the proposed regulations for the drug take back program
    will meet the needs of those in our Armed Forces.
        Unfortunately, we know that the proposed regulations released in
    December 2012 will not meet the needs of our Armed Forces or our
    veterans because it does not allow pharmacies registered as hospitals
    or clinics at recognized military treatment facilities or VA hospitals
    to be collector points for DEA's drug take back programs.
        The Pentagon and the Secretary of Veterans' Affairs Eric Shinseki
    agree with this assessment. The Pentagon's top healthcare civilian,
    Assistant Secretary of Defense for Health Affairs, Jonathan Woodson,
    wrote to the DEA Administrator on February 13, 2013 expressing his
    concern that the DEA's proposal would exclude more than two million DOD
    beneficiaries who receive care at military treatment facilities.
        Last month, Secretary Shinseki testified before the Military
    Construction and Veterans' Affairs Appropriations subcommittee that the
    VA is in need of similar authorities for VA pharmacies to be considered
    authorized collectors of controlled substances.
        Along with a number of my colleagues, including Senators Murkowski
    and Boozman, who both sit on this panel, I recently introduced
    bipartisan legislation which would require you to work with the
    Department of Defense and the VA to implement drug take-back programs.
    What is so frustrating to me, however, is that you can make this change
    today without any additional legislation.
        I strongly urge you to ensure that the final regulations issued by
    DEA ensure that DOD and VA receive the necessary authority to ensure
    that our servicemembers and veterans are able to safely dispose of
    controlled substances at DOD and VA facilities.
        Do you agree with Secretary Shinseki and Assistant Secretary
    Woodson that our veterans and servicemembers, especially our wounded
    warriors or those struggling with post traumatic stress disorder
    (PTSD), should be able to safely dispose of prescription medications at
    pharmacies located at military treatment facilities and VA facilities?
        Answer. The Department is committed to ensuring that our military
    servicemembers and veterans, especially our wounded warriors or those
    struggling with PTSD, can dispose of unwanted, unneeded, or unnecessary
    pharmaceutical controlled substances safely and securely. To that end,
    DEA is diligently working on the final rule implementing the Secure and
    Responsible Drug Disposal Act of 2010, which authorizes additional ways
    for all Americans to dispose of their unwanted or expired controlled
    substance medications in a secure and responsible manner. The Notice of
    Proposed Rulemaking (NPRM) proposed the requirements to govern the
    secure disposal of controlled substances by both DEA registrants and
    ultimate users, and was published for comment between December 21, 2012
    and February 19, 2013. DEA received approximately 200 comments and is
    working on a final rule that will address all of the issues raised by
    the commenters. DEA understands the importance of ensuring convenient
    and accessible disposal methods for military servicemembers, veterans
    and their dependents and is working hand-in-hand with DOD and VA to
    make certain that they can dispose of prescription medications through
    a variety of safe and secure methods. In the interim, DEA continues to
    administer National Drug Take-Back Days to provide consumers with a
    safe, convenient, and responsible means of disposing of prescription
    drugs. The most recent Drug Take-Back Day was October 26, 2013.
                                     ______

                 Questions Submitted by Senator Lindsey Graham
        Question. Currently, there is a ban on licensed firearm or
    ammunition manufacturers or importers selling ``armor piercing
    ammunition,'' except for government use. See 18 U.S.C. 922(a)(7).
    Broadly speaking, the term is defined to include projectiles that ``may
    be used in a handgun'' and that are made out of certain particularly
    hard metals, except for any projectile that ``the Attorney General
    finds is primarily intended to be used for sporting purposes.'' See 18
    U.S.C. 921(a)(17).
        Today, several ammunition industry members have requests pending
    with ATF to exempt various types of bullets--especially non-toxic
    hunting bullets--under this provision. How many exemption requests are
    now pending?
        Answer. ATF currently has 17 requests from two ammunition
    manufacturers seeking exemption from the law to produce and sell to the
    general public armor piercing ammunition as defined under 18 U.S.C.
    921(a)(17).
        Question. Currently, there is a ban on licensed firearm or
    ammunition manufacturers or importers selling ``armor piercing
    ammunition,'' except for government use. See 18 U.S.C. 922(a)(7).
    Broadly speaking, the term is defined to include projectiles that ``may
    be used in a handgun'' and that are made out of certain particularly
    hard metals, except for any projectile that ``the Attorney General
    finds is primarily intended to be used for sporting purposes.'' See 18
    U.S.C. 921(a)(17).
