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


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

                              ----------                              


                         THURSDAY, JUNE 6, 2013

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

                         DEPARTMENT OF JUSTICE

                     Office of the Attorney General

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


            opening statement of senator barbara a. mikulski


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


                 statement of senator richard c. shelby


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


                           prepared statement


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

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

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

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

                           PREPARED STATEMENT

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

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

                       FEDERAL PRISON POPULATION

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

                          CONTROVERSIES AT DOJ

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

                 STATEMENT OF SENATOR DIANNE FEINSTEIN

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

                            MONEY LAUNDERING

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

                       ATF GUN DEALER INSPECTIONS

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

                 STATEMENT OF SENATOR SUSAN M. COLLINS

             USE OF LETHAL FORCE AGAINST AMERICAN CITIZENS

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

                          MONITORING OF PHONES

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

                  STATEMENT OF SENATOR LINDSEY GRAHAM

            ROLE OF THE EXECUTIVE VERSUS LEGISLATIVE BRANCH

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

                             GUANTANAMO BAY

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

                             SEQUESTRATION

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

                        TED STEVENS PROSECUTION

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

                        VAWA REAUTHORIZATION ACT

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

             SUMMARY STATEMENT OF HON. MICHAEL E. HOROWITZ

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

                           PREPARED STATEMENT

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

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

                     ADDITIONAL COMMITTEE QUESTIONS

    Chairwoman Mikulski. Well, having said that, this was an 
excellent hearing. Our witnesses were very forthcoming and 
insightful. And our subcommittee, our subcommittee was 
excellent. If there are no further questions this morning, this 
subcommittee----
    Senators may submit additional questions for this 
subcommittee in our official record. We request the DOJ's 
response within 30 days.
    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
            Questions Submitted to Hon. Eric H. Holder, Jr.
            Questions Submitted by Senator Patrick J. Leahy
                              prison costs
    Question. As more and more people are incarcerated for longer and 
longer, the resulting costs have placed an enormous strain on Federal, 
State and local budgets and have at the same time severely limited our 
ability to enact policies that prevent crimes effectively and 
efficiently. At the Federal level, the Bureau of Prison's (BOP) budget 
now consumes a full quarter of the total budget for the Department of 
Justice (DOJ).
    What budget problems has the expanding prison population posed for 
the Department of Justice? Which other areas of the DOJ budget are 
suffering losses or cuts because funds must be diverted to maintain the 
BOP? What is the impact of such cuts to law enforcement?
    Answer. The rising costs of supporting a growing prison population 
are unsustainable. With tight budgets, the mandatory costs of housing 
and securing the prison population could crowd out funding for all 
other Department of Justice functions: investigations, prosecutions, 
treatment and prevention activities, State and local grant programs, 
and other programs that help support public safety. This includes 
programs that facilitate the transition of inmates to contributing, 
law-abiding members of their communities.
    The Department is continuing its efforts to address the growing 
inmate population. The Department supports sentencing and corrections 
policies that protect the public, are fair to both victims and 
defendants, reduce recidivism, and control the prison population.
    On August 12, 2013, the Attorney General announced his ``Smart on 
Crime'' initiative which prioritizes prosecutions on the most serious 
cases, reforms sentencing to eliminate unfair disparities, pursues 
alternative to incarceration for low-level, non-violent crimes, and 
improves reentry to curb repeat offenses and re-victimization.
    Question. How do you anticipate that continued growth of the BOP 
will divert funding from other DOJ programs and hiring in the future?
    Answer. The mandatory costs of housing and securing the Federal 
prison population are expected to continue to grow and could crowd out 
opportunities for other Department programs. BOP costs have grown from 
16 percent of the Department's Budget in 1980, to nearly 25 percent as 
of the end of fiscal year 2012, as the prison population has grown from 
approximately 25,000 to roughly 219,000 over the same period of time. 
The Department has proposed as part of the fiscal year 2014 President's 
budget two sentencing reform proposals to revise Federal statutes 
governing the time Federal inmates serve on their sentences. These 
proposals would encourage good conduct and participation in recidivism-
reducing programming and would help reduce crowding and costs in the 
Federal prison system.
    On August 12, 2013, the Attorney General announced his ``Smart on 
Crime'' initiative which prioritizes prosecutions on the most serious 
cases, reforms sentencing to eliminate unfair disparities, pursues 
alternative to incarceration for low-level, non-violent crimes, and 
improves reentry to curb repeat offenses and re-victimization.
    Question. Since 2006, the Department has frequently testified that 
the Federal Bureau of Prisons is overcrowded and has suggested that 
more funding for more prisons is needed. In light of budget 
difficulties and the sequester, that is not a plausible solution for 
the foreseeable future.
    What policy changes and sentencing reforms would the Department 
support to reduce the size and budgetary burden of the prison system?
    Answer. Legislative changes that are supported by the 
administration that could help reduce prison costs and recidivism are 
as follows:
                        inmate good conduct time
    Title 18 U.S.C. 3624(b) (the statute that governs good time for 
Federal inmates with an offense date on or after November 1, 1987) 
states that, subject to conditions related to behavior in prison and 
participation in the General Educational Development (GED) program, a 
prisoner who is serving a term of imprisonment of more than 1 year 
(other than a term of life imprisonment) may receive credit toward the 
service of the prisoner's sentence of up to 54 days at the end of each 
year served of the prisoner's term of imprisonment (beginning at the 
end of the first year of the term). In Barber et al. v. Thomas, (S.Ct. 
No. 09-5201), the Supreme Court upheld the Bureau's interpretation of 
Section 3624(b).
    Title 18 U.S.C. 3624(b) could be modified to allow a prisoner who 
is serving a term of imprisonment of more than 1 year (other than a 
term of life imprisonment) to receive credit toward the service of the 
prisoner's sentence of up to 54 days for each year of the sentence 
imposed. This change could be made retroactive, granting the additional 
credit for all Federal inmates in custody who have an offense date on 
or after Nov. 1, 1987 (all but ``old law'' offenders). This would 
effectively increase potential Good Time awards for every inmate by 7 
days for each year of the sentence imposed.
    This change to good conduct time would result in greater incentive 
for inmates to maintain good conduct and an immediate reduction in the 
expected population growth (approximately 4,000 fewer inmates 1 year 
after enactment), and lower growth figures than otherwise would have 
been expected.
             expanded early release for program completion
    Among the Bureau's inmate programs that have been shown empirically 
to reduce recidivism, only the Residential Drug Abuse Program (RDAP) 
offers inmates the opportunity to earn a sentence reduction for 
successful completion of the program. Specifically, title 18 U.S.C. 
3621(e)(2)(B) states that the Bureau may reduce the period an inmate 
convicted of a nonviolent offense remains in custody after successfully 
completing RDAP. The authority to provide an early release to inmates 
who complete RDAP has been used since 1995, with nearly 40,000 inmates 
getting sentence reductions. Inmates who have not been diagnosed with a 
``drug disorder'' are ineligible for participation in RDAP; therefore, 
sentence reduction through RDAP is not available to them. Effectively, 
these inmates are disadvantaged in terms of sentence reduction, even if 
they complete programs that address their reentry needs and make them 
less likely to reoffend.
    Legislation could be enacted to allow inmates to earn up to 60 days 
per year of credit toward their sentence for each year in which the 
inmate is in the custody of the Bureau and successfully participates 
(for a minimum of 180 days) in specific programs that have been 
demonstrated to reduce recidivism such as Federal Prison Industries 
(FPI), vocational training, and education programming. Credits earned 
toward service of a sentence pursuant to this proposal would not, in 
combination with RDAP credit earned under 18 U.S.C. 3621(e) and Good 
Conduct Time credits earned pursuant to 18 U.S.C. 3624(b), be allowed 
to exceed 33 percent of the sentence imposed.
    Such a legislative proposal is not without historical precedence. 
Prior to enactment of the Sentencing Reform Act of 1984, the good time 
statutes allowed offenders to earn time off of their sentence for 
participating in educational and vocational programs. Additionally, the 
Parole Commission frequently looked to an inmate's institutional 
adjustment including program completion to determine whether to grant 
parole and release an inmate from custody.
    In addition, on August 12, 2013, the Attorney General announced his 
``Smart on Crime'' initiative which prioritizes prosecutions on the 
most serious cases, reforms sentencing to eliminate unfair disparities, 
pursues alternative to incarceration for low-level, non-violent crimes, 
and improves reentry to curb repeat offenses and re-victimization.
    Question. Specifically, what front-end sentencing reforms does the 
Department believe would be most effective in reducing the size and 
costs of the Federal prison population? Do you agree that sentencing 
reform should include lowering some mandatory minimum penalties and 
expanding the number of defendants eligible for relief from such 
penalties?
    Answer. Please refer to the previous response.
    In addition, on August 12, 2013, the Department of Justice 
announced a change in charging policies so that certain people who have 
committed low-level, nonviolent drug offenses, who have no ties to 
large-scale organizations, gangs, or cartels will no longer be charged 
with offenses that carry mandatory minimum sentences.
                         compassionate release
    Question. The Inspector General recently released a report about 
the Bureau of Prison's mismanagement of the ``compassionate release'' 
program. Typically, the BOP seeks compassionate release only for 
prisoners who are within 1 year of death due to serious illness. Both 
in and out of prison, the medical costs of the last 12 months of life 
can be very high.
    How many Federal prisoners are currently incarcerated who might be 
eligible for compassionate release? How much money could the BOP save 
if it released them all?
    Answer. Since reduction-in-sentence (RIS) requests can be made for 
both medical and non-medical reasons, the number of inmates eligible 
cannot be determined. In April 2013, the BOP expanded the medical 
criteria that will be considered for inmates seeking compassionate 
release. In addition, in August 2013, the Attorney General announced 
revised criteria for other categories of inmates seeking reduced 
sentences, including elderly inmates and certain inmates who are the 
only possible caregiver for their dependents. For all RIS requests, the 
ultimate authority to reduce a sentence rests with the United States 
District Court Judge who rules on the motion submitted by the U.S. 
Attorney's Office on behalf of the BOP. This legal authority permits a 
release from prison based on a finding that extraordinary and 
compelling reasons exist that warrant an inmate's release. See 18 
U.S.C. Sec. 3582(c)(1)(A)(i).
    Question. The report found that the process of requesting a 
compassionate release is unnecessarily complicated and takes so long 
that some people die before it is complete. What are the Department and 
BOP doing or planning to do to improve this process? How soon can we 
expect those reforms?
    Answer. The BOP's compassionate release program has been updated as 
part of the Attorney General's ``Smart on Crime'' initiative. The 
policy was updated on August 12, 2013, and clarifies the medical and 
non-medical criteria for reduction-in-sentence (RIS) consideration.
    Under a recent change to regulations, the Warden of an institution 
will send approved requests directly to the BOP's Central Office for 
review and final disposition. The regulation change removed the level 
of Regional Director review to provide for more expedited review of 
these requests. At the BOP's Central Office, requests are reviewed by 
the General Counsel and the Director. The amended regulation can be 
found at 78 FR 13478 (Feb. 28, 2013) and was effective on April 1, 
2013.
    The BOP's medical criteria for a compassionate release include the 
following:
    Inmates who have been diagnosed with a terminal, incurable disease 
whose life expectancy is 18 months or less. Previously, consideration 
was generally given to inmates whose life expectancy was 12 months or 
less. Inmates who have an incurable, progressive illness or who have 
suffered a debilitating injury from which they will not recover. For 
inmates in this category, the BOP will consider a compassionate release 
if the inmate is either completely disabled, meaning he or she cannot 
carry on any self-care and is totally confined to bed or chair, or is 
capable of only limited self-care and is confined to a bed or chair 
more than 50 percent of waking hours. Previously, consideration was 
generally given to inmates so debilitated that they could only provide 
very little or no self-care.
    The BOP policy also sets forth non-medical RIS criteria including 
the following:
    Elderly inmates meeting certain criteria regarding age, and length 
of time served, and in some cases, medical impairments relating to age; 
circumstances in which there has been the death or incapacitation of 
the family member caregiver of an inmate's child; and circumstances in 
which the spouse or registered partner of an inmate has become 
incapacitated.
    Included in the BOP's review process is an analysis of the inmate's 
ability or likelihood to re-offend, public safety concerns, the 
benefit, if any, of remaining in prison, and the availability of an 
appropriate release plan.
    If applicable, the BOP notifies and solicits comments from victims 
and witnesses regarding an inmate's possible release and considers this 
information in determining whether to recommend a compassionate release 
to a sentencing judge. The BOP also consults with the U.S. Attorney's 
Office responsible for the criminal prosecution regarding an inmate's 
possible release and considers this information in determining whether 
to recommend a compassionate release to a sentencing judge.
    A revised statement about RIS is included in the new Inmate A&O 
Handbook dated August 2, 2013, and states that the BOP may consider 
both medical and non-medical circumstances, and inmates may appeal 
denials through the Administrative Remedy Procedure. Additionally, the 
revised policy and a notice to inmates was placed on the inmate 
electronic bulletin board on August 13, 2013.
    Beginning in late August 2013, the BOP began utilizing an 
electronic tracking system for all RIS requests. Various data regarding 
RIS requests is captured at the institution and Central Office levels 
of review.
    Furthermore, various staff that work on RIS matters have been 
provided training on at least five occasions between June and September 
2013.
                                 ______
                                 
            Questions Submitted by Senator Dianne Feinstein
              prosecuting gtmo detainees in federal court
    Question. I was pleased to see the President recommit to closing 
Guantanamo in his recent national security speech. I would like to 
focus on the part of that speech where the President said he asked the 
Department of Defense to establish a site inside the United States to 
hold Military Commission trials.
    If Guantanamo detainees could one day be brought to the United 
States for prosecution in a Military Commission, would the Department 
of Justice (DOJ) be ready to file charges against others in Federal 
criminal court in the United States?
    Answer. In 2009, the Guantanamo Review Task Force concluded that a 
number of detainees at Guantanamo should be considered for prosecution, 
whether in an Article III court or in a military commission, and those 
cases were under review at the Departments of Justice and Defense. The 
process for considering whether Guantanamo detainees could be 
prosecuted in Article III courts effectively ended when Congress passed 
laws prohibiting the transfer of Guantanamo detainees to the United 
States, including for the purposes of trial. In the event that Congress 
were to lift those restrictions, and the administration were to 
determine that the option of prosecution of Guantanamo detainees in 
Federal court should again be considered, that process could be 
restarted, but it is not clear at this time how many detainees at 
Guantanamo Bay could be prosecuted in Federal court.
    Question. Would it not be better to prosecute some GTMO detainees 
in a Federal criminal court because the charges of ``Conspiracy'' and 
``Material Support to Terrorism'' are not available in Military 
Commissions at this time unless the Al-Bahlul decision is overturned?
    Answer. As indicated by your question, the issue whether the 
Military Commissions Act (MCA) of 2006 authorizes prosecution of 
conspiracy and material support for terrorism offenses for conduct 
committed before its enactment is currently pending before the United 
States Court of Appeals for the District of Columbia Circuit. Both the 
2006 and 2009 versions of the MCA include conspiracy and material 
support among the offenses that can be prosecuted by military 
commission. But in Hamdan v. United States, a panel of the D.C. Circuit 
held that the 2006 MCA does not authorize prosecution of pre-enactment 
conduct except for offenses previously codified or recognized as war 
crimes under customary international law. (The petitioner in that case 
had long since completed his sentence and been transferred to Yemen in 
2008.) Thereafter, a second panel of the D.C. Circuit applied the 
holding in the Hamdan decision to reverse the military commission 
convictions of Ali al-Bahlul (who is currently serving a life sentence 
at Guantanamo Bay) on charges of material support, conspiracy, and 
solicitation. In March, the Department of Justice sought review of the 
panel's holding in al-Bahlul, and in April the D.C. Circuit granted en 
banc review. The D.C. Circuit held oral argument on September 30, 2013. 
Because the terrorist activities of the detainees at Guantanamo Bay 
generally predate both the 2006 MCA and 2009 MCA, the outcome of the 
al-Bahlul case is likely to have a significant impact on whether 
military commissions will be authorized to prosecute Guantanamo Bay 
detainees on material support and conspiracy charges.
    Criminal prosecutions in Article III courts could include charges 
of material support for terrorism and conspiracy if there is an 
evidentiary basis to support such charges.
    Question. I understand that there may be some cases on appeal 
regarding the ability to charge detainees with Conspiracy and Material 
Support. Is DOJ currently preparing criminal complaints against any 
GTMO detainees, especially where charges of Conspiracy and Material 
Support are possible?
    Answer. As indicated above, the Department's review process for 
considering whether, and under what theories, Guantanamo detainees 
could be prosecuted in Article III courts effectively ended when 
Congress passed laws prohibiting the transfer of Guantanamo detainees 
to the United States. In the event that Congress were to lift those 
restrictions, the administration would again consider whether it is 
appropriate to prosecute Guantanamo detainees in Federal court, but it 
is not clear at this time how many detainees at Guantanamo Bay could be 
prosecuted in Federal court.
    Question. Of the 80 GTMO detainees who have not been cleared for 
transfer, do you know how many can only be prosecuted for Conspiracy or 
Material Support?
    Answer. It would not be appropriate for the Department to speculate 
on such issues.
office of legal counsel (olc) legal opinions regarding targeted killing 
                               operations
    Question. I'd like to thank the administration for earlier this 
year providing the Intelligence Committee and the Judiciary Committee 
access to all of the OLC opinions related to the targeted killing of 
Americans outside the United States and outside areas of active 
hostilities, such as Afghanistan. However, I want to continue to work 
with you and the administration to get the other opinions we have not 
seen.
    As you are aware, since 2010 the Senate Intelligence Committee has 
sent bipartisan letters to the executive branch requesting copies of 
all the OLC legal opinions concerning the U.S. Government's targeted 
use of force by unmanned aerial vehicles so that we can understand and 
evaluate the executive branch's legal reasoning, pursuant to our 
oversight obligations. In fact, you were copied on one of our original 
letters on this topic, dated September 21, 2010, requesting these OLC 
documents.
    In his recent national security speech, the President said, ``I 
have asked my administration to review proposals to extend oversight of 
lethal actions outside of warzones that go beyond our reporting to 
Congress.'' He went on to say that he looks forward to ``actively 
engaging Congress to explore these--and other--options for increased 
oversight.'' As part of this commitment to increased oversight, can I 
have your commitment that you will work to provide the Congress with 
all of the OLC opinions that have been requested?
    Answer. Where Congress or congressional committees have questions 
regarding the legal basis for the Government's conduct, including its 
counterterrorism and intelligence activities, the Department is 
committed to working with the departments and agencies of the executive 
branch who engage in that conduct to provide Congress with an 
explanation of the legal basis for those activities, while doing so in 
a manner that does not compromise the ability of executive branch 
officials to receive candid and confidential legal advice to inform 
their deliberations and decisionmaking.
    It is undeniable that any decision to use lethal force against a 
U.S. citizen, even one in a foreign land who has become an operational 
leader of a terrorist organization intent on harming other Americans, 
would be a grave decision, and it is important that the public and 
Congress be aware of the legal framework that would apply in such 
circumstances. This is why the President, the Attorney General, and 
other senior administration officials have made public remarks 
addressing this important subject. The administration has also provided 
the Intelligence Committees with classified briefings regarding that 
legal framework, as well as an extensive classified white paper that 
contains a detailed discussion of applicable constitutional and 
statutory standards. The President's recent decision to provide members 
of the Senate Select Committee on Intelligence, as well as the House 
Permanent Select Committee on Intelligence and the Senate and House 
Judiciary Committees, with access to classified Office of Legal Counsel 
(OLC) advice related to the use of lethal force against U.S. citizens 
was an additional and extraordinary accommodation in the context of 
ongoing, extremely sensitive operational activities by the executive 
branch.
    To the extent that Congress is interested in obtaining additional 
information to better understand and evaluate the executive branch's 
legal reasoning regarding potential counterterrorism or intelligence 
activities, including activities that might involve the use of lethal 
force, the department or agency that would engage in such activities 
would be in the best position to explain their legal basis. This 
longstanding approach allows Congress to conduct effective oversight of 
such activities and appropriately permits Congress to test, examine, 
and understand fully the lawfulness of the Government's action without 
the need for disclosure of confidential and pre-decisional legal 
advice.
    As a general matter, the department or agency that engages (or 
would engage) in a particular activity is in the best position to 
explain the legal basis for that activity. There is, however, a 
fundamental difference between explaining the legal basis for executive 
branch conduct and disclosing the confidential advice and deliberations 
that precede executive branch decisions. Department of Justice legal 
advice and OLC opinions often address sensitive and controversial 
matters and reflect candid legal advice provided to executive branch 
decision makers in advance of decisions regarding potential Government 
actions. Routine disclosure of this sort of pre-decisional, internal 
executive branch legal advice could deter client agencies from coming 
to the Department for legal advice in the future and could affect the 
Department's presentation of that advice to its executive branch 
clients. Effective and informed decisionmaking by executive branch 
officials depends upon a robust deliberative process that includes the 
provision of confidential legal advice by agency general counsel and, 
in certain circumstances, by the Department and OLC.
    While the Department's legal advice may at times relate to 
classified counterterrorism and intelligence activities, the 
Department's concern with protecting the confidentiality of such legal 
advice does not stem from a concern that classified information or 
intelligence sources and methods may be compromised if the advice were 
disclosed to the Congress the Department expects that the relevant 
congressional committees would usually be cleared to receive classified 
information and likely would already be aware of any intelligence 
sources and methods discussed in the Department's legal advice. Rather, 
it is to safeguard the ability of the executive branch to receive 
confidential legal advice and to have robust and confidential 
deliberations before making decisions.
    Question. Were any intelligence sources or methods compromised when 
the most recent OLC opinions were shared with Congress? If not, then 
why not share the remaining OLC opinions with us as we have requested?
    Answer. The response to the previous question is a comprehensive 
response that addresses this question and the next question.
    Question. As you may recall, some of the OLC opinions during the 
Bush administration were withdrawn or superseded by the Department of 
Justice, often years after their issuance. If you do not provide all of 
the OLC opinions we have asked for, how can we ensure that today's 
executive branch is not repeating the mistakes of the past?
    Answer. Please see the response to the previous question.
                      confirmation of atf director
    Question. I applaud President Obama for nominating ATF's Acting 
Director to serve as the Bureau's permanent Director. ATF has a 
critical mission to keep guns out of the hands of criminals and other 
people who shouldn't have them. Yet, ATF has never had a Senate-
confirmed Director.
    I very much hope we can confirm the President's nominee as soon as 
possible. I am pleased that my colleague on this committee--who also 
serves as the Chairman of the Judiciary Committee--has scheduled a 
hearing on the nomination for Tuesday. I find it ironic--and a little 
hypocritical--that some Senators have, on the one hand, called on ATF 
and DOJ to prosecute more gun cases while, on the other hand, they have 
consistently blocked the President's nominee to lead this very same 
agency.
    Do you believe the absence of a Senate-confirmed Director has 
affected ATF's ability to carry out its mission to enforce the Nation's 
laws regarding guns and explosives?
    Answer. I am pleased that the Senate confirmed B. Todd Jones as the 
Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives on 
July 31, 2013. The lack of permanent leadership at the ATF had an 
adverse effect on morale within the agency. The men and women that work 
at ATF are dedicated to executing ATF's mission of fighting violent 
crime and preserving public safety. They now do so with the benefit of 
a Senate confirmed Director.
                                 ______
                                 
