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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1401 Introduced in Senate (IS)]

<DOC>

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 
 following 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Prison Oversight Act''.

SEC. 2. CREATION OF AN INSPECTIONS REGIME FOR THE BUREAU OF PRISONS.

    (a) In General.--Section 413 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(e) Inspections Regime.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Bureau.--The term `Bureau' means the Bureau 
                of Prisons.
                    ``(B) Covered facility.--The term `covered 
                facility'--
                            ``(i) means a correctional facility 
                        operated by the Bureau; and
                            ``(ii) does not include a State, local, 
                        Tribal, or territorial facility.
                    ``(C) Family member.--The term `family member' 
                includes a grandparent, parent, sibling, spouse or 
                domestic partner, child, aunt, uncle, cousin, niece, 
                nephew, grandchild, or any other person related to an 
                individual by blood, adoption, marriage, civil union, 
                or a romantic or fostering relationship.
                    ``(D) Inspector general.--The term `Inspector 
                General' means the Inspector General of the Department 
                of Justice.
                    ``(E) Ombudsman.--The term `Ombudsman' means the 
                Ombudsman established under paragraph (3)(A).
                    ``(F) Representative of an incarcerated person.--
                The term `representative of an incarcerated person' 
                includes paid or unpaid legal counsel or any other 
                person or entity chosen by an incarcerated person to 
                represent the interests of the incarcerated person.
                    ``(G) Sexual abuse.--The term `sexual abuse' has 
                the meaning given that term in section 115.6 of title 
                28, Code of Federal Regulations (or any successor 
                thereto).
                    ``(H) Staff.--The term `staff' means employees and 
                contractors of the Bureau.
            ``(2) Inspections of covered facilities by the inspector 
        general.--
                    ``(A) Establishment of inspections regime.--
                            ``(i) In general.--The Inspector General 
                        shall conduct periodic inspections of covered 
                        facilities pursuant to the requirements of this 
                        subsection.
                            ``(ii) Access to covered facilities.--The 
                        Attorney General shall ensure that the 
                        Inspector General has access to any covered 
                        facility, including the incarcerated people, 
                        detainees, staff, bargaining unit 
                        representative organization, and any other 
                        information that the Inspector General 
                        determines is necessary to carry out the 
                        provisions of this subsection.
                            ``(iii) Notice of inspections.--An 
                        inspection of a covered facility under this 
                        subsection may be announced or unannounced.
                            ``(iv) Community input.--In developing the 
                        inspections regime under this subsection, the 
                        Inspector General is encouraged to consult 
                        formerly incarcerated people, family or 
                        representatives of incarcerated people, and 
                        community advocates.
                    ``(B) Inspection criteria.--An inspection of a 
                covered facility under this subsection may include an 
                assessment of the following:
                            ``(i) The policies, procedures, and 
                        administrative guidance of the facility.
                            ``(ii) The conditions of confinement.
                            ``(iii) Working conditions for staff.
                            ``(iv) The availability of evidence-based 
                        recidivism reduction programs and productive 
                        activities, as such terms are defined in 
                        section 3635 of title 18, and the application 
                        of earned time credits pursuant to section 3632 
                        of title 18.
                            ``(v) The policies and procedures relating 
                        to visitation.
                            ``(vi) The policies and practices relating 
                        to classification and housing.
                            ``(vii) The policies and practices relating 
                        to the use of single-cell confinement, 
                        administrative segregation, and other forms of 
                        restrictive housing.
                            ``(viii) The medical facilities and medical 
                        and mental health care, programs, procedures, 
                        and policies, including the number and 
                        qualifications of medical and mental health 
                        staff and the availability of gender-
                        appropriate and trauma-responsive care for 
                        incarcerated people.
                            ``(ix) Medical services and mental health 
                        resources for staff.
                            ``(x) Lockdowns at the facility.
                            ``(xi) Credible allegations of incidents 
                        involving excessive use of force, completed, 
                        attempted, or threatened violence, including 
                        sexual abuse, or misconduct committed against 
                        incarcerated people.