        Today, several ammunition industry members have requests pending
    with ATF to exempt various types of bullets--especially non-toxic
    hunting bullets--under this provision. What is the status of ATF's
    review of the ``sporting purposes'' exemption?
        Answer. ATF continues to formulate and evaluate a process by which
    it can consistently and fairly apply an objective test to exempt
    ammunition projectiles (constructed of a metal or metal compound that
    is defined as armor piercing ammunition) that are primarily intended to
    be used for sporting purposes, while not obviating the purpose of the
    act designed to protect law enforcement officers from ammunition
    projectiles that may penetrate body armor. Once this process is
    complete, formal notification will proceed.
        Question. Currently, there is a ban on licensed firearm or
    ammunition manufacturers or importers selling ``armor piercing
    ammunition,'' except for government use. See 18 U.S.C. 922(a)(7).
    Broadly speaking, the term is defined to include projectiles that ``may
    be used in a handgun'' and that are made out of certain particularly
    hard metals, except for any projectile that ``the Attorney General
    finds is primarily intended to be used for sporting purposes.'' See 18
    U.S.C. 921(a)(17).
        In November 2012, ATF held meetings with manufacturers, gun owners'
    groups, and gun control groups to get their thoughts on how to apply
    the ``sporting purposes'' exemption, but neither the gun owners' groups
    nor industry have heard anything further on the issue since. ATF has
    not responded to Freedom of Information Act (FOIA) requests on this
    process that were filed immediately after those meetings. When will
    pending FOIA requests on this matter be answered?
        Answer. The ATF Office of Disclosure has received several FOIA
    requests for this meeting, including from the Sunlight Foundation and
    the National Rifle Association's (NRA) Institute for Legal Action. We
    are in the process of finalizing the records responding to these
    requests. Once this process is complete, all records will be sent to
    requesters.
        Question. I know we're both proud of the partnership between the
    Department of Justice and the University of South Carolina in Columbia.
    Sequestration is impacting all departments, and many Federal activities
    and efforts may suffer and feel the pain of the current budget
    stalemate. I want to commend the Department for continuing to work with
    the University and hope that we will resolve the budget challenges and
    sequestration so that you can continue the fine work that the U.S.
    Attorneys do at the National Advocacy Center (NAC) in Columbia. Please
    outline the impacts of sequestration on the Palmetto Project, and how
    the department is adjusting?
        Answer. Sequestration has both short- and long-term impacts on
    Project Palmetto. The short-term challenge we face is funding
    additional renovation, relocation, and equipment costs. The United
    States Attorney community received a $139 million budget cut in fiscal
    year 2013 under sequestration. As part of a broader effort to avoid
    furloughs and more drastic measures, the Department reduced courses at
    the NAC by 37 percent in fiscal year 2013. Depending on appropriations
    levels in fiscal year 2014, similar reductions may be necessary in the
    future.
        For the longer term, reductions in the Federal workforce could
    reduce space needs at the NAC. Further, a reduction in the Federal
    workforce could reduce the overall demand for training. Finally,
    budgetary pressure will reduce the time and money available for staff
    to travel to traditional classroom training at the NAC. Therefore, the
    focus of the NAC staff may shift from classroom training to distance
    learning, thereby freeing up a significant amount of classroom and
    office space.
        EOUSA and University of South Carolina leadership are meeting to
    examine options for the future. The Department is committed to its
    strong partnership with the University.
                                     ______

                    Questions Submitted by Senator Mark Kirk
        Question. I am extremely concerned about the level of gang violence
    in the city of Chicago. Gang membership across the country is on the
    rise and close to 50 percent of violence crimes nationwide are due to
    gangs, with the level being much higher in some cities including
    Chicago.
        Is there someone at the Department of Justice who is the
    Coordinator for your efforts to combat gang violence? How do the
    different agencies within the Department of Justice (DOJ) as well as
    other Government agencies coordinate strategies in fighting gangs?
