Review of the Federal Bureau of Prisons' Disciplinary System
Report Number I-2004-008
|U.S. Department of Justice
Federal Bureau of Prisons
Office of the Director
Washington, DC 20534
September 15, 2004
|MEMORANDUM TO:||PAUL A. PRICE
ASSISTANT INSPECTOR GENERAL FOR EVALUATION AND INSPECTIONS
OFFICE OF THE INSPECTOR GENERAL
|FROM:||Harley G. Lappin, Director|
|SUBJECT:||Response to the Office of Inspector General's (OIG) Report:
Review of the Federal Bureau of prisons' Disciplinary System
The Bureau of Prisons (BOP) appreciates the opportunity to respond to the recommendations from the OIG's report entitled Review of the Federal Bureau of Prisons' Disciplinary System.
Please find the Bureau's response to the recommendations below:
Recommendation #1: Reinforce the existing policy that BOP employees report allegations of employee misconduct to the proper authorities as required.
Response: We concur with this recommendation. The Bureau plans to incorporate the OIG's finding and recommendation in this regard in the next annual training cycle and other training programs that discuss ethics and the standards of conduct. Furthermore, our Office of Internal Affairs (OIA) already has a training video in development in which this and other issues are addressed. It is anticipated the video and all training will be completed before the end of FY 2005.
Recommendation #2: Require that CEOs forward cases with sustained allegations through the full adjudicative phase.
Response: We concur with this recommendation. It is our plan to publish instructions to all CEOs which require each sustained case be fully adjudicated. After reading the findings of an investigation, if a CEO does not wish to take formal disciplinary or adverse action based upon sustained charges, he/she will prepare a complete justification to our Labor Management Relations Branch. This Branch will consider the nature of the sustained charge(s), as well as the circumstances and available evidence surrounding the sustained charges in question, and make a recommendation to Bureau management as to whether or not formal disciplinary or adverse action is warranted, or if the sustained charges should be adjudicated/resolved through the performance evaluation procedures. The target date established for implementation is December 31, 2004.
Recommendation #3: Ensure that when the deciding official mitigates the proposed discipline, the decision letter contains an adequate explanation of the reasons.
Response: We concur with this recommendation. We will issue a reminder to CEOs, as well as those involved in the preparation and technical approval of disciplinary and adverse action letters, that any decision letter which mitigates the proposed penalty contains an adequate explanation of the reasons for such mitigation. The reminder will be issued no later than October 31, 2004.
Recommendation #4: Remove the CEO from reviewing and approving investigative reports of employee misconduct for cases in which they will act as the deciding official by implementing an alternative review process that preserves the independence of the investigative and adjudicative phases.
Response: We concur this recommendation needs to be explored, but have strong reservations as to its implementation. As indicated at the OIG exit conference, we would like to explore and possibly pilot alternative review processes. Any meaningful alternative to the current practice of having CEOs review and approve local investigations will require: 1) a major realignment of existing functions; 2) a concomitant investment in additional staff resources at a time when the Bureau is facing serious funding deficits and downsizing in foreseeable fiscal years; and 3) a significant paradigm/organizational culture shift in terms of centralizing authority over local investigations. Consequently, any proposal to accommodate this recommendation will require much additional research and thought. Therefore, I ask that the OIG's recommendation be reworded as such: "Explore alternative review processes that preserve the independence of the investigative and adjudicative phases."
Recommendation #5: Reinforce the existing policy that all required documents be maintained in the disciplinary files.
Response: We concur with this recommendation. We will publish a memorandum to the field which reinforces the requirement to maintain all documents used to support disciplinary action in the respective file. Furthermore, we will ensure this item is reviewed when conducting program reviews of institution human resource management operations. The target date established for implementation is October 31, 2004.
Recommendation #6: Develop procedures to ensure that discipline is imposed consistently BOP-wide, and review discipline for consistency across the agency periodically after these procedures are implemented.
