Federal Prisons: Additional Analysis Needed to Determine Whether to Issue Pepper Spray to Minimum Security Prisons
Released: 2020-06-22T00:00:00

Letter

Background

BOP Prisons and Population

BOP is a component of DOJ and is responsible for housing male and female federal inmates in a controlled, safe, and humane prison environment while also providing a safe workplace for employees. BOP operates 122 prisons across the United States. These prisons are characterized by five security levels: high, medium, low, minimum, and administrative. Table 1 below provides a description of each of these security levels and the number of prisons at each.

According to BOP data, in fiscal year 2019, BOP housed 149,701 inmates in its prisons. During this same time, the BOP employed 32,525 employees, of which 15,664 were correctional officers with responsibility for the day-to-day supervision of the inmates.

BOP Issuance of Pepper Spray at Prisons

According to a July 2012 BOP memorandum, BOP was approved to conduct a pilot study on pepper spray. The goals of the pilot were to increase the safety of staff and inmates when responding to incidents involving violence and to prevent injury to staff and inmates due to an assault or serious resistance to staff control. BOP began issuing pepper spray at high security prisons in August 2012 as part of its pilot study. In February 2015, BOP issued a program memorandum requiring employees in high, medium, and administrative security prisons to carry pepper spray. Further, in September 2018, BOP issued a program statement that expanded pepper spray to employees in low security prisons. Figure 1 provides a more detailed time line of events on the use of pepper spray in BOP prisons, including requirements under the Eric Williams Correctional Officer Protection Act of 2015.

BOP Policies for Issuing and Using Pepper Spray, Providing Training, and Reporting Incidents

Pepper spray is a natural inflammatory agent that can cause coughing, tearing, and discharge of excessive mucous when deployed in the facial region. According to BOP training guidance and policy, pepper spray is to be used in incidents that require an immediate use of force (for example, an unplanned use of force because of an attack on staff or an inmate) or a calculated use of force in which employees have time to coordinate their response (for example, when an inmate refuses to vacate his or her cell). For calculated uses of force, employees are to consult medical personnel to determine if an inmate has a medical condition that will exempt the inmate from being pepper sprayed.

BOP policy states that employees should receive initial training on pepper spray and annual refresher training. In training, employees are taught effective tactical communication for using pepper spray; use of force policy; how to use pepper spray; and the decontamination process, among other topics. According to BOP’s Use of Force and Application of Restraints policy, a prison’s warden may authorize the use of chemical agents, such as pepper spray, only under the following situations: (1) the inmate is armed or barricaded; or, (2) the inmate cannot be approached without danger to self or others; and (3) it is determined that a delay in bringing the situation under control would constitute a serious hazard to the inmate or others or would result in a major disturbance or serious property damage. Pepper spray, moreover, should only be used when all other reasonable efforts to resolve a situation have failed.

This policy further states that staff shall appropriately document incidents involving the use of pepper spray using BOP’s Form 583—Use of Force Report. Form 583 contains fields to enter the date and time of the incident; inmates and staff involved; injuries; medical reports; a description of the incident; and other information, such as the existence of video of the incident. The form is to be completed by the lieutenant on duty at the time of the incident and sequentially forwarded to the captain, assistant warden, warden, and regional office for review.

After a Form 583 is completed, the warden, associate warden, health services administrator, and captain at the prison, collectively, conduct an after-action review of the incident to determine if the pepper spray was used in accordance with policy. Results of the after-action review are documented on BOP’s Form 586—After Action Report. According to BOP headquarters officials, in addition to documenting the results of the after- action review, a completed Form 586 often includes recommendations on how to improve the response to such incidents in the future. Incident data captured on Forms 583 and 586 are maintained in BOP’s TRUINTEL database.