        Answer. The Department's Anti-Gang Coordination Committee (AGCC)
    plays a critical role in coordinating the Department's anti-gang
    efforts and minimizing that overlap between enforcement components and
    violent crime and gang task force efforts. AGCC membership includes not
    only Department components, but also other members of the U.S. law
    enforcement committee, such as the Immigration and Customs Enforcement
    (ICE). On an operational level, the National Gang Targeting,
    Enforcement and Coordination Center (GangTECC) within the Drug
    Enforcement Administration's (DEA) Special Operations Division (SOD)
    plays a significant role in deconfliction and organization. In fiscal
    year 2010, the Department of Justice, through DEA's SOD Gang Section,
    entered into a partnership with GangTECC to enhance the combined
    capabilities of the partner agencies (FBI, DEA, ATF, and United States
    Marshals Service (USMS)) as well as ICE. Prior to fiscal year 2010,
    GangTECC supported only 100 cases in the three preceding fiscal years
    combined. Since then, under the operational direction of SOD, GangTECC
    has successfully supported 2,175 cases that have resulted in more than
    21,500 arrests. SOD also supports deconfliction and coordination on
    many cases, including gang cases. Moreover, DOJ also continues to focus
    on sharing intelligence at the field level with our State and local
    partners. Finally, as the chief prosecuting arm of the U.S. Government
    the U.S. Attorneys play a similar role at the local level, coordinating
    local strategies and working with all Federal partners.
        Question. I understand from the people in Chicago that one problem
    in fighting the gangs has been the delays in prosecutions once a gang
    member is arrested. Your fiscal year 2014 budget request for the U.S.
    Attorneys Office is lower than fiscal year 2012. Why? How will
    Washington be able to support the local needs with the lower resources
    that are coming?
        Answer. Illinois and Chicago would be eligible to receive funding
    to address gang violence through several formula and competitive grant
    programs administered by the Office of Justice Programs. The fiscal
    year 2014 President's budget request includes funding for the following
    programs:
      --Part B Formula Grants ($70 million) and the Juvenile Accountability
            Block Grant (JABG) ($30 million). The State of Illinois may
            allocate funding specifically to address gang violence under
            selected Title II and JABG program areas.
      --Missing and Exploited Children's Program ($67 million). This
            program provides funding for the Internet Crimes Against
            Children (ICAC) program. Previously, the Cook County State's
            Attorney's Office and the Illinois Attorney General's Office
            received funding from this competitive grant program to
            administer ICAC programs aimed at the detection, investigation,
            apprehension, and prosecution of technology-facilitated crimes
            against children. These activities include anti-trafficking
            investigations often linked with the proliferation of gang
            activity.
      --Community Based Violence Prevention Initiative ($25 million). This
            program helps localities and/or State programs that support a
            coordinated and multi-disciplinary approach to gang prevention,
            intervention, suppression, and reentry in targeted communities.
            This initiative aims to enhance and support evidence-based
            direct service programs that target both youth at risk of gang
            membership as well as gang-involved youth. Additionally, this
            initiative will support programs that reduce and prevent other
            forms of youth violence through a wide variety of activities
            such as street-level outreach, conflict mediation, and the
            changing of community norms to reduce violence, particularly
            shootings.
      --The National Forum on Youth Violence Prevention ($4 million). The
            Department of Justice has invited a small number of
            geographically diverse localities, including Chicago, to
            participate in the National Forum on Youth Violence Prevention.
            Participating localities, including Chicago, have agreed to
            form their own local network or use existing partnerships to
            address youth violence and gang activity in their communities.
            Chicago and the other participating localities have developed a
            multidisciplinary plan that emphasizes prevention and
            intervention as well as targeted enforcement activities. The
            Departments of Justice and Education, in collaboration with
            other Federal partners, will continue to provide technical
            assistance to support localities in the formation of their
            networks and the development and implementation of their anti-
            violence and anti-gang plans. The Federal agencies will also
            connect participating localities with one another, providing
            opportunities for localities to learn from each other, and will
            sponsor local and national events to showcase their efforts.
      --The Children's Exposure to Violence (CEV) program ($58 million).
            The CEV program will assist localities to address the trauma
            associated with community, school, and domestic violence. The
            program will support organizations to provide services
            including treatment and training and technical assistance for
            localities to prevent, respond, and mitigate the effects of
            violence.
      --Youth Mentoring ($58 million). Mentoring provides resources for
            programs aimed primarily at gang prevention along with some
            intervention activities. Organizations can apply for
            competitive discretionary grant funding through these programs.