Response: We concur with the position that discipline imposed should be consistent assuming all facts are the same, including position and security level of the institution. However, it is impossible to have exact consistency as individual factors should be considered and case law requires the consideration of the Douglas factors in every disciplinary action. Accordingly, we concur that all penalties will be consistent with the latitude to utilize the Douglas factors as required by case law.
The Bureau will review case law and actions taken in recent years to assess an appropriate range of penalties for a specific charge. By necessity, the ranges for some charges will have to remain broader than others (e.g., Unprofessional Conduct vs. Absent Without Leave) as the variety of issues in certain charges warrant broader ranges. We will review the need to modify our Table of Penalties in our Standards of Employee Conduct to ensure that all penalties fall within the national range. Procedures will be developed to ensure that each sanction is checked for consistency by the Labor Management Relations Branch, as well as Regional Office staff. Staff in the Labor Relations Branch have already been instructed as to these new 'requirements. A formal review of past cases, in order to determine an appropriate range of penalties for a given charge, will be completed no later than September 30, 2005.
Recommendation #7: Reinforce the existing policy that CEOs report allegations of employee misconduct to OIA within required time frames.
Response: We concur with this recommendation. I will issue a Blue Letter reinforcing the existing policy that CEOs report allegations to OIA within required time frames. In addition, we plan to incorporate the OIG's finding and recommendation in this regard in subsequent wardens' conferences and New Wardens' Training. The target date established for completion is December 31, 2004.
Recommendation #8: Reinforce the existing policy that the OIA reports misconduct allegations to the OIG within required time frames.
Response: We concur with this recommendation. Functions within the OIA have been realigned to address this issue, and improvements have been realized. OIA administrative staff, instead of special agents, are now referring matters to the OIG. As administrative staff do not typically travel, this has improved the timeliness of referrals to the OIG. Based on this realignment of function and the resulting improvements, we have completed this recommendation, and it should be closed.
Recommendation #9: Establish written time guidelines for the investigative and adjudicative phases of the disciplinary process.
Response: We generally concur with this recommendation with reservations and propose an alternative.
While we agree that investigative staff need to adhere to general time guidelines, three issues need to be considered before accepting the recommendation as stated. First, it is impossible to anticipate in every case the unique factors which may impede the timely investigation of an allegation, and we will never compromise the integrity of an investigation in order to meet time deadlines. Secondly, formally establishing time guidelines in either the investigative or adjudicative phase poses potential risks and "land mines" in terms of defending any disciplinary action taken in staff misconduct cases. Third, untimeliness on the part of outside law enforcement agencies and the courts, both in terms of deferring administrative matters back to the OIA and conducting their own investigations, are factors over which we have no control and which affect our own timeliness. For example, on August 26, 2004, we sent a memorandum to the OIG Investigations Division identifying 116 cases upon which we are awaiting a deferment decision; 63 of those are more than 1 month old, and 12 were referred in calendar year 2003.
We propose as an alternative our own internally-communicated time expectations for staff conducting investigations (120 days for local investigations and 180 days for OIA on-site investigations as upper-limit parameters). Failure to do so, barring unforeseen circumstances, will be dealt with as a performance issue.
We generally concur there should be time guidelines for the adjudication phase of the investigative process. However, as with time lines for conducting an investigation, it is difficult to always adhere to such guidelines, as there are times when a proposal letter is received raising questions that must be resolved prior to making good, sound, and defendable decisions. On occasion these questions are only resolved by reopening the investigation to gather more information. We will establish a general guideline' of 120 days as the upper level parameter for completing the adjudication phase of the process. The target date established for implementation is October 31, 2004.
Recommendation #10: Require that the BOP Program Review Division periodically review a sample of closed disciplinary case files to assess whether the disciplinary decisions were reasonable, consistent, and timely.
Response: We concur with this recommendation. We will revise our Program Review Guidelines to include review of closed disciplinary case files to ensure disciplinary decisions were both reasonable, consistent, and timely. The target date established for implementation is December 31, 2004.
If you have any questions regarding this response, please contact Michael W. Garrett, Senior Deputy Assistant Director, Program Review Division, at (202) 616-2099.