Protective Equipment Worn and Tools Used by BOP Employees

To enhance BOP employee safety, BOP provides its employees with a variety of protective equipment. BOP generally requires employees working within the secure prison perimeter to carry a radio, body alarm, pepper spray (as appropriate), and keys while on duty. These items are usually checked out from the control center using a chit—a small, brass, circular token inscribed with the BOP employee’s first initial and last name. As of March 2020, some employees also wear stab-resistant vests to help enhance their safety. Although BOP employees are furnished with protective equipment, their first line of defense to protect themselves against an inmate is expected to be their verbal communication with the inmate. BOP policy, training documents, and officials state that effective communication with inmates is essential to officer safety. Figure 2 depicts some of the protective equipment worn by BOP employees operating within the secure prison perimeter of prisons.

Issuance of Pepper Spray for Prison Employees Is Broadly Reported as Effective, and Agency-wide Costs of Pepper Spray Are Not Clear

BOP Pilot Study and Staff Indicate That Pepper Spray Has Been Effective in Enhancing Safety of BOP Employees

BOP conducted a pilot study on the issuance of pepper spray from August 2012 through December 2013 at selected high-security prisons. To conduct its study, BOP compared injury sustained by staff and inmates data from immediate use of force incidents in which pepper spray was used to similar incidents in which pepper spray was not used. BOP found that pepper spray was effective in helping to reduce containment time—the amount of time it takes to bring an incident under control—and injury rates. Specifically, containment time of incidents decreased from an average of 4.3 minutes when pepper spray was not used to 2.7 minutes when it was used. This is a reduction of 1.6 minutes in containment time; pepper spray was used mostly in incidents involving two or more inmates, such as fights and assaults. When pepper spray was used, the rate at which staff received no injury increased by 9 percent compared to when pepper spray was not used. Further, the rate at which staff received minor and moderate injury declined by 60 and 76 percent, respectively, compared to when pepper spray was not used; and the inmate injury rate rose slightly, by 2.6 percent, primarily in minor injuries when pepper spray was used; however, BOP concluded this change was not statistically significant.

All 90 of the BOP employees we spoke with from United States Penitentiary Atlanta, Federal Correctional Complex Coleman, and Federal Medical Center Devens indicated that pepper spray has been effective in enhancing safety as well as deterring incidents. Generally, these employees noted that pepper spray (1) reduces staff injuries because staff do not have to physically engage with inmates as often to break up incidents, (2) strongly deters incidents from occurring, and (3) allows employees to break up incidents more quickly than if they did not have pepper spray. Pepper spray is not as effective for a small percentage of inmates, such as those with mental illness or those who are under the influence of drugs or alcohol, according to some BOP employees.

According to BOP data, in 2018, pepper spray was used in 1,680 incidents as follows: 993 incidents in high security prisons; 557 incidents in medium security prisons; 22 incidents in low security prisons; and 108 incidents in administrative security prisons.

Some Allegations of Inappropriate Use of Pepper Spray Have Been Resolved, while Others Remain Under Investigation

Officials from BOP’s Office for Internal Affairs stated that 179 allegations of inappropriate use of force incidents that involved pepper spray were reported from August 2012 through September 2018. Among these cases, BOP’s Office for Internal Affairs has investigated and closed 86. Among these 86 closed cases, investigators found that 21 involved an inappropriate use of pepper spray and were adjudicated in various ways (see table 2). The remaining 93 allegations were still being investigated as of January 2020.

BOP-wide Costs for Pepper Spray Are Relatively Low, and Some Costs Are Commingled with Other Expenses

According to BOP data, the total cost for pepper spray–specifically the cost to purchase pepper spray canisters and train employees in its use— was approximately $300,000 in fiscal year 2018, which was relatively small compared to BOP’s overall budget. BOP headquarters officials told us that because pepper spray cost information is maintained at the prison level, it would be overly burdensome for them to independently validate the data. Nonetheless, the cost information we received provides a general sense on the extent of costs.

