NACDL believes that an independent body is necessary to ensure the transparency and accountability of our nation’s federal prisons. The COVID-19 pandemic has made it clear that the Bureau of Prison’s (BOP) existing internal and external auditing entities and processes have not resulted in the humane treatment of federal prisoners. Medical care, the treatment of people with mental illnesses, excessive use of restricted housing, a broken administrative remedy system and the problematic implementation of the First Step Act are only some of the many issues that need to be addressed independently. An independent entity will allow better transparency, accountability and communication with legal professionals, the courts, and stakeholders. It will also improve the conditions of the incarcerated and have a direct impact on adjustment, rehabilitation, re-entry, and community safety.
The DOJ-Inspector General, The Government Accounting Office (GAO) and various ad hoc commissions have repeatedly identified similar deficiencies for decades. The internal auditing processes of the agency and/or external auditing entities have not resulted in obtaining effective correctional treatment goals. These systemic deficiencies raise significant constitutional concerns, basic human rights issues and do not conform with the international standards on the treatment of prisoners.
More recent concerns exacerbating the need for oversight are the agency’s problematic implementation of the First Step Act (FSA), staff corruption issues, the failure to update critical policies and the inability to protect the incarcerated from exposure to COVID-19. Despite the FSA being passed in 2018, the BOP still has no formal agency policy on the earned time credit rule and, as a result, significant confusion within the prison population and BOP staff on the earned time credit rule’s implementation. Equally disturbing from a policy perspective is that the agency has not updated the applicable policy regarding the significant changes in the Second Chance Act of 2007. Further, many high-level administrative staff have recently been convicted of criminal activity, including the introduction of contraband and even sexual abuse of prisoners. Lastly, the attention directed at the agency regarding COVID-19 protocols uncovered disturbing practices which risk the lives of both staff and the incarcerated. Probably the most concerning to the broader legal process is the agency’s practices regarding the administrative remedy program which impedes access to the court. Administrative remedies are frequently denied for frivolous reasons in an archaic process which still requires the incarcerated to complete carbonated forms sometimes in pencil and without access to a law library computer.
An independent oversight entity with enforcement authority such as an Ombudsman can review the concerns of prisoners, families, advocates, and other justice professionals and suggest corrective action regarding the identified systemic failures. Such an entity could also educate and formulate a better working relationship between the BOP (DOJ), legislators and other government stakeholders. It could simply be a win/win situation for all.
That National Association of Criminal Defense Lawyers (NACDL) supports an Independent Federal Prison Oversight Committee/Council as follows:
Whereas, the various internal and external auditing processes and entities have not resulted in the improvement in the federal prison system for the fair and humane treatment of prisoners or public safety; and
Whereas, the public, advocates, and defense counsel need to be better informed on the policies and processes regarding BOP operations; and
Whereas, the need for transparency and accountability by the BOP is jeopardizing public safety; and
Whereas, the systemic obstruction of the administrative remedy process is denying individuals access to the federal court system; and
Whereas, the delay and implementation of legislation into policy and practices is negatively affecting release and re-entry; and
Whereas, the BOP maintains an overly broad practice of unnecessary and prolonged isolation in restricted housing, the inappropriate use of restraint techniques, and solitary confinement on individuals with mental health and medical issues rather than providing humane and appropriate mental health and medical treatment; and
Whereas, the arrests of BOP staff at the highest management levels are negatively impacting the public’s perception of the agency and necessarily impacts the agency’s ability to carry out a law enforcement mission; therefore
BE IT RESOLVED that, to the extent statutorily possible, NACDL supports the establishment of an oversight entity to address the systemic issues brought to its attention by the legal community, stakeholders, and the public; and
BE IT FURTHER RESOLVED that the duties of such an entity should be to review and/or resolve complaints from the prison population on correctional issues; and
BE IT FURTHER RESOLVED that the entity should operate in a manner that ensures transparency, timely policy updates, implementation of law, improvement and quality medical and mental health care and relevant credit and timekeeping for all individual prisoners; and
BE IT FURTHER RESOLVED that NACDL will work in cooperation with the ABA and other organizations to ensure the success of the Oversight Advisory Council; and
BE IT FURTHER RESOLVED that NACDL supports the establishment of this Committee/Council to gather data, conduct audits and to make recommendations of how to improve the prison system and the re-entry process of all prisoners.
Resolution of the Board of Directors
August 13, 2022
Palm Beach, FL