Federal Prison Oversight Act

II 118TH CONGRESS 1ST SESSION S. 1401 To establish an inspections regime for the Bureau of Prisons, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 2, 2023 Mr. OSSOFF (for himself, Mr. BRAUN, and Mr. DURBIN) introduced the fol- lowing bill; which was read twice and referred to the Committee on the Judiciary A BILL To establish an inspections regime for the Bureau of Prisons, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Prison Over- 4 sight Act’’. 5 SEC. 2. CREATION OF AN INSPECTIONS REGIME FOR THE 6 BUREAU OF PRISONS. 7 (a) IN GENERAL.—Section 413 of title 5, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1401 IS ‘‘(e) INSPECTIONS REGIME.— 1 ‘‘(1) DEFINITIONS.—In this subsection: 2 ‘‘(A) BUREAU.—The term ‘Bureau’ means 3 the Bureau of Prisons. 4 ‘‘(B) COVERED FACILITY.—The term ‘cov- 5 ered facility’— 6 ‘‘(i) means a correctional facility oper- 7 ated by the Bureau; and 8 ‘‘(ii) does not include a State, local, 9 Tribal, or territorial facility. 10 ‘‘(C) FAMILY MEMBER.—The term ‘family 11 member’ includes a grandparent, parent, sib- 12 ling, spouse or domestic partner, child, aunt, 13 uncle, cousin, niece, nephew, grandchild, or any 14 other person related to an individual by blood, 15 adoption, marriage, civil union, or a romantic 16 or fostering relationship. 17 ‘‘(D) INSPECTOR GENERAL.—The term 18 ‘Inspector General’ means the Inspector Gen- 19 eral of the Department of Justice. 20 ‘‘(E) OMBUDSMAN.—The term ‘Ombuds- 21 man’ means the Ombudsman established under 22 paragraph (3)(A). 23 ‘‘(F) REPRESENTATIVE OF AN INCARCER- 24 ATED PERSON.—The term ‘representative of an 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1401 IS incarcerated person’ includes paid or unpaid 1 legal counsel or any other person or entity cho- 2 sen by an incarcerated person to represent the 3 interests of the incarcerated person. 4 ‘‘(G) SEXUAL ABUSE.—The term ‘sexual 5 abuse’ has the meaning given that term in sec- 6 tion 115.6 of title 28, Code of Federal Regula- 7 tions (or any successor thereto). 8 ‘‘(H) STAFF.—The term ‘staff’ means em- 9 ployees and contractors of the Bureau. 10 ‘‘(2) INSPECTIONS OF COVERED FACILITIES BY 11 THE INSPECTOR GENERAL.— 12 ‘‘(A) ESTABLISHMENT OF INSPECTIONS 13 REGIME.— 14 ‘‘(i) IN GENERAL.—The Inspector 15 General shall conduct periodic inspections 16 of covered facilities pursuant to the re- 17 quirements of this subsection. 18 ‘‘(ii) ACCESS TO COVERED FACILI- 19 TIES.—The Attorney General shall ensure 20 that the Inspector General has access to 21 any covered facility, including the incarcer- 22 ated people, detainees, staff, bargaining 23 unit representative organization, and any 24 other information that the Inspector Gen- 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1401 IS eral determines is necessary to carry out 1 the provisions of this subsection. 2 ‘‘(iii) NOTICE OF INSPECTIONS.—An 3 inspection of a covered facility under this 4 subsection may be announced or unan- 5 nounced. 6 ‘‘(iv) COMMUNITY INPUT.—In devel- 7 oping the inspections regime under this 8 subsection, the Inspector General is en- 9 couraged to consult formerly incarcerated 10 people, family or representatives of incar- 11 cerated people, and community advocates. 12 ‘‘(B) INSPECTION CRITERIA.—An inspec- 13 tion of a covered facility under this subsection 14 may include an assessment of the following: 15 ‘‘(i) The policies, procedures, and ad- 16 ministrative guidance of the facility. 17 ‘‘(ii) The conditions of confinement. 18 ‘‘(iii) Working conditions for staff. 19 ‘‘(iv) The availability of evidence- 20 based recidivism reduction programs and 21 productive activities, as such terms are de- 22 fined in section 3635 of title 18, and the 23 application of earned time credits pursuant 24 to section 3632 of title 18. 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1401 IS ‘‘(v) The policies and procedures re- 1 lating to visitation. 2 ‘‘(vi) The policies and practices relat- 3 ing to classification and housing. 4 ‘‘(vii) The policies and practices relat- 5 ing to the use of single-cell confinement, 6 administrative segregation, and other 7 forms of restrictive housing. 8 ‘‘(viii) The medical facilities and med- 9 ical and mental health care, programs, pro- 10 cedures, and policies, including the number 11 and qualifications of medical and mental 12 health staff and the availability of gender- 13 appropriate and trauma-responsive care for 14 incarcerated people. 