      --The National Gang Center (NGC) ($2 million). With other entities,
            the NGC provides opportunities for resources, training, and
            technical assistance to address gang violence. Through the NGC,
            the Office of Juvenile Justice and Delinquency Prevention has
            expanded knowledge about youth gangs and effective responses to
            them by conducting the annual National Youth Gang Survey and by
            providing training materials, curriculums, and technical
            assistance on community gang problem assessment,
            multidisciplinary gang intervention, and comprehensive
            community responses to gangs. Communities may access and
            request training and technical assistance from NGC by
            completing a simple online form, available at http://
            www.nationalgangcenter.gov/Training-and-Technical-Assistance/
            Request.
      --Project Safe Neighborhoods (PSN) ($5 million). PSN provides funds
            to U.S. Attorneys for the purpose of developing partnerships
            among Federal, State and local governments as well as community
            and faith-based providers to help them create safer
            neighborhoods through a sustained reduction in crime associated
            with gang and gun violence. The U.S. Attorney in each judicial
            district leads a unified approach, with the cooperation of
            local, State, and Federal agencies, support prosecution
            efforts, intervention and prevention initiatives. This is a
            competitive grant program for which the city of Chicago and the
            appropriate U.S. Attorney district are eligible to apply.
      --The Intellectual Property Enforcement Program (IPEP) ($2.5
            million). IPEP supports the creation and maintenance of multi-
            jurisdictional task forces designed to support and enhance
            criminal investigations, prosecutions, and prevention and
            educational efforts as they relate to intellectual property
            theft and counterfeit goods enforcement. There is evidence that
            organized criminal networks are engaging in intellectual
            property (IP) theft to support their violent criminal
            enterprises and gang activities due to the low risk of
            prosecution and the extremely high profits involved.
      --Byrne Criminal Justice Innovation (BCJI) ($35 million). The goal of
            BCJI is to improve community safety by designing and
            implementing effective, comprehensive approaches to addressing
            crime within a targeted neighborhood as part of a broader
            strategy to advance neighborhood revitalization through cross-
            sector community-based partnerships. This is a competitive
            grant program for which the city of Chicago is eligible to
            apply.
      --Victims of Trafficking ($10.5 million). The goal of the human
            trafficking initiative is to support an enhanced anti-human
            trafficking law enforcement task force and victim service model
            designed to identify, rescue, and assist foreign and domestic,
            adult and minor, victims of human trafficking within the United
            States. Street gangs are a large part of the human trafficking
            problem. With State and national crackdowns on drug
            trafficking, gangs have turned to sex trafficking for financial
            gain. New technological advances give gang traffickers the
            ability to market the services of their victims discreetly. In
            several high-profile prosecutions of sex trafficking, street
            gangs used online advertisements to traffic women and girls as
            young as 13. The U.S. Government has prosecuted several hundred
            cases against street gangs, motorcycle gangs, and prison gangs
            in which commercial sex acts, prostitution, or human
            trafficking were mentioned. This is a competitive grant program
            for which the city of Chicago is eligible to apply.
      --Preventing Violence Against Law Enforcement Officers and Ensuring
            Officer Resilience and Survivability (VALOR) ($15 million).
            Many gang initiations consist of killing law enforcement
            officers, but not all gangs practice this behavior solely for
            initiation purposes. A gang called the ``Satan Disciples'' in
            Chicago has called for the formation of an assassination unit
            called ``Guerrilla Mafia Cartel'' whose sole mission is to kill
            law enforcement officers. VALOR is designed to prevent violence
            against law enforcement officers and ensure officer resilience
            and survivability following violent encounters during the
            course of their duties. VALOR responds to the precipitous
            increase in ambush-style assaults that have taken the lives of
            many law enforcement officers in recent months. With funding in
            fiscal year 2014, police officers in Chicago and surrounding
            jurisdictions would have access to this important training.
        Specifically regarding USA funding, the fiscal year 2014
    President's budget request provides $2.008 billion for the United
    States Attorneys (USA)--an increase of $48 million over the enacted
    fiscal year 2012 level of $1.960 billion.
        Question. The FBI's Safe Streets Task Force Program, a key program
    for fighting gangs, received a $9 million increase in fiscal year 2013.
    Where will these increased funds go?
        Answer. The FBI's fiscal year 2013 enacted Appropriation included
    an across-the-board rescission of over $150 million. This rescission,
    coupled with the over $550 million reduction due to sequestration,
    eliminated any program increases included in the fiscal year 2013
    Appropriation.
