Federal prison officials accused of misconduct, including sexual abuse, are more likely to escape sufficient punishment because of the agency’s reluctance to rely on inmate testimony, a watchdog investigation found.
The memo to Bureau of Prisons Director Colette S. Peters from Inspector General Michael E. Horowitz said “the circumstances that gave rise to this memorandum and the BOP’s conflicting response to it continue to raise significant concerns about the BOP’s handling of disciplinary matters in cases where inmate testimony is necessary to sustain misconduct charges.”
Those circumstances involved a BOP employee who initially received only a 10-day suspension for the “appearance of an inappropriate relationship with an inmate, not the sexual misconduct or failure to provide truthful information,” Horowitz wrote. The light disciplinary action resulted from “BOP opting not to rely on inmate statements to make administrative misconduct findings and take disciplinary action against BOP employees” without other evidence. After the suspension was served and the employee was back to work, more prisoners made sexual abuse allegations against the staffer, who was ultimately criminally charged and convicted of engaging in a sexual act with an inmate.
Inconsistent with other information the Justice Department releases about convictions, the inspector general’s memo did not include the date and place of the abuse, the name and position of the offender or even the sentence imposed. A spokesperson also refused to provide those details.
While investigating this case, inspectors learned that “BOP will not rely on inmate testimony to make administrative misconduct findings and take disciplinary action against BOP employees,” the report said, unless there is other evidence independently establishing the misconduct.
That practice, according to the inspector general’s office, increases the likelihood of “serious insider threat potential, including the risk of serious harm to inmates”; is contrary to federal regulations and prison policy; “can result in the BOP failing to hold staff members accountable for patently false statements”; and “unjustifiably dismisses inmate testimony, which may be highly credible.”
Although prison officials have no “formal policy or practice of categorically rejecting inmate testimony, the BOP is reluctant to rely on inmate testimony in administrative matters, has a general practice of avoiding calling inmates as witnesses in Merit Systems Protection Board (MSPB) and arbitration proceedings,” the memo said, referring to an independent, administrative agency that resolves federal workplace disputes. That practice, the report added, effectively means that “significantly more” evidence is needed to discipline a BOP employee than otherwise would be the case — “at least in matters involving staff on inmate sexual assault.”
“The credibility of each witness should be assessed individually,” Horowitz wrote.
In Peters’ written response to the inspector general, she said “inmate statements are used for investigative leads” and BOP “considers all evidence … to include inmate statements.” Peters said the inspector general’s conclusions are “particularly troubling” regarding the lawyers who defend BOP before the MSPB, who “abide by” ethical standards for federal attorneys.
Peters agreed with two of the inspector general’s three recommendations, but not one calling for the agency to create a policy on the proper handling of inmate statements in administrative proceedings. Peters said that would subject litigation and investigative practices to labor-management negotiations, potentially limiting attorney discretion. The watchdog said it found BOP’s response not “relevant or compelling.”
The inspector general also noted that inmates do testify in federal courts “and there is no valid reason for the BOP to decline to rely on such testimony other than for investigative lead purposes in administrative matters.”
Shane Fausey, president of the American Federation of Government Employees’ Council of Prison Locals, which represents BOP staffers, declined to comment because he had not fully reviewed the report. Inmate advocates praised the inspector general’s memo, but said much work is needed on a prison agency that has been the target of repeated abuse complaints.
“Staff throughout the Bureau know that they can abuse men and women in federal custody with impunity, as long as they don’t admit it or do it on camera,” said Deborah Golden, a D.C. lawyer who focuses on prisoner rights. Not handling internal investigations properly, she added, “is how the widespread abuse at FCI Dublin flourished.”
Five former employees of the Federal Correctional Institution in Dublin, Calif., including a warden and a chaplain, have been charged with sexually abusing prisoners. In August, the chaplain was sentenced to seven years in prison.
“The current OIG report exposes this lack of accountability at the most essential level — the failure to listen to the concerns and experiences of the people most directly impacted by what is happening inside the BOP,” said Amy Fettig, executive director of The Sentencing Project, a criminal justice reform organization. “As a result, people are being hurt, raped, and even killed in these institutions and no one is being held accountable.”
Dublin is not an isolated case.
During the six-month reporting period that ended March 31, the inspector general’s office received 4,252 complaints involving the BOP, with force, abuse and rights violations among the most common allegations. That’s higher than during the same periods since 2018, but significantly lower than the 6,581 from April 1, 2020, through Sept. 30, 2020, when pandemic restrictions were imposed.
“The BOP’s failure allows the statements of incarcerated people with assault and rape allegations to carry less weight than it would in other contexts … is dangerous, disappointing and outrageous — especially given the numerous sexual abuse allegations at BOP facilities involving BOP staff,” said Tammie Gregg, deputy director of the ACLU’s National Prison Project. OIG’s report, she added, “should result in important accountability for those involved in the abuse.”
