Oversight Basics
What is correctional oversight?
An independent, external mechanism designed, at a minimum, to ensure the collection, dissemination, and use of unbiased, accurate, and first-hand information about correctional conditions of confinement and the treatment of incarcerated individuals, primarily through on-site access to the facilities. This information can help prevent an institution from drifting toward abuse, neglect, and other forms of unconstitutional treatment of people in custody, and can help in the identification and sharing of best correctional practices.
What are the goals of oversight?
- Improve transparency of our nation’s prisons and jails.
- Increase accountability of agencies for ensuring the safe and humane treatment of people in custody.
We already have internal accountability mechanisms, so why do we need external oversight?
Effective prison management demands both internal accountability measures and external scrutiny. These distinct forms of oversight should not be in competition nor are they mutually exclusive; they are designed to meet entirely different—but complementary—needs. States and local jurisdictions can and should ensure that both exist.
Internal accountability mechanisms are valuable management information tools for administrators that allow them to self-identify and address operational problems and the concerns of incarcerated people at an early stage. These internal mechanisms include, but are not limited to, internal affairs units, grievance systems, internal auditors, risk managers, and PREA Ombudsmen. The goal of these mechanisms is to improve management capability and therefore improve agency operations. But as internal measures, they do not address the need for public transparency, nor do they ensure public accountability. They are very important, but they are not replacements for external scrutiny.
External oversight refers to a process whereby oversight entities that exist outside the correctional agency monitor and inspect facilities, investigate complaints, and report their findings and recommendations to the public. The goal is to shine a light on what happens in correctional institutions, provide incarcerated people with an independent source of potential assistance, and equip government leaders with unbiased information about what is actually happening in prisons and jails to assist them with policymaking and funding decisions.
What are the essential functions of correctional oversight?
There are nine essential functions of effective correctional oversight, each contributing to the overall goals of improving correctional institutions and making them more transparent and accountable. However, no single entity can or should meaningfully serve every one of these functions. States and local jurisdictions should ensure that there is a multi-layered system of correctional oversight, so that each of these functions can be served through the work of various entities outside the correctional agency. The goal is for each function to be served as effectively as possible.
For more information about the various functions of effective oversight, see Distinguishing the Various Functions of Effective Prison Oversight. Also see the American Bar Association’s Key Requirements for the Effective Monitoring of Correctional and Detention Facilities, a guiding document in efforts to create oversight mechanisms around the country and a touchstone to assess the quality of existing oversight structures.
The practice of routinely inspecting all correctional institutions in a jurisdiction in order to assess and report on the facility conditions and treatment of people who are incarcerated. All facilities are inspected, not just those with known problems. Monitoring is critical for ensuring the safety of all people inside. It is a proactive process meant to provide early identification of concerns about conditions and ill-treatment, and is focused on systemic issues rather than addressing individual complaints.
Involves an effort to follow up either on a specific complaint from an incarcerated person or on a set of allegations of facility-wide misconduct or problematic conditions. Investigations are reactive, looking to address wrongdoing that happened in the past. The goal may be either to bring relief to a particular individual with specific needs or to ensure consequences for staff misconduct.
Effective oversight requires access to meaningful and accurate data relevant to conditions of confinement and the safety and health of people who live and work in correctional facilities. Aggregate data can be used to identify patterns and trends that shine a light on what is happening inside prisons and jails. Legislators, regulators, monitors, and the public can use this information to to address important policy questions and to identify areas of concern.
This function refers to the role of the media, human rights groups, and temporary commissions in exposing prison conditions or investigating a particular incident. Through news articles and reports, these entities shine a light on the closed world of correctional facilities and increase public awareness of prison-related issues. Usually, information is obtained through open records requests, interviews and communications with people who live and work in prisons and jails and their loved ones, and through data analysis, rather than through access to the facilities. In some cases, reporting leads to public pressure on elected or appointed officials to change policies or practices. The reporting function primarily serves the needs of the public for information and analysis of prison conditions.