Canisters. Officials estimated that a canister of pepper spray costs $7 to $14. Canisters of pepper spray have a shelf-life of approximately 5 years and, according to a BOP headquarters official, are purchased in bulk. As a result, pepper spray does not necessarily need to be purchased on an annual basis. According to BOP officials, each BOP prison contracts with its own supplier rather than using a national contract across all of BOP. BOP headquarters officials told us that pepper spray costs vary across vendors and locations, among other factors. Each BOP prison is responsible for recording and tracking its own budget data on the cost of procuring, training, and issuing BOP employees pepper spray. According to BOP officials, this approach is intended to lower the costs of pepper spray, based on the premise that each prison is able to secure the best market price for pepper spray for its location and for the volume of canisters needed from the vendor.

Training. Prison officials told us that pepper spray refresher training is combined with other employee training, making it difficult for them to provide us with specific cost for pepper spray training. All BOP staff are required to take initial and annual refresher training on the use of pepper spray. The initial training lasts about 4 hours, while the annual refresher training lasts about 2 hours.

BOP Decided Not to Issue Pepper Spray at Minimum Security Prisons, but Has Not Conducted an Analysis to Support Its Decision

BOP issued a program statement in September 2018, which states that pepper spray is not to be issued to employees working at minimum security prisons. However, the senior BOP officials we interviewed—none of whom said they were involved directly in the policy decision—told us they do not believe the explanatory documentation of the decision to not issue pepper spray to minimum security prisons exists. Officials stated that the decision was likely made for several reasons: inmates at minimum security prisons are usually nonviolent offenders, incidents at minimum security prisons are usually very minor and do not require the use of pepper spray, the concern that public perception of using pepper spray on inmates at minimum security prisons would not be positive, and canisters of pepper spray would expire before they would be used at minimum security prisons.

BOP officials we spoke with also stated that inmates at minimum security prisons are less likely than inmates at other security level prisons to become involved in incidents because they do not want to be reassigned to a higher security prison. We found, nonetheless, that BOP’s TRUINTEL database shows that incidents do occur at these prisons— some of which have led to assaults, minor injuries and death. Based on our analysis of BOP incident data from TRUINTEL, we found that in 2018 there were 47 reported incidents in the seven BOP minimum security prisons. These incidents included assaults on staff and other inmates; sexual harassment; and fighting, among others. Five of the incidents resulted in minor injuries to 10 BOP employees, and 18 incidents resulted in minor injuries to inmates. Further, one incident led to an inmate fatality. Additionally, during our site visits, 56 out of 73 officials across various security levels stated that deployment of pepper spray should be expanded to minimum security prisons because it would give employees an additional tool to protect their safety.

BOP headquarters officials told us they believe the agency’s decision to not issue pepper spray to minimum security prisons remains appropriate. Regarding the 47 incidents that occurred at minimum security prisons in 2018, officials stated that many of the confrontational incidents occurring at these prisons can be handled using verbal commands.

While a decision to not issue pepper spray at minimum security prisons may be justified based on an analysis of relevant information, BOP officials could not provide documentation of such analysis to support its decision. This analysis could include assessing available incident data at minimum security prisons and determining whether any of the incidents could have been prevented or handled more effectively if the officer on duty was carrying pepper spray. Additionally, BOP employee perspectives on issuing pepper spray at minimum security prisons is another possible source of relevant information that could be included in an analysis to inform BOP’s decision.

BOP issued policies in 2015 and 2018 that stated that while the preferred method of resolving issues with inmates is through a verbal intervention, there are instances where other means will be required to restore order. In addition, the policies state that the safety of staff, inmate(s), or others in any dangerous encounter is paramount and that the use of force— including use of pepper spray—may be needed to ensure safety.

According to Standards for Internal Control in the Federal Government, management should use quality information to make informed decisions and to evaluate the entity’s performance in achieving key objectives and addressing risks—in this case, the possible safety risks to BOP employees and inmates. By conducting an analysis on available BOP data on incidents that have occurred at minimum security prisons, employee perspectives on the value of having pepper spray at such prisons, and other relevant data, such as cost data, as appropriate, BOP would have useful data with which to inform its decision on whether or not to authorize pepper spray for employees at minimum security prisons.

