Glenn A. Fine
U.S. Department of Justice
National Prison Rape Elimination Commission
June 14, 2005
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I appreciate the opportunity to appear before the National Prison Rape Elimination Commission to discuss the work of the Department of Justice Office of the Inspector General (OIG) regarding staff sexual abuse of federal inmates.
My testimony today will address several issues. I will briefly provide background on the structure and authority of the OIG, including the OIG’s procedures for receiving and investigating allegations of misconduct by Department of Justice (Department or DOJ) employees. I will then provide statistics on OIG investigations and will detail examples of prison sexual abuse cases that the OIG has investigated. Next, I will discuss a review that the OIG recently completed regarding staff sexual abuse of federal inmates. Finally, I will offer observations regarding deterring sexual abuse of federal inmates by prison employees.
The OIG is a statutorily created, independent entity whose mission is to detect and deter waste, fraud, abuse, and misconduct involving Department of Justice programs and personnel, and to promote economy and efficiency in Department operations.
The OIG has jurisdiction to review the programs and personnel throughout the entire Department, including the Federal Bureau of Prisons (BOP), the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration, the United States Marshals Service, U.S. Attorneys’ Offices, and other DOJ components.
The OIG regularly investigates allegations of violations of criminal and civil laws, regulations, and ethical standards arising from the conduct of Department employees and contractors in their numerous and diverse activities.
To perform its important duties, the OIG has a staff of approximately 410 employees, about half of whom are based in Washington, D.C., while the rest work from 16 Investigations Division field and area offices and 7 Audit Division regional offices located throughout the country.
The OIG’s Investigations Division is primarily responsible for investigating the allegations received by the OIG of abuse, civil rights violations, bribery, fraud, and violations of other criminal laws by Department employees, contractors, and grantees, including allegations regarding BOP employees and contractors.
In investigating these matters, OIG Special Agents have statutory law enforcement authority to carry firearms, make arrests, serve subpoenas, and seek and execute arrest and search warrants. OIG Special Agents carry out their law enforcement functions in the same manner as other Special Agents within the Department, including FBI and DEA Special Agents.
If an OIG investigation substantiates a complaint and the conduct is potentially criminal, the OIG consults with the local U.S. Attorney, the DOJ Civil Rights Division, or the DOJ Public Integrity Section to seek prosecution of the offense. If the case is accepted for prosecution, the OIG works with the prosecutor on the criminal case. If the case is declined for prosecution, the OIG completes the case as an administrative matter and sends the report to the BOP for appropriate disciplinary action.
It is important to note that the OIG does not have the authority to investigate violence by one inmate against another, unless such action was done with the involvement of a BOP employee. Inmate-on-inmate crimes, including rape in federal facilities, are normally investigated by the FBI. Rather, OIG investigators – either on their own or sometimes jointly with the FBI – investigate allegations involving staff abuse of inmates.
One of the important attributes of an OIG investigation is our ability to pursue a matter either criminally or administratively. Many OIG investigations begin with allegations of criminal activity but, as is the case for any law enforcement agency, may not end in prosecution. When this occurs, however, the OIG is able to continue the investigation and treat the matter as a case for potential administrative discipline. The OIG’s ability to handle matters both criminally and administratively helps ensure that a prosecutor’s decision to decline to prosecute the matter criminally does not mean that misconduct will go unpunished.
The OIG receives allegations of sexual abuse, civil rights violations, or other misconduct within the BOP or by BOP contractors in various ways. The OIG receives many complaints from inmates and citizens via mail, e-mail, telephone, or facsimile. In addition, every complaint of misconduct received by the BOP’s Office of Internal Affairs (OIA) must be referred to the OIG for our review.
The OIG has developed several initiatives to publicize how federal inmates can contact us with complaints or allegations of abuse. The OIG has coordinated with the BOP to display at least two OIG posters in each BOP facility. These posters explain that the OIG investigates civil rights and civil liberties abuses by BOP employees, and they contain the OIG’s postal address, e-mail address, fax number, and website address.