            Questions Submitted by Senator Mary L. Landrieu
                     consent decrees in new orleans
    Question. The city of New Orleans is not a signatory to the Orleans 
Parish Prison (OPP) Consent Decree, but the agreement includes 
provisions that will obligate the city to fund all or part of the OPP 
consent decree. The city has calculated that the total cost of the New 
Orleans Police Department (NOPD) Consent Decree is approximately $55 
million. Sheriff Marlin Gusman initially requested $22.5 million to 
fund the OPP Consent Decree. These requested dollars would be in 
addition to the approximately $22.5 million the city already provides 
to the Sheriff to operate OPP.
    Prior to signing the Orleans Parish Prisons Consent Decree, did the 
Department of Justice conduct an analysis of the cost of the Orleans 
Parish Prisons Consent Decree? Why or why not?
    Answer. In the civil case involving the Orleans Parish Prison 
(OPP), the role of the United States is to ensure that OPP is operated 
in a manner that complies with the Constitution and laws of the United 
States. The constitutional violations identified by the United States' 
investigation of OPP are well documented and egregious. The city has 
had the opportunity to put forth evidence that the conditions at OPP 
meet constitutional muster or that the proposed consent judgment 
extends farther than constitutionally necessary. The city has not 
presented any evidence, including expert testimony, showing that 
conditions at OPP do not violate the Constitution or title VI. The city 
also has not offered evidence with respect to an alternative, less 
costly or less intrusive, approach to remedying conditions at OPP.
    On June 6, 2013, Judge Lance Africk, who is overseeing the process 
for correcting the constitutional violations in OPP, including the 
process for determining the cost of compliance issued a 104 page 
``Order Approving the Consent Judgment and Certifying Settlement 
Class,'' (attached), which set forth a process to determine how 
ensuring constitutional conditions in Orleans Parish Prison would be 
funded. (See Attachment #1)
                                 ______
                                 