Involves the use of courts and the legal process to achieve redress for wrongdoing as well as corrective action. In conjunction with a lawsuit over prison conditions or mistreatment of prisoners, a court may order either damages or injunctive relief, and it can back up its orders with legal sanctions such as contempt or fines. The legal function, like the investigation function, is reactive in nature, occurring only after a problem or tragedy has occurred. In some cases, a court may order ongoing monitoring of conditions by a court-appointed expert to determine the extent of an agency’s compliance with court orders. This is a distinct form of monitoring from the preventative monitoring and inspections described above, and it is intended as a temporary measure that ends once the agency is found to be in compliance. Transparency may be a by-product of court oversight, but it is not the primary goal.
The regulation function is served by those governmental entities that have some ability to wield a hammer over the correctional agency. Those entities may license correctional facilities or set mandatory standards or policies, and they have the power to enforce compliance with these standards and policies through either funding determinations, imposition of sanctions, or by restricting licenses to operate. The key concepts at work here are “enforcement authority” and “control.” Note that if standards are to be enforced through a regulatory body, they tend to be minimum standards, and the oversight body is focused on bringing correctional facilities up to this low bar rather than aiming for more aspirational goals.
Legislative committees serve an oversight function by holding hearings about the performance of the corrections agency, by assessing the agency’s implementation of legislation, and by reviewing the agency’s budget. Periodic “sunset” reviews also provide opportunities for the legislature to make important changes to the way the corrections agency operates. These hearings create public transparency about various aspects of the corrections agency, but by their nature they are not comprehensive assessments, and they may not focus on conditions of confinement or the treatment of people in custody. Legislative oversight rarely involves regular on-site access to the facilities, even when visits are authorized.
The auditing function is designed to give either prison administrators or those who regulate or accredit them some objective measures of how the agency is performing on various managerial or operational criteria. Audits can also help assess whether tax monies are being spent appropriately. The information that comes out of an audit may be very valuable to prison administrators and to policymakers. However, audits do not necessarily focus on the treatment of people in custody or even on issues of direct concern to incarcerated people.
A review process assessing an agency’s compliance with certain standards, resulting in a stamp of approval by an accrediting body in the corrections field. The focus of these standards is primarily on issues of particular interest to correctional administrators, and may or may not be of direct relevance to the treatment of people in custody. Accreditation is typically a voluntary process initiated from within the agency, and the agency usually pays the accrediting body to go through this accreditation process, which arguably limits its independence and objectivity. What’s more, accreditation audits are confidential and lack the public transparency that comes from independent oversight. Accreditation does, however, allow for a self-auditing process and peer-to-peer learning opportunities.
Should one oversight body handle all of these functions?
No. There should be a variety of separate mechanisms in place to serve each of these functions. While there are certainly examples of hybrid models combining two or three of these functions, it would be a mistake to seek to combine all these functions within one entity. No one entity can meaningfully serve every function, if for no reason other than the fact that there are different constituencies involved with regard to each function.
Should oversight bodies be “enforcers”?
No. The power to address the problems of prisons and jails should remain with correctional leaders, legislators, and governors; the oversight entity should not become a supra-management body ultimately responsible for the cleanup of an agency, especially when the oversight body does not control the pursestrings.
Exception: regulatory bodies that assess compliance with minimum standards should have enforcement authority. See “regulation” function described above.
What challenges do oversight bodies often experience that limit their ability to perform these functions?
- Inadequate staffing and funding
- Lack of insulation from political pressure
- Restricted access to the facilities they oversee
- Recommendations are ignored
These are significant risks that should be addressed in the original enabling legislation, to the extent possible, or in future efforts to strengthen the authorizing statute.
What should an independent external oversight body look like?
There is no single best way to structure a correctional oversight mechanism. A body’s structure will depend on the responsibilities assigned to it, on the culture and policies of the jurisdiction in which it is located, and on the systems already in place in that jurisdiction. It is less critical that all oversight mechanisms look alike or share the same name than it is that they have in place the essential elements for effectiveness as an oversight body.
An oversight body must be structurally independent of the correctional agency under review and be able to do its work without interference or pressure from the agency or any other body. “Independent” means that the oversight body is not dependent on the corrections agency for either administrative or financial support; that it does not answer to or take direction from corrections leaders and the corrections administrator does not appoint the oversight director; that it is perceived as independent by those with whom it interacts; and that the oversight body is not subject to political pressure to make or withhold findings from its work. The head of the oversight body should serve a fixed term and should not be able to be fired except for good cause.
