New Bipartisan Legislation Creates Potential Path Forward for Federal Prison Reform

There are 122 federal prisons in the United States, housing approximately 145,302 incarcerated individuals, and it’s no secret that the federal prison system and the Bureau of Prisons (BOP) have been dogged by allegations of wrongdoing and exploitation. Those allegations came to a head during a July 2022 hearing when Senator Jon Ossoff revealed the findings of his Senate committee’s 10-month investigation into corruption and abuse at U.S. Penitentiary Atlanta (USPA), which found USPA guilty of purposeful misconduct that violated civil rights. These findings led to the introduction of the Federal Prison Oversight Act (FPOA), a bipartisan legislation that would require the Inspector General to conduct vigorous oversight and create a new independent Ombudsman to investigate health and safety of staff and incarcerated people in federal prisons. Though this legislation represents a significant step forward for federal prison reform, many wonder if it will be enough to protect incarcerated people and undo the harm caused by the BOP’s transgressions.

The FPOA is the result of Ossoff’s committee investigation into U.S. Penitentiary Atlanta, but the misconduct of the BOP extends far beyond this single federal prison. In 2019, an explosive report from two Associated Press journalists detailed the arrests or convictions of 100 federal prison workers since 2019. The crimes committed by federal prison employees included prison supervisors committing property theft, guards accepting bribes to smuggle contraband, a warden indicted for sexual abuse, and an associate warden charged with murder. The same reporters, Balsamo and Sisak, dug deeper into the federal prison system and published a 2022 article exposing the systemic sexual abuse at a federal women’s prison in Dublin, California. They also spotlighted the dubious career of Thomas Hinkle, the acting warden sent to restore order to the Dublin prison after the AP’s report. Hinkle had a documented history of beating inmates, bullying whistleblowers, and obstructing members of Congress who visited the prison. Despite this record, he was continuously promoted by BOP and even put in charge of a prison badly in need of a trustworthy authority figure.

This litany of misconduct led to a Senate subcommittee investigation of USPA to root out similar misconduct. Ossoff’s findings detailed many human rights violations within USPA including lack of access to food, clean water, and hygiene products; denial of medical care; living conditions infested with rodents; and limited or blocked access to outdoor spaces. Additionally, federal employees at the Penitentiary knowingly turned a blind eye to the drugs trafficked in and out of the prison, and the resulting suicides while also ignoring broken surveillance cameras that aided their ambivalence. Most damningly, leadership at the BOP were aware of these issues, as proven by internal documents, and actively punished those within USPA who tried to speak out against the deplorable conditions.

To combat the egregious mistreatment of incarcerated people within federal prisons, Senators Ossoff, Durbin, and Braun – the three founding members of the Senate Bipartisan Prison Policy Working Group – introduced the Federal Prison Oversight Act. The main purpose of the Act is to charge the Office of the Inspector General (OIG) with greater oversight of BOP and greater protection of incarcerated individuals. It does so through two mechanisms: BOP facility inspections and the creation of an Ombudsman within the Department of Justice.

Under this bill, all those facilities will now be subject to periodic, risk-based inspections that can be announced or unannounced. The risk-based assessment is mandated within 18 months of the bill’s enactment, with the OIG tasked with creating the methodology and protocols for determining a risk score for each BOP institution. According to the legislation, higher risk assessment scores for an institution result in more frequent inspection by the OIG. The inspections are given a broad mandate; covering everything from reviewing facility administration and conditions, to misconduct committed against incarcerated people, to the presence of recidivism-reduction programs, to inmate access to confidential communications. To ensure these inspections are effective, the OIG is granted access to all BOP facilities and is entitled to confidential conversations with facility staff and incarcerated people. In addition to facility review and assessment of inmate treatment, the inspection language provides protections for facility staff as well. This includes a review of access to medical and mental health services for staff, adequacy of staff numbers, and staff working conditions. Considering BOP’s treatment of staff who tried to speak out on behalf of incarcerated individuals, these staff protections are especially important.