                             ATTACHMENT #1

                      UNITED STATES DISTRICT COURT
                     EASTERN DISTRICT OF LOUISIANA




LASHAWN JONES ET AL.                     CIVIL ACTION

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

MARLIN GUSMAN ET AL.                     SECTION I


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

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

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

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

In addition, the Compliance Coordinator is responsible for collecting 
the information the Monitor requires from OPSO.\47\
---------------------------------------------------------------------------
    \47\ Consent Judgment, at 39.
---------------------------------------------------------------------------
    As to funding, the consent judgment sets forth a process by which 
the Court will ``determine the initial funding needed to ensure 
constitutional conditions of confinement at OPP, in accordance with the 
terms of this Agreement, and the source(s) responsible for providing 
that funding at an evidentiary hearing (`funding trial')'' at which the 
parties to the agreement, as well as the City, shall have the right to 
participate.\48\ After this time, the funding amount ``may be 
adjusted'' through a process by which the Monitor attempts to resolve 
disagreements between the Sheriff and the City.\49\ If the Monitor is 
unable to do so within 45 days, the dispute is submitted to the 
Court.\50\
---------------------------------------------------------------------------
    \48\ Consent Judgment, at 38.
    \49\ Consent Judgment, at 38.
    \50\ Consent Judgment, at 38.
---------------------------------------------------------------------------
    The Consent Judgment provides specific procedures with respect to 
enforcement. For example, ``if the Monitor, SPLC, or DOJ determines 
that Defendant has not made material progress toward Substantial 
Compliance with a significant obligation under the Agreement, and such 
failure constitutes a violation of prisoners' constitutional rights, 
SPLC or DOJ may initiate contempt or enforcement proceedings against 
Defendant . . . .'' \51\ Before taking such action, however, ``SPLC or 
DOJ shall give Defendant written notice of its intent to initiate such 
proceedings,'' the parties shall work in good faith to resolve the 
dispute, and ``Defendant shall have 30 days from the date of such 
notice to cure the failure . . . .'' \52\ In the event of an emergency 
that poses ``an immediate threat to the health or safety of any 
prisoner or staff member at OPP, however, DOJ or SPLC may omit the 
notice and cure requirements'' and immediately pursue an enforcement 
proceeding.\53\
---------------------------------------------------------------------------
    \51\ Consent Judgment, at 43.
    \52\ Consent Judgment, at 43.
    \53\ Consent Judgment, at 43.
---------------------------------------------------------------------------
    With respect to termination, the consent judgment provides that it 
``shall terminate when Defendant has achieved Substantial Compliance 
with each provision of the Agreement and has maintained Substantial 
Compliance with the Agreement for a period of 2 years.'' \54\ As for 
severability, if any consent judgment provision ``is declared invalid 
for any reason by a court of competent jurisdiction, said finding shall 
not affect the remaining provisions of the Agreement.'' \55\
---------------------------------------------------------------------------
    \54\ Consent Judgment, at 43.
    \55\ Consent Judgment, at 44.
---------------------------------------------------------------------------
    After Class Plaintiffs, the United States, and the Sheriff filed 
their motion for approval of the consent judgment, briefing and 
conferences addressed the need for a fairness hearing.\56\ Ultimately, 
it became clear that the City of New Orleans must also be given the 
opportunity to litigate the issue of whether the proposed consent 
judgment exceeds minimum constitutional standards, arguably absolving 
the City of its funding obligation pursuant to state law and violating 
the Prison Litigation Reform Act's narrow tailoring requirement.\57\ 
Accordingly, the City was given the opportunity to participate in the 
fairness hearing not just as an affected third party, but also as a 
party pursuant to its status as a third-party defendant.\58\ In the 
interim, Class Plaintiffs filed an unopposed motion to certify a 
settlement class, which superseded the original, presumably opposed, 
motion for class certification.\59\
---------------------------------------------------------------------------
    \56\ E.g., R. Doc. Nos. 113, 126.
    \57\ E.g., R. Doc. Nos. 107, 113.
    \58\ E.g., R. Doc. No. 126.
    \59\ R. Doc. No. 145; see also R. Doc. No. 2.
---------------------------------------------------------------------------
                          the fairness hearing
    At a fairness hearing commencing on April 1, 2013, the Court 
considered whether the proposed consent judgment was consistent with 
constitutional and statutory law and jurisprudence such that it should 
be approved as between Class Plaintiffs, the United States, and the 
Sheriff.\60\ The fairness hearing lasted four full days, and the 
parties introduced nearly 400 exhibits into evidence.\61\ Plaintiffs 
called four current and former OPP inmates, E.S., D.W., D.R., and 
A.S.\62\ Plaintiffs called four experts: Jeffrey Schwartz, an expert in 
``security and operations'' of jails and prisons; \63\ Manuel Romero, 
an expert in ``jail administration, with a particular emphasis on 
security, staffing, environmental conditions, food service and 
sanitation, fire conditions, and Limited English Proficiency (``LEP'') 
services''; \64\ Dr. Bruce Gage, an expert in ``correctional mental 
healthcare''; \65\ and Dr. Daphne Glindmeyer, an expert in ``mental 
health and psychiatry, as well as juvenile mental health in 
corrections.'' \66\ Plaintiffs also called the twin sister of an inmate 
who committed suicide at OPP while at the Intake Processing Center.\67\ 
The City called Andrew Kopplin, the City's First Deputy Mayor and Chief 
Administrative Officer.\68\ The Sheriff's only witness was Sheriff 
Marlin Gusman.\69\
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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.
---------------------------------------------------------------------------
    \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 . . . 
.'').
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    The U.S. Supreme Court addressed the PLRA's narrow tailoring 
requirement in Brown v. Plata, 131 S. Ct. 1910 (2011), a prisoner 
release order case. In that case, the Court explained: ``Narrow 
tailoring requires a fit between the remedy's ends and the means chosen 
to accomplish those ends. The scope of the remedy must be proportional 
to the scope of the violation, and the order must extend no further 
than necessary to remedy the violation.'' Plata, 131 S. Ct. at 1939-40 
(internal quotations and modification omitted) (quoting Bd. of Trustees 
v. Fox, 492 U.S. 469, 480 (1989)). Narrow tailoring does not require 
perfection. See Fox, 492 U.S. at 480 (Narrow tailoring requires ``a fit 
that is not necessarily perfect, but reasonable; that represents not 
necessarily the single best disposition but one whose scope is in 
proportion to the interest served.'') (internal quotations omitted). 
The Court must ensure that the relief provided in the proposed consent 
judgment is narrowly drawn, extends no further than necessary to 
correct the violation of a Federal right, and is the least intrusive 
means of doing so.
    The Court must also ``give substantial weight to any adverse impact 
on public safety or the operation of a criminal justice system caused 
by the relief,'' although the PLRA ``does not require the court to 
certify that its order has no possible adverse impact on the public.'' 
Sec. 3626(a)(1)(A); Plata, 131 S. Ct. at 1941. ``Whenever a court 
issues an order requiring the State to adjust its incarceration and 
criminal justice policy, there is a risk that the order will have some 
adverse impact on public safety in some sectors.'' Plata, 131 S. Ct. at 
1941. Accordingly, ``[a] court is required to consider the public 
safety consequences of its order and to structure, and monitor, its 
ruling in a way that mitigates those consequences while still achieving 
an effective remedy of the constitutional violation.'' Id. at 1942.
II. Analysis
    In asserting that conditions at OPP are unconstitutional, 
Plaintiffs face a high bar. To demonstrate a violation of inmates' 
constitutional rights, Plaintiffs must show a substantial risk of 
serious harm to which prison officials were deliberately indifferent. 
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Demonstrating deliberate 
indifference requires that prison officials must ``both be aware of 
facts from which the inference could be drawn that a substantial risk 
of serious harm exists, and must also draw the inference.'' Id. at 837. 
``[A] factfinder may conclude that a prison official knew of a 
substantial risk from the very fact that the risk was obvious.'' Gates 
v. Cook, 376 F.3d 323, 333 (5th Cir. 2004); see also Marsh v. Butler 
Cnty., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc) (``Plaintiffs' 
allegations that the County received many reports of the conditions but 
took no remedial measures is sufficient to allege deliberate 
indifference to the substantial risk of serious harm faced by inmates 
in the Jail.'').
    Pretrial detainees and convicted prisoners ``look to different 
constitutional provisions for their respective rights to basic needs 
such as medical care and safety.'' Hare v. City of Corinth, 74 F.3d 
633, 639 (5th Cir. 1996) (en banc), rev'd on other grounds, 135 F.3d 
320, 324 (5th Cir. 1998). However, ``no constitutionally relevant 
difference exists between the rights of pretrial detainees and 
convicted prisoners to be secure in their basic human needs.'' Id. at 
647. Plaintiffs rely on the Eighth Amendment standard for conditions of 
confinement.\77\ Because ``a pretrial detainee's due process rights are 
said to be `at least as great as the Eighth Amendment protections 
available to a convicted prisoner,' '' this standard sets the minimal 
constitutional protections afforded to all OPP inmates. Id. at 639 
(quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); 
see also Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986) 
(``Where dealing with the constitutionally rooted duty of jailers to 
provide their prisoners reasonable protection from injury at the hands 
of fellow inmates, we need not dwell on the differences in rights 
enjoyed by pre-trial detainees and convicted persons or the maturation 
of prisoners' rights in general.'') (quotation omitted).
---------------------------------------------------------------------------
    \77\ E.g., R. Doc. No. 140, at 105.
---------------------------------------------------------------------------
    The underlying constitutional violations alleged in this matter are 
systemic. As in Plata, ``[P]laintiffs do not base their case on 
deficiencies'' that occurred ``on any one occasion,'' and the Court 
``has no occasion to consider'' whether any individual deficiency would 
``violate the Constitution . . . if considered in isolation.'' 131 S. 
Ct. at 1925 n. 3. Rather, ``Plaintiffs rely on systemwide 
deficiencies'' that allegedly subject inmates to a ``substantial risk 
of serious harm'' and cause conditions in OPP ``to fall below the 
evolving standard of decency that would mark the progress of a maturing 
society.'' Id.; see also Gates v. Cook, 376 F.3d at 333 (It is 
``important to note that the inmate need not show that death or serious 
illness has occurred.'').
    Specific examples of dysfunction at OPP are representative of 
systemic deficiencies. The Court's inquiry is not focused on whether 
any one of these examples demonstrates the violation of a 
constitutional right. See Plata, 131 S. Ct. at 1925 n. 3; see also 
Alberti, 790 F.2d at 1225 (``We need not determine whether any of these 
incidents individually constituted an Eighth Amendment violation, for 
the evidence established that the totality of the circumstances in the 
jails were condemnable.''). The Court must determine, however, whether 
the proposed consent judgment is consistent with the PLRA.
    ``The Constitution does not mandate comfortable prisons, but 
neither does it permit inhumane ones.'' Gates v. Cook, 376 F.3d at 332. 
The Constitution requires that inmates receive adequate food, clothing, 
shelter, medical care, and mental healthcare, and that detention 
facilities ``take reasonable measures to ensure the safety of the 
inmates.'' Id. (citing Farmer, 511 U.S. at 832). The Fifth Circuit has 
held that, with respect to conditions of confinement, even where 
``[e]ach factor separately, i.e., overcrowding dormitory barracks, lack 
of classification according to severity of offense, [ ] inmates with 
weapons, lack of supervision by [ ] guards, absence of a procedure for 
confiscation of weapons, may not rise to constitutional dimensions [ ], 
the effect of the totality of these circumstances [may be] the 
infliction of punishment on inmates violative of the Eighth Amendment . 
. . .'' Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). 
``Conditions of confinement may establish an Eighth Amendment violation 
`in combination . . . only when they have a mutually enforcing effect 
that produces the deprivation of a single, identifiable human need such 
as food, warmth, or exercise--for example, a low cell temperature at 
night combined with a failure to issue blankets.'' Gates v. Cook, 376 
F.3d at 333 (quotation omitted). Remedying unconstitutional conditions 
of confinement is a ``necessarily aggregate endeavor, composed of 
multiple elements that work together to redress violations of the 
law.'' Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 
2010).
    These principles indicate that it is appropriate to consider the 
proposed consent judgment's provisions grouped according to subject 
matter. This approach recognizes the multiple circumstances that have a 
``mutually enforcing effect'' with respect to deficient conditions at 
OPP. Additionally, it permits the Court to consider in the aggregate 
the proposed remedies relevant to each underlying Federal right. 
Accordingly, the Court will analyze the proposed consent judgment's 
provisions with respect to the following alleged deficiencies at OPP: 
(1) safety and security, (2) medical care and mental healthcare, (3) 
environmental conditions, and (4) fire safety.\78\
---------------------------------------------------------------------------
    \78\ In many cases, there is considerable overlap in the evidence 
relevant to different categories. For example, OPP's deficiencies in 
medication administration are relevant to inmate medical care, inmate 
suicide, contraband practices, and inmate-on-inmate violence.
---------------------------------------------------------------------------
            A. Safety and Security
    Manuel Romero, an expert in jail administration, with a particular 
emphasis on security, staffing, and use of force,\79\ concluded that 
OPP is ``totally dysfunctional in terms of overall security,'' and that 
it is an ``unsafe facility for both staff and inmates.'' \80\
---------------------------------------------------------------------------
    \79\ R. Doc. No. 407, at 25. Romero has evaluated and assessed 
``well over a hundred prisons and jails in the United States.'' R. Doc. 
No. 407, at 22.
    \80\ R. Doc. No. 407, at 44.
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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.
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                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.
---------------------------------------------------------------------------
    The absence of staff at security posts means that staff members may 
not physically enter housing units when doing routine security checks 
because OPP policy prohibits them from entering housing units 
alone.\99\ It is a ``rare occasion'' for staff members conducting a 
security round to ``actually go in . . . and view all the inmates and 
view the cells and into the showers and the activity areas.'' \100\ The 
evidence indicates that security rounds are neither frequent enough nor 
thorough enough to even minimally deter or detect inmate violence.\101\ 
Inmates ``kick on the cell'' or ``take something and ram it across the 
bars'' with the hope that staff members will respond when assistance is 
needed.\102\ As one inmate testified, this can take ``30 minutes, maybe 
an hour, 40 minutes, whenever they get ready to come upstairs and see 
what's going on.'' \103\ The record is replete with examples of inmate-
on-inmate violence that demonstrate the manner in which a lack of 
supervision permits such violence to flourish.
---------------------------------------------------------------------------
    \99\ R. Doc. No. 407, at 71-73, 83; Pl. Ex. 374, at 11.
    \100\ R. Doc. No. 407, at 71; Pl. Ex. 374, at 11-13.
    \101\ Pl. Ex. 372, at 16-19; Pl. Ex. 374, at 10.
    \102\ R. Doc. No. 406, at 113.
    \103\ R. Doc. No. 406, at 113.
---------------------------------------------------------------------------
    For instance, OPP records show that, on one particular evening, a 
deputy heard what he believed to be inmates fighting on a tier, as well 
as statements like ``stick your finger in his butt and piss on him.'' 
\104\ The deputy could not see what was going on, but he reported that 
he did not investigate because OPP policy prohibits staff members from 
venturing onto the tiers alone.\105\ A sergeant arrived ``later in the 
night,'' but there is no indication in the record that any OPP staff 
member attempted to intervene at the time of the ``altercation.'' \106\
---------------------------------------------------------------------------
    \104\ Pl. Ex. 11; Pl. Ex. 374, at 11-12.
    \105\ Pl. Ex. 11; Pl. Ex. 374, at 11-12; see also R. Doc. No. 407, 
at 71-72.
    \106\ Pl. Ex. 11.
---------------------------------------------------------------------------
                2. Contraband
    Although the Court recognizes that possession of contraband in a 
correctional facility is not necessarily unusual, OPP is plagued to a 
marked degree with contraband, including phones, weapons, and 
drugs.\107\ Weapons, in particular, are ``widespread and readily 
available to inmates.'' \108\ Shanks are ``rampant,'' and the number of 
stabbings is ``extremely high'' and ``very disturbing'' for a facility 
the size of OPP.\109\ Inmates report having access to street drugs and 
contraband prescription drugs.\110\ Despite repetitive problems with 
assaults and weapons, OPSO does not conduct regular shakedowns in a 
manner that would minimize the presence of contraband.\111\ Compare 
Gates v. Collier, 501 F.2d at 1308 (``Although many inmates possess 
weapons, there is no established procedure for discovering and 
confiscating weapons, nor is possession of weapons reported or 
punished.'').
---------------------------------------------------------------------------
    \107\ See Pl. Ex. 374, at 20, 23-24; City Ex. 13; R. Doc. No. 406, 
at 63; see also R. Doc. No. 411, at 82.
    \108\ R. Doc. No. 405, at 86; see also R. Doc. No. 406, at 63, 161. 
The evidence shows that items like mops, brooms, buckets, and coolers 
are frequently used in assaults. There is no effective system for 
preventing inmates from using such items as weapons. See Pl. Ex. 372, 
at 21, 60.
    \109\ Pl. Ex. 374, at 23-24, 24 n.6.
    \110\ R. Doc. No. 406, at 63, 132-33.
    \111\ Pl. Ex. 374, at 37.
---------------------------------------------------------------------------
    Three videos, apparently filmed by inmates around the calendar year 
2009 \112\ and unearthed the weekend before the fairness hearing, show 
inmates brandishing a loaded gun, using intravenous drugs, gambling 
with handfuls of cash, displaying cell phones, drinking cans of beer, 
and cavorting on Bourbon Street, having escaped OPP for an evening of 
leisure.\113\ These videos appear to have been filmed at the now-closed 
House of Detention (``HOD''), in part to highlight the absence of 
supervision and the poor environmental conditions.\114\ Whatever the 
history behind the videos, inmates were able to blatantly engage in 
criminal conduct, which they literally announced was occurring,\115\ 
without showing any concern for staff intervention. There was no 
suggestion that the staff members responsible for supervising these 
inmates were ever identified, much less disciplined.\116\ The conduct 
in the video may have occurred several years ago, but the policies, 
practices, and culture that enabled the outrageous conduct remain 
relevant.\117\
---------------------------------------------------------------------------
    \112\ R. Doc. No. 407, at 5.
    \113\ City Ex. 13.
    \114\ City Ex. 13 (``CNN, y'all gonna get first bid on this tape . 
. . Orleans Parish Prison exposed.'').
    \115\ City Ex. 13 (``Pop me one of them beers open . . . Snort all 
that dope . . . .'').
    \116\ Romero testified that he would expect some staff involvement 
given the level of dysfunction. R. Doc. No. 407, at 39-40. Such 
involvement would not be without precedent. In one documented instance, 
a female staff member, who was engaged in a ``romantic relationship'' 
with an inmate, warned the inmate to conceal a cell phone because of an 
upcoming shakedown. The staff member also sent text messages to the 
same inmate on his cell phone both while she was on and off duty. The 
staff member subsequently resigned. Pl. Ex. 58.
    \117\ R. Doc. No. 407, at 35-36.
---------------------------------------------------------------------------
                3. Classification
    The failure to classify a substantial number of inmates risks 
``intermingling of inmates convicted of aggravated violent crimes with 
those who are first offenders or convicted of nonviolent crimes.'' 
Gates v. Collier, 501 F.2d at 1308; see Stokes v. Delcambre, 710 F.2d 
1120, 1124 (5th Cir. 1983) (``[F]ailure to control or separate 
prisoners who endanger the physical safety of other prisoners can 
constitute cruel and unusual punishment.''). A functioning 
classification system ensures that inmates are housed in a manner that 
increases the safety of inmates and staff by, for example, identifying 
and separating inmates likely to be predators from inmates likely to be 
victims.\118\ In conjunction with a lack of direct supervision, OPP's 
utterly ineffective classification system is a significant cause of the 
unprecedented levels of violence at OPP.\119\
---------------------------------------------------------------------------
    \118\ Pl. Ex. 372, at 12-14; Pl. Ex. 374, at 30-33; R. Doc. No. 
407, at 46-47.
    \119\ Pl. Ex. 372, at 14; R. Doc. No. 407, at 46-50, 53, 57-62.
---------------------------------------------------------------------------
    On a sample date in December 2012, of the inmates who had proceeded 
past intake, approximately 35 percent had not been classified in any 
manner.\120\ The unclassified inmates were ``scattered across all of 
the facilities and in just about all of the tiers.'' \121\ Of the 
approximately 2,400 inmates at OPP on that date, only one inmate was 
classified as a known victim and only four inmates were classified as 
known predators, notwithstanding the staggering frequency of violence 
at OPP.\122\ Of the inmates who were classified, potential predators 
were mixed with potential victims, and high, medium, and low security 
inmates were housed together, undermining the purpose of the 
classification system.\123\ A sample four-person cell on the same date 
held a high security potential predator, a high security nonpredator, a 
medium security nonpredator, and a low security nonpredator.\124\ 
Schwartz testified that such housing should ``not ever happen'' because 
``it could be explosive'' given the ``obvious potential'' that ``the 
two high security inmates, especially the one that's a potential 
predator, could be preying on the one that's the lower security, or 
perhaps even on the medium security.'' \125\ See also Marsh, 268 F.3d 
at 1025 (``[P]retrial detainees were housed with convicted inmates, 
nonviolent offenders with violent offenders, juveniles with adults, and 
mentally ill persons with those in good mental health.''). OPP also 
does not effectively separate youth and adult inmates.\126\
---------------------------------------------------------------------------
    \120\ Pl. Ex. 380; R. Doc. No. 406, at 82-85.
    \121\ Pl. Ex. 380; R. Doc. No. 406, at 82-85.
    \122\ Pl. Ex. 380; R. Doc. No. 405, at 83.
    \123\ E.g., Pl. Ex. 380; R. Doc. No. 407, at 46-50, 53, 57-62. 
Staff members acknowledged to Romero that correct placement of inmates 
was complicated by limitations associated with the number of beds 
available for certain types of inmates. Accordingly, inmates may be 
placed where there is space available, even if this placement is 
inconsistent with their classification. E.g., R. Doc. No. 407, at 53-
54; see also Pl. Ex. 372, at 33 (noting that a juvenile requested a 
transfer because his roommate ``gets aggressive,'' but deputies 
responded that ``there is nowhere for him to go'').
    \124\ R. Doc. No. 407, at 56-57.
    \125\ R. Doc. No. 407, at 56-58.
    \126\ Pl. Ex. 372, at 10; Pl. Ex. 378, at 41; see R. Doc. No. 1, at 
35.
---------------------------------------------------------------------------
    Because OPP does not have an effective system for reclassification, 
inmates who have violently assaulted other inmates may remain 
classified as ``nonpredators.'' \127\ The risk related to such 
inaccurate information is compounded by the fact that an inmate's 
disciplinary record does not become part of his permanent record.\128\ 
Rather, an inmate receives a new disciplinary folder for each OPP 
facility he stays in, and these folders do not follow the inmates 
during transfers.\129\ Facilities do not always maintain an inmate's 
disciplinary record once he leaves, and determining whether the record 
was maintained requires a ``time consuming search.'' \130\ These 
practices indicate that staff cannot rely on either an inmate's 
classification or his disciplinary record when evaluating the inmate's 
risk of violence.\131\ The absence of such information plainly 
increases the risk of harm to staff and to other inmates. Moreover, as 
discussed below, the classification process does not identify or 
consider an inmate's English proficiency.\132\
---------------------------------------------------------------------------
    \127\ R. Doc. No. 405, at 83.
    \128\ Pl. Ex. 372, at 49.
    \129\ Pl. Ex. 372, at 49.
    \130\ Pl. Ex. 372, at 49.
    \131\ See R. Doc. No. 405, at 108 (``The same inmates who are a 
danger to other inmates are typically the most dangerous inmates for 
staff.''); R. Doc. Nos. 228-29 (describing E.L.'s attacks on staff 
members). The Court is not familiar with E.L.'s classification status, 
as he was apparently not present at OPP on the date for which the 
classification census was sampled. See Pl. Ex. 380.
    \132\ See R. Doc. No. 407, at 109, 112.
---------------------------------------------------------------------------
    The importance of classification was illustrated by the following 
arc of one inmate's violent actions, which ultimately caused another 
inmate to suffer severe and permanent brain damage:
  --In August 2011, E.L., a 20-year-old male inmate, was observed 
        repeatedly striking a 50-year-old inmate in the face and back 
        of the head in one of the Tents. The victim stated that E.L. 
        ``needed his medication.'' E.L. was too ``hostile and 
        combative'' to be interviewed about the event, and he threw a 
        large trash can at one deputy and spit on another deputy's 
        face. In a separate incident, he threw a wet towel at a third 
        deputy's back, angry that she was moving his belongings to 
        another Tent in response to the assault.\133\
---------------------------------------------------------------------------
    \133\ Pl. Ex. 223; Pl. Ex. 225; Pl. Ex. 227.
---------------------------------------------------------------------------
  --In September 2011, at HOD, E.L. began punching a 24-year-old inmate 
        in the face because the other inmate was using a toilet that 
        E.L. wanted to use. He threw the inmate into the bars of the 
        cell hard enough to cause a head injury that required hospital 
        treatment.\134\
---------------------------------------------------------------------------
    \134\ Pl. Ex. 226.
---------------------------------------------------------------------------
  --In October 2011, another inmate requested to be moved to a 
        different HOD tier because E.L. was antagonizing him by 
        throwing ice and water on him and attempting to fight him. The 
        grievance was denied because the inmate ``had enemies'' on the 
        other side of the same tier, and the record does not suggest 
        the inmate was offered any relief.\135\
---------------------------------------------------------------------------
    \135\ Pl. Ex. 224.
---------------------------------------------------------------------------
  --In December 2011, E.L. had been antagonizing a certain deputy at 
        HOD. At some point, E.L. was able to defeat the locking 
        mechanism on his cell door, arm himself with a broken 
        broomstick, and attack the deputy, hitting him in the face with 
        the broomstick and fracturing his jaw. He also struck another 
        deputy with the broomstick, possibly fracturing the deputy's 
        hand.\136\
---------------------------------------------------------------------------
    \136\ Pl. Ex. 229.
---------------------------------------------------------------------------
  --On June 18, 2012, K.M., a Templeman V inmate, reported via a sick 
        call request that he had his ``two teeth knocked out in a 
        physical altercation on my tier.'' \137\ On June 26, K.M. 
        reported the attack to the Special Operations Division 
        (``SOD'') and identified E.L. as his attacker.\138\ He stated 
        that he had not come forward sooner because E.L. ``bullies all 
        the older inmates,'' and K.M. was scared for his life.\139\
---------------------------------------------------------------------------
    \137\ Pl. Ex. 246.
    \138\ Pl. Ex. 230.
    \139\ Pl. Ex. 230. The Court notes that there is no suggestion in 
the record that anyone investigated the identity of K.M.'s assailant 
despite the fact that his sick call request expressly cited an 
altercation as the source of his injuries. OPP does not utilize the 
data recorded by medical services to identify acts of violence, and 
medical staff are not subject to any policy that would encourage them 
to report injuries resulting from violence. Pl. Ex. 259, at 57-62; Pl. 
Ex. 372, at 56.
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  --On June 23, 2012, at Templeman V's A-3 tier, a ``step down 
        psychiatric tier,'' \140\ E.L. punched T.S., a 65-year-old man, 
        several times in the face hard enough to knock him backwards. 
        T.S. struck his head on a metal bench as he fell. A detective 
        conducting a routine security check discovered T.S. lying on 
