[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.
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\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.
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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\
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\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.
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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\
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\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.'').
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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\
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\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.
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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.
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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.
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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.
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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\
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\29\ R. Doc. No. 68, at 3.
\30\ R. Doc. No. 69.
\31\ R. Doc. No. 70.
\32\ R. Doc. No. 70.
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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\
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\33\ R. Doc. Nos. 75, 76.
\34\ R. Doc. Nos. 75, 76.
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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\
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\35\ R. Doc. No. 101.
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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:
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\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\
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\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\
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\39\ Consent Judgment, at ii-iii.
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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\
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\40\ Consent Judgment, at 20.
\41\ Consent Judgment, at 20-21.
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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\
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\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.
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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\
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\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.
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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.
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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\
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\51\ Consent Judgment, at 43.
\52\ Consent Judgment, at 43.
\53\ Consent Judgment, at 43.
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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\
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\54\ Consent Judgment, at 43.
\55\ Consent Judgment, at 44.
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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\
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\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.
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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\
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\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.
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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.
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\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.
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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\
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\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\
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\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\
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\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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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\
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\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).
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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.
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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\
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\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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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\
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\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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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``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.
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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.'').
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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.
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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.
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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.
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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.
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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.
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\474\ R. Doc. No. 179, at 6.
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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\
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\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.'').
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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.
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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.
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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.
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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.
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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.
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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\
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\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.
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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.'').
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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.
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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\
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\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.
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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.
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\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.
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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.
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\527\ Pl. Ex. 380.
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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.
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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
[email protected]
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:
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______
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.]