The OIG also has advertised via the internet, television, radio, and newspaper how to contact the OIG to report potential civil rights abuses. Moreover, the OIG has established a toll-free hotline for inmates to report any allegation. The number for this hotline and the OIG’s address also are included in handbooks that the BOP provides to inmates upon their arrival at BOP institutions.
The OIG tracks every complaint we receive in the OIG’s Investigations Division’s electronic database. To determine the appropriate handling of each BOP complaint, the Special Agent in Charge (SAC) or an Assistant Special Agent in Charge (ASAC) in the OIG field office in the area in which the alleged misconduct occurred reviews each complaint. Our SACs and ASACs decide whether to open an investigation of the allegations based on the seriousness of the alleged offense, the potential corroborating evidence available, the extent of any injury, and the existence of other complaints involving related conduct.
The OIG normally investigates the more serious allegations that relate to actions of a BOP employee or contractor, such as sexual abuse of inmates and introduction of contraband. However, given the large number of complaints and the OIG’s limited resources, the OIG cannot investigate all allegations made against BOP employees. Instead, the OIG refers many complaints involving BOP employees to the BOP OIA. The referred complaints generally deal with non-criminal, administrative issues involving BOP employees, such as abusive language, misuse of a credit card, and conducting personal business during work hours.
The BOP has approximately 35,000 employees and operates 114 institutions, 6 regional offices, 2 staff training centers, and 28 community corrections management offices. In total, the BOP is responsible for the custody and care of approximately 183,000 federal offenders, 156,000 of whom are confined in BOP-operated correctional institutions and detention centers. The remainder are confined in facilities operated by state or local governments or in private facilities under contract to the government.
In fiscal years (FY) 2003 and 2004 (from October 1, 2002, to September 30, 2004), the OIG received 16,900 allegations of misconduct throughout the entire Department of Justice (not just the BOP). Of these total allegations, 10,150, or 60 percent, involved BOP employees and contractors. Of the total complaints, the OIG opened 862 investigations. Approximately 513, or 60 percent, involved the BOP.
In terms of total numbers of sexual abuse complaints involving the BOP, in FYs 2003 and 2004, the OIG received 658 allegations of inappropriate relationships or sexual abuse of inmates. The following graph depicts the number of all types of allegations received by the OIG from FY 2003 to FY 2004 regarding the BOP.
On April 29, 2005, the OIG issued a report that examined sexual abuse of federal inmates by correctional staff. The report discussed the numbers of sexual abuse cases investigated by the OIG in federal prisons and highlighted the shortcomings of current federal law in deterring staff sexual abuse. I would like to summarize the findings of this report.
Federal law criminalizes all sexual relations and sexual contact between prison staff and inmates. See 18 U.S.C. §§ 2241, 2243, and 2244. In addition to the harm it causes to inmates, staff sexual abuse of inmates can also threaten the safety and security of the prison. Our report concluded that current federal laws criminalizing staff sexual relations with federal prisoners are deficient. The federal crime of sexual abuse of an inmate is only a misdemeanor punishable by a maximum sentence of 1 year, unless the staff member uses force or overt threats to sexually abuse the inmate. See 18 U.S.C. § 2243-44. Because prison employees control many aspects of inmates’ lives, in most cases prison employees obtain sex from inmates without resorting to the use of force or overt threats. Yet, misdemeanor penalties do not adequately punish those prison employees who commit this crime. In addition, the OIG has found that many federal prosecutors are less interested in prosecuting sexual abuse cases, regardless of the strength of the evidence, because the crimes are not felonies. Moreover, the lenient federal laws are out-of-step with states’ laws – 44 states make unforced sexual relations with inmates a felony.
It is important to note that consent is never a legal defense for corrections staff who engage in sexual acts with inmates. According to federal law, all sexual relations between staff and inmates are considered abuse. See 18 U.S.C. § 2243 (c).
This legal doctrine is based on several factors. First, staff members and inmates are in inherently unequal positions, and inmates do not have the same ability as staff members to consent to a sexual relationship. Second, inmates may try to use sex to compromise staff and obtain contraband or unauthorized privileges, which can undermine the safety and security of a prison. Third, either knowingly or unknowingly, staff members who engage in sex with inmates may be exploiting inmates’ vulnerabilities or past sexual abuse.
