§ 413. Special provisions concerning the Department of Justice

§ 413. Special provisions concerning the Department of Justice

(a) In General.—

(1) Authority of attorney general over certain audits and investigations.— Notwithstanding the 2d sentence and last sentence of section 403(a) of this title, the Inspector General shall be under the authority, direction, and control of the Attorney General with respect to audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning—

(A) ongoing civil or criminal investigations or proceedings;

(B) undercover operations;

(C) the identity of confidential sources, including protected witnesses;

(D) intelligence or counterintelligence matters; or

(E) other matters the disclosure of which would constitute a serious threat to national security.

(2) Authority of attorney general to prohibit carrying out or completing certain audits and investigations.— With respect to the information described under paragraph (1), the Attorney General may prohibit the Inspector General from carrying out or completing any audit or investigation, from accessing information described in paragraph (1), or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or complete such audit or investigation, access such information, or to issue such subpoena, if the Attorney General determines that such prohibition is necessary to prevent the disclosure of any information described under paragraph (1) or to prevent significant impairment to the national interests of the United States.

(3) Notification and statement of reasons for exercise of power.— If the Attorney General exercises any power under paragraph (1) or (2), the Attorney General shall notify the Inspector General in writing, stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General shall transmit a copy of such notice to the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate and the Committee on Oversight and Reform and the Committee on the Judiciary of the House of Representatives, and to other appropriate committees or subcommittees of the Congress.

(b) Carrying Out Duties and Responsibilities.— In carrying out the duties and responsibilities specified in this chapter, the Inspector General of the Department of Justice—

(1) may initiate, conduct and supervise such audits and investigations in the Department of Justice as the Inspector General considers appropriate;

(2) except as specified in subsection (a) and paragraph (3), may investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, or may, in the discretion of the Inspector General, refer such allegations to the Office of Professional Responsibility or the internal affairs office of the appropriate component of the Department of Justice;

(3) shall refer to the Counsel, Office of Professional Responsibility of the Department of Justice, allegations of misconduct involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice, except that no such referral shall be made if the attorney is employed in the Office of Professional Responsibility;

(4) may investigate allegations of criminal wrongdoing or administrative misconduct by a person who is the head of any agency or component of the Department of Justice; and

(5) shall forward the results of any investigation conducted under paragraph (4), along with any appropriate recommendation for disciplinary action, to the Attorney General.

(c) Reports.— Any report required to be transmitted by the Attorney General to the appropriate committees or subcommittees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified under that section, to the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on the Judiciary and the Committee on Oversight and Reform of the House of Representatives.

(d) Regulation To Ensure Reporting of Certain Allegations to Inspector General.— The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, except with respect to allegations described in subsection (b)(3), shall report that information to the Inspector General.

(Pub. L. 117–286, § 3(b), Dec. 27, 2022, 136 Stat. 4233; Pub. L. 118–71, § 2(a), July 25, 2024, 138 Stat. 1492.)

Amendment of Section

Pub. L. 118–71, § 2(a), (b), July 25, 2024, 138 Stat. 1492, 1501, provided that, effective on the date that is 90 days after the date on which appropriations are made available to the Inspector General of the Department of Justice and the Department of Justice for the specific purpose of carrying out the provisions of Pub. L. 118–71, this section is amended by adding at the end the following:

(e)Inspections Regime.—

(1)Definitions.—In this subsection:

(A)Appropriate congressional committees.—The term “appropriate congressional committees” means—

(i) the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate; and

(ii) the Committee on the Judiciary and the Committee on Oversight and Accountability of the House of Representatives.

(B)Bureau.—The term “Bureau” means the Bureau of Prisons.

(C)Covered facility.—The term “covered facility”—

(i) means a correctional facility operated by the Bureau; and

(ii) does not include a post-incarceration residential re-entry center.

(D)Family advocate.—The term “family advocate” includes—

(i) a grandparent, parent, sibling, spouse or domestic partner, child, aunt, uncle, cousin, niece, nephew, grandchild, or any other person related to an individual by blood, adoption, marriage, civil union, a romantic or fostering relationship; or

(ii) a friend of—

(I) the incarcerated person; or

(II) the family of the incarcerated person.

(E)Inspector general.—The term “Inspector General” means the Inspector General of the Department of Justice.