        Question. A June 7, 2013 Washington Post story reported that a
    Federal judge in Virginia recently sentenced two gang members for
    running a sex trafficking ring. According to the story, the women were
    recruited through Backpage.com and other Internet sites. What is the
    Department of Justice doing to crackdown on the advertising for
    prostitution on the Internet and on sites like Backpage.com for their
    role in the facilitation of sex trafficking?
        Answer. The Department shares your serious concerns about the use
    of such sites to illegally exploit vulnerable persons in this way. As a
    general matter, any prosecution of a website operator for such conduct
    would require the government (whether Federal or State) to prove beyond
    a reasonable doubt that the website operators actually knew or
    recklessly disregarded the fact that they were accepting an
    advertisement that offers sex with a child. Sufficient evidence of
    knowledge of a crime against a child is not indicated where an
    advertisement on its face is for a legal service offered by someone who
    appears to be an adult, and where there is no additional evidence
    establishing knowledge. We will continue to aggressively combat human
    trafficking, whether it takes place online or off. We are certainly
    cognizant of the unique factors implicated by the type of online
    advertising that this question highlights, and the possible
    investigative and prosecutorial challenges (and opportunities) that
    exist as a result of this medium.
        Question. In recent years there has been an effort by the U.S.
    Government to better report on sex trafficking to and within the U.S.
    How has DOJ been able to respond to the additional reporting? Have any
    trends emerged to inform efforts to combat sex trafficking both
    domestically and internationally?
        Answer. The National Institute of Justice (NIJ) contributes to a
    report every 2 years on the prevalence of trafficking. Due to the
    difficulty in obtaining accurate statistics, the report focuses on
    advances in measuring trafficking. The report highlights practices of
    those communities that provide the best estimates so that other
    communities are better able to establish more reliable and accurate
    estimates. A list of trafficking research projects supported by NIJ,
    both ongoing and completed, and their scopes is available at https://
    www.ncjrs.gov/pdffiles1/nij/223572/223572-e.pdf. The scope of the
    projects varies from developing methods to better estimate the extent
    of trafficking to developing screening tools to assist the criminal
    justice system and service providers in identifying victims of
    trafficking.Anti-Human Trafficking Task Forces in the Bureau of Justice
    Assistance (BJA) are focused on all forms of human trafficking and not
    just specifically ``sex trafficking.'' Since 2007, BJA funded Anti-
    Human Trafficking Task Forces have been required to report data monthly
    into the Human Trafficking Reporting System (HTRS). This data includes
    information related to the number of investigations opened, the number
    of potential and actual victims identified, and the number of community
    awareness trainings the task forces have conducted. BJA holds monthly
    conference calls with the HTRS administrator for updates on the
    reporting process and which task forces are not up-to-date in
    reporting. When necessary, BJA reaches out to those task forces who are
    delinquent in reporting technical assistance. The task forces are also
    subject to random audits of the data to ensure accuracy.
        Very few studies have been completed that analyze interventions and
    their effectiveness in combatting sex trafficking. A recently completed
    NIJ-funded study focused on sex trafficking demand reduction efforts.
    The study details typologies of different approaches to combat sex
    trafficking. Twelve distinct typologies were found including reverse
    sting operations, public education campaigns, rehabilitative efforts,
    and shaming tactics. The final research report, available at https://
    www.ncjrs.gov/pdffiles1/nij/grants/238796.pdf, provides descriptive
    information on current interventions and discusses what research has
    been done. A product of this study was Demandforum.net, an online
    resource developed under a grant from NIJ that provides assistance to
    practitioners and others in the form of information about the range of
    models and program structures implemented to deter sex trafficking. The
    site has information on more than 900 cities and counties in the U.S.
    that have launched initiatives in this area.
        The Office for Victims of Crime (OVC) and BJA are working closely
    with Federal partners to identify trends in human trafficking in order
    to develop responses that will best serve the victims. For example, OVC
    and BJA, along with the Federal Bureau of Investigation and the
    Executive Office for United States Attorneys, are working with the
    Human Smuggling and Trafficking Center on an analysis of Federal data
    on human trafficking in the U.S. OVC and BJA also work closely with NIJ
    to learn from its ongoing studies of human trafficking in the US. In
    addition, OVC has improved its Trafficking Information Management
    System (TIMS), which collects systematic and comprehensive information
    from trafficking grantees on the demographics, immigration status and
    the service needs of victims. TIMS provides OVC with information on the
    needs of the trafficking victims, which has led to changes in grant
    solicitations and the provision of technical assistance and training.