We found these factors present in many OIG cases. For example, we often found that guards took advantage of vulnerable or psychologically weak inmates to have sex with them. Such inmates included those who had drug addictions, who previously were physically or sexually abused, who had mental health issues, who had little experience in the criminal justice system, who were awaiting deportation, or who had previously engaged in prostitution. We also have investigated cases in which inmates have targeted staff for sexual relations to obtain control over the staff members, to obtain contraband or unauthorized privileges, or to leverage the sexual relationship for a lighter sentence.
Staff sexual abuse of inmates is not a harmless or victimless crime, and it can present serious dangers to staff, correctional facilities, inmates, and society. Nearly half of the subjects in OIG sexual abuse cases also smuggled contraband into prisons for the inmates with whom they had sexual relationships. Staff sexual abuse of inmates also can expose the BOP and staff to civil and criminal liability, undermine rehabilitation efforts, and increase the difficulty of inmates successfully re-entering society.
Despite the serious harm caused by staff sexual abuse of inmates, lenient penalties under current federal statutes hinder the deterrent effect of these laws. The federal penalties for staff members engaging in sex with inmates are contained in Title 18 of the United States Code. A maximum penalty of life imprisonment can be imposed on staff members who cause an inmate to engage in a sexual act by using force; by threatening death, serious bodily injury, or kidnapping; or by administering intoxicants to the inmate. See 18 U.S.C. § 2241. The maximum penalty for causing an inmate to engage in a sexual act by using other kinds of threats, or for engaging in a sexual act with an inmate who is mentally or physically incapable of appraising the nature of the conduct, or declining participation in it, is imprisonment for 20 years. See 18 U.S.C. § 2242.
However, in cases that do not involve the use of force or threat of force, the maximum federal penalty for knowingly engaging in a sexual act with an inmate is the misdemeanor penalty of a maximum imprisonment for 1 year. See 18 U.S.C. § 2243.
The penalties for abusive sexual contact – as opposed to sexual abuse – follow a similar structure. The maximum penalty for sexual contact by force, threat of force, or administering intoxicants to the inmate is imprisonment for 10 years. See 18 U.S.C. § 2244 (a)(1). The maximum penalty for sexual contact by any other threat, or with an inmate who has mental or physical disabilities, is imprisonment for 3 years. See 18 U.S.C. § 2244 (a)(2). But in all other instances when force or threat of force is not used, the maximum penalty for sexual contact with an inmate is imprisonment for 6 months. See 18 U.S.C. § 2244 (a)(4).
Because prison employees control many aspects of inmates’ lives, in most cases prison employees can obtain sex from inmates or engage in sexual contact with inmates without resorting to the use of force or overt threats. Yet, misdemeanor penalties do not adequately punish those prison employees who commit these crimes. In addition, the OIG has found that many federal prosecutors are less interested in prosecuting sexual abuse cases, regardless of the strength of the evidence, because the crimes are not felonies.
Between FYs 2000 and 2004, the OIG presented 163 sexual abuse cases for prosecution. Of these cases, 73, or 45 percent, were accepted for prosecution. Sixty-five of these cases, or 40 percent, resulted in convictions, and 6 of these cases, or 4 percent, were still pending prosecution as of May 3, 2005. Two of them, or 1 percent, have been presented for prosecution, but had not been accepted or declined as of May 3, 2005. Eighty-eight cases, or 54 percent, were declined for prosecution.
The following are examples of OIG investigations of staff sexual abuse that were not prosecuted because the penalty was a misdemeanor:
Even when prosecuted, the punishments for sexual abuse of inmates are not significant. Of the 65 subjects who were convicted of sexually abusing inmates, 48, or 73 percent, received a sentence of probation. Ten of them, or 15 percent, were sentenced to less than 1 year incarceration. Only 5 of them, or 8 percent, were sentenced to more than 1 year incarceration. One of them, or 2 percent, was required only to pay a fine, and another one’s sentencing was pending as of May 3, 2005.