(F)Ombudsman.—The term “Ombudsman” means the Ombudsman established under paragraph (3)(A).

(G)Representative of an incarcerated person.—The term “representative of an incarcerated person” includes paid or unpaid legal counsel or any other person or entity chosen by an incarcerated person to represent the interests of the incarcerated person.

(H)Sexual abuse.—The term “sexual abuse” has the meaning given that term in section 115.6 of title 28, Code of Federal Regulations (or any successor thereto).

(I)Staff.—The term “staff” means employees and contractors of the Bureau.

(2)Inspections of covered facilities by the inspector general.—

(A)Establishment of inspections regime.—

(i)In general.—The Inspector General shall conduct periodic inspections of covered facilities pursuant to the requirements of this subsection.

(ii)Access to covered facilities.—The Attorney General shall ensure that the Inspector General has access to—

(I) any covered facility (including the incarcerated people, detainees, staff, bargaining unit representative organization) in accordance with paragraph (4); and

(II) any other information that the Inspector General determines is necessary to carry out the provisions of this subsection.

(iii)Notice of inspections.—An inspection of a covered facility under this subsection may be announced or unannounced.

(iv)Community input.—In developing the inspections regime under this subsection, the Inspector General is encouraged to consult formerly incarcerated people, family or representatives of incarcerated people, and community advocates.

(B)Inspection criteria.—An inspection of a covered facility under this subsection may include an assessment of the following:

(i) The policies, procedures, and administrative guidance of the facility.

(ii) The conditions of confinement.

(iii) Working conditions for staff.

(iv) The availability of evidence-based recidivism reduction programs and productive activities, as such terms are defined in section 3635 of title 18, and the application of earned time credits pursuant to section 3632 of title 18.

(v) The policies and procedures relating to visitation.

(vi) The policies and practices relating to classification and housing.

(vii) The policies and practices relating to the use of single-cell confinement, administrative segregation, and other forms of restrictive housing.

(viii) The medical facilities and medical and mental health care, programs, procedures, and policies, including the number and qualifications of medical and mental health staff and the availability of sex-specific and trauma-responsive care for incarcerated people.

(ix) Medical services and mental health resources for staff.

(x) Lockdowns at the facility.

(xi) Credible allegations of incidents involving excessive use of force, completed, attempted, or threatened violence, including sexual abuse, or misconduct committed against incarcerated people.

(xii) Credible allegations of incidents involving completed, attempted, or threatened violence, including sexual violence or sexual abuse, committed against staff.

(xiii) Adequacy of staffing at the covered facility, including the number and job assignments of staff, the ratio of staff to inmates at the facility, the staff position vacancy rate at the facility, and the use of overtime, mandatory overtime, and augmentation.

(xiv) Deaths or serious injuries of incarcerated people or staff that occurred at the facility.

(xv) The existence of contraband that jeopardizes the health or safety of incarcerated people or staff, including incident reports, referrals for criminal prosecution, and confirmed prosecutions.

(xvi) Access of incarcerated people to—

(I) legal counsel, including confidential meetings and communications;

(II) discovery and other case-related legal materials; and

(III) the law library at the covered facility.

(xvii) Any aspect of the operation of the covered facility that the Inspector General determines to be necessary over the course of an inspection.

(C)Inspection schedule.—An inspection of a covered facility under this subsection shall be conducted on a schedule based on the combined risk score of the covered facility as described in subparagraph (E) and the following considerations:

(i) Higher risk facilities shall receive more frequent inspections.

(ii) The Inspector General shall reevaluate the combined risk score methodology and inspection schedule periodically and may alter 1 or both to ensure that higher risk facilities are identified and receiving the appropriate frequency of inspection.

(iii) A determination by the Inspector General that 1 or more of the criteria listed in subparagraph (B) should be inspected, with regard to a covered facility or group of covered facilities.

(D)Report.—

(i)In general.—Not later than 6 months after the completion of an inspection of a covered facility under this subsection, or a group of inspections that assess the same or similar issues at more than 1 facility, the Inspector General shall submit a final copy of the report to the Attorney General, the appropriate congressional committees, employee representative organizations, and the public, that addresses 1 or more of the following topics:

(I) A characterization of the conditions of confinement and working conditions, including a summary of the inspection criteria reviewed under clauses (ii) and (iii) of subparagraph (B).

(II) Recommendations made to the covered facility to improve safety and conditions within the facility, including recommendations regarding staffing.