Once an inspection has been performed, the OIG is required to produce a report for the Attorney General, Congress, BOP employee representation groups, and the public. The OIG must provide recommendations for improving any citations it makes, and the BOP must respond to these recommendations within 60 days by creating a corrective action plan. The transparent nature of the report is a direct response to prior BOP obfuscation in their internal documents and the handling of employee conduct. By making the inspection process as well as the report transparent, the bill aims to restore trust in the government, protect incarcerated people, and hold federal law enforcement agencies such as the BOP accountable.

The creation of an Ombudsman with the DOJ is the second key component of the Act. The principal duty of this position would be to investigate complaints from anyone associated with the federal prison system, both employees of BOP and incarcerated people. These complaints can range from anything that might impact their safety and welfare, to violations of their rights. Importantly, the Ombudsman cannot investigate any complaints related to the conviction of an inmate. This ensures that incarcerated people cannot be unfairly penalized for anything related to their conviction while already imprisoned for it.

The BOP is responsible for ensuring there are multiple ways for staff and incarcerated individuals to communicate with the Ombudsman safely and confidentially. Given BOP’s history blocking confidential communications between lawyers and inmates, how they ensure confidential communication with the Ombudsman is an important point, and the enforcement mechanism for this piece of the legislation is yet undefined. However, something that may help mitigate any failure of the BOP to enact this piece of the legislation is the duty of the Ombudsman to create a secure online form as well as a secure telephone hotline through which family members, friends, and other representatives for incarcerated people can submit complaints. This mechanism allows an inmate multiple channels for submitting complaints, leading to faster investigation.

While this bill is a strong start towards protecting the civil rights of incarcerated citizens, there is still plenty of room for improvement. One oversight of the bill is a lack of protections for federal prisoners who are not housed in federal correctional facilities. Any federal inmate who is housed in a state, local, tribal, territorial, or private facility is not covered by any of the protections outlined by this bill. While this makes some sense from a legislative perspective, as the bill applies only to facilities under the jurisdiction of the Bureau of Prisons, it does beg the question: what legal avenues for protection are available to the 13,768 federal inmates not incarcerated in BOP facilities?

Another worrisome oversight of the bill is the Bureau of Prison’s continued involvement in holding their own department accountable for past misconduct and protecting those they previously failed to protect from future harm. Many prison reform advocacy groups, including the Council on Criminal Justice, the National Association of Criminal Defense Lawyers, and Families Against Mandatory Minimums, have all advocated for an independent federal prison oversight committee of some kind that would operate outside of the Department of Justice. Such a call is a salient one, as the BOP has shown itself to be incapable of ensuring and actively working against the safety and protection of both incarcerated people and their own staff. While this bill reinvigorates the conversation around prison reform and establishes important protections for the human rights of incarcerated individuals, if the BOP is still involved, this bill may not be enough.

The Federal Prison Oversight Act is an incredibly popular and comprehensive piece of legislation supported by politicians and advocacy groups on both sides of the aisle. It signifies real change for federal prison reform and accountability, while also spotlighting the actions of a law enforcement agency that doesn’t often receive enough public scrutiny. The COVID-19 pandemic and preventable deaths caused by climate change reminded the nation of the dehumanizing environment in which incarcerated people exist. The AP’s reporting further highlighted the ways in which law enforcement officials themselves exacerbate the mistreatment of incarcerated people. The FPOA legislation is the start of reparations that incarcerated people deserve. While there is no question that violent criminal acts must have consequences, those consequences should not be a deprivation of basic human rights. Though there is room for improvement, this bill is a step towards that reality.

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Durbin, Ossoff, Braun Introduce Bipartisan Bill To Overhaul Federal Prison Oversight, 2022. https://www.durbin.senate.gov/newsroom/press-releases/durbin-ossoff-braun-introduce-bipartisan-bill-to-overhaul-federal-prison-oversight.