        the ground with a pool of blood around his head. The punches 
        and the strike to the back of the head caused T.S.'s brain to 
        hemorrhage, resulting in a permanent, nearly ``brain dead'' 
        state.\141\
---------------------------------------------------------------------------
    \140\ Pl. Ex. 371.
    \141\ Pl. Ex. 222. E.L. subsequently trapped a deputy at Templeman 
V by grabbing his hand through a cell door food slot, and punching him 
in the face. The deputy was routed to the hospital. Pl. Ex. 228.
---------------------------------------------------------------------------
E.L., an aggressive and predatory inmate with a penchant for 
administering blows to the head and face and for preying upon older 
inmates, ultimately caused T.S.'s severe and permanent brain damage.
    E.L.'s attacks, which occurred across a variety of prison 
facilities, illustrate that, in the absence of adequate staffing and 
supervision, ``even a low security housing unit with an unsophisticated 
inmate population will sink toward the lowest common denominator.'' 
\142\ A lack of staff supervision and a lack of effective inmate 
classification result in OPP's most vulnerable inmates, including the 
mentally ill and elderly, falling prey to OPP's most dangerous 
inmates.\143\
---------------------------------------------------------------------------
    \142\ Pl. Ex. 372, at 15. Staffing records for Templeman V were 
provided with respect to a period ranging from May 2012 to December 
2012. These records reflect that, more often than not, there was no 
deputy even assigned to A-3, the tier on which T.S. was attacked. Pl. 
Ex. 371.
    \143\ See also R. Doc. No. 405, at 82-83 (describing mentally ill 
and developmentally disabled inmates as vulnerable); R. Doc. No. 406, 
at 153 (describing mentally ill or developmentally disabled inmate 
forced to do ``sexual dances'').``A substantial number of inmates on 
suicide watch'' claim suicidality to avoid disciplinary segregation. 
Pl. Ex. 372, at 50. ``That produces a toxic stew of acute psychiatric 
inmates, acute suicidal inmates and disciplinary segregation inmates. 
It is an accident waiting to occur.'' Pl. Ex. 372, at 50; see also Pl. 
Ex. 260, at 106-07 (OPP's medical director estimates that at least 90 
percent of inmates who report being suicidal are not, in fact, 
suicidal).
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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.
---------------------------------------------------------------------------
    Calculating the incidence rate of sexual assault at OPP is 
difficult.\148\ The grievance logs for July 20, 2012, through December 
19, 2012, were missing entries.\149\ In October, the only full month 
for which data is available, there were 30 grievances reporting sexual 
assault and no investigations.\150\ The most investigations occurred in 
November, when there were two investigations and 26 grievances 
reporting sexual assault, not including missing entries.\151\ OPP staff 
members have a pattern of tolerating sexual misconduct, as demonstrated 
by the lack of repercussions for inmates who engage in such misconduct 
in plain view of deputies.\152\
---------------------------------------------------------------------------
    \148\ The Court does not rely on the sexual assault rate suggested 
by Plaintiffs, as its applicability to current OPP facilities has not 
been established. See R. Doc. No. 416, at 42. In any case, however, 
sexual assault at OPP is all too common, and in part directly 
attributable to the absence of inmate supervision.
    \149\ Pl. Ex. 353.
    \150\ Pl. Ex. 353.
    \151\ Pl. Ex. 353.
    \152\ Pl. Ex. 374, at 38-41.
---------------------------------------------------------------------------
    There is no consistent practice by which staff respond to inmate 
reports of sexual assault.\153\ While in some cases inmates are quickly 
assessed and treated, Schwartz testified that, in ``far too many cases, 
none of the right things happen.'' \154\ Most often, nothing 
happens.\155\ ``The standard used by OPP investigators seems to be 
that, short of having forensic evidence in the form of DNA or 
documented injury to a body orifice, there was no sexual misconduct.'' 
\156\ Staff sometimes publicly make derisive comments when an inmate 
reports a sexual assault, resulting in an announcement of the victim's 
status and a strong display of tolerance for sexual assault.\157\
---------------------------------------------------------------------------
    \153\ R. Doc. No. 405, at 112-13.
    \154\ R. Doc. No. 405, at 113; see also Pl. Ex. 60.
    \155\ Pl. Ex. 372, at 38.
    \156\ Pl. Ex. 374, at 38.
    \157\ R. Doc. No. 405, at 112-13.
---------------------------------------------------------------------------
    A video admitted into evidence portrays an interview with an inmate 
who reported a sexual assault.\158\ The inmate is ``Mirandized,'' \159\ 
repeatedly told that nothing happened,\160\ and further informed that 
the absence of detectable physical injury one week after the alleged 
assault proved it did not occur.\161\ Identifying false reports is a 
valid objective, but the testimony and other evidence presented at the 
hearing suggest that the practices used to investigate sexual assaults 
have the effect of discouraging bona fide reports, embarrassing inmates 
who come forward, and instilling in staff and inmates the impression 
that such reports can be quickly discounted.\162\
---------------------------------------------------------------------------
    \158\ Pl. Ex. 5 (video and transcript).
    \159\ See Pl. Ex. 5, at 54. According to Schwartz, it is common for 
OPP inmates who report sexual assaults to be Mirandized. R. Doc. No. 
405, at 115 (``Before hello or anything else, the first thing that the 
investigator does is to Mirandize the victim.'').
    \160\ Pl. Ex. 5, at 41-42, 51.
    \161\ Pl. Ex. 5, at 41-42, 51.
    \162\ See R. Doc. No. 406, at 89. Schwartz asked staff members 
about inmates who report sexual assaults. According to Schwartz, 
``nobody said every inmate is lying,'' but staff suggested ``most of 
these inmates are fabricating,'' to some extent. Schwartz also noted 
that ``SOD staff continually violate the most crucial principle of 
medical care and mental healthcare in jails[:] custody and security 
staff may not act as gatekeepers for health or mental health 
services.'' When SOD members determine a sexual assault report is 
unfounded, they refuse to provide the inmate with even a ``cursory 
medical assessment.'' Pl. Ex. 372, at 39.
---------------------------------------------------------------------------
    E.S., a former OPP inmate, testified that, on a daily basis at the 
original OPP, he saw violence, including ``[f]ights, stabbings, people 
being sexually assaulted, just, you know, your average violence on the 
streets taken to the jailhouse.'' \163\
---------------------------------------------------------------------------
    \163\ R. Doc. No. 405, at 26-27.
---------------------------------------------------------------------------
    One night, after the lights were turned out at 10:30 p.m., E.S. was 
attacked by a group of 10-14 inmates.\164\ They ripped off his clothes 
and attempted to tie him up with pieces of string, but he was able to 
break free.\165\ They then used a razor to cut strips of fabric from an 
inmate uniform.\166\ After they hog-tied E.S. with the fabric, they 
sexually assaulted him.\167\ E.S. testified that one inmate ``stuck his 
finger into my anal area,'' another inmate ``stuck a toothbrush into my 
anal area,'' and another inmate ``actually stuck his tongue in my anal 
area.'' \168\ The attackers ``took toothpaste and put it between my 
buttocks area.'' \169\ Next, they tied a blanket around E.S.'s face and 
continued beating him.\170\ E.S.'s gasps for air were worrisome enough 
that one inmate retrieved an ``asthma puffer'' for him, although E.S. 
did not have asthma, but the beating continued.\171\ The inmates kicked 
E.S. in the stomach and ribs and struck the back of his head with a mop 
and bucket.\172\
---------------------------------------------------------------------------
    \164\ R. Doc. No. 405, at 30.
    \165\ R. Doc. No. 405, at 31.
    \166\ R. Doc. No. 405, at 31.
    \167\ R. Doc. No. 405, at 31-32.
    \168\ R. Doc. No. 405, at 32.
    \169\ R. Doc. No. 405, at 32.
    \170\ R. Doc. No. 405, at 32.
    \171\ R. Doc. No. 405, at 32-33.
    \172\ R. Doc. No. 405, at 31, 33.
---------------------------------------------------------------------------
    At some point, the assailants picked up E.S. and carried him to a 
new location at the back of the dormitory, where they released him from 
the hog-tied position and tied him to a post, with his back to the 
post.\173\ At this point, four to six inmates began punching him 
repeatedly.\174\ He was subsequently untied and repositioned to face 
the post.\175\ The attackers threw hot water and possibly urine on 
E.S., and beat him so severely with a mop stick that the skin was 
ripped from his back and buttocks.\176\ E.S. was still naked.\177\ At 
some point during this phase of the attack, a guard performed a routine 
check, but he did not walk far enough down the hall to notice E.S., 
naked, bound, and beaten.\178\ E.S. reported that he did not cry out 
because he was certain that he would be killed if he did so.\179\
---------------------------------------------------------------------------
    \173\ R. Doc. No. 405, at 33-34.
    \174\ R. Doc. No. 405, at 34.
    \175\ R. Doc. No. 405, at 34.
    \176\ R. Doc. No. 405, at 34-35.
    \177\ R. Doc. No. 405, at 35.
    \178\ R. Doc. No. 405, at 38-39. E.S. testified that he would have 
been ``shocked'' if the guard actually walked down the tier but, had 
the guard done so, ``[i]t would have probably saved me.'' R. Doc. No. 
405, at 41.
    \179\ R. Doc. No. 405, at 39.
---------------------------------------------------------------------------
    In the final phase of the attack, the inmates fashioned ``some type 
of thong, like a woman's thong'' from strips of uniform fabric.\180\ 
They forced E.S. to put it on and, E.S. testified, in an attempt to be 
``comical'' or to ``embarrass me or something in front of the dormitory 
. . . they made me dance. I don't even know how to dance. So I just 
basically was just moving my hands . . . If I would do anything crazy I 
knew they were going to kill me for sure. There's no doubt in my 
mind.'' \181\ E.S. reported that ``90 percent of the crowd had knives 
in their hands visible.'' \182\
---------------------------------------------------------------------------
    \180\ R. Doc. No. 405, at 36.
    \181\ R. Doc. No. 405, at 36.
    \182\ R. Doc. No. 405, at 36.
---------------------------------------------------------------------------
    After the episode in which the attackers made E.S. dance, they made 
him shower.\183\ They forced him to sit in a mop bucket and ``pushed it 
to the front of the shower, everybody laughing, ha, ha, ha . . . .'' 
\184\ E.S. indicated the assault lasted hours.\185\ While E.S.'s 
assault resulted in an investigation, where OPP staff ``brought the 
whole dorm down,'' E.S. did not receive medical treatment for nearly a 
year.\186\
---------------------------------------------------------------------------
    \183\ R. Doc. No. 405, at 36-37.
    \184\ R. Doc. No. 405, at 37.
    \185\ R. Doc. No. 405, at 37-38.
    \186\ Additional details from E.S.'s testimony reveal other 
troubling circumstances surrounding his assault, including that it may 
have been foreseeable and preventable as an act of retaliation against 
E.S., organized by someone against whom E.S. was a witness in a 
criminal trial. R. Doc. No. 405, at 47-48.
---------------------------------------------------------------------------
    E.S.'s testimony parallels a report by another inmate, A.A.,\187\ 
in which a group of inmates tied A.A. to a bunk using strips of inmate 
clothing and then sexually assaulted him.\188\ After A.A. reported the 
assault on January 4, 2012, SOD's investigation included photographing 
A.A.'s wrist abrasions, which a nurse confirmed were ``consistent with 
[ ] having been tied up.'' \189\ Another inmate, whom A.A. identified 
as a witness, confirmed that he knew something was happening because 
inmates were going in and out of the area where A.A. was 
restrained.\190\ A.A. identified five attackers using photographs of 
other inmates in the tier.\191\ A.A. was transferred to a mental health 
hospital in Baton Rouge one week later, and the SOD investigation was 
closed.\192\
---------------------------------------------------------------------------
    \187\ These initials are used for convenience. The inmate's name 
has been obscured in the record, although other identifying information 
is available.
    \188\ The record suggests that this was one of two sexual assaults 
A.A. experienced at OPP. Pl. Ex. 324.
    \189\ The abrasions were still visible on January 11, 2013. Pl. Ex. 
324.
    \190\ Pl. Ex. 324. Schwartz's testimony suggested this witness was 
a deputy. R. Doc. No. 405, at 11718. The Court discounts this 
suggestion as a likely misstatement because it is inconsistent with the 
underlying evidence.
    \191\ Pl. Ex. 324.
    \192\ Pl. Ex. 324.
---------------------------------------------------------------------------
    While the incident was referred to the office of the Orleans Parish 
District Attorney, that office determined that ``based on the 
circumstances and statements given, we would not likely prosecute this 
case if an arrest was made.'' \193\ Aside from this referral, there is 
no evidence that action was taken to protect other inmates on the tier 
from the individuals who had forcibly bound and sexually assaulted 
A.A.\194\ OPP's practice of terminating a sexual assault investigation 
when a victim leaves a facility permits sexual predators to continue to 
prey on other inmates.\195\
---------------------------------------------------------------------------
    \193\ Pl. Ex. 324.
    \194\ R. Doc. No. 405, at 118-19.
    \195\ E.g., Pl. Ex. 67; R. Doc. No. 405, at 119. According to A.A., 
he was ``not the only one being tied up'' and subjected to such 
attacks. Pl. Ex. 324.
---------------------------------------------------------------------------
    The Court reiterates that the details of the described assaults are 
not discussed because they are brutal, although they are that, but 
because they are emblematic of systemic deficiencies in inmate safety 
and security. See Alberti, 790 F.2d at 1225 (``We recite the incidents 
of violence and sexual assault which follow not to exhaustively catalog 
conditions in the jails but to provide examples of the nature of 
evidence presented at the hearings.''). As far as the Court is aware, 
no staff members were identified, confronted, or otherwise held 
accountable for their absence during the nights in which E.S. and A.A. 
were assaulted.
                5. Training and Accountability
    Accountability systems are fundamental to prisoner and staff 
safety.\196\ Such systems include use of force policies, 
investigations, incident reporting, and grievance procedures.\197\ 
Many, and perhaps even most, of OPP's accountability systems are 
ignored or directly contravened on a ``wholesale basis.'' \198\ The 
Court addresses in turn OPP's grievance system, use of force policy and 
investigations, and reliance on tier reps.
---------------------------------------------------------------------------
    \196\ Pl. Ex. 374, at 33.
    \197\ Pl. Ex. 374, at 33.
    \198\ Pl. Ex. 372, at 11.
---------------------------------------------------------------------------
                    a. Grievance System
    A grievance system permits inmates to make a written report to 
address anything from minor complaints to sexual assaults.\199\ 
Grievances alert administrators to individual problems as well as to 
potential patterns of problems.\200\
---------------------------------------------------------------------------
    \199\ R. Doc. No. 405, at 122-23.
    \200\ R. Doc. No. 405, at 123.
---------------------------------------------------------------------------
    Grievances at OPP are sometimes effectively ignored because they 
are not addressed until an inmate leaves, at which time they are 
closed.\201\ For example, in a February 17, 2011 grievance, an inmate 
reported that he had been beaten and stabbed and that his fingers had 
been broken.\202\ The inmate requested a transfer, stating that he 
feared for his life.\203\ The grievance was closed on March 1, when the 
inmate was discharged, but his transfer request and reports of assaults 
were never addressed.\204\ In another instance, an inmate reported 
being beaten by deputies on October 25, 2011.\205\ He described knots 
on his head related to the beating and a sick call request that was 
ignored.\206\ The grievance sought medical attention, and the inmate 
specifically requested x-rays of his head.\207\ Approximately 3 months 
later, the grievance was closed because the inmate left OPP.\208\ His 
sick call request--and allegations of staff misconduct--were apparently 
never addressed.\209\ OPP staff suggested that, with respect to inmate-
on-inmate violence, there is only an investigation when an inmate 
requires stitches.\210\
---------------------------------------------------------------------------
    \201\ R. Doc. No. 405, at 125-26.
    \202\ Pl. Ex. 302; R. Doc. No. 405, at 123.
    \203\ Pl. Ex. 302; R. Doc. No. 405, at 123.
    \204\ Pl. Ex. 302; R. Doc. No. 405, at 123-24.
    \205\ Pl. Ex. 305.
    \206\ Pl. Ex. 305.
    \207\ Pl. Ex. 305.
    \208\ Pl. Ex. 305.
    \209\ Pl. Ex. 305; R. Doc. No. 405, at 124.
    \210\ Pl. Ex. 374, at 37.
---------------------------------------------------------------------------
    The failure of OPP to address even emergency grievances in a timely 
manner is inexplicable.\211\ Grievance procedures have improved in the 
last year but they still fall far short, and the Court requires 
assurance that these improvements will continue.\212\
---------------------------------------------------------------------------
    \211\ R. Doc. No. 405, at 125-26.
    \212\ Pl. Ex. 372, at 47.
---------------------------------------------------------------------------
                    b. Use of Force & Investigations
    OPP has deeply ingrained problems with respect to staff members' 
uncontrolled use of force on inmates.\213\ OPP's investigative process 
for staff and prisoner misconduct fails to address, and is itself part 
of, the many operational breakdowns in OPP's accountability 
systems.\214\ As with any jail or prison, use of force is a legitimate 
and ``necessary component'' of maintaining order at OPP.\215\ A use of 
force policy ensures that staff are aware of the level of force that is 
appropriate in a given situation and provides guidance with respect to 
the use of force needed to avoid unnecessary injuries.\216\
---------------------------------------------------------------------------
    \213\ Pl. Ex. 372, at 11, 40; Pl. Ex. 374, at 34.
    \214\ Pl. Ex. 374, at 37.
    \215\ Pl. Ex. 374, at 33.
    \216\ R. Doc. No. 405, at 88.
---------------------------------------------------------------------------
    While OPP staff members report efforts to implement change, these 
efforts are in their infancy.\217\ OPP's use of force policy was 
rewritten somewhat recently, but it remains ineffective because staff 
members are not familiar with it and supervisors do not hold staff 
members accountable to the policy.\218\ In short, the policy is 
routinely ignored altogether.\219\ For example, while the Internal 
Affairs Division (``IAD'') is charged with use of force investigations 
pursuant to the new policy, SOD continues to handle such 
investigations.\220\ Similarly, while the new policy calls for a use of 
force ``review board,'' there is no such board, despite the fact that 
the policy is more than a year old.\221\
---------------------------------------------------------------------------
    \217\ Pl. Ex. 372, at 40; Pl. Ex. 374, at 34.
    \218\ R. Doc. No. 405, at 87.
    \219\ Pl. Ex. 372, at 28.
    \220\ R. Doc. No. 405, at 92.
    \221\ R. Doc. No. 406, at 87.
---------------------------------------------------------------------------
    One of the most egregious allegations of use of force suggested 
that an officer ordered ``hits'' on particular inmates, either by 
instructing a tier rep to arrange a hit or by placing the inmate in an 
area where known enemies made violence likely.\222\ The same officer 
was later arrested after punching an inmate, who additionally reported 
that the officer had threatened to have the inmate assaulted.\223\ See 
Cantu v. Jones, 293 F.3d 839, 845 (5th Cir. 2002) (``The jury found 
that the appellants essentially orchestrated the attack. This is in no 
way reasonable behavior for a prison official.''). The same officer had 
previously been accused of punching a restrained inmate, but the 
investigator did not question any of the witnesses, including the 
officer, about whether it occurred.\224\ Not surprisingly, given the 
absence of elicited evidence, the prior allegation had not been 
sustained.\225\
---------------------------------------------------------------------------
    \222\ R. Doc. No. 405, at 101-02; Pl. Ex. 56.
    \223\ R. Doc. No. 405, at 101-02; Pl. Ex. 56.
    \224\ R. Doc. No. 405, at 102.
    \225\ R. Doc. No. 405, at 102.
---------------------------------------------------------------------------
    As noted above, SOD investigates use of force reports, including 
reports of force by SOD members.\226\ In at least one documented 
instance, the same officer who used force on an inmate authored the 
report that determined such level of force was appropriate.\227\ 
Training records suggest that SOD members do not receive any in depth 
or specialized training relative to investigations.\228\ The training 
that OPSO staff members generally receive includes materials focused on 
police investigations and car stops, but there is no indication of 
regular or in-service training relative to the conduct of 
investigations in a jail or prison environment.\229\ OPP does not 
effectively track use of force or reports of staff misconduct.\230\
---------------------------------------------------------------------------
    \226\ Pl. Ex. 372, at 40. Schwartz describes SOD as a tightly knit 
unit, which staff members perceive as elite. Pl. Ex. 372, at 40.
    \227\ R. Doc. No. 405, at 90-91; Pl. Ex. 275.
    \228\ Pl. Ex. 372, at 40.
    \229\ Pl. Ex. 372, at 40.
    \230\ Pl. Ex. 372, at 40.
---------------------------------------------------------------------------
                    c. Tier Reps
    Tier representatives (``tier reps'') are inmates in charge of 
maintaining order on their tiers.\231\ OPP staff members report that 
tier reps help with communication and represent their living units when 
inmates are given a say in decisionmaking.\232\ OPP inmates report that 
tier reps control phone time, make decisions about inmate housing, and 
occasionally administer beatings to other inmates at the behest of 
staff.\233\ Tier reps have the power to distribute food, including 
determining how much food to distribute per serving and whether to dole 
out ``seconds.'' \234\ As Schwartz stated, ``food is one of the small 
number of `hot button' items for almost all inmates,'' so this kind of 
power can be ``used to extort other inmates and also be a source of 
confrontation or violence.'' \235\
---------------------------------------------------------------------------
    \231\ Pl. Ex 372, at 43; Pl. Ex. 374, at 17; R. Doc. No. 406, at 
136-37. Although discussed in this subsection, the use of tier reps is 
relevant to several aspects of inmate safety and security.
    \232\ Pl. Ex. 372, at 43.
    \233\ Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17. Public comments 
from inmates endorsing the proposed consent judgment also discuss such 
``hits.'' See, e.g., R. Doc. No. 240.
    \234\ Pl. Ex. 372, at 43.
    \235\ Pl. Ex. 372, at 43-44; Pl. Ex. 374, at 17; see also Pl. Exs. 
43, 47, 55 (describing stabbings related to food distribution); R. Doc. 
No. 406, at 138 (noting fights resulted from tier rep's manipulation of 
food distribution); R. Doc. No. 407, at 43.
---------------------------------------------------------------------------
    Given the fundamental flaws in OPP's classification system, 
predatory or aggressive inmates may become tier reps.\236\ Testimony 
from D.R., an inmate sexually harassed and assaulted by a tier rep, 
illustrates that tier reps have the opportunity to assault other 
inmates and to discourage reporting of such assaults.\237\ D.R. 
testified that his tier rep, C.C., would ``sometimes, early in the 
morning, take the television from Cell 1 and turn it towards the shower 
and put the aerobics channel on so he could go into the shower and 
masturbate.'' \238\ One morning, C.C. ordered D.R. to get in the 
shower.\239\ C.C. followed him, carrying a shank,\240\ and proceeded to 
sexually assault D.R.\241\ D.R. waited for approximately one week to 
report the assault, because ``I had to think of a way to get around the 
immediate sergeants or officers that were in the building'' so that the 
report would not reach C.C. before D.R. could be transferred.\242\ 
Ultimately, after reporting the assault, D.R. was successful in his 
request to be transferred to another tier, although while on the ``at 
risk'' tier at Conchetta he suffered an additional physical 
assault.\243\
---------------------------------------------------------------------------
    \236\ See, e.g., Pl. Ex. 32; see also Pl. Ex. 372, at 44. This 
statement assumes that OPP would not knowingly choose such inmates to 
be tier reps. But see Pl. Ex. 372, at 44 (``A male inmate casually 
referred to the fact that the staff usually picked the person they 
perceived to be the toughest inmate on the unit as the tier rep.'').
    \237\ R. Doc. No. 406, at 136-42.
    \238\ R. Doc. No. 406, at 138.
    \239\ R. Doc. No. 406, at 138.
    \240\ R. Doc. No. 406, at 138-39.
    \241\ R. Doc. No. 406, at 139.
    \242\ R. Doc. No. 406, at 141-42. In another instance, female 
inmates reported tier reps openly engaging in sexual activities with 
other inmates, which an investigation confirmed. Pl. Ex. 374, at 18.
    \243\ R. Doc. No. 406, at 142-43.
---------------------------------------------------------------------------
    At Conchetta, D.R. attempted to break up a fight because of a 
concern that another inmate ``was about to get really beat up.'' \244\ 
Before he could reach the fight, ``I felt someone strike me in the back 
of the head . . . . I balled up on the ground and I felt blows to my 
forehead, to my back, and to my legs.'' \245\ After he reported the 
assault, D.R. cooperated by describing his attacker's physical 
appearance.\246\ SOD staff initially brought an individual to D.R. in 
order to determine if D.R. could identify that individual as his 
attacker.\247\ D.R. testified that he believed that individual had been 
physically assaulted by SOD in retaliation for the attack on D.R.\248\ 
The individual had blood around his teeth and blood was also trickling 
from his mouth.\249\ D.R. informed SOD that the individual was not his 
attacker, and D.R. was returned to the tier, notwithstanding the fact 
that his true attacker remained on the tier.\250\ D.R. learned his 
assailant's name at roll call the next morning, and reported that 
discovery in a grievance.\251\ Although D.R. and the attacker were both 
moved, they were ``moved together at the same time'' and left alone 
together in a holding cell.\252\ D.R. reported ``I was just sitting 
there kind of on pins and needles, hoping that he didn't realize 
exactly what was going on.'' \253\
---------------------------------------------------------------------------
    \244\ R. Doc. No. 406, at 143.
    \245\ R. Doc. No. 406, at 143.
    \246\ R. Doc. No. 406, at 144.
    \247\ R. Doc. No. 406, at 145-46.
    \248\ R. Doc. No. 406, at 145.
    \249\ R. Doc. No. 406, at 145.
    \250\ R. Doc. No. 406, at 146.
    \251\ R. Doc. No. 406, at 146-47.
    \252\ R. Doc. No. 406, at 147.
    \253\ R. Doc. No. 406, at 147.
---------------------------------------------------------------------------
    According to Romero, OPP has established an informal culture in 
which tier reps ``make up for deficient staffing realities to help 
supplement facility order, which is a dangerous and reckless 
practice.'' \254\ As Schwartz stated, the ``use of tier reps is a 
corrupt practice,'' in which it is ``inevitable that some of the tier 
reps will abuse their positions.'' \255\ The risk of ``arbitrary 
infliction'' of ``physical and economic injury'' is present whenever an 
inmate has ``unchecked authority'' over other inmates. Gates v. 
Collier, 501 F.2d at 1307.
---------------------------------------------------------------------------
    \254\ Pl. Ex. 374, at 19.
    \255\ Pl. Ex. 372, at 44.
---------------------------------------------------------------------------
    One especially troubling situation illustrates deficiencies 
associated with the use of tier reps, but also broader deficiencies 
related to staff accountability. OPP records show that a high-ranking 
male security officer regularly observed a female tier rep showering 
and escorted her to a private office after hours for ``prolonged 
periods of time.'' \256\ His actions were reported and confirmed by two 
staff members.\257\ Inmates also witnessed the shower viewings, as well 
as the private office visits.\258\ Inmate witnesses reported that the 
tier rep would frequently engage in physical altercations with other 
inmates, but the tier rep was never included in the corresponding 
incident reports.\259\ The inmate at issue reportedly said that the 
officer promised to transfer money into her account once she left OPP 
for a new facility.\260\
---------------------------------------------------------------------------
    \256\ Pl. Ex. 26.
    \257\ Pl. Ex. 26.
    \258\ Pl. Ex. 26.
    \259\ Pl. Ex. 26.
    \260\ Pl. Ex. 26.
---------------------------------------------------------------------------
    Despite the witnessed sexual misconduct, the officer was permitted 
to resign, and there was never an investigation because of 
``insufficient evidence, the lack of witnesses and the statements 
taken.'' \261\ The extent to which other staff members, including those 
tasked with supervising the female inmates, knew of the conduct is 
unclear because of the lack of an investigation.\262\ This is not the 
only documented instance of a staff member engaging in sexual conduct 
with an inmate.\263\ The Court notes that, while not addressed in the 
sexual assault section of this opinion, sexual or romantic 
``relationships'' between staff members and inmates are never 
acceptable and are, at best, implicitly coercive.
---------------------------------------------------------------------------
    \261\ Pl. Ex. 26. The same staff member was involved in an 
altercation with an inmate in which the staff member admitted to using 
shackles to choke the inmate. Pl. Ex. 7.
    \262\ Pl. Ex. 26.
    \263\ See Pl. Ex. 41; Pl. Ex. 61.
---------------------------------------------------------------------------
                6. Conclusion
    ``It is well established that prison officials have a 
constitutional duty to protect prisoners from violence at the hands of 
their fellow inmates.'' Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 
2006) (citing Farmer, 511 U.S. at 832-33). The proposed consent 
judgment addresses the proven deficiencies relative to inmates' safety 