An oversight body responsible for monitoring must have a mandate to conduct regular, routine inspections of the facilities under their jurisdiction, and the authority to investigate issues arising at particular facilities.
An oversight body must have unfettered “golden key” access to the facilities, residents, staff, documents, and materials, and they should have the ability to visit any part of a facility at any time of day without prior notice. Oversight staff should be able to speak confidentially with any incarcerated person or staff member without them risking retaliation.
An oversight body must be adequately resourced, with sufficient staffing, office space, and funding to carry out their monitoring responsibilities and the budget must be controlled by the monitoring entity.
An oversight body must have the power and duty to report publicly its findings and recommendations, in order to fulfill the objective of transparency, and the oversight body should control release of its own reports.
An oversight body must take a holistic approach to evaluating the treatment of incarcerated people, relying on observations, interviews, surveys, and other methods of gathering information, as well as on statistics and performance-based outcome measures. Effective monitoring does not involve a rigid checklist-type assessment.
The agency must be required to cooperate fully in the inspection process and to respond promptly and publicly to the monitoring body’s findings and recommendations. Unless the agency disputes the findings, it should submit an action plan and timeline for addressing each recommendation of the oversight body.
Models of Oversight
Prison Oversight Models
Correctional oversight can take many different forms, and there is wide variation in how each oversight body is structured. Also, the existing bodies don’t always fall neatly into a particular category. Many oversight bodies are hybrids, combining features of one or more models. Moreover, the name of any given model doesn’t always correspond with what the oversight body actually does. When planning an oversight body, it is more important to consider what you want the oversight body to do and how you want it to be structured, rather than what you want it to be called. Here are some examples of prison oversight models and their typical functions, though this is not a comprehensive list.
Inspectorates are government bodies external to the DOC with statutory responsibility for gathering information about the treatment of people in custody and for inspecting and reporting on conditions of confinement. These entities typically do not investigate individual complaints, but may use these complaints as a source of information to identify patterns of concern.
Correctional Ombuds entities review and respond to complaints from people in custody and their families, and many also conduct routine monitoring of correctional facilities and write reports about systemic issues of concern.
An inspector general investigates criminal wrongdoing and other serious forms of misconduct in an agency, and may also be tapped to identify systemic areas of concern in agency operations.
Many inspectors general operate within the correctional agency’s internal administrative structure, and are not independent oversight bodies. There are, however, examples of fully independent inspector general offices.
While every state has one or more legislative committees that deal with prison and jail-related issues, some legislative committees have a more targeted focus on conditions in correctional facilities and the treatment of people in custody, and they conduct routine inspections of correctional facilities.
A non-governmental organization that has a mandate, legislative authorization, or routine agency permission to inspect, monitor, or otherwise provide a kind of formal oversight over prisons or jails. These entities have either a formal or informal right of access to correctional facilities to gather information about conditions of confinement and the treatment of people in custody.
Citizens’ Boards or Visiting Committees are appointed by a public or elected official and are charged with providing feedback about a particular facility. Individual members of the Board, all volunteers, may visit the facility at different times to provide regular checks on what is happening inside and to talk with incarcerated people. These entities provide a form of outside lay scrutiny of the facility’s conditions or operations, and the committee reports on its findings and conclusions to the appointing body. Typically, the recommendations are advisory in nature.
Statewide Jail Oversight Models
Unlike prison oversight bodies, statewide jail oversight bodies are easily categorized as one of several different models, with little overlap. The vast majority of states with jail oversight bodies use one of the first two models described below. The first four models rely on a set of inspection standards, while the last two models have a more holistic approach to monitoring conditions in jail facilities.
- State department of corrections charged with overseeing local jails not under their operational authority
- Independent commission at the state level established to regulate the local jails
- Professional association/sheriffs’ association with a voluntary peer-to-peer system of oversight
- State department of health with a jail inspection unit
- Ombudsman with inspection authority
- Non-governmental oversight body responsible for all prisons and jails
With only a relative handful of counties around the nation having an established mechanism for scrutinizing what happens in their jails, local jail oversight bodies are more challenging to characterize than statewide jail oversight bodies. They take many different forms and seem roughly analogous to prison oversight bodies insofar as only one agency is the subject of the oversight activities.