    TIMS also provides data on the country of origin in the case of foreign
    labor trafficking victims. Over the last few years, the three top
    countries of origin were Mexico, the Philippines and Thailand. OVC used
    this information to develop a new national public awareness PSA (to be
    released in January 2014) in Spanish, Tagalog, and Thai, in addition to
    English. Finally, OVC is a key partner in the development of the
    Federal Strategic Action Plan on Victim Services in the United States,
    through which Federal agencies are embarking on new and strengthened
    coordination and collaboration to ensure all victims of human
    trafficking in the U.S. are identified and provided access to the
    services they need to recover and rebuild their lives.
        Question. Given the recent ruling by an Egyptian court in the
    politically motivated trial against democracy workers, what is DOJ
    doing to ensure that any Egyptian Government efforts to issue arrest
    warrants through Interpol are blocked?
        Answer. The Departments of Justice and State are monitoring the
    situation closely, including through contact with Egyptian Government
    and NGO officials. Interpol Washington, the U.S. National Central
    Bureau (USNCB), a component of the Department of Justice, has also been
    in close contact with the International Criminal Police Organization
    (``INTERPOL'') to ensure that if Egypt elects to pursue INTERPOL
    notices or communications concerning the individuals involved, INTERPOL
    will reject any Egyptian efforts consistent with its previous decision
    on April 23, 2012, denying Egypt's requests in the same case.
    INTERPOL's April 2012 decision followed a brief in opposition to
    Egypt's requests submitted on behalf of the United States by the USNCB
    with coordination and input from officials of the Criminal Division and
    State Department. The United States' brief in opposition to the
    requests noted that the Egyptian prosecution was politically motivated
    and therefore contrary to Article 3 of INTERPOL's Constitution which
    prohibits any activities by the organization of a ``political,
    military, religious or racial character.'' INTERPOL denied Egypt's
    requests on this basis. Because the recent convictions in absentia are
    based on the same charges, any attempt by Egypt to pursue the
    defendants via INTERPOL would also be prohibited by Article 3 of the
    INTERPOL Constitution.
                                     ______

                  Questions Submitted by Senator John Boozman
                            settlement negotiations
        Question. Mr. Holder, as you know many agencies enter into
    settlement negotiations that result in mandatory Federal actions. For
    example, the Environmental Protection Agency (EPA), the Fish and
    Wildlife Service, and other agencies, often settle lawsuits, resulting
    in legally-binding consent decrees. I am interested in the ability of
    affected citizens to be aware of these closed-door negotiations and to
    have a seat at the table--to intervene--when necessary and appropriate.
    Other agencies often point the finger at the Department of Justice
    (DOJ) when the door is kept shut.
        Please explain the relationship between DOJ and other Federal
    agencies, when DOJ represents another agency in these situations. Is it
    accurate to think of the other agencies as DOJ's client?
        Answer. Because the question references the activities of the
    Environmental Protection Agency (EPA) and U.S. Fish and Wildlife
    Service and refers to ``mandatory Federal actions,'' a term that is
    largely relevant to the Department of Justice's work in defensive
    litigation, the responses to these questions will reference the
    specific authorities and experience of the Department of Justice in
    representing those agencies in defensive cases. Broadly speaking, the
    Department views its client as the United States. Therefore, in
    conducting litigation, we seek to act in the best interests of the
    United States. Where a particular agency is a named defendant in a
    lawsuit and the lawsuit challenges administrative action or inaction by
    that agency, we think of that agency as our primary client, while also
    considering the views of any other interested agencies.
        Question. During such settlement negotiations, to what extent does
    DOJ allow the agency to participate in the process?
        Answer. Agency participation in settlement negotiations may depend
    to some extent on the nature of the relief sought by the plaintiff in
    the lawsuit. Where the plaintiff seeks to compel the defendant agency
    either to undertake or to reconsider administrative action, it is
    common for lawyers from the defendant agency to participate in
    settlement negotiations. Even in those cases in which agency counsel
    might not be present during settlement negotiations with opposing
    counsel, the Department coordinates all settlement positions with the
    agency prior to (and, often times, during) any negotiations. The
    Department's representation of EPA, for example, is governed by a June
    1977 Memorandum of Understanding (MOU) between the Department and EPA.
    Under that MOU, attorneys employed by EPA may participate in the
    conduct of litigation in which the agency is party, including
    participation in settlement negotiations, subject to the supervision
    and control of the Attorney General. MOU 2, 4; see also 42 U.S.C.