                            ``(xii) Credible allegations of incidents 
                        involving completed, attempted, or threatened 
                        violence, including sexual violence or sexual 
                        abuse, committed against staff.
                            ``(xiii) Adequacy of staffing at the 
                        covered facility, including the number and job 
                        assignments of staff, the ratio of staff to 
                        inmates at the facility, the staff position 
                        vacancy rate at the facility, and the use of 
                        overtime, mandatory overtime, and augmentation.
                            ``(xiv) Deaths or serious injuries of 
                        incarcerated people or staff that occurred at 
                        the facility.
                            ``(xv) The existence of contraband that 
                        jeopardizes the health or safety of 
                        incarcerated people or staff, including 
                        incident reports, referrals for criminal 
                        prosecution, and confirmed prosecutions.
                            ``(xvi) Access of incarcerated people to--
                                    ``(I) legal counsel, including 
                                confidential meetings and 
                                communications;
                                    ``(II) discovery and other case-
                                related legal materials; and
                                    ``(III) the law library at the 
                                covered facility.
                            ``(xvii) Any aspect of the operation of the 
                        covered facility that the Inspector General 
                        determines to be necessary over the course of 
                        an inspection.
                    ``(C) Inspection schedule.--An inspection of a 
                covered facility under this subsection shall be 
                conducted on a schedule based on the combined risk 
                score of the covered facility as described in 
                subparagraph (E) and the following considerations:
                            ``(i) Higher risk facilities shall receive 
                        more frequent inspections.
                            ``(ii) The Inspector General shall 
                        reevaluate the combined risk score methodology 
                        and inspection schedule periodically and may 
                        alter 1 or both to ensure that higher risk 
                        facilities are identified and receiving the 
                        appropriate frequency of inspection.
                            ``(iii) A determination by the Inspector 
                        General that 1 or more of the criteria listed 
                        in subparagraph (B) should be inspected, with 
                        regard to a covered facility or group of 
                        covered facilities.
                    ``(D) Report.--
                            ``(i) In general.--Upon completion of an 
                        inspection of a covered facility under this 
                        subsection, or a group of inspections that 
                        assess the same or similar issues at more than 
                        1 facility, the Inspector General shall produce 
                        a report to be made available to the Attorney 
                        General, the Committee on the Judiciary of the 
                        Senate, the Committee on the Judiciary of the 
                        House of Representatives, employee 
                        representative organizations, and the public, 
                        that addresses 1 or more of the following 
                        topics:
                                    ``(I) A characterization of the 
                                conditions of confinement and working 
                                conditions, including a summary of the 
                                inspection criteria reviewed under 
                                clauses (ii) and (iii) of subparagraph 
                                (B).
                                    ``(II) Recommendations made to the 
                                covered facility to improve safety and 
                                conditions within the facility, 
                                including recommendations regarding 
                                staffing.
                                    ``(III) A recommended timeline for 
                                the next inspection and assessment, 
                                which shall not limit the authority of 
                                the Inspector General to perform 
                                additional inspections and assessments, 
                                announced or unannounced.
                                    ``(IV) Any other issues or matters 
                                identified during the inspection of the 
                                facility or facilities.
                            ``(ii) Consultation with stakeholders.--In 
                        developing the recommendations described in 
                        clause (i), the Inspector General may consult 
                        with stakeholders, including employee 
                        representative organizations.