Notably, local jail oversight offers more opportunities to involve citizens in the oversight process, whether as members of an oversight board or as participants in hearings or town hall meetings about conditions in a particular facility. An increasing number of local jail oversight bodies are designed in ways that include citizen participation in the oversight process.
The lack of consistency in how these oversight mechanisms are structured is striking and reflects the varying needs, culture, and resources of each community.
Local jail oversight profiles coming soon.
What could oversight legislation look like?
Review a sample of legislation that states can adapt if they are interested in establishing a similar correctional oversight body. Recent Enabling Legislation includes bills that were passed into law that established an oversight body. Pending Legislation includes bills that moved through the legislative process, and though they were not, ultimately, passed into law, they are still worthy examples of oversight legislation. Also review examples of model legislation that provide a template for states and localities to adapt to meet their needs. For a PDF version of the oversight legislation, click here.
Prison Oversight Legislation
Bill
Maryland Office of the Correctional Ombudsman (2024)
Senate Bill 134 established Maryland’s Office of the Correctional Ombudsman (OCO) and tasked it with providing independent oversight of the adult corrections system in Maryland and the state’s Department of Juvenile Services. The bill requires the OCO to review and assess programs and services provided to people in custody as well as agencies’ policies on restrictive and protective housing and plans for the expansion, renovation, or closure of facilities. The bill also requires the OCO to inspect facilities operated by the adult and juvenile corrections agencies and monitor conditions in those facilities and to resolve and respond to complaints against the agencies.
Amendment
General Assembly Amendment to the Code of Virginia, Chapter 1 of Title 53.1, article 4, sections 53.1-17.2 through 53.1-17.10. (2024)
This amendment to the Code of Virginia added Chapter 1 of Title 53.1, article 4, sections 53.1-17.2 through 53.1-17.10 was enacted to create the Office of the Department of Corrections Ombudsman. The amendment created the Ombudsman Office within the Office of the State Inspector General and outlines its full powers and duties. The purpose of the Ombudsman Office is to monitor conditions of confinement, support inmate advocacy, collect and analyze data related to complaints received, issue public reports of findings, assist local governments in establishing oversight committees, and conduct inspections of facilities. Each facility must be inspected at least once every three years, and each maximum security facility or facility that has been found to need more frequent monitoring must be inspected annually. The Ombudsman Office has access to all facilities with or without prior notice. Inspections of each facility and the subsequent findings will be published publicly or made available in the Office’s annual report. The Ombudsman Office can initiate investigations as well as conduct investigations in response to filed complaints. The amendment also adds an oversight committee, comprised of 13 voting members and 2 nonvoting members. The committee shall conduct a minimum of one random inspection of a facility each year.
Bill
Federal Prison Oversight Act (2023)
The Federal Prison Oversight Act established independent oversight of the Federal Bureau of Prisons (BOP) by requiring the Department of Justice’s Inspector General (IG) to conduct comprehensive, risk-based inspections of all BOP facilities, provide recommendations to address problems it identifies, and assign each facility a risk score, with higher-risk facilities required to be inspected more often. The bill requires the IG to submit a report with its findings and recommendations to Congress and to the public, and requires the BOP to respond to all inspection reports within 60 days with a corrective action plan. Additionally, the bill established an Office of the Independent Ombudsman and tasked it with investigating the health, safety, welfare, and rights of incarcerated people and staff. The Ombudsman is required to create a secure hotline and online form for family members, friends, and representatives of incarcerated people to submit complaints and inquiries.
Bill
California SB 519 (2023)
This bill expands the mission of the Board of State and Community Corrections to include the promotion of legal and safe conditions for youth, inmates, and staff in local jails. The bill also creates the independent Office of the Local Detention Monitor within the Board of State and Community Corrections and tasks it with investigating deaths in custody at local jails. This newly created Office is also tasked with auditing substandard healthcare practices at local jails at the direction of state officials or the Board.