15 ‘‘(ix) Medical services and mental 16 health resources for staff. 17 ‘‘(x) Lockdowns at the facility. 18 ‘‘(xi) Credible allegations of incidents 19 involving excessive use of force, completed, 20 attempted, or threatened violence, includ- 21 ing sexual abuse, or misconduct committed 22 against incarcerated people. 23 ‘‘(xii) Credible allegations of incidents 24 involving completed, attempted, or threat- 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1401 IS ened violence, including sexual violence or 1 sexual abuse, committed against staff. 2 ‘‘(xiii) Adequacy of staffing at the 3 covered facility, including the number and 4 job assignments of staff, the ratio of staff 5 to inmates at the facility, the staff position 6 vacancy rate at the facility, and the use of 7 overtime, mandatory overtime, and aug- 8 mentation. 9 ‘‘(xiv) Deaths or serious injuries of in- 10 carcerated people or staff that occurred at 11 the facility. 12 ‘‘(xv) The existence of contraband 13 that jeopardizes the health or safety of in- 14 carcerated people or staff, including inci- 15 dent reports, referrals for criminal pros- 16 ecution, and confirmed prosecutions. 17 ‘‘(xvi) Access of incarcerated people 18 to— 19 ‘‘(I) legal counsel, including con- 20 fidential meetings and communica- 21 tions; 22 ‘‘(II) discovery and other case-re- 23 lated legal materials; and 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1401 IS ‘‘(III) the law library at the cov- 1 ered facility. 2 ‘‘(xvii) Any aspect of the operation of 3 the covered facility that the Inspector Gen- 4 eral determines to be necessary over the 5 course of an inspection. 6 ‘‘(C) INSPECTION SCHEDULE.—An inspec- 7 tion of a covered facility under this subsection 8 shall be conducted on a schedule based on the 9 combined risk score of the covered facility as 10 described in subparagraph (E) and the fol- 11 lowing considerations: 12 ‘‘(i) Higher risk facilities shall receive 13 more frequent inspections. 14 ‘‘(ii) The Inspector General shall re- 15 evaluate the combined risk score method- 16 ology and inspection schedule periodically 17 and may alter 1 or both to ensure that 18 higher risk facilities are identified and re- 19 ceiving the appropriate frequency of in- 20 spection. 21 ‘‘(iii) A determination by the Inspec- 22 tor General that 1 or more of the criteria 23 listed in subparagraph (B) should be in- 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1401 IS spected, with regard to a covered facility or 1 group of covered facilities. 2 ‘‘(D) REPORT.— 3 ‘‘(i) IN GENERAL.—Upon completion 4 of an inspection of a covered facility under 5 this subsection, or a group of inspections 6 that assess the same or similar issues at 7 more than 1 facility, the Inspector General 8 shall produce a report to be made available 9 to the Attorney General, the Committee on 10 the Judiciary of the Senate, the Committee 11 on the Judiciary of the House of Rep- 12 resentatives, employee representative orga- 13 nizations, and the public, that addresses 1 14 or more of the following topics: 15 ‘‘(I) A characterization of the 16 conditions of confinement and work- 17 ing conditions, including a summary 18 of the inspection criteria reviewed 19 under clauses (ii) and (iii) of subpara- 20 graph (B). 21 ‘‘(II) Recommendations made to 22 the covered facility to improve safety 23 and conditions within the facility, in- 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1401 IS cluding recommendations regarding 1 staffing. 2 ‘‘(III) A recommended timeline 3 for the next inspection and assess- 4 ment, which shall not limit the au- 5 thority of the Inspector General to 6 perform additional inspections and as- 7 sessments, announced or unan- 8 nounced. 9 ‘‘(IV) Any other issues or mat- 10 ters identified during the inspection of 11 the facility or facilities. 12 ‘‘(ii) CONSULTATION WITH STAKE- 13 HOLDERS.—In developing the rec- 14 ommendations described in clause (i), the 15 Inspector General may consult with stake- 16 holders, including employee representative 17 organizations. 18 ‘‘(E) RISK SCORE.