                    ``(E) Risk score.--Not later than 18 months after 
                the date of enactment of the Federal Prison Oversight 
                Act, the Inspector General shall establish methodology 
                and protocols for determining the combined risk score 
                of a covered facility, which--
                            ``(i) shall be delivered to the Committee 
                        on the Judiciary of the Senate and the 
                        Committee on the Judiciary of the House of 
                        Representatives; and
                            ``(ii) may be based on--
                                    ``(I) frequency and duration of 
                                lockdowns;
                                    ``(II) availability of programming;
                                    ``(III) staffing levels;
                                    ``(IV) access to adequate physical 
                                and mental health resources;
                                    ``(V) incidences of physical 
                                assault, neglect, or sexual abuse;
                                    ``(VI) opportunity to maintain 
                                family ties through phone calls, video 
                                calls, mail, email, and visitation;
                                    ``(VII) adequacy of the nutrition 
                                provided;
                                    ``(VIII) amount or frequency of 
                                staff discipline cases;
                                    ``(IX) amount or frequency of 
                                misconduct by people incarcerated at 
                                the covered facility;
                                    ``(X) access of incarcerated people 
                                to--
                                            ``(aa) legal counsel, 
                                        including confidential meetings 
                                        and communications;
                                            ``(bb) discovery and other 
                                        case-related legal materials; 
                                        and
                                            ``(cc) the law library at 
                                        the covered facility; and
                                    ``(XI) other factors as determined 
                                by the Inspector General.
                    ``(F) Bureau response to report.--
                            ``(i) In general.--Not later than 60 days 
                        after the date on which the Inspector General 
                        issues a report under subparagraph (D), the 
                        Bureau shall respond in writing to the 
                        inspection report, which shall include a 
                        corrective action plan.
                            ``(ii) Public availability.--Each response 
                        and action plan described in clause (i) shall 
                        be made available to the public on the website 
                        of the Inspector General.
                            ``(iii) Compliance with corrective action 
                        plan.--The Inspector General may conduct 
                        additional inspections or investigations, 
                        announced or unannounced, to monitor the 
                        compliance of the Bureau with a corrective 
                        action plan described in clause (i).
                    ``(G) Rule of construction.--The authority in this 
                paragraph is consistent with and does not supersede, 
                conflict with, or otherwise alter the authority 
                provided to the Inspector General under section 406.
            ``(3) Ombudsman.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of the Federal Prison Oversight Act, 
                the Attorney General shall establish in the Department 
                of Justice an Ombudsman who may--
                            ``(i) receive a complaint from an 
                        incarcerated person, a family member, a 
                        representative of an incarcerated person, 
                        staff, or others regarding issues that may 
                        adversely affect the health, safety, welfare, 
                        or rights of incarcerated people or staff, 
                        including--
                                    ``(I) abuse or neglect;
                                    ``(II) the conditions of 
                                confinement, including the availability 
                                of health care;
                                    ``(III) working conditions of 
                                staff;
                                    ``(IV) decisions, administrative 
                                actions, or guidance of the Bureau, 
                                including those relating to prison 
                                staffing;
                                    ``(V) inaction or omissions by the 
                                Bureau, including failure to consider 
                                or respond to complaints or grievances 
                                by incarcerated people or staff 
                                promptly or appropriately;
                                    ``(VI) policies, rules, or 
                                procedures of the Bureau, including 
                                gross mismanagement; and
                                    ``(VII) alleged violations of non-
                                criminal law by staff or incarcerated 
                                people that may adversely affect the 
                                health, safety, welfare, or rights of 
                                any person;
                            ``(ii) refer a complainant and others to 
                        appropriate resources or Federal agencies;
                            ``(iii) make inquiries and recommend 
                        actions to appropriate entities on behalf of a 
                        complainant, the Ombudsman, or others; and
                            ``(iv) decline to investigate or take any 
                        action with respect to any complaint and, in 
                        any case in which the Ombudsman declines to 
                        investigate or take any action, shall notify 
                        the complainant in writing of the decision not 
                        to investigate or take any action and the 
                        reasons for the decision.
                    ``(B) Limitations on authority.--The Ombudsman--
                            ``(i) may not investigate--
                                    ``(I) any complaints relating to 
                                the underlying criminal conviction of 
                                an incarcerated person;
                                    ``(II) a complaint from staff that 
                                relates to the employment or 
                                contractual relationship of the staff 
                                member with the Bureau, unless the 
                                complaint is related to the health, 
                                safety, welfare, working conditions, 
                                gross mismanagement of a covered 
                                facility, or rehabilitation of 
                                incarcerated people; or
                                    ``(III) any allegation of criminal 
                                or administrative misconduct, as 
                                described in subsection (b)(2), and 
                                shall refer any matter covered by 
                                subsection (b)(2) to the Inspector 
                                General, who may, at the discretion of 
                                Inspector General, refer such 
                                allegations back to the Ombudsman or 
                                the internal affairs office of the 
                                appropriate component of the Department 
                                of Justice; and
                            ``(ii) may not levy any fees for the 
                        submission or investigation of complaints.