Bill
New Jersey Dignity for Incarcerated Primary Caretaker Parents Act (2020)
Rewrites the structure and function of the Office of the Corrections Ombudsperson, and authorizes significant access and inspection powers, community participation, and public reporting. It also creates a nine-member Advisory Board with diverse expertise, with a requirement that at least one member be a formerly incarcerated person or family member of someone currently incarcerated.
Bill
Establishing the Hawaii Correctional System Oversight Commission, HB 1552 (2019)
Passed in 2019, HB 1552 established the Hawaii Correctional System Oversight Commission and authorized it to inspect the state’s correctional facilities with the purpose of identifying problems in prisons and jails and recommending changes. The bill also established a paid oversight coordinator to aid the commissioners and authorized the coordinator with several duties, including investigating complaints, producing reports to the governor and Legislature with their findings and recommendations, and conducting ongoing studies. The funding needed to hire a coordinator and carry out the duties of the Commission were made available in 2021, when the Commission hired its first Oversight Coordinator.
Bill
Minnesota Office of the Ombudsperson (Minnesota Statute Chapter 241.90-95) (2019)
In 2019, Minnesota re-established the state’s Office of the Ombuds for Corrections (OBFC), an agency that had been eliminated in 2003 as part of cuts the legislature made to its budget that year. The Department of Corrections (DOC) is required to provide the Ombuds access to facilities and relevant documents it may need. The Ombuds is also responsible for responding to complaints it receives from people in custody and their family members and loved ones.
Bill
Establishing the Washington State Office of Corrections Ombuds, HB 1889/SB 5294 (2018)
With the passage of HB 1889 in 2018, the Washington State Legislature established the Office of Corrections Ombuds as an executive agency in the Office of the Governor. The Office is required to monitor Washington’s state prisons, identify systemic issues, and develop recommendations for the Department of Corrections, the Governor, and the Legislature to address the concerns. Additionally, the Office is required respond to complaints from people in custody and their families and loved ones and set up a hotline that allows individuals to submit complaints. Individuals can also submit complaints by writing a letter. The Office is also required to issue public reports and make recommendations on issues impacting people in custody and to work with prison staff and administration to address its concerns. In addition to these public reports, the Office is required to provide a public accounting of every individual complaint that it resolves.
Bill
Arizona Office of the Independent Ombuds, HB 2167 (2021)
In 2021, the Arizona House of Representatives passed HB 2167, which would have established the Office of the Independent Ombuds and authorize it to inspect prisons and propose recommendations to address the issues it identified. The bill would have also responded to concerns from Department of Corrections (DOC) staff, people in custody and their family members and loved ones. While the bill ultimately died in the Senate, the provisions may still be useful to other states that are interested in drafting their own legislation to establish an Office of the Independent Ombuds.
FAMM Model Legislation: The Office of the Department of Corrections Ombudsman Act
Families Against Mandatory Minimums (FAMM) drafted model legislation that a state can use to guide the development of a bill that would establish an Office of the Independent Ombudsman. The provisions in the bill are meant to create an Office that is fully independent of the Department of Corrections or Public Safety in any given state. There is also a section in the bill that would ensure the Office operates pursuant to a funding stream that is independent of the state’s corrections agency. Several states have used this model legislation to create a version of this kind of office.
Statewide Jail Oversight Legislation
Bill
Washington Jail Oversight Board, SB 6189 (2024)
Senate Bill 6189 would have created the Jail Oversight Board within the Office of the Governor in Washington State and would have authorized the Board to monitor jails, investigate and receive complaints, and maintain a statewide uniform jail reporting system. The legislation was left pending during the state’s 2024 legislative session.
Bill
Connecticut Correction Ombuds Office (2022)
Public Act 22-18 and Public Act 22-114 created a two-part independent prison oversight structure consisting of the Correction Advisory Committee (CAC) and the Correction Ombuds Office (COO). The COO is authorized to investigate and respond to complaints it receives from incarcerated people and to monitor prison conditions. The CAC is a citizen and expert panel that is authorized to provide advice, collect public input, and recommend candidates to head the COO.