BOP Reported a Number of Challenges to Ensuring Officer Safety and Is Taking Steps to Help Mitigate Them

BOP Officials at Selected Prisons Reported Challenges, including Understaffing and Inmate Drug Use, That Affect BOP Employee Safety

Four BOP headquarters officials, 18 wardens and their executive staff, and 10 union officials rated the potential impact of 15 selected factors (see app. I) on the safety of BOP employees in prisons. BOP officials rated the following five factors as having the most significant impact on BOP employee safety in prisons: (1) corrections officer understaffing, (2) disruptive inmate behavior due to illegal drugs, (3) inmate use of unauthorized communication devices, (4) inmate gangs, and (5) insufficient corrections training. See figure 3 for a diagram of the top five factors identified across the different groups of BOP officials who responded to the structured questions. Across all three groups, corrections officer understaffing was rated among the top five factors. No other factor was equally represented. For at least two groups, inmate use of unauthorized communication devices, disruptive inmate behavior due to illegal drugs, and insufficient information-sharing among managers and staff were rated among the top five factors.

When asked to identify any additional challenges beyond the selected factors we included, BOP officials we interviewed stated they were not aware of other challenges.

BOP Headquarters and Prison-Level Officials Are Taking Steps to Address Reported Challenges

BOP officials told us that they are taking steps to mitigate some of the challenges officials we interviewed indicated are impacting employee safety in prisons. Officials identified the following: Corrections officer understaffing. Corrections officer understaffing refers to the staffing level—usually measured by the inmate-to-staff ratio—being too low to adequately prevent violence and maintain a safe prison. Among the BOP headquarters officials, wardens and their executive staff, and union officials we interviewed, two underlying reasons generally cited for understaffing conditions were hiring freezes and difficulty recruiting new correctional officers due to low starting salaries. According to the BOP Director’s testimony before the Senate Judiciary Committee in November 2019, building adequate staffing at BOP prisons is one of her highest priorities. The Director stated that BOP established 10-percent recruitment, relocation, and retention incentives for hard-to-fill positions; established a higher entry pay scale for experienced new correctional established a 5-percent nationwide retention incentive for retirement- used 3,000 temporary positions to help ensure seamless succession planning by avoiding the lag to hire someone to fill a position.

We issued a report in December 2017 on BOP’s use of retention incentives. At that time, we found that BOP had taken steps to determine workforce needs and how to fill those needs but had not strategically planned for and evaluated its use of retention incentives. We recommended that BOP include in its strategic human capital operating plan (1) human capital goals; and (2) strategies on how human capital flexibilities, including retention incentives, will be used to achieve these goals. We also recommended that BOP evaluate the effectiveness of its use of retention incentives to determine whether the incentives have helped achieve BOP’s human capital goals or if adjustments in retention incentives are needed. DOJ concurred, and BOP implemented our first recommendation by drafting a human capital plan with goals and strategies for how retention incentives could be used to meet those goals. To implement our second recommendation, BOP conducted an analysis of its use of retention incentives and their effect on retaining BOP employees.

Disruptive inmate behavior due to illegal drugs. According to BOP officials, some inmates obtain illegal synthetic drugs by mail. These drugs are sprayed onto inmate mail and other documents before being sent to the inmate in prison. Inmates burn the mail to get high off of the synthetic drug. In addition to the threat to the inmate population posed by inmates who are behaving under the influence of the drugs, entry of these drugs can expose staff—including those handling the mail—-to hazardous chemicals. In an effort to stop illegal drugs from entering prisons by this method, according to BOP officials we spoke with and the BOP Director in her November 2019 testimony, some prisons are photocopying mail before it is delivered to inmates. For example, officials at one prison we visited told us they photocopy inmates’ mail. Further, a BOP headquarters official stated that BOP is piloting various mail-scanning technologies aimed at reducing the number of drugs entering prisons.