                    ``(C) Decision on the merits of a complaint.--At 
                the conclusion of an investigation of a complaint, the 
                Ombudsman shall--
                            ``(i) render a decision on the merits of 
                        each complaint;
                            ``(ii) communicate the decision to the 
                        complainant, if any, and to the Bureau; and
                            ``(iii) state the recommendations and 
                        reasoning of the Ombudsman if, in the opinion 
                        of the Ombudsman, the Bureau or any employee 
                        thereof should--
                                    ``(I) consider the matter further;
                                    ``(II) modify or cancel any action;
                                    ``(III) alter a rule, practice, or 
                                ruling;
                                    ``(IV) explain in detail the 
                                administrative action in question; or
                                    ``(V) rectify an omission.
                    ``(D) Actions following a decision by the 
                ombudsman.--
                            ``(i) Request for information about actions 
                        taken.--If the Ombudsman so requests, the 
                        Bureau shall, within the time specified, 
                        respond to any inquiry or request for 
                        information from the Ombudsman and inform the 
                        Ombudsman about any action taken on the 
                        recommendations provided by the Ombudsman or 
                        the reasons for not complying with any request 
                        for information or recommendations.
                            ``(ii) Reporting of continuing issues.--If 
                        the Ombudsman believes, based on an 
                        investigation conducted by the Ombudsman, that 
                        there has been or continues to be a significant 
                        health, safety, welfare, working conditions, or 
                        rehabilitation issue, the Ombudsman shall 
                        report the finding to the Attorney General, the 
                        Committee on the Judiciary of the Senate, and 
                        the Committee on the Judiciary of the House of 
                        Representatives.
                            ``(iii) Monitoring of internal disciplinary 
                        actions of the bureau.--In the event that the 
                        Bureau conducts an internal disciplinary 
                        investigation or review of 1 or more staff 
                        members of the Bureau as a result of an 
                        investigation by the Ombudsman, the Ombudsman 
                        may monitor the internal disciplinary action to 
                        ensure a fair and objective process.
            ``(4) Inspector general and ombudsman access to bureau of 
        prisons facilities.--
                    ``(A) In general.--Upon demand, in person or in 
                writing and with or without prior notice, the Inspector 
                General and the Ombudsman shall be granted access to 
                all Bureau facilities, which shall include--
                            ``(i) all areas that are used by 
                        incarcerated people, all areas that are 
                        accessible to incarcerated people, and access 
                        to programs for incarcerated people at any time 
                        of day; and
                            ``(ii) the opportunity to--
                                    ``(I) conduct private and 
                                confidential interviews with any 
                                incarcerated person, staff, employee 
                                representative organization, or other 
                                person; and
                                    ``(II) communicate privately and 
                                confidentially, both formally and 
                                informally, with incarcerated people or 
                                staff by telephone, mail, electronic 
                                communication, and in person, which 
                                shall not be monitored or recorded by 
                                or conducted in the presence of staff.
                    ``(B) Purpose of visits.--Access to Bureau 
                facilities under subparagraph (A) is for the purposes 
                of--
                            ``(i) conducting announced or unannounced 
                        inspections by the Inspector General as 
                        described in paragraph (2), including 
                        inspections to monitor the compliance of the 
                        Bureau with a corrective action plan described 
                        in paragraph (2)(F)(i);
                            ``(ii) conducting an investigation or other 
                        activity by the Ombudsman as described in 
                        paragraph (3); and
                            ``(iii) inspecting, viewing, photographing, 
                        and video recording all areas of the facility 
                        that are used by incarcerated people or are 
                        accessible to incarcerated people.