and security. For example, it requires OPSO to ensure adequate 
staffing, regular security rounds, and direct supervision in units 
designed for this type of supervision.\264\ It also requires the 
development of a classification system that takes into account factors 
including security needs, suicide risk, and risk of violence or self-
harm.\265\ The proposed consent judgment also requires that the 
classification system be updated to reflect an inmate's history at 
OPP.\266\ These provisions directly address OPP's deficiencies with 
respect to inmate-on-inmate violence, including sexual assault.
---------------------------------------------------------------------------
    \264\ Consent Judgment, at 12-13.
    \265\ Consent Judgment, at 17-18.
    \266\ Consent Judgment, at 18.
---------------------------------------------------------------------------
    With respect to training and accountability, the consent judgment 
provides that OPSO ``shall develop, implement, and maintain 
comprehensive policies and procedures (in accordance with generally 
accepted correctional standards) relating to the use of force'' and 
shall ``develop and implement a single, uniform reporting system.'' 
\267\ An ``Early Intervention System'' will document and track staff 
members involved in use of force incidents.\268\ The consent judgment 
requires ``timely and thorough investigation of alleged staff 
misconduct, sexual assaults, and physical assaults of prisoners 
resulting in serious injury.'' \269\
---------------------------------------------------------------------------
    \267\ Consent Judgment, at 5.
    \268\ Consent Judgment, at 10-11.
    \269\ Consent Judgment, at 16.
---------------------------------------------------------------------------
    OPP inmates are subject to an epidemic of violence.\270\ The 
operational and administrative dysfunction of OPP's accountability 
systems put staff members and inmates at risk on a daily basis. Compare 
Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en 
banc) (``[C]onditions in a jail facility that allow prisoners ready 
access to weapons, fail to provide an ability to lock down inmates, and 
fail to allow for surveillance of inmates pose a substantial risk of 
serious harm to inmates.''). The Court concludes that with respect to 
safety and security, the proposed consent judgment ``represents a 
reasonable factual and legal determination based on the facts of 
record.'' Williams, 729 F.2d at 1559. Considering the evidence 
presented, the Court further concludes that the consent judgment is 
narrowly drawn to remedy the violation of Plaintiffs' Federal rights, 
is the least intrusive means of doing so, and extends no further than 
necessary. See Plata, 131 S. Ct. at 1939-40 (discussing 
Sec. 3626(a)(1)).
---------------------------------------------------------------------------
    \270\ Pl. Ex. 352, at 11.
---------------------------------------------------------------------------
            B. Medical and Mental Health Care
    During the course of the fairness hearing, the evidence, including 
credible witness testimony, exposed stark, sometimes shocking, 
deficiencies in OPP's medical and mental healthcare system. Inmates 
with mental health issues are housed in deplorable conditions.\271\ 
Mental health units smell strongly of feces, urine, and rotting organic 
matter.\272\ Several inmates had floors and walls smeared with feces 
when Dr. Gage visited, and many cells had ``evidence of the detritus of 
several days' food and utensils.'' \273\ Compare Gates v. Cook, 376 
F.3d at 338 (Living in ``extremely filthy'' cells with ``crusted fecal 
matter, urine, dried ejaculate, peeling and chipping paint, and old 
food particles on the walls . . . would present a substantial risk of 
serious harm to inmates.''). Such unsanitary conditions can cause or 
exacerbate illness.\274\ Moreover, ``mental health units, including 
those designed for suicide monitoring, were patently not suicide 
proof.'' \275\
---------------------------------------------------------------------------
    \271\ R. Doc. No. 408, at 156-57.
    \272\ Pl. Ex. 376, at 27.
    \273\ R. Doc. No. 408, at 156; see Pl. Ex. 378, at 38 (describing 
individual with ``psychotic symptoms'' ``with approximately ten plates 
of molded rotten food lying on the unoccupied upper bunk,'' in a 
``dirty, malodorous'' environment).
    \274\ Pl. Ex. 376, at 28.
    \275\ Pl. Ex. 376, at 27.
---------------------------------------------------------------------------
    The consent judgment aims to remedy broad areas of medical and 
mental healthcare, including intake services, access to care, 
medication, staffing, suicide prevention, and records. The Court 
addresses each in turn.
                1. Intake
    At intake, prisoners with clear histories of self-harm, mental 
illness, or potential withdrawal from prescribed or illicitly acquired 
substances are cleared for placement in the general population without 
any medical or mental health consultation.\276\ Agitated inmates are 
shackled or chained to an ordinary chair, which may permit them to 
manipulate their shackles or chains to cause self-harm.\277\
---------------------------------------------------------------------------
    \276\ Pl. Ex. 376, at 35.
    \277\ Pl. Ex. 376, at 38; Pl. Ex. 378, at 31; R. Doc. No. 408, at 
98-99.
---------------------------------------------------------------------------
    Dr. Bruce Gage, a correctional mental healthcare expert,\278\ has 
been the Chief of Psychiatry for the Washington State Department of 
Corrections since 2008.\279\ He concluded that OPP's mental health 
services are largely inadequate ``in all regards,'' ``from screening 
through assessment, treatment, suicide policies and practices, 
restraint, medication, medical records, continuity of care, and access 
to care.'' \280\
---------------------------------------------------------------------------
    \278\ R. Doc. No. 408, at 82.
    \279\ Pl. Ex. 376. From 1993 to 2000, he was involved in a 
University of Washington/Department of Corrections collaboration 
project that established an inpatient residential mental health program 
at one of the prisons. R. Doc. No. 408, at 80. Between 1990 and 2008, 
Dr. Gage worked at Western State Hospital in Lakewood, Washington, 
setting up continuity of care between jails and the state hospital and 
consulting with jails on issues such as involuntary medication. R. Doc. 
No. 408, at 79; see also Pl. Ex. 376.
    \280\ R. Doc. No. 408, at 83.
---------------------------------------------------------------------------
    In his report, Dr. Gage stated that in several cases, including 
instances of inmate suicide, an initial referral to psychiatry could 
have changed the outcome of the cases.\281\ For example, M.H. committed 
suicide while still in the Intake Processing Center, notwithstanding 
that he had previously reported ingesting crack cocaine and he had 
recently been hospitalized for suicidality.\282\ At intake, he was 
wandering around, and ``gravitated toward the exit doors,'' but he was 
``herded back to the seats'' by staff members.\283\ Because he 
attempted to leave through an exit door, he was placed in an isolation 
cell.\284\ In the isolation cell, he hung himself with his t-
shirt.\285\ Dr. Gage testified that M.H.'s death could have been 
prevented with proper mental health assessment and treatment.\286\ When 
asked by the Court whether his testimony reflected a ``medical 
certainty,'' Dr. Gage responded affirmatively, testifying that an 
assessment would have, at a minimum, prevented the isolation that 
facilitated M.H.'s suicide.\287\
---------------------------------------------------------------------------
    \281\ Pl. Ex. 376, at 35.
    \282\ R. Doc. No. 410, at 58-60; see also Pl. Ex. 80-2.
    \283\ Pl. Ex. 80-2.
    \284\ Pl. Ex. 80-2.
    \285\ Pl. Ex. 80-2.
    \286\ R. Doc. No. 408, at 110.
    \287\ R. Doc. No. 408, at 110.
---------------------------------------------------------------------------
    T.W. provides a representative example with respect to the lack of 
intake screening and follow-up psychiatric services.\288\ T.W. set her 
house on fire.\289\ After she was treated for burns at Baton Rouge 
General Hospital, she was sent to OPP on September 7, 2012.\290\ At 
intake, she described depression that had occurred within the last year 
and three prior suicide attempts.\291\ In addition, her hospital 
records indicated that she carried a diagnosis of bipolar disorder and 
that she was currently prescribed lithium and mirtazapine, an 
antidepressant.\292\ At intake, T.W. was ordered pain medication and 
referred to psychiatry for ``eval. for meds.'' \293\ Despite this 
referral, T.W. was apparently not given any access to psychiatric care 
until November 15, 2012.\294\ The events of that date are unclear.\295\
---------------------------------------------------------------------------
    \288\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
    \289\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
    \290\ Pl. Ex. 376, at 20.
    \291\ Pl. Ex. 376, at 20.
    \292\ Pl. Ex. 376, at 20.
    \293\ Pl. Ex. 376, at 20.
    \294\ Pl. Ex. 376, at 20.
    \295\ Pl. Ex. 376, at 20; see also Pl. Ex. 74.
---------------------------------------------------------------------------
    On November 16, 2012, T.W. received a psychiatric chronic care 
treatment plan from an OPP psychiatrist.\296\ While the plan notes T.W. 
felt suicidal because she missed her children, the plan shows little 
awareness of her three previous suicide attempts, her prior diagnosis, 
or her prior psychotropic medications.\297\ With respect to OPP's 
psychiatry services, T.W. received no diagnosis and no 
medications.\298\ When Dr. Gage visited in December 2012, T.W. reported 
auditory hallucinations of ``people out to get me,'' to whom she 
sometimes talked back.\299\ She also spoke about ``people being sent to 
hurt her.'' \300\ Other inmates said that T.W. paces a lot, cries a 
lot, and ``sleeps all day.'' \301\ The record is devoid of evidence 
that T.W. received the mental health treatment that was obviously 
needed while she was at OPP.
---------------------------------------------------------------------------
    \296\ Pl. Ex. 376, at 20.
    \297\ Pl. Ex. 376, at 20-21.
    \298\ Pl. Ex. 376, at 21.
    \299\ Pl. Ex. 376, at 21.
    \300\ Pl. Ex. 376, at 21.
    \301\ Pl. Ex. 376, at 21.
---------------------------------------------------------------------------
                2. Access to Care & Treatment
    After Dr. Gage reviewed the records provided, ``[t]here was not one 
example of a thorough psychiatric assessment by the OPP psychiatrist in 
any of the records and most were not even minimally adequate.'' \302\ 
None of the records included an assessment of suicide risk, rather, 
``this portion of the assessment consisted in simply noting whether the 
person expressed suicidal ideation or not. The same was true of 
homicidal ideation and consideration of danger to others in general.'' 
\303\ This is consistent with the testimony of an inmate that the 
extent of psychiatric exams is often limited to: ``Are you suicidal or 
homicidal?'' \304\
---------------------------------------------------------------------------
    \302\ Pl. Ex. 376, at 37.
    \303\ Pl. Ex. 376, at 37.
    \304\ Pl. Ex. 376, at 32; R. Doc. No. 408, at 169. T.W. also told 
Dr. Gage, without being asked, that the OPP psychiatrist sometimes asks 
her, ```Are you suicidal or homicidal?' and that's it.'' Pl. Ex. 376, 
at 21.
---------------------------------------------------------------------------
    OPP has one full-time psychiatrist who works 40 hours per 
week.\305\ Inmates may wait weeks or months for psychiatric 
appointments.\306\ With respect to emergency care during the day, the 
psychiatrist is contacted and inmates are transferred to the mental 
health unit for suicide monitoring.\307\ Accordingly, suicide tiers are 
the primary site of emergency services during the day.\308\ After 
hours, the psychiatrist may sometimes be reached by telephone, but 
there is no mental health provider actually on call or present at OPP 
facilities.\309\ An inmate who needs mental healthcare after hours or 
on weekends will either be sent to the mental health unit for suicide 
watch or to the emergency room.\310\ Inmates who harm themselves or who 
are suicidal are typically not seen until the next working day, while 
those with less serious, but still urgent, complaints--including 
suicidal ideation without a plan--are not seen for several days.\311\
---------------------------------------------------------------------------
    \305\ R. Doc. No. 408, at 122-23; see also Pl. Ex. 259, at 102-03.
    \306\ Pl. Ex. 312; Pl. Ex. 376, at 39-40; R. Doc. No. 405, at 124-
25; R. Doc. No. 408, at 126-27.
    \307\ Pl. Ex. 376, at 38.
    \308\ Pl. Ex. 376, at 38.
    \309\ Pl. Ex. 376, at 38.
    \310\ Pl. Ex. 376, at 38; R. Doc. No. 408, at 114.
    \311\ Pl. Ex. 376, at 39.
---------------------------------------------------------------------------
    The experiences of D.R. and R.S. illustrate compounding 
inadequacies in mental and medical healthcare. D.R. testified as to the 
abhorrent conditions experienced by H.T., an inmate whom D.R. testified 
``seemed partially handicapped and mentally handicapped also,'' based 
on the ``things he would say,'' ``the way he got around,'' and his 
inability to care for himself.\312\ H.T. utilized a colostomy bag, and 
``[e]very morning his colostomy bag would come off and there would be 
feces all in his cell and all over his jumper.'' \313\ H.T. would leave 
the soiled jumper on the ground, ``[a]nd someone would have to go in 
[his cell] and get his jumper and bring it to the gate and set it down 
and help him clean himself and somehow reattach the bag.'' \314\ Other 
inmates, not staff members, would assist H.T. by cleaning and 
reattaching his colostomy bag and carrying his soiled jumper to the 
gate, where staff members would retrieve it.\315\ While this daily 
routine seems inconsistent with basic care, perhaps more disturbing is 
that H.T. had to rely on other inmates' compassion and willingness to 
provide untrained nursing care to ensure he had an unsoiled jumper and 
an attached colostomy bag.\316\ According to D.R., who witnessed H.T.'s 
treatment for more than 2 months, staff members who took roll call 
would, on a daily basis, see fecal matter that had spilled from the 
colostomy bag into H.T.'s cell and sometimes see H.T., sitting in his 
bed nude or wrapped in a towel.\317\ Yet this offensive routine 
continued, and some staff members even joked about it.\318\
---------------------------------------------------------------------------
    \312\ R. Doc. No. 405-06.
    \313\ R. Doc. No. 406, at 408.
    \314\ R. Doc. No. 406, at 148.
    \315\ R. Doc. No. 406, at 148-150.
    \316\ D.R. testified that he was not sure how other inmates 
reattached the bag. ``I didn't have the stomach for it.'' R. Doc. No. 
406, at 148. The Court notes that the inmates who took it upon 
themselves to care for H.T. were subject to the health risks 
potentially associated with direct exposure to fecal matter. ``Frequent 
exposure to the waste of other persons can certainly present health 
hazards that constitute a serious risk of substantial harm.'' Gates v. 
Cook, 376 F.3d at 341.
    \317\ R. Doc. No. 406, at 150; see also Pl. Ex. 376, at 20 
(describing instance in which a different inmate was ``not given his 
antipsychotic medication on at least one occasion because he was in a 
towel rather than jail clothing'').
    \318\ R. Doc. No. 406, at 150.
---------------------------------------------------------------------------
    Another inmate's slow suicidal decline similarly illustrates the 
deficiencies with respect to both medical and mental healthcare. R.S. 
came to OPP after a standoff with the police.\319\ R.S. expressed 
``wanting the cops to kill him,'' and an emergency room note describes 
suicidal ideation.\320\ OPP staff notes reflect that R.S. stated: ``I 
don't want to kill myself. I just wish I would die.'' \321\ While on 
suicide watch, R.S. refused treatment, food, and water.\322\ He became 
profoundly dehydrated, for which he was taken to the emergency room 
several times.\323\
    R.S.'s extreme depression caused a ``failure to thrive,'' which Dr. 
Gage described as occurring when people with severe depression or 
terminal illnesses stop eating and drinking, resulting in dehydration 
complications, including urinary tract infections, and complications 
related to inactivity, including pneumonia.\324\ Records document that 
medical staff observed R.S. refusing food, while ``saturated in urine 
and feces stating he can't get up.'' \325\ On another instance, staff 
described him as ``unwilling or unable to get up off of floor.'' \326\ 
Records also show that R.S. ``experienced an episode of incontinence, 
requiring his cell mate to clean him up.'' \327\ Despite his refusal of 
basic sustenance, documented suicidality, and repeated 
hospitalizations, the Court has been provided with no evidence that OPP 
authorities undertook efforts that would facilitate and permit them to 
involuntarily treat R.S.\328\
---------------------------------------------------------------------------
    \319\ R. Doc. No. 408, at 150; Pl. Ex. 76-1.
    \320\ Pl. Ex. 76-2.
    \321\ Pl. Ex. 76-1.
    \322\ Pl. Ex. 76-1.
    \323\ R. Doc. No. 408, at 150.
    \324\ R. Doc. No. 408, at 151.
    \325\ Pl. Ex. 76-1.
    \326\ Pl. Ex. 76-1.
    \327\ Pl. Ex. 76-2.
    \328\ R. Doc. No. 408, at 150-51.
---------------------------------------------------------------------------
    OPP staff observed and documented R.S.'s decline. He was seen daily 
by nurses and eight times by physicians.\329\ Nonetheless, R.S. died of 
urosepsis and pneumonia while still on suicide watch.\330\ It is 
egregious that R.S. died after announcing his passive suicidality \331\ 
and after spending days refusing food and lying on the floor, with no 
effort to provide involuntary treatment or otherwise actively intervene 
in R.S.'s slow suicide.\332\ However, the internal OPP mortality report 
concluded that the standard of care was met, emphasizing that R.S. 
refused treatment.\333\
---------------------------------------------------------------------------
    \329\ Pl. Ex. 76-2.
    \330\ R. Doc. No. 408, at 150-51.
    \331\ See Pl. Ex. 167 (defining, in OPP's suicide lecture 
materials, ``passive suicidality'' as ``wanting to be dead'').
    \332\ R. Doc. No. 408, at 151.
    \333\ Pl. Ex. 76-2.
---------------------------------------------------------------------------
    Dr. Daphne Glindmeyer, an expert in mental health and psychiatry 
and juvenile mental health in corrections,\334\ is the medical director 
for Assertive Community Treatment, a program that provides in-home care 
to individuals with ``chronic persistent severe mental illness.'' \335\
---------------------------------------------------------------------------
    \334\ R. Doc. No. 409, at 174-75.
    \335\ R. Doc. No. 409, at 174. For approximately the last 9 years, 
she has also served as a consent judgment compliance monitor with 
respect to mental healthcare in Mississippi's juvenile correctional 
facilities. Pl. Ex. 379, at 4-5. She has previously served as the 
Director of Psychiatry for Louisiana State University Health Science 
Center's Juvenile Corrections Program. Pl. Ex. 379, at 5.
---------------------------------------------------------------------------
    Dr. Glindmeyer conducted a site visit at the unit housing youth 
inmates.\336\ The population of youth inmates at the time was 
approximately 24, and these inmates ranged from approximately 14 years 
old to 18 years old.\337\ Just over half of the youth inmates were 
housed in protective custody because of issues including prior sexual 
assault.\338\ Those in protective custody were confined for 23 hours 
per day.\339\ Youth inmates and staff advised Dr. Glindmeyer to see a 
youth inmate who had symptoms including ``bizarre behavior'' and a 
history of suicidal ideation.\340\ Although the inmate had been seen by 
a psychiatrist 10 months earlier, he received no diagnosis for his 
apparent mood disorder and he was not receiving any medication or 
treatment.\341\ Dr. Glindmeyer persuasively opined that his treatment 
or lack thereof was worsening his condition,\342\ and his isolation was 
increasing his risk of suicide.\343\
---------------------------------------------------------------------------
    \336\ R. Doc. No. 409, at 213.
    \337\ R. Doc. No. 409, at 213.
    \338\ R. Doc. No. 410, at 7; see also Pl. Ex. 378, at 41-42.
    \339\ Pl. Ex. 378, at 42, 45; R. Doc. No. 410, at 11-12.
    \340\ R. Doc. No. 410, at 13-14.
    \341\ R. Doc. No. 410, at 14.
    \342\ R. Doc. No. 410, at 15.
    \343\ R. Doc. No. 410, at 15.
---------------------------------------------------------------------------
                3. Medication
    Even where records demonstrated that medications are provided by 
agencies such as hospitals, and even when that fact is documented 
through reputable sources of information in the record, psychotropic 
medications are frequently discontinued at OPP.\344\
---------------------------------------------------------------------------
    \344\ R. Doc. No. 408, at 102.
---------------------------------------------------------------------------
    At intake, psychotropic medications are stopped approximately 75-80 
percent of the time, with some OPP treatment providers refusing to 
order them in any circumstance.\345\ While there are legitimate 
concerns associated with the potential abuse of such medications, the 
wholesale discontinuation of all medications creates a risk that 
inmates will deteriorate psychiatrically, develop a discontinuation 
syndrome, or experience withdrawal, all of which can cause unnecessary 
pain and suffering.\346\ Moreover, the abrupt discontinuation of 
psychotropic medication can increase the likelihood of suicide and 
assault and worsen inmates' long-term prognosis.\347\
---------------------------------------------------------------------------
    \345\ R. Doc. No. 408, at 101, 114-16.
    \346\ R. Doc. No. 408, at 101-02.
    \347\ R. Doc. No. 408, at 101-02; R. Doc. No. 408, at 102-03. As 
Schwartz noted, cessation of medication may be ``logical if there was a 
reliable system for reassessing those inmates at a predetermined time, 
and if inmates could reliably get to sick call.'' Pl. Ex. 372, at 25-
26. The evidence demonstrates that there are no such reliable systems 
in place.
---------------------------------------------------------------------------
                    a. Detoxification and Withdrawal
    OPP inmates who require a detoxification protocol are not 
consistently identified or effectively treated. For example, C.F.'s 
intake questionnaire indicates that she was taking 2 milligrams of a 
benzodiazepine, Xanax, four times daily, an amount and frequency which 
Dr. Glindmeyer characterized as ``a lot,'' pursuant to a prescription 
to treat her mental illness.\348\ At intake, C.F. specifically 
identified the pharmacy that filled her prescriptions and the hospital 
where she received mental health treatment.\349\ OPP discontinued the 
benzodiazepine.\350\ C.F. was monitored for only five days, despite the 
fact that benzodiazepine withdrawal can occur up to ten days after 
cessation of use.\351\ During those five days, her vital signs would 
occasionally meet the criteria for providing detoxification medication; 
sometimes such medication was provided, sometimes it was not.\352\
---------------------------------------------------------------------------
    \348\ R. Doc. No. 409, at 185; see also Pl. Ex. 180.
    \349\ R. Doc. No. 409, at 185-86; see also Pl. Ex. 180.
    \350\ Pl. Ex. 378, at 36-37.
    \351\ R. Doc. No. 409, at 189-90.
    \352\ R. Doc. No. 409, at 190; see also Pl. Ex. 378, at 37; Pl. Ex. 
180.
---------------------------------------------------------------------------
    During Dr. Glindmeyer's visit on December 20, 2012, she observed 
C.F. ``screaming very loudly'' that she ``needed to go to a wedding and 
that she had a baby in her tubes and they needed to come cut it out 
right away.'' \353\ Staff and other inmates indicated C.F. had been in 
that state or a similar state for several days prior to Dr. 
Glindmeyer's site visit.\354\ Dr. Glindmeyer spoke with C.F., who was 
``extremely paranoid,'' ``screaming, cursing,'' and ``very agitated.'' 
\355\ Dr. Glindmeyer took C.F.'s pulse, and found it to be ``over a 
hundred. And her skin was just wet. Clammy.'' \356\ C.F. was 
experiencing delirium tremens, which Dr. Glindmeyer testified, is 
``very, very dangerous with a relatively high risk of mortality.'' 
\357\ Given the severity of the situation, Dr. Glindmeyer reported her 
concerns directly to nursing staff, who then reportedly routed C.F. to 
the emergency room.\358\ A subsequent review of C.F.'s records showed 
that her delirium or psychosis was never noted before Dr. Glindmeyer's 
visit.\359\ She had received no medication, despite the fact that staff 
and inmates indicated she had been in this disturbing, ``obviously 
acutely ill,'' state for days.\360\ Dr. Glindmeyer persuasively 
attributed C.F.'s state to OPP's detoxification protocol.\361\ Gates v. 
Cook, 376 F.3d at 343 (noting ``testimony that prisoners seldom see 
medical staff and that monitoring of medication was sporadic, with 
prisoners potentially being prescribed the wrong medication or no 
medication for long periods of time, potentially leading to extremely 
dangerous physical side effects or psychotic breakdowns'').\362\
---------------------------------------------------------------------------
    \353\ Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
    \354\ Pl. Ex. 378, at 37; R. Doc. No. 409, at 191.
    \355\ R. Doc. No. 409, at 191.
    \356\ R. Doc. No. 409, at 191.
    \357\ R. Doc. No. 409, at 192.
    \358\ R. Doc. No. 409, at 192.
    \359\ Pl. Ex. 378, at 22.
    \360\ Pl. Ex. 378, at 22. R. Doc. No. 409, at 191.
    \361\ R. Doc. No. 409, at 192.
    \362\ Dr. Gage's report suggests that he witnessed C.F. being 
removed for evaluation, but his subsequent review of her records showed 
no evidence of any such evaluation or hospitalization. Pl. Ex. 376, at 
48.
---------------------------------------------------------------------------
                    b. Untreated Mental Illness
    OPP does not provide appropriate treatment to mentally ill inmates, 
even when they pose a danger to themselves or others. For example, 
S.T.\363\ entered OPP in November 2012, but he was subsequently routed 
to the emergency room several times in a seven-day period.\364\ The 
behavior that led to these visits generally included ``climbing on 
ceiling and pulling light fixtures, throwing tile, spreading feces on 
windows,'' and ``swinging from light fixtures.'' \365\ S.T. reported 
auditory hallucinations.\366\ At one point, S.T. was found ``naked in 
his cell, with abrasions and signs of trauma.'' \367\ An emergency room 
physician noted that S.T. would be discharged and ``can follow up with 
psychiatry in jail, as it certainly appears that he will require 
medication to decrease his disruptive behavior.'' \368\ When Dr. Gage 
observed S.T. in December 2012, ``[h]e was mute and hid himself under a 
blanket, refusing to speak to me.'' \369\ Dr. Glindmeyer also observed 
S.T. on two occasions in December 2012.\370\ ``On the first 
observation, he declined to speak,'' and he was lying on a mattress on 
the floor, with a ``flat affect, slow movements, and poor eye 
contact.'' \371\ Staff members reported that he had a history of 
refusing to eat.\372\ On the second observation, S.T. demonstrated 
psychomotor retardation, moving in slow motion.\373\ He spoke softly 
and slowly, and his affect remained flat.\374\ Despite S.T.'s 
persistently bizarre behavior, OPP records reflect that the only 
psychotropic medication OPP ever provided to S.T. was a single 
emergency dose of an antipsychotic medication.\375\ In short, S.T. 
remained symptomatic and untreated.\376\
---------------------------------------------------------------------------
    \363\ The initials of this inmate are actually T.S., but they are 
not used here so as to avoid conflation with the other T.S., who was 
attacked by E.L.
    \364\ Pl. Ex. 73.
    \365\ Pl. Ex. 73.
    \366\ Pl. Ex. 73.
    \367\ Pl. Ex. 73.
    \368\ Pl. Ex. 73.
    \369\ Pl. Ex. 376, at 19.
    \370\ Pl. Ex. 378, at 15.
    \371\ Pl. Ex. 378, at 15.
    \372\ Pl. Ex. 378, at 15.
    \373\ Pl. Ex. 378, at 15.
    \374\ Pl. Ex. 378, at 15.
    \375\ Pl. Ex. 376, at 19; Pl. Ex. 378, at 16.
    \376\ Pl. Ex. 376, at 19; Pl. Ex. 378, at 15-16.
---------------------------------------------------------------------------
    Another inmate, R.C., was transferred to the mental health unit on 
November 27, 2012, less than a week after arriving at OPP.\377\ The 
record indicates this transfer may have been related to a prior history 
of schizophrenia and ongoing suicidal and homicidal ideation, which 
included statements such as ``I feel people are trying to kill me . . . 
I'll hurt somebody [by] cutting their throat off.'' \378\ An OPP 
medical doctor, who was not part of the mental healthcare team, 
documented R.C. as ``being extremely belligerent and bizarre, thinking 
that [the doctor] will harm him'' and ``soiled in stool.'' \379\ The 
doctor noted that R.C. had a history of psychiatric issues and 
``defer[red] to psych. for further management of psychosis, before 
dealing w/medical issues.'' \380\ When Dr. Gage toured the facility in 
mid-December, R.C. was ``overtly responding to internal stimuli 
(indicative of hallucinations),'' talking to people who were not there, 
and otherwise acting ``grossly psychotic.'' \381\ Dr. Gage later saw 
R.C. ``lying under the bed, lying in his own excrement,'' with ``shards 
of tile . . . arrayed on the sill of the window in plain sight.'' \382\ 
R.C. later ingested the shards of tile.\383\ According to Dr. Gage, 
R.C. was ``simply allowed to languish in psychosis, untreated,'' 
despite the fact that evidence of psychosis was documented in R.C.'s 
record by other physicians.\384\
---------------------------------------------------------------------------
    \377\ Pl. Ex. 91.
    \378\ R. Doc. No. 376, at 16; R. Doc. No. 408, at 160-61; see also 
Pl. Ex. 91. R.C. submitted a sick call request on November 26, 2012, 
stating, ``I would like to receive my medicine that helps to keep my 
mind calm. I was being housed at Allen Correctional Facility. I was 
taking Haldol and Benadryl. Thank you & God Bless.'' Pl. Ex. 91. The 
timing of this request suggests it may have been associated with his 
transfer.
    \379\ R. Doc. No. 408, at 160-61; see also Pl. Ex. 376, at 15; Pl. 
Ex. 91.
    \380\ Pl. Ex. 91.
    \381\ Pl. Ex. 376, at 15; R. Doc. No. 408, at 161.
    \382\ R. Doc. No. 408, at 161.
    \383\ R. Doc. No. 408, at 161.
    \384\ Pl. Ex. 376, at 43. Dr. Gage described R.C. as someone who 
``would have readily qualified for involuntary treatment with 
antipsychotics.'' R. Doc. No. 408, at 161. In his report, Dr. Gage 
detailed numerous additional examples of inmates at OPP who were left 
untreated. See Pl. Ex. 376, at 9-27.
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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.
---------------------------------------------------------------------------
    The Court questioned Dr. Gage as to certain statements in his 
report characterizing the relationship between staff and inmates at 
OPP.