(III) A recommended timeline for the next inspection and assessment, which shall not limit the authority of the Inspector General to perform additional inspections and assessments, announced or unannounced.

(IV) Any other issues or matters identified during the inspection of the facility or facilities.

(ii)Consultation with stakeholders.—In developing the recommendations described in clause (i), the Inspector General may consult with stakeholders, including employee representative organizations.

(E)Risk score.—Not later than 18 months after the date of enactment of the Federal Prison Oversight Act, the Inspector General shall establish methodology and protocols for determining the combined risk score of a covered facility, which—

(i) shall be delivered to the appropriate congressional committees; and

(ii) may be based on—

(I) frequency and duration of lockdowns;

(II) availability of programming;

(III) staffing levels;

(IV) access to adequate physical and mental health resources;

(V) incidences of physical assault, neglect, or sexual abuse;

(VI) opportunity to maintain family ties through phone calls, video calls, mail, email, and visitation;

(VII) adequacy of the nutrition provided;

(VIII) amount or frequency of staff discipline cases;

(IX) amount or frequency of misconduct by people incarcerated at the covered facility;

(X) access of incarcerated people to—

(aa) legal counsel, including confidential meetings and communications;

(bb) discovery and other case-related legal materials; and

(cc) the law library at the covered facility; and

(XI) other factors as determined by the Inspector General.

(F)Bureau response to report.—

(i)In general.—Not later than 60 days after the date on which the Inspector General issues a report under subparagraph (D), the Bureau shall respond in writing to the inspection report, which shall include a corrective action plan.

(ii)Public availability.—Each response and action plan described in clause (i) shall be made available to the public on the website of the Inspector General.

(iii)Compliance with corrective action plan.—The Inspector General may conduct additional inspections or investigations, announced or unannounced, to monitor the compliance of the Bureau with a corrective action plan described in clause (i).

(G)Rule of construction.—The authority in this paragraph is consistent with and does not supersede, conflict with, or otherwise alter the authority provided to the Inspector General under section 406.

(3)Ombudsman.—

(A)In general.—Not later than 1 year after the date of enactment of the Federal Prison Oversight Act, the Attorney General shall establish in the Department of Justice an Ombudsman who may—

(i) receive a complaint from an incarcerated person, a family advocate, a representative of an incarcerated person, staff, a representative of staff, a Member of Congress, or a member of the judicial branch of the Federal Government regarding issues that may adversely affect the health, safety, welfare, or rights of incarcerated people or staff, including—

(I) abuse or neglect;

(II) the conditions of confinement, including the availability of health care;

(III) working conditions of staff;

(IV) decisions, administrative actions, or guidance of the Bureau, including those relating to prison staffing;

(V) inaction or omissions by the Bureau, including failure to consider or respond to complaints or grievances by incarcerated people or staff promptly or appropriately;

(VI) policies, rules, or procedures of the Bureau, including gross mismanagement; and

(VII) alleged violations of non-criminal law by staff or incarcerated people that may adversely affect the health, safety, welfare, or rights of any person;

(ii) refer a complainant and others to appropriate resources or Federal agencies;

(iii) make inquiries and recommend actions to appropriate entities on behalf of a complainant, the Ombudsman, or others; and

(iv) decline to investigate or take any action with respect to any complaint and, in any case in which the Ombudsman declines to investigate or take any action, shall notify the complainant in writing of the decision not to investigate or take any action and the reasons for the decision.

(B)Limitations on authority.—The Ombudsman—

(i) may not investigate—

(I) any complaints relating to the underlying criminal conviction of an incarcerated person;

(II) a complaint from staff that relates to the employment or contractual relationship of the staff member with the Bureau, unless the complaint is related to the health, safety, welfare, working conditions, gross mismanagement of a covered facility, or rehabilitation of incarcerated people; or

(III) any allegation of criminal or administrative misconduct, as described in subsection (b)(2), and shall refer any matter covered by subsection (b)(2) to the Inspector General, who may, at the discretion of Inspector General, refer such allegations back to the Ombudsman or the internal affairs office of the appropriate component of the Department of Justice; and

(ii) may not levy any fees for the submission or investigation of complaints.

(C)Decision on the merits of a complaint.—At the conclusion of an investigation of a complaint, the Ombudsman shall—

(i) render a decision on the merits of each complaint;