                    ``(C) Access to documents.--
                            ``(i) In general.--The Inspector General 
                        and the Ombudsman have the right to access, 
                        inspect, and copy all relevant information, 
                        records, or documents in the possession or 
                        control of the Bureau that either the Inspector 
                        General or the Ombudsman considers necessary in 
                        an inspection, investigation, or other 
                        activity, and the Bureau shall assist the 
                        Inspector General and the Ombudsman in 
                        obtaining the necessary releases for those 
                        documents that are specifically restricted or 
                        privileged for use by the Bureau.
                            ``(ii) Production of records.--Following 
                        notification from the Inspector General or the 
                        Ombudsman with a written demand for access to 
                        Bureau records, the Bureau shall provide access 
                        to the requested documentation in a manner 
                        consistent with section 552a (commonly known as 
                        the `Privacy Act of 1974')--
                                    ``(I) not later than 20 business 
                                days after receipt of the written 
                                request; or
                                    ``(II) in the case of records 
                                pertaining to the death of an 
                                incarcerated person or staff, threats 
                                of bodily harm including sexual or 
                                physical assaults, or the denial or 
                                delay of necessary medical treatment, 
                                not later than 5 business days after 
                                receipt of the written request, unless 
                                the Inspector General or the Ombudsman 
                                consents to an extension of that time 
                                frame.
                    ``(D) Minimize disruption of operations.--The 
                Inspector General and the Ombudsman shall--
                            ``(i) develop procedures--
                                    ``(I) to ensure that the Inspector 
                                General has access to, and the right to 
                                review and investigate, any allegations 
                                received by the Ombudsman to ensure 
                                that the Inspector General may carry 
                                out the authorities provided to the 
                                Inspector General under this chapter; 
                                and
                                    ``(II) that may provide that the 
                                Inspector General and the Ombudsman 
                                will determine certain categories of 
                                allegations that are not necessary for 
                                the Inspector General to review prior 
                                to the Ombudsman proceeding;
                            ``(ii) work with the Bureau to minimize 
                        disruption to the operations of the Bureau due 
                        to inspections, investigations, or other 
                        activity;
                            ``(iii) comply with the security clearance 
                        processes of the Bureau, provided these 
                        processes do not impede the activities 
                        described in this subsection; and
                            ``(iv) limit the public release of any 
                        photographs or video recordings that would 
                        jeopardize--
                                    ``(I) the safety, security, or good 
                                order of a covered facility or the 
                                Bureau; or
                                    ``(II) public safety.
                    ``(E) Rule of construction.--The authority in this 
                paragraph is consistent with and does not supersede, 
                conflict with, or otherwise alter the authority 
                provided to the Inspector General under section 406.
            ``(5) Confidentiality.--
                    ``(A) In general.--Correspondence and communication 
                with the Inspector General and the Ombudsman, including 
                communication regarding an issue described in section 
                4051 of title 18 is confidential and shall be protected 
                as privileged correspondence in the same manner as 
                legal correspondence or communications.
                    ``(B) Procedures.--Subject to subparagraph (C), the 
                Inspector General and the Ombudsman shall establish 
                confidentiality procedures for all information 
                maintained by the respective office to ensure that, to 
                the greatest extent practicable, before, during, or 
                after an investigation--
                            ``(i) staff are not aware of the identity 
                        of a complainant; and
                            ``(ii) other incarcerated people are not 
                        aware of the identity of a complainant.
                    ``(C) Exception.--The Inspector General and the 
                Ombudsman may disclose identifying information for the 
                sole purpose of carrying out an investigation and as 
                otherwise authorized under section 407(b).
            ``(6) Filing complaints.--
                    ``(A) Filing complaints on behalf of an 
                incarcerated individual.--
                            ``(i) Online form.--The Ombudsman shall 
                        create a secure online form to be made 
                        available on the website of the Ombudsman where 
                        the family members, friends, and 
                        representatives of incarcerated people can 
                        submit complaints and inquiries on issues 
                        identified in paragraph (3)(A)(i) on behalf of 
                        an individual incarcerated at a covered 
                        facility.