Inmates’ use of unauthorized communication devices. According to BOP officials and the BOP Director’s testimony, inmates’ possession of cell phones is a major problem. BOP officials stated that, in an effort to stop the unauthorized use of cell phones, some prison officials are using specialized equipment to detect cell phone usage and are exploring options to use cell phone jammers. We reported in September 2011 that BOP and selected state officials told us that cell phones were a major security concern because they allow inmates to hold unmonitored conversations, for example, to sell drugs or harass individuals. We recommended that BOP’s Director formulate evaluation plans for cell phone detection technology to aid decision-making, require BOP staff to use these plans, and enhance regional collaboration with states. DOJ concurred with our recommendations, and BOP addressed them by developing policy and testing procedures to improve their ability to evaluate new technology. BOP also established plans to enhance collaborative information-sharing with state and local agencies on combating cell phone smuggling and use.

Conclusions

Working in a federal prison presents inherent risks. Since 2018, BOP has authorized the use of pepper spray at all prison security levels with the exception of minimum security prisons. BOP’s issuance of pepper spray was supported by evidentiary information—that is, its pilot study indicated that pepper spray was an effective tool for enhancing staff safety. Notably, BOP’s current policy on pepper spray allowance does not extend to minimum security prisons. While BOP was not able to provide us with a documented analysis behind the nonissuance to minimum security prisons, the officials we interviewed made several arguments in support of the decision. While their arguments may hold merit, we found evidence based on our limited analysis that appears to question their underlying decision.

To the extent that officials are operating under assumptions not fully examined, BOP is missing a potential opportunity to enhance the safety of its correctional officers. We believe that our concerns are amplified by our finding that a majority of BOP frontline employees want pepper spray expanded to minimum security prisons. Similar to the decision to issue pepper spray to other levels was based on pilot information, BOP has an opportunity to bring—either for or against issuance—a better case forward. Analyzing available data on incidents that have occurred at minimum security prisons, such as determining whether any of them could have been prevented or handled more effectively with pepper spray, and considering BOP employees’ perspectives, BOP could inform its decision whether to authorize pepper spray for employees at these prisons.

Recommendation for Executive Action

We are making the following recommendation to BOP: The Director of BOP should conduct an analysis, using available incident and cost data, and other information as appropriate, to determine if the current decision to not issue pepper spray to minimum security prisons should remain in effect. (Recommendation 1)

Agency Comments

We provided a draft of this product to DOJ, including BOP, for review and comment. DOJ concurred with our recommendation and told us they had no comments on the draft report. DOJ did provide technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Attorney General, the BOP Director, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-8777 or goodwing@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix III.

Appendix I: BOP Employee and Officer Safety Structured Questions

Throughout our audit work, we asked Bureau of Prisons (BOP) officials with whom we interviewed at the headquarters and selected prisons about factors that impact the safety of BOP employees, as well as efforts, if any, they had made to mitigate those factors. We specifically targeted three groups of BOP personnel—BOP headquarters, wardens and their executive staff, and union officials—to rate the impact of 15 selected factors on employee safety at the groups and by prison security level. We then analyzed their responses and identified the top five factors that these BOP officials identified as having an impact on employee safety. We received responses from four BOP headquarters officials, 18 wardens and their executive staff, and 10 union officials. Officials were provided the structured questions (see below) in advance of the site visit, and the team recorded their responses during the interview.

We held one interview with four Bureau of Prisons (BOP) headquarters officials, nine interviews with 18 wardens and their executive staff, and seven interviews with 10 union officials about 15 selected factors that impact the safety of BOP employees, using a structured questions set (see app. I). These officials’ responses, which are broken down by group and security level, are presented in the figures below.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Brett Fallavollita (Assistant Director), Sonja S. Ware (Analyst-in-Charge), Anthony DeFrank, and Emily Martin made key contributions to this report. Willie Commons III, Elizabeth Dretsch, Eric Hauswirth, and Susan Hsu also contributed to this work.