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

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

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

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

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

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

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

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

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

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                         (End of Attachment #1)

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

                             ATTACHMENT #2

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      UNITED STATES DISTRICT COURT
                     EASTERN DISTRICT OF LOUISIANA




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

VERSUS

MARLIN GUSMAN, Sheriff, Orleans
Parish


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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          [Signature Page to Release and Settlement Agreement]

                                 ______
                                 

                      UNITED STATES DISTRICT COURT
                     EASTERN DISTRICT OF LOUISIANA




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

VERSUS

MARLIN GUSMAN, Sheriff, Orleans
Parish


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

                                   ___________________

                                   UNITED STATES DISTRICT JUDGE
                                 ______
                                 

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

                                 ______
                                 
    Currently, the city is conducting budget hearings to formulate the 
fiscal year 14 budget, which will take effect on Jan. 1. If the Sheriff 
is not satisfied with the city's budget amount, the monitor will 
attempt to resolve the disagreement and if the monitor is unable to do 
so within 45 days, it will be submitted to the Court.
    Question. Has the Department of Justice made any request or taken 
any steps to obligate Sheriff Gusman to prioritize his funds/spending? 
Why or why not? Why or why not?
    Answer. As noted in question 1, the process for determining how to 
fund the reforms necessary to correct the constitutional violations at 
OPP is being led by Judge Africk. Please see response to question 1 
above for a detailed outline of the process as set forth by Judge 
Africk. The United States will continue to comply with the Court's 
directives in this case.
    Question. Did the Department of Justice take steps to evaluate the 
city of New Orleans' financial situation? Why or why not?
    Answer. The Department of Justice is very mindful of the city of 
New Orleans' financial situation. As a result, the Department of 
Justice, as noted above in response to question 1, has provided tens of 
millions of dollars to the city of New Orleans to assist in reforming 
the criminal justice system. In addition, other Federal agencies have 
provided tens of millions of dollars in additional resources to reform 
the criminal justice system in New Orleans, including the construction 
of a new jail. The United States has also provided technical assistance 
on ways in which the city can reduce the costs of compliance with its 
legal obligations vis a vis New Orleans Police Department and the 
Orleans Parish Prison. At the same time, the United States has an 
obligation to ensure that the New Orleans Police Department and the 
Orleans Parish Prison are operated in a constitutional manner. The 
continuing costs of noncompliance, both in human terms and in financial 
terms (e.g. tort liability) are significant, and the Department 
continues to look forward to working with all parties to transform the 
criminal justice system in New Orleans into a national model.
                  bossier parish young marine program
    Question. Based on difficulties experienced by the Bossier Parish 
Young Marine Program in trying to secure grant funding; my constituents 
feel the Department of Justice, Office of Civil Rights, in Washington, 
D.C. is going to great lengths to prevent even the mere mention of God 
in any way to the youth in these programs.
    Does voluntary prayer or a moment of silence during a youth program 
render the program ineligible for funding? Please describe the 
Department's process for determining what constitutes an inherently 
religious activity.
    Answer. The Department's regulations on Equal Treatment for Faith-
Based Organizations prescribe that ``[o]rganizations that receive 
direct financial assistance from the Department of Justice may not 
engage in inherently religious activities, such as worship, religious 
instruction, or proselytization, as part of the programs or services 
funded with direct financial assistance from the Department.'' 28 
C.F.R. 38.2(b)(1). ``If an organization conducts such activities, the 
activities must be offered separately, in time or location, from the 
programs or services funded with direct financial assistance from the 
Department, and participation must be voluntary for beneficiaries of 
the programs or services funded with such assistance.'' Id.; see also 
Exec. Order No. 13279, 2(f), 67 Fed. Reg. 77,141 (Dec. 12, 2002), as 
amended by Exec. Order No. 13559, 1(b), 75 Fed. Reg. 71,319 (Nov. 22, 
2010).
    Voluntary prayer during a youth program, while an inherently 
religious activity for purposes of 28 C.F.R. 38.2(b)(1), does not 
render the program ineligible for funding, as long as the program is 
properly structured in compliance with Federal civil rights laws which 
require that these activities must be voluntary and conducted 
separately in time or location from Department of Justice (DOJ)-funded 
activities. A moment of silence could be subject to the same 
restrictions if in context it is apparent that the grantee's purpose in 
providing the moment of silence is to encourage prayer or religious 
reflection on the part of program participants, or if the grantee's 
policy has the primary effect of advancing religion.
    In 2012, the Bossier Parish Sheriff's Office's Young Marines 
Program, described in its handbook as a youth education and service 
program for youth ages 8 through 18 years old, received a Juvenile 
Accountability Block Grant award through the Louisiana Commission on 
Law Enforcement (LCLE), the State Administering Agency for Louisiana. 
The curriculum for the program included a voluntary prayer at the 
beginning of each class session. The Office of Justice Programs' (OJP) 
Office for Civil Rights at DOJ, which is responsible for ensuring that 
recipients of funding from the OJP comply with applicable civil rights 
statutes and regulations, informed the LCLE that it must ensure that 
the Sheriff's Office is conducting prayer in compliance with DOJ's 
Equal Treatment regulations.
    Question. What steps are taken to ensure that communication between 
the Department and the State agencies truly reflect the Department's 
regulations and do not result in overly burdensome scrutiny?
    Answer. The State Administering Agencies (SAA) administer 
Department of Justice (DOJ) funding and are responsible for ensuring 
that their DOJ-funded subrecipients comply with all applicable civil 
rights laws. The Office for Civil Rights (OCR), in the Office of 
Justice Programs (OJP), is responsible for ensuring SAAs are fulfilling 
this responsibility. The OCR provides the same level of monitoring and 
oversight to all SAAs and their subrecipients. The OCR provides 
technical assistance as needed to SAAs to assist them in ensuring that 
subrecipients are complying with their civil rights obligations. If 
there is a concern that a subrecipient is implementing or intends to 
implement DOJ funding in a manner that appears to violate civil rights 
laws, the OCR provides guidance to the SAA on the conditions under 
which the subrecipient may implement DOJ funding consistent with civil 
rights laws and regulations.
    In the case of the Young Marines Program, once the Louisiana 
Commission on Law Enforcement (LCLE) notified the OCR that the program 
included voluntary prayer, the OCR informed the LCLE that the Sheriff's 
Office must ensure that prayer is conducted separately, in either time 
or location, from the class sessions (i.e., conducting prayer in a 
separate location from the DOJ-funded activities or ensuring that there 
is a break in time between prayer and the DOJ-funded activities). 
Funding for the Young Marines Program expired in December 2012 before 
the LCLE could confirm how the Sherriff's Office planned to conduct 
prayer separately in time or location from the DOJ-funded activities. 
However, OJP has been working closely with the LCLE to ensure that the 
Bossier Parish Sherriff's Office would meet the civil rights 
requirements that may come with any new OJP funding.
                                 ______
                                 