During our review, we also examined state laws on sexual abuse of inmates and sexual contact with inmates. We found that federal penalties for engaging in unforced sexual abuse or sexual contact with inmates are relatively lenient compared to state laws. Specifically, 44 states impose harsher penalties than the federal government for unforced staff sexual abuse of inmates. The average maximum sentence length of these 44 jurisdictions is approximately 10 years’ imprisonment. Similarly, 34 states impose harsher penalties than the federal government for unforced staff sexual contact with inmates. The average maximum sentence length of these 34 jurisdictions is approximately 5 years’ imprisonment.
Between FYs 2000 and 2004, 58 (or 17 percent) of the subjects investigated by the OIG for sexually abusing federal inmates were employees of contract facilities. However, some of these investigations were not prosecuted because the abuse occurred at a contract facility and state prosecutors did not prosecute the case.
In contrast to federal law, the sexual abuse laws of many other jurisdictions, including California, Georgia, Massachusetts, Ohio, Texas, and Virginia, extend to contract facilities and protect inmates who are under the supervision of the state, even if they are not confined in a state facility. These states’ laws provide far greater protection for inmates confined in contract facilities than federal law, which provides no protection at all for these inmates.
The OIG believes that the federal laws criminalizing staff sexual abuse of inmates should be strengthened to provide greater deterrence of staff sexual abuse of inmates and to cover employees and contractors who sexually abuse federal inmates. Accordingly, we made these two recommendations in this report:
Finally, I would like to make a few observations regarding staff sexual abuse of inmates. When discussing the issue of sexual abuse in BOP institutions, I believe it is important to note that the number of BOP employees who commit such misconduct represents a very small percentage of all BOP employees, and that most BOP employees perform their duties in a professional and effective manner. They have challenging jobs, often without high pay, and they generally perform their duties well.
Moreover, I believe that, as an entity, the BOP is generally well managed and effective at performing its important responsibilities. During my 10 years at the OIG, we have not encountered widespread staff misconduct at the BOP. While there have been problems of abuse in some BOP institutions, my perception is that prison abuse, including sexual abuse of inmates, is likely a more serious problem in certain state prison systems than in the BOP.
However, that does not mean that such abuse never occurs in federal facilities or that it is an unimportant issue. I believe that it is a critical issue that should be aggressively addressed.
I believe that one of the most effective ways to detect and deter sexual abuse of inmates is through an independent, well-funded oversight entity, such as an Inspector General’s Office. An independent Inspector General’s Office can receive allegations of sexual abuse, investigate those allegations, and seek appropriate criminal prosecutions or administrative actions for employees or contractors who commit such abuses. In my view, an independent office, outside the prison system that does not rely on prison management for direction or funding provides a greater likelihood that aggressive and objective investigations of sexual abuse allegations will be pursued.
Second, even with an independent Inspector General’s Office, prison management itself has an obligation to deal effectively with any allegations of sexual abuse. In our view, the BOP generally takes inmates’ allegations seriously. The BOP consistently reports allegations of sexual abuse and other misconduct to the OIG, and when the OIG refers certain matters back to the BOP – normally the less serious allegations – the BOP’s own internal affairs operations handles those investigations. The BOP has investigative offices located in each of its institutions, and its own internal affairs office, BOP OIA, is located at BOP Headquarters.
Third, the OIG has found that sexual abuse often occurs in facilities in which other, less egregious, forms of misconduct are permitted to occur. When lesser forms of misconduct go unchecked, they can lead to breakdowns in security and order, the corruption of staff, and the sexual abuse of inmates. Sexual abuse often is combined with other forms of misconduct, such as smuggling food, cigarettes, cellular telephones, drugs, or weapons into prisons for inmates. We believe that prison management must strongly address other misconduct to avoid a lax environment that can lead to sexual abuse.
Finally, as noted above, the laws criminalizing sexual abuse of inmates are critical to deterring such conduct. If the law does not provide sufficient penalties to punish those who commit sexual abuse, efforts to deter sexual abuse are undermined. I believe the changes in the federal law that I described above are urgently needed.
In conclusion, sexual abuse and rape within prisons is a critical issue that merits serious attention. I believe this Commission can have an important impact by making recommendations to assist in these areas, and in this testimony I highlighted a few of the issues that I believe are worthy of further exploration. I thank the Commission for inviting me to provide this testimony, and I would be glad to answer any questions you have.