—Not later than 18 19 months after the date of enactment of the Fed- 20 eral Prison Oversight Act, the Inspector Gen- 21 eral shall establish methodology and protocols 22 for determining the combined risk score of a 23 covered facility, which— 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1401 IS ‘‘(i) shall be delivered to the Com- 1 mittee on the Judiciary of the Senate and 2 the Committee on the Judiciary of the 3 House of Representatives; and 4 ‘‘(ii) may be based on— 5 ‘‘(I) frequency and duration of 6 lockdowns; 7 ‘‘(II) availability of program- 8 ming; 9 ‘‘(III) staffing levels; 10 ‘‘(IV) access to adequate physical 11 and mental health resources; 12 ‘‘(V) incidences of physical as- 13 sault, neglect, or sexual abuse; 14 ‘‘(VI) opportunity to maintain 15 family ties through phone calls, video 16 calls, mail, email, and visitation; 17 ‘‘(VII) adequacy of the nutrition 18 provided; 19 ‘‘(VIII) amount or frequency of 20 staff discipline cases; 21 ‘‘(IX) amount or frequency of 22 misconduct by people incarcerated at 23 the covered facility; 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1401 IS ‘‘(X) access of incarcerated peo- 1 ple to— 2 ‘‘(aa) legal counsel, includ- 3 ing confidential meetings and 4 communications; 5 ‘‘(bb) discovery and other 6 case-related legal materials; and 7 ‘‘(cc) the law library at the 8 covered facility; and 9 ‘‘(XI) other factors as deter- 10 mined by the Inspector General. 11 ‘‘(F) BUREAU RESPONSE TO REPORT.— 12 ‘‘(i) IN GENERAL.—Not later than 60 13 days after the date on which the Inspector 14 General issues a report under subpara- 15 graph (D), the Bureau shall respond in 16 writing to the inspection report, which 17 shall include a corrective action plan. 18 ‘‘(ii) PUBLIC AVAILABILITY.—Each 19 response and action plan described in 20 clause (i) shall be made available to the 21 public on the website of the Inspector Gen- 22 eral. 23 ‘‘(iii) COMPLIANCE WITH CORRECTIVE 24 ACTION PLAN.—The Inspector General 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1401 IS may conduct additional inspections or in- 1 vestigations, announced or unannounced, 2 to monitor the compliance of the Bureau 3 with a corrective action plan described in 4 clause (i). 5 ‘‘(G) RULE OF CONSTRUCTION.—The au- 6 thority in this paragraph is consistent with and 7 does not supersede, conflict with, or otherwise 8 alter the authority provided to the Inspector 9 General under section 406. 10 ‘‘(3) OMBUDSMAN.— 11 ‘‘(A) IN GENERAL.—Not later than 1 year 12 after the date of enactment of the Federal Pris- 13 on Oversight Act, the Attorney General shall es- 14 tablish in the Department of Justice an Om- 15 budsman who may— 16 ‘‘(i) receive a complaint from an in- 17 carcerated person, a family member, a rep- 18 resentative of an incarcerated person, staff, 19 or others regarding issues that may ad- 20 versely affect the health, safety, welfare, or 21 rights of incarcerated people or staff, in- 22 cluding— 23 ‘‘(I) abuse or neglect; 24 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1401 IS ‘‘(II) the conditions of confine- 1 ment, including the availability of 2 health care; 3 ‘‘(III) working conditions of 4 staff; 5 ‘‘(IV) decisions, administrative 6 actions, or guidance of the Bureau, 7 including those relating to prison 8 staffing; 9 ‘‘(V) inaction or omissions by the 10 Bureau, including failure to consider 11 or respond to complaints or grievances 12 by incarcerated people or staff 13 promptly or appropriately; 14 ‘‘(VI) policies, rules, or proce- 15 dures of the Bureau, including gross 16 mismanagement; and 17 ‘‘(VII) alleged violations of non- 18 criminal law by staff or incarcerated 19 people that may adversely affect the 20 health, safety, welfare, or rights of 21 any person; 22 ‘‘(ii) refer a complainant and others 23 to appropriate resources or Federal agen- 24 cies; 25 VerDate Sep 11 2014 20:50 May 10, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1401.IS S1401 pbinns on DSKJLVW7X2PROD with $$_JOB 14 •S 1401 IS ‘‘(iii) make inquiries and recommend 1 actions to appropriate entities on behalf of 2 a complainant, the Ombudsman, or others; 3 and 4 ‘‘(iv) decline to investigate or take any 5 action with respect to any complaint and, 6 in any case in which the Ombudsman de- 7 clines to investigate or take any action, 8 shall notify the complainant in writing of 9 the decision not to investigate or take any 10 action and the reasons for the decision. 11 ‘‘(B) LIMITATIONS ON AUTHORITY.—The 12 Ombudsman— 13 ‘‘(i) may not investigate— 14 ‘‘(I) any complaints relating to 15 the underlying criminal conviction of 16 an incarcerated person; 17 ‘‘(II) [Text truncated for display. Full text available on Congress.gov.]