            Questions Submitted by Senator Richard C. Shelby
    Question. The 2014 budget request includes $100 million to double 
the existing capacity of the Federal Bureau of Investigation's (FBI) 
National Criminal Background Check System. In your testimony before the 
House Commerce, Justice, Science, and Related Agencies (CJS) 
Subcommittee, you stated that this funding was requested in 
anticipation of the adoption of a universal background check 
requirement; however your testimony today makes no mention of such a 
requirement.
    Attorney General Holder, could you please provide the details 
relating to the $100 million increase that has been requested? Is the 
funding necessary to simply support the existing system, which I 
understand is experiencing an uptick in background checks, or is the 
funding only necessary if a new, universal background check was 
adopted?
    Answer. While the request was originally predicated upon the 
enactment of a universal background check requirement, the number of 
background checks has been increasing since 2002, as reflected in the 
chart below. Based on historical growth and anticipated need, the FBI 
requests a total of $100 million and 524 positions to keep pace with 
anticipated workload requirements of the National Instant Criminal 
Background Check System (NICS). The chart below summarizes the yearly 
NICS workload from 1998 through March 2013.

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

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

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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

FOR IMMEDIATE RELEASE                                    March 29, 2013

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

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

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

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

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

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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

                     March 29, 2013

Eugene Illovsky
Morrison Foerster LLP
425 Market Street
San Francisco, CA 94105-2842
[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:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

                             ATTACHMENT #1

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

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

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

Dear Senators Alexander and Vitter:

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         (End of Attachment #1)

                                 ______
                                 
             Question Submitted by Senator Susan M. Collins
    Question. Attorney General Holder, there is substantial evidence 
that prescription drug abuse is a major contributing factor in military 
and veteran suicides.
    A January 2012 Army report found that 29 percent of suicides 
involved individuals with a known history of psychotropic medication 
use. In addition, the Center for a New American Security (CNAS) 
released a report in October 2011 which found that there is excess 
prescription medication in the military community. Both reports 
recommended that the Drug Enforcement Administration (DEA) should grant 
the Department of Defense (DOD) authority to accept and dispose of 
prescription medication from servicemembers.
    Last July, I wrote you a letter requesting your support to address 
the epidemic of military suicides by allowing military treatment 
facilities to participate in drug take-back programs, as authorized by 
the Secure and Responsible Drug Disposal Act of 2010. This would 
satisfy the recommendation made in the Army and CNAS reports.
    In March of this year, 8 months later, I finally received a 
response from your office. In that time period, nearly 200 additional 
servicemembers had lost their lives to suicide. According to the 
Veterans Benefits Administration (VA), based off data collected from 21 
States, an estimated 22 veterans lose their lives to suicide each day 
as well.
    In your response to my letter, you wrote that the DEA was in the 
rulemaking process to implement the Disposal Act and that the DEA was 
hopeful that the proposed regulations for the drug take back program 
will meet the needs of those in our Armed Forces.
    Unfortunately, we know that the proposed regulations released in 
December 2012 will not meet the needs of our Armed Forces or our 
veterans because it does not allow pharmacies registered as hospitals 
or clinics at recognized military treatment facilities or VA hospitals 
to be collector points for DEA's drug take back programs.
    The Pentagon and the Secretary of Veterans' Affairs Eric Shinseki 
agree with this assessment. The Pentagon's top healthcare civilian, 
Assistant Secretary of Defense for Health Affairs, Jonathan Woodson, 
wrote to the DEA Administrator on February 13, 2013 expressing his 
concern that the DEA's proposal would exclude more than two million DOD 
beneficiaries who receive care at military treatment facilities.
    Last month, Secretary Shinseki testified before the Military 
Construction and Veterans' Affairs Appropriations subcommittee that the 
VA is in need of similar authorities for VA pharmacies to be considered 
authorized collectors of controlled substances.
    Along with a number of my colleagues, including Senators Murkowski 
and Boozman, who both sit on this panel, I recently introduced 
bipartisan legislation which would require you to work with the 
Department of Defense and the VA to implement drug take-back programs. 
What is so frustrating to me, however, is that you can make this change 
today without any additional legislation.
    I strongly urge you to ensure that the final regulations issued by 
DEA ensure that DOD and VA receive the necessary authority to ensure 
that our servicemembers and veterans are able to safely dispose of 
controlled substances at DOD and VA facilities.
    Do you agree with Secretary Shinseki and Assistant Secretary 
Woodson that our veterans and servicemembers, especially our wounded 
warriors or those struggling with post traumatic stress disorder 
(PTSD), should be able to safely dispose of prescription medications at 
pharmacies located at military treatment facilities and VA facilities?
    Answer. The Department is committed to ensuring that our military 
servicemembers and veterans, especially our wounded warriors or those 
struggling with PTSD, can dispose of unwanted, unneeded, or unnecessary 
pharmaceutical controlled substances safely and securely. To that end, 
DEA is diligently working on the final rule implementing the Secure and 
Responsible Drug Disposal Act of 2010, which authorizes additional ways 
for all Americans to dispose of their unwanted or expired controlled 
substance medications in a secure and responsible manner. The Notice of 
Proposed Rulemaking (NPRM) proposed the requirements to govern the 
secure disposal of controlled substances by both DEA registrants and 
ultimate users, and was published for comment between December 21, 2012 
and February 19, 2013. DEA received approximately 200 comments and is 
working on a final rule that will address all of the issues raised by 
the commenters. DEA understands the importance of ensuring convenient 
and accessible disposal methods for military servicemembers, veterans 
and their dependents and is working hand-in-hand with DOD and VA to 
make certain that they can dispose of prescription medications through 
a variety of safe and secure methods. In the interim, DEA continues to 
administer National Drug Take-Back Days to provide consumers with a 
safe, convenient, and responsible means of disposing of prescription 
drugs. The most recent Drug Take-Back Day was October 26, 2013.
                                 ______
                                 
             Questions Submitted by Senator Lindsey Graham
    Question. Currently, there is a ban on licensed firearm or 
ammunition manufacturers or importers selling ``armor piercing 
ammunition,'' except for government use. See 18 U.S.C. 922(a)(7). 
Broadly speaking, the term is defined to include projectiles that ``may 
be used in a handgun'' and that are made out of certain particularly 
hard metals, except for any projectile that ``the Attorney General 
finds is primarily intended to be used for sporting purposes.'' See 18 
U.S.C. 921(a)(17).
    Today, several ammunition industry members have requests pending 
with ATF to exempt various types of bullets--especially non-toxic 
hunting bullets--under this provision. How many exemption requests are 
now pending?
    Answer. ATF currently has 17 requests from two ammunition 
manufacturers seeking exemption from the law to produce and sell to the 
general public armor piercing ammunition as defined under 18 U.S.C. 
921(a)(17).
    Question. Currently, there is a ban on licensed firearm or 
ammunition manufacturers or importers selling ``armor piercing 
ammunition,'' except for government use. See 18 U.S.C. 922(a)(7). 
Broadly speaking, the term is defined to include projectiles that ``may 
be used in a handgun'' and that are made out of certain particularly 
hard metals, except for any projectile that ``the Attorney General 
finds is primarily intended to be used for sporting purposes.'' See 18 
U.S.C. 921(a)(17).
    Today, several ammunition industry members have requests pending 
with ATF to exempt various types of bullets--especially non-toxic 
hunting bullets--under this provision. What is the status of ATF's 
review of the ``sporting purposes'' exemption?
    Answer. ATF continues to formulate and evaluate a process by which 
it can consistently and fairly apply an objective test to exempt 
ammunition projectiles (constructed of a metal or metal compound that 
is defined as armor piercing ammunition) that are primarily intended to 
be used for sporting purposes, while not obviating the purpose of the 
act designed to protect law enforcement officers from ammunition 
projectiles that may penetrate body armor. Once this process is 
complete, formal notification will proceed.
    Question. Currently, there is a ban on licensed firearm or 
ammunition manufacturers or importers selling ``armor piercing 
ammunition,'' except for government use. See 18 U.S.C. 922(a)(7). 
Broadly speaking, the term is defined to include projectiles that ``may 
be used in a handgun'' and that are made out of certain particularly 
hard metals, except for any projectile that ``the Attorney General 
finds is primarily intended to be used for sporting purposes.'' See 18 
U.S.C. 921(a)(17).
    In November 2012, ATF held meetings with manufacturers, gun owners' 
groups, and gun control groups to get their thoughts on how to apply 
the ``sporting purposes'' exemption, but neither the gun owners' groups 
nor industry have heard anything further on the issue since. ATF has 
not responded to Freedom of Information Act (FOIA) requests on this 
process that were filed immediately after those meetings. When will 
pending FOIA requests on this matter be answered?
    Answer. The ATF Office of Disclosure has received several FOIA 
requests for this meeting, including from the Sunlight Foundation and 
the National Rifle Association's (NRA) Institute for Legal Action. We 
are in the process of finalizing the records responding to these 
requests. Once this process is complete, all records will be sent to 
requesters.
    Question. I know we're both proud of the partnership between the 
Department of Justice and the University of South Carolina in Columbia. 
Sequestration is impacting all departments, and many Federal activities 
and efforts may suffer and feel the pain of the current budget 
stalemate. I want to commend the Department for continuing to work with 
the University and hope that we will resolve the budget challenges and 
sequestration so that you can continue the fine work that the U.S. 
Attorneys do at the National Advocacy Center (NAC) in Columbia. Please 
outline the impacts of sequestration on the Palmetto Project, and how 
the department is adjusting?
    Answer. Sequestration has both short- and long-term impacts on 
Project Palmetto. The short-term challenge we face is funding 
additional renovation, relocation, and equipment costs. The United 
States Attorney community received a $139 million budget cut in fiscal 
year 2013 under sequestration. As part of a broader effort to avoid 
furloughs and more drastic measures, the Department reduced courses at 
the NAC by 37 percent in fiscal year 2013. Depending on appropriations 
levels in fiscal year 2014, similar reductions may be necessary in the 
future.
    For the longer term, reductions in the Federal workforce could 
reduce space needs at the NAC. Further, a reduction in the Federal 
workforce could reduce the overall demand for training. Finally, 
budgetary pressure will reduce the time and money available for staff 
to travel to traditional classroom training at the NAC. Therefore, the 
focus of the NAC staff may shift from classroom training to distance 
learning, thereby freeing up a significant amount of classroom and 
office space.
    EOUSA and University of South Carolina leadership are meeting to 
examine options for the future. The Department is committed to its 
strong partnership with the University.
                                 ______
                                 