    7605(b) (participation by EPA attorneys in Clean Air Act litigation
    under the MOU).
        Question. During such settlement negotiations, who determines
    whether affected parties that wish to intervene in the negotiation
    process are allowed a seat at the table--DOJ or EPA?
        Answer. Under 28 U.S.C. 516 (and the June 1977 MOU with EPA), the
    conduct of all litigation is reserved to officers of the Department of
    Justice under the direction of the Attorney General. Thus, while the
    Department would typically consult with the client agency, any decision
    regarding what position the Government will take regarding intervention
    or participation in settlement negotiations ultimately rests with the
    Justice Department. That said, the Department gives its client
    agencies' views considerable weight as to all significant litigation
    decisions.
      doj's responsibility to assist with the freedom of information act
                       (foia) implementation at agencies
        Question. Mr. Holder, I would appreciate your thoughts regarding
    the importance of the Freedom of Information Act and your thoughts on
    the departments role regarding FOIA implementation and providing
    guidance to other agencies. Specifically: Would it be appropriate for
    an agency to automatically inform FOIA requestors that their requests
    are ``overbroad'' and will ``probably cost more than the amount of
    money they agreed to pay''?
        Answer. It would not be appropriate for an agency to
    ``automatically'' assume that a FOIA request was ``overbroad'' or that
    it would ``cost more than the amount of money [the requester] agreed to
    pay.'' Each request must be evaluated individually, first to determine
    whether it meets the FOIA's requirement that it reasonably describe the
    records sought, and second, to determine whether there are any fees to
    be assessed in the first instance, and if so, whether those fees would
    be more than the requester has agreed to pay. There would be many
    requests for which there are no problems regarding the scope of the
    request or fees to be charged.
        The Attorney General's Memorandum for Heads of Executive
    Departments and Agencies Concerning the Freedom of Information Act,
    issued on March 19, 2009, emphasized President Obama's call for agency
    FOIA professionals ``to work `in a spirit of cooperation' with FOIA
    requesters.'' In accordance with that directive, the Department has
    strongly encouraged agencies to actively communicate with requesters
    regarding their requests. Such communication can be particularly
    important in those situations when a request seeks a voluminous amount
    of material or when there is an issue regarding fees. In those cases
    dialogue between the parties can be beneficial to both agency and
    requester alike.
        Question. Would you be concerned to learn of instances where
    Federal employees expressed an inability to respond to FOIA requests in
    a timely manner due to lack of proper training or insufficient support
    from their agency's Chief FOIA Officer?
        Answer. Yes. The FOIA Memorandum referenced in response to the
    previous question emphasizes that ``[i]improving FOIA performance
    requires the active participation of agency Chief FOIA Officers'' and
    that FOIA professionals ``deserve the full support of the agency's
    Chief FOIA Officer to ensure that they have the tools they need to
    respond promptly and efficiently to FOIA requests.'' Furthermore, it
    provides that all Chief FOIA Officers must annually review their
    agency's FOIA administration and to report to the Department ``on the
    steps that have been taken to improve FOIA operations and facilitate
    information disclosure at their agencies.'' In addition to a series of
    other questions, the Chief FOIA Officers have been required to report
    on their agency's efforts to conduct and attend FOIA training.
    Additionally, as part of the Department's ongoing effort to ensure that
    agencies understand both the FOIA's legal requirements and the policy
    directives in the President's FOIA Memorandum and the Attorney
    General's FOIA Memorandum, the Department has provided extensive,
    hands-on training to thousands of agency FOIA professionals across the
    Government each year. Moreover, the Department's FOIA experts at the
    Office of Information Policy (OIP) regularly provide specialized
    training to agencies and are always available to agencies that would
    like additional training.
        Question. Since at least March, DOJ has been on notice that these
    and other serious FOIA implementation problems exist at the EPA. You
    were sent a bicameral letter on March 7, asking you to investigate
    these concerns and to help solve the problem. What, if anything, has
    DOJ done since March 7 to investigate these serious transparency
    problems?