                            ``(ii) Telephone hotline.--The Ombudsman 
                        shall create a telephone hotline through which 
                        family members, friends, and representatives of 
                        incarcerated people can call to file complaints 
                        and inquiries on issues identified in paragraph 
                        (3)(A)(i) on behalf of an individual 
                        incarcerated at a covered facility.
                    ``(B) Filing complaints by an incarcerated 
                individual.--
                            ``(i) Internal private submission.--The 
                        Bureau shall provide multiple internal ways for 
                        incarcerated individuals in covered facilities 
                        to privately submit to the Ombudsman complaints 
                        and inquiries on issues identified in paragraph 
                        (3)(A)(i).
                            ``(ii) Submission via independent entity.--
                        The Bureau shall also provide not less than 1 
                        process for incarcerated individuals in covered 
                        facilities to submit complaints and inquiries 
                        on issues identified in paragraph (3)(A)(i) to 
                        a public or private entity or office that is 
                        not part of the Bureau and that is able to 
                        receive and immediately forward complaints and 
                        inquiries to the Ombudsman, allowing the 
                        incarcerated individual to remain anonymous 
                        upon request.
                    ``(C) Determination.--
                            ``(i) Confirmation of receipt.--Not later 
                        than 5 business days after submission of a 
                        complaint or inquiry under subparagraph (A) or 
                        (B), the Ombudsman shall confirm receipt.
                            ``(ii) Determination.--Not later than 15 
                        business days after issuing the confirmation 
                        under clause (i), the Ombudsman shall make a 
                        determination as to whether any action is 
                        warranted and notify the complainant of the 
                        determination.
                            ``(iii) Statement regarding decision.--If 
                        the Ombudsman has determined action is 
                        unwarranted under clause (ii), the Ombudsman 
                        shall provide a written statement explaining 
                        the decision to the complainant.
                    ``(D) Public education.--The Ombudsman shall 
                coordinate with the Bureau to educate incarcerated 
                people, representatives of incarcerated people, and the 
                public about the existence and functions of the 
                Ombudsman.
                    ``(E) Administrative exhaustion.--Nothing in this 
                paragraph shall be construed as a necessary 
                administrative remedy required for exhaustion under 
                section 7(a) of the Civil Rights of Institutionalized 
                Persons Act (42 U.S.C. 1997e(a)).
            ``(7) Prohibition on retaliation.--
                    ``(A) In general.--The Bureau and staff of the 
                Bureau shall not discharge, retaliate against, or in 
                any manner discriminate against any complainant or any 
                person or entity that has instituted or caused to be 
                instituted any proceeding, investigation, or inspection 
                under or related to this subsection.
                    ``(B) Investigation.--Any alleged discharge of, 
                retaliation against, or discrimination against a 
                complainant, entity, or person because of a complaint, 
                investigation, or inspection may be considered by the 
                Ombudsman as an appropriate subject of an investigation 
                or other activity.
            ``(8) Due process protections.--
                    ``(A) In general.--The Attorney General and the 
                Inspector General shall ensure that implementation of 
                this subsection is consistent with section 552a 
                (commonly known as the `Privacy Act of 1974') and all 
                other applicable laws, and respects appropriate due 
                process protections for staff.
                    ``(B) Rule of construction.--Nothing in this 
                paragraph shall be construed to modify, supersede, or 
                otherwise affect the authority of the Inspector General 
                to access all records, reports, audits, reviews, 
                documents, papers, recommendations, or other materials, 
                as authorized by section 406(a).
            ``(9) Percentage of annual appropriation for the bureau of 
        prisons.--It is the sense of Congress that the amount allocated 
        to the Inspector General and the Ombudsman to carry out the 
        activities described in this subsection should equal an amount 
        between 0.2 percent and 0.5 percent of the annual appropriation 
        for the Bureau.''.
    (b) Effective Date.--This Act, and the amendments made by this Act, 
shall take effect on the date that is 90 days after the date on which 
appropriations are made available to the Inspector General of the 
Department of Justice and the Department of Justice for the specific 
purpose of carrying out the provisions of this Act and the amendments 
made by this Act.
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