                Questions Submitted by Senator Mark Kirk
    Question. I am extremely concerned about the level of gang violence 
in the city of Chicago. Gang membership across the country is on the 
rise and close to 50 percent of violence crimes nationwide are due to 
gangs, with the level being much higher in some cities including 
Chicago.
    Is there someone at the Department of Justice who is the 
Coordinator for your efforts to combat gang violence? How do the 
different agencies within the Department of Justice (DOJ) as well as 
other Government agencies coordinate strategies in fighting gangs?
    Answer. The Department's Anti-Gang Coordination Committee (AGCC) 
plays a critical role in coordinating the Department's anti-gang 
efforts and minimizing that overlap between enforcement components and 
violent crime and gang task force efforts. AGCC membership includes not 
only Department components, but also other members of the U.S. law 
enforcement committee, such as the Immigration and Customs Enforcement 
(ICE). On an operational level, the National Gang Targeting, 
Enforcement and Coordination Center (GangTECC) within the Drug 
Enforcement Administration's (DEA) Special Operations Division (SOD) 
plays a significant role in deconfliction and organization. In fiscal 
year 2010, the Department of Justice, through DEA's SOD Gang Section, 
entered into a partnership with GangTECC to enhance the combined 
capabilities of the partner agencies (FBI, DEA, ATF, and United States 
Marshals Service (USMS)) as well as ICE. Prior to fiscal year 2010, 
GangTECC supported only 100 cases in the three preceding fiscal years 
combined. Since then, under the operational direction of SOD, GangTECC 
has successfully supported 2,175 cases that have resulted in more than 
21,500 arrests. SOD also supports deconfliction and coordination on 
many cases, including gang cases. Moreover, DOJ also continues to focus 
on sharing intelligence at the field level with our State and local 
partners. Finally, as the chief prosecuting arm of the U.S. Government 
the U.S. Attorneys play a similar role at the local level, coordinating 
local strategies and working with all Federal partners.
    Question. I understand from the people in Chicago that one problem 
in fighting the gangs has been the delays in prosecutions once a gang 
member is arrested. Your fiscal year 2014 budget request for the U.S. 
Attorneys Office is lower than fiscal year 2012. Why? How will 
Washington be able to support the local needs with the lower resources 
that are coming?
    Answer. Illinois and Chicago would be eligible to receive funding 
to address gang violence through several formula and competitive grant 
programs administered by the Office of Justice Programs. The fiscal 
year 2014 President's budget request includes funding for the following 
programs:
  --Part B Formula Grants ($70 million) and the Juvenile Accountability 
        Block Grant (JABG) ($30 million). The State of Illinois may 
        allocate funding specifically to address gang violence under 
        selected Title II and JABG program areas.
  --Missing and Exploited Children's Program ($67 million). This 
        program provides funding for the Internet Crimes Against 
        Children (ICAC) program. Previously, the Cook County State's 
        Attorney's Office and the Illinois Attorney General's Office 
        received funding from this competitive grant program to 
        administer ICAC programs aimed at the detection, investigation, 
        apprehension, and prosecution of technology-facilitated crimes 
        against children. These activities include anti-trafficking 
        investigations often linked with the proliferation of gang 
        activity.
  --Community Based Violence Prevention Initiative ($25 million). This 
        program helps localities and/or State programs that support a 
        coordinated and multi-disciplinary approach to gang prevention, 
        intervention, suppression, and reentry in targeted communities. 
        This initiative aims to enhance and support evidence-based 
        direct service programs that target both youth at risk of gang 
        membership as well as gang-involved youth. Additionally, this 
        initiative will support programs that reduce and prevent other 
        forms of youth violence through a wide variety of activities 
        such as street-level outreach, conflict mediation, and the 
        changing of community norms to reduce violence, particularly 
        shootings.
  --The National Forum on Youth Violence Prevention ($4 million). The 
        Department of Justice has invited a small number of 
        geographically diverse localities, including Chicago, to 
        participate in the National Forum on Youth Violence Prevention. 
        Participating localities, including Chicago, have agreed to 
        form their own local network or use existing partnerships to 
        address youth violence and gang activity in their communities. 
        Chicago and the other participating localities have developed a 
        multidisciplinary plan that emphasizes prevention and 
        intervention as well as targeted enforcement activities. The 
        Departments of Justice and Education, in collaboration with 
        other Federal partners, will continue to provide technical 
        assistance to support localities in the formation of their 
        networks and the development and implementation of their anti-
        violence and anti-gang plans. The Federal agencies will also 
        connect participating localities with one another, providing 
        opportunities for localities to learn from each other, and will 
        sponsor local and national events to showcase their efforts.
  --The Children's Exposure to Violence (CEV) program ($58 million). 
        The CEV program will assist localities to address the trauma 
        associated with community, school, and domestic violence. The 
        program will support organizations to provide services 
        including treatment and training and technical assistance for 
        localities to prevent, respond, and mitigate the effects of 
        violence.
  --Youth Mentoring ($58 million). Mentoring provides resources for 
        programs aimed primarily at gang prevention along with some 
        intervention activities. Organizations can apply for 
        competitive discretionary grant funding through these programs.
  --The National Gang Center (NGC) ($2 million). With other entities, 
        the NGC provides opportunities for resources, training, and 
        technical assistance to address gang violence. Through the NGC, 
        the Office of Juvenile Justice and Delinquency Prevention has 
        expanded knowledge about youth gangs and effective responses to 
        them by conducting the annual National Youth Gang Survey and by 
        providing training materials, curriculums, and technical 
        assistance on community gang problem assessment, 
        multidisciplinary gang intervention, and comprehensive 
        community responses to gangs. Communities may access and 
        request training and technical assistance from NGC by 
        completing a simple online form, available at http://
        www.nationalgangcenter.gov/Training-and-Technical-Assistance/
        Request.
  --Project Safe Neighborhoods (PSN) ($5 million). PSN provides funds 
        to U.S. Attorneys for the purpose of developing partnerships 
        among Federal, State and local governments as well as community 
        and faith-based providers to help them create safer 
        neighborhoods through a sustained reduction in crime associated 
        with gang and gun violence. The U.S. Attorney in each judicial 
        district leads a unified approach, with the cooperation of 
        local, State, and Federal agencies, support prosecution 
        efforts, intervention and prevention initiatives. This is a 
        competitive grant program for which the city of Chicago and the 
        appropriate U.S. Attorney district are eligible to apply.
  --The Intellectual Property Enforcement Program (IPEP) ($2.5 
        million). IPEP supports the creation and maintenance of multi-
        jurisdictional task forces designed to support and enhance 
        criminal investigations, prosecutions, and prevention and 
        educational efforts as they relate to intellectual property 
        theft and counterfeit goods enforcement. There is evidence that 
        organized criminal networks are engaging in intellectual 
        property (IP) theft to support their violent criminal 
        enterprises and gang activities due to the low risk of 
        prosecution and the extremely high profits involved.
  --Byrne Criminal Justice Innovation (BCJI) ($35 million). The goal of 
        BCJI is to improve community safety by designing and 
        implementing effective, comprehensive approaches to addressing 
        crime within a targeted neighborhood as part of a broader 
        strategy to advance neighborhood revitalization through cross-
        sector community-based partnerships. This is a competitive 
        grant program for which the city of Chicago is eligible to 
        apply.
  --Victims of Trafficking ($10.5 million). The goal of the human 
        trafficking initiative is to support an enhanced anti-human 
        trafficking law enforcement task force and victim service model 
        designed to identify, rescue, and assist foreign and domestic, 
        adult and minor, victims of human trafficking within the United 
        States. Street gangs are a large part of the human trafficking 
        problem. With State and national crackdowns on drug 
        trafficking, gangs have turned to sex trafficking for financial 
        gain. New technological advances give gang traffickers the 
        ability to market the services of their victims discreetly. In 
        several high-profile prosecutions of sex trafficking, street 
        gangs used online advertisements to traffic women and girls as 
        young as 13. The U.S. Government has prosecuted several hundred 
        cases against street gangs, motorcycle gangs, and prison gangs 
        in which commercial sex acts, prostitution, or human 
        trafficking were mentioned. This is a competitive grant program 
        for which the city of Chicago is eligible to apply.
  --Preventing Violence Against Law Enforcement Officers and Ensuring 
        Officer Resilience and Survivability (VALOR) ($15 million). 
        Many gang initiations consist of killing law enforcement 
        officers, but not all gangs practice this behavior solely for 
        initiation purposes. A gang called the ``Satan Disciples'' in 
        Chicago has called for the formation of an assassination unit 
        called ``Guerrilla Mafia Cartel'' whose sole mission is to kill 
        law enforcement officers. VALOR is designed to prevent violence 
        against law enforcement officers and ensure officer resilience 
        and survivability following violent encounters during the 
        course of their duties. VALOR responds to the precipitous 
        increase in ambush-style assaults that have taken the lives of 
        many law enforcement officers in recent months. With funding in 
        fiscal year 2014, police officers in Chicago and surrounding 
        jurisdictions would have access to this important training.
    Specifically regarding USA funding, the fiscal year 2014 
President's budget request provides $2.008 billion for the United 
States Attorneys (USA)--an increase of $48 million over the enacted 
fiscal year 2012 level of $1.960 billion.
    Question. The FBI's Safe Streets Task Force Program, a key program 
for fighting gangs, received a $9 million increase in fiscal year 2013. 
Where will these increased funds go?
    Answer. The FBI's fiscal year 2013 enacted Appropriation included 
an across-the-board rescission of over $150 million. This rescission, 
coupled with the over $550 million reduction due to sequestration, 
eliminated any program increases included in the fiscal year 2013 
Appropriation.
    Question. A June 7, 2013 Washington Post story reported that a 
Federal judge in Virginia recently sentenced two gang members for 
running a sex trafficking ring. According to the story, the women were 
recruited through Backpage.com and other Internet sites. What is the 
Department of Justice doing to crackdown on the advertising for 
prostitution on the Internet and on sites like Backpage.com for their 
role in the facilitation of sex trafficking?
    Answer. The Department shares your serious concerns about the use 
of such sites to illegally exploit vulnerable persons in this way. As a 
general matter, any prosecution of a website operator for such conduct 
would require the government (whether Federal or State) to prove beyond 
a reasonable doubt that the website operators actually knew or 
recklessly disregarded the fact that they were accepting an 
advertisement that offers sex with a child. Sufficient evidence of 
knowledge of a crime against a child is not indicated where an 
advertisement on its face is for a legal service offered by someone who 
appears to be an adult, and where there is no additional evidence 
establishing knowledge. We will continue to aggressively combat human 
trafficking, whether it takes place online or off. We are certainly 
cognizant of the unique factors implicated by the type of online 
advertising that this question highlights, and the possible 
investigative and prosecutorial challenges (and opportunities) that 
exist as a result of this medium.
    Question. In recent years there has been an effort by the U.S. 
Government to better report on sex trafficking to and within the U.S. 
How has DOJ been able to respond to the additional reporting? Have any 
trends emerged to inform efforts to combat sex trafficking both 
domestically and internationally?
    Answer. The National Institute of Justice (NIJ) contributes to a 
report every 2 years on the prevalence of trafficking. Due to the 
difficulty in obtaining accurate statistics, the report focuses on 
advances in measuring trafficking. The report highlights practices of 
those communities that provide the best estimates so that other 
communities are better able to establish more reliable and accurate 
estimates. A list of trafficking research projects supported by NIJ, 
both ongoing and completed, and their scopes is available at https://
www.ncjrs.gov/pdffiles1/nij/223572/223572-e.pdf. The scope of the 
projects varies from developing methods to better estimate the extent 
of trafficking to developing screening tools to assist the criminal 
justice system and service providers in identifying victims of 
trafficking.Anti-Human Trafficking Task Forces in the Bureau of Justice 
Assistance (BJA) are focused on all forms of human trafficking and not 
just specifically ``sex trafficking.'' Since 2007, BJA funded Anti-
Human Trafficking Task Forces have been required to report data monthly 
into the Human Trafficking Reporting System (HTRS). This data includes 
information related to the number of investigations opened, the number 
of potential and actual victims identified, and the number of community 
awareness trainings the task forces have conducted. BJA holds monthly 
conference calls with the HTRS administrator for updates on the 
reporting process and which task forces are not up-to-date in 
reporting. When necessary, BJA reaches out to those task forces who are 
delinquent in reporting technical assistance. The task forces are also 
subject to random audits of the data to ensure accuracy.
    Very few studies have been completed that analyze interventions and 
their effectiveness in combatting sex trafficking. A recently completed 
NIJ-funded study focused on sex trafficking demand reduction efforts. 
The study details typologies of different approaches to combat sex 
trafficking. Twelve distinct typologies were found including reverse 
sting operations, public education campaigns, rehabilitative efforts, 
and shaming tactics. The final research report, available at https://
www.ncjrs.gov/pdffiles1/nij/grants/238796.pdf, provides descriptive 
information on current interventions and discusses what research has 
been done. A product of this study was Demandforum.net, an online 
resource developed under a grant from NIJ that provides assistance to 
practitioners and others in the form of information about the range of 
models and program structures implemented to deter sex trafficking. The 
site has information on more than 900 cities and counties in the U.S. 
that have launched initiatives in this area.
    The Office for Victims of Crime (OVC) and BJA are working closely 
with Federal partners to identify trends in human trafficking in order 
to develop responses that will best serve the victims. For example, OVC 
and BJA, along with the Federal Bureau of Investigation and the 
Executive Office for United States Attorneys, are working with the 
Human Smuggling and Trafficking Center on an analysis of Federal data 
on human trafficking in the U.S. OVC and BJA also work closely with NIJ 
to learn from its ongoing studies of human trafficking in the US. In 
addition, OVC has improved its Trafficking Information Management 
System (TIMS), which collects systematic and comprehensive information 
from trafficking grantees on the demographics, immigration status and 
the service needs of victims. TIMS provides OVC with information on the 
needs of the trafficking victims, which has led to changes in grant 
solicitations and the provision of technical assistance and training. 
TIMS also provides data on the country of origin in the case of foreign 
labor trafficking victims. Over the last few years, the three top 
countries of origin were Mexico, the Philippines and Thailand. OVC used 
this information to develop a new national public awareness PSA (to be 
released in January 2014) in Spanish, Tagalog, and Thai, in addition to 
English. Finally, OVC is a key partner in the development of the 
Federal Strategic Action Plan on Victim Services in the United States, 
through which Federal agencies are embarking on new and strengthened 
coordination and collaboration to ensure all victims of human 
trafficking in the U.S. are identified and provided access to the 
services they need to recover and rebuild their lives.
    Question. Given the recent ruling by an Egyptian court in the 
politically motivated trial against democracy workers, what is DOJ 
doing to ensure that any Egyptian Government efforts to issue arrest 
warrants through Interpol are blocked?
    Answer. The Departments of Justice and State are monitoring the 
situation closely, including through contact with Egyptian Government 
and NGO officials. Interpol Washington, the U.S. National Central 
Bureau (USNCB), a component of the Department of Justice, has also been 
in close contact with the International Criminal Police Organization 
(``INTERPOL'') to ensure that if Egypt elects to pursue INTERPOL 
notices or communications concerning the individuals involved, INTERPOL 
will reject any Egyptian efforts consistent with its previous decision 
on April 23, 2012, denying Egypt's requests in the same case. 
INTERPOL's April 2012 decision followed a brief in opposition to 
Egypt's requests submitted on behalf of the United States by the USNCB 
with coordination and input from officials of the Criminal Division and 
State Department. The United States' brief in opposition to the 
requests noted that the Egyptian prosecution was politically motivated 
and therefore contrary to Article 3 of INTERPOL's Constitution which 
prohibits any activities by the organization of a ``political, 
military, religious or racial character.'' INTERPOL denied Egypt's 
requests on this basis. Because the recent convictions in absentia are 
based on the same charges, any attempt by Egypt to pursue the 
defendants via INTERPOL would also be prohibited by Article 3 of the 
INTERPOL Constitution.
                                 ______
                                 
              Questions Submitted by Senator John Boozman
                        settlement negotiations
    Question. Mr. Holder, as you know many agencies enter into 
settlement negotiations that result in mandatory Federal actions. For 
example, the Environmental Protection Agency (EPA), the Fish and 
Wildlife Service, and other agencies, often settle lawsuits, resulting 
in legally-binding consent decrees. I am interested in the ability of 
affected citizens to be aware of these closed-door negotiations and to 
have a seat at the table--to intervene--when necessary and appropriate. 
Other agencies often point the finger at the Department of Justice 
(DOJ) when the door is kept shut.
    Please explain the relationship between DOJ and other Federal 
agencies, when DOJ represents another agency in these situations. Is it 
accurate to think of the other agencies as DOJ's client?
    Answer. Because the question references the activities of the 
Environmental Protection Agency (EPA) and U.S. Fish and Wildlife 
Service and refers to ``mandatory Federal actions,'' a term that is 
largely relevant to the Department of Justice's work in defensive 
litigation, the responses to these questions will reference the 
specific authorities and experience of the Department of Justice in 
representing those agencies in defensive cases. Broadly speaking, the 
Department views its client as the United States. Therefore, in 
conducting litigation, we seek to act in the best interests of the 
United States. Where a particular agency is a named defendant in a 
lawsuit and the lawsuit challenges administrative action or inaction by 
that agency, we think of that agency as our primary client, while also 
considering the views of any other interested agencies.
    Question. During such settlement negotiations, to what extent does 
DOJ allow the agency to participate in the process?
    Answer. Agency participation in settlement negotiations may depend 
to some extent on the nature of the relief sought by the plaintiff in 
the lawsuit. Where the plaintiff seeks to compel the defendant agency 
either to undertake or to reconsider administrative action, it is 
common for lawyers from the defendant agency to participate in 
settlement negotiations. Even in those cases in which agency counsel 
might not be present during settlement negotiations with opposing 
counsel, the Department coordinates all settlement positions with the 
agency prior to (and, often times, during) any negotiations. The 
Department's representation of EPA, for example, is governed by a June 
1977 Memorandum of Understanding (MOU) between the Department and EPA. 
Under that MOU, attorneys employed by EPA may participate in the 
conduct of litigation in which the agency is party, including 
participation in settlement negotiations, subject to the supervision 
and control of the Attorney General. MOU 2, 4; see also 42 U.S.C. 
7605(b) (participation by EPA attorneys in Clean Air Act litigation 
under the MOU).
    Question. During such settlement negotiations, who determines 
whether affected parties that wish to intervene in the negotiation 
process are allowed a seat at the table--DOJ or EPA?
    Answer. Under 28 U.S.C. 516 (and the June 1977 MOU with EPA), the 
conduct of all litigation is reserved to officers of the Department of 
Justice under the direction of the Attorney General. Thus, while the 
Department would typically consult with the client agency, any decision 
regarding what position the Government will take regarding intervention 
or participation in settlement negotiations ultimately rests with the 
Justice Department. That said, the Department gives its client 
agencies' views considerable weight as to all significant litigation 
decisions.
  doj's responsibility to assist with the freedom of information act 
                   (foia) implementation at agencies
    Question. Mr. Holder, I would appreciate your thoughts regarding 
the importance of the Freedom of Information Act and your thoughts on 
the departments role regarding FOIA implementation and providing 
guidance to other agencies. Specifically: Would it be appropriate for 
an agency to automatically inform FOIA requestors that their requests 
are ``overbroad'' and will ``probably cost more than the amount of 
money they agreed to pay''?
    Answer. It would not be appropriate for an agency to 
``automatically'' assume that a FOIA request was ``overbroad'' or that 
it would ``cost more than the amount of money [the requester] agreed to 
pay.'' Each request must be evaluated individually, first to determine 
whether it meets the FOIA's requirement that it reasonably describe the 
records sought, and second, to determine whether there are any fees to 
be assessed in the first instance, and if so, whether those fees would 
be more than the requester has agreed to pay. There would be many 
requests for which there are no problems regarding the scope of the 
request or fees to be charged.
    The Attorney General's Memorandum for Heads of Executive 
Departments and Agencies Concerning the Freedom of Information Act, 
issued on March 19, 2009, emphasized President Obama's call for agency 
FOIA professionals ``to work `in a spirit of cooperation' with FOIA 
requesters.'' In accordance with that directive, the Department has 
strongly encouraged agencies to actively communicate with requesters 
regarding their requests. Such communication can be particularly 
important in those situations when a request seeks a voluminous amount 
of material or when there is an issue regarding fees. In those cases 
dialogue between the parties can be beneficial to both agency and 
requester alike.
    Question. Would you be concerned to learn of instances where 
Federal employees expressed an inability to respond to FOIA requests in 
a timely manner due to lack of proper training or insufficient support 
from their agency's Chief FOIA Officer?
    Answer. Yes. The FOIA Memorandum referenced in response to the 
previous question emphasizes that ``[i]improving FOIA performance 
requires the active participation of agency Chief FOIA Officers'' and 
that FOIA professionals ``deserve the full support of the agency's 
Chief FOIA Officer to ensure that they have the tools they need to 
respond promptly and efficiently to FOIA requests.'' Furthermore, it 
provides that all Chief FOIA Officers must annually review their 
agency's FOIA administration and to report to the Department ``on the 
steps that have been taken to improve FOIA operations and facilitate 
information disclosure at their agencies.'' In addition to a series of 
other questions, the Chief FOIA Officers have been required to report 
on their agency's efforts to conduct and attend FOIA training. 
Additionally, as part of the Department's ongoing effort to ensure that 
agencies understand both the FOIA's legal requirements and the policy 
directives in the President's FOIA Memorandum and the Attorney 
General's FOIA Memorandum, the Department has provided extensive, 
hands-on training to thousands of agency FOIA professionals across the 
Government each year. Moreover, the Department's FOIA experts at the 
Office of Information Policy (OIP) regularly provide specialized 
training to agencies and are always available to agencies that would 
like additional training.
    Question. Since at least March, DOJ has been on notice that these 
and other serious FOIA implementation problems exist at the EPA. You 
were sent a bicameral letter on March 7, asking you to investigate 
these concerns and to help solve the problem. What, if anything, has 
DOJ done since March 7 to investigate these serious transparency 
problems?
    Answer. The Department takes its leadership role in FOIA very 
seriously. Shortly after receiving the March 7 letter, the Director of 
OIP, which is the office within the Department charged with the 
responsibility for encouraging and overseeing agency FOIA compliance, 
met with EPA's Chief FOIA Officer to discuss its FOIA administration 
and the concerns that have been raised. Since that meeting, OIP's 
Director has continued to be engaged with EPA regarding these matters. 
On July 26, the Department provided a formal response to the letter you 
reference from Senators Vitter and Grassley and Congressman Issa.
    Question. When should the Environment and Public Works (EPW) 
Committee, the Judiciary Committee, and the House Oversight Committee 
expect a response from you, to the March 7 letter?
    Answer. A response to the March 7 letter was sent to Senators 
Vitter, Grassley and Chairman Issa on July 26.
        doj responsibility regarding the epa fee waiver scandal
    Question. Mr. Holder, this spring, we learned that since January 
2012, FOIA fee waiver requests from conservative/libertarian think 
tanks have been denied by the EPA 73 percent of the time. On the other 
hand, we learned that FOIA fee waiver requests from left-leaning 
organizations are granted by the EPA 92 percent of the time.
    Do you agree that all Americans should be provided equal treatment 
by the Government, regardless of their religious, political, or 
ideological views?
    Answer. Yes. A person's religious, political or ideological views 
have no impact on their FOIA request. Indeed, a FOIA requester's 
identity generally ``has no bearing on the merits of his or her FOIA 
request.'' DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 
749, 771 (1989). However, there are certain areas of the FOIA where the 
identity of the requester and the reason he or she seeks records is a 
factor that must be considered. For example, the FOIA's fee provisions 
prescribe different types of fees for three distinct categories of 
requesters: (1) commercial use requesters; (2) educational 
institutions, noncommercial scientific institutions, and 
representatives of the news media; and (3) all other requesters. See 5 
U.S.C. 552(a)(4)(A)(ii). Further, the statute provides for fees to be 
waived or reduced ``if disclosure of the information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government and is 
not primarily in the commercial interest of the requester.'' 5 U.S.C. 
552(a)(4)(A)(iii). In making decisions regarding the proper fee 
category and in deciding whether a fee waiver is appropriate, agencies 
necessarily look to the identity of the requester and their intended 
use of the material. That being said, the requester's ``religious, 
political, or ideological views'' would have no bearing on these 
determinations.
    Question. If a Federal agency discriminates in the provision of 
Government services based on the political views of particular 
citizens, would the Department of Justice have a role in investigating 
that discrimination?
    Answer. To the extent this question pertains to a Federal agency's 
FOIA administration, the Department does not have formal 
``investigatory'' authority concerning FOIA administration. 
Nevertheless, the Department takes its leadership and oversight role in 
the FOIA very seriously, as the statute tasks us with the 
responsibility of encouraging agency compliance, and we exercise 
oversight authority through agencies' obligation to submit to the 
Department an Annual FOIA Report and Chief FOIA Officer Report. If the 
Department became aware of any issues regarding proper implementation 
of an agency's FOIA program, the Department would reach out to the 
agency's Chief FOIA Officer to provide guidance to the agency regarding 
proper application of the statute.
    More broadly, the Department of Justice stands firmly against 
discrimination in the provision of Government services based on the 
political views of particular citizens. Depending on the specific facts 
at issue, the Department may have a role in investigating the alleged 
discrimination.
    Question. You recently ordered a DOJ investigation of the IRS 
scandal, which involves disparate treatment and discrimination based on 
political views that occurred during the run up to the 2012 election. 
Would it be appropriate for the DOJ to similarly investigate political 
discrimination at the EPA?
    What steps, if any, have you taken to determine whether such an 
investigation might be appropriate?
    Answer. The Department of Justice does not comment on pending 
investigations or its plans regarding any potential investigations.

                         CONCLUSION OF HEARINGS

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