        Answer. The Department takes its leadership role in FOIA very
    seriously. Shortly after receiving the March 7 letter, the Director of
    OIP, which is the office within the Department charged with the
    responsibility for encouraging and overseeing agency FOIA compliance,
    met with EPA's Chief FOIA Officer to discuss its FOIA administration
    and the concerns that have been raised. Since that meeting, OIP's
    Director has continued to be engaged with EPA regarding these matters.
    On July 26, the Department provided a formal response to the letter you
    reference from Senators Vitter and Grassley and Congressman Issa.
        Question. When should the Environment and Public Works (EPW)
    Committee, the Judiciary Committee, and the House Oversight Committee
    expect a response from you, to the March 7 letter?
        Answer. A response to the March 7 letter was sent to Senators
    Vitter, Grassley and Chairman Issa on July 26.
            doj responsibility regarding the epa fee waiver scandal
        Question. Mr. Holder, this spring, we learned that since January
    2012, FOIA fee waiver requests from conservative/libertarian think
    tanks have been denied by the EPA 73 percent of the time. On the other
    hand, we learned that FOIA fee waiver requests from left-leaning
    organizations are granted by the EPA 92 percent of the time.
        Do you agree that all Americans should be provided equal treatment
    by the Government, regardless of their religious, political, or
    ideological views?
        Answer. Yes. A person's religious, political or ideological views
    have no impact on their FOIA request. Indeed, a FOIA requester's
    identity generally ``has no bearing on the merits of his or her FOIA
    request.'' DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S.
    749, 771 (1989). However, there are certain areas of the FOIA where the
    identity of the requester and the reason he or she seeks records is a
    factor that must be considered. For example, the FOIA's fee provisions
    prescribe different types of fees for three distinct categories of
    requesters: (1) commercial use requesters; (2) educational
    institutions, noncommercial scientific institutions, and
    representatives of the news media; and (3) all other requesters. See 5
    U.S.C. 552(a)(4)(A)(ii). Further, the statute provides for fees to be
    waived or reduced ``if disclosure of the information is in the public
    interest because it is likely to contribute significantly to public
    understanding of the operations or activities of the Government and is
    not primarily in the commercial interest of the requester.'' 5 U.S.C.
    552(a)(4)(A)(iii). In making decisions regarding the proper fee
    category and in deciding whether a fee waiver is appropriate, agencies
    necessarily look to the identity of the requester and their intended
    use of the material. That being said, the requester's ``religious,
    political, or ideological views'' would have no bearing on these
    determinations.
        Question. If a Federal agency discriminates in the provision of
    Government services based on the political views of particular
    citizens, would the Department of Justice have a role in investigating
    that discrimination?
        Answer. To the extent this question pertains to a Federal agency's
    FOIA administration, the Department does not have formal
    ``investigatory'' authority concerning FOIA administration.
    Nevertheless, the Department takes its leadership and oversight role in
    the FOIA very seriously, as the statute tasks us with the
    responsibility of encouraging agency compliance, and we exercise
    oversight authority through agencies' obligation to submit to the
    Department an Annual FOIA Report and Chief FOIA Officer Report. If the
    Department became aware of any issues regarding proper implementation
    of an agency's FOIA program, the Department would reach out to the
    agency's Chief FOIA Officer to provide guidance to the agency regarding
    proper application of the statute.
        More broadly, the Department of Justice stands firmly against
    discrimination in the provision of Government services based on the
    political views of particular citizens. Depending on the specific facts
    at issue, the Department may have a role in investigating the alleged
    discrimination.
        Question. You recently ordered a DOJ investigation of the IRS
    scandal, which involves disparate treatment and discrimination based on
    political views that occurred during the run up to the 2012 election.
    Would it be appropriate for the DOJ to similarly investigate political
    discrimination at the EPA?
        What steps, if any, have you taken to determine whether such an
    investigation might be appropriate?
        Answer. The Department of Justice does not comment on pending
    investigations or its plans regarding any potential investigations.

                             CONCLUSION OF HEARINGS

        Chairwoman Mikulski. This subcommittee stands in recess
    subject to the call of the Chair.
        [Whereupon, at 12:15 p.m., the hearings were concluded, and
    the subcommittee was recessed, to reconvene subject to the call
    of the Chair.]