AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION
RESOLVED, That the American Bar Association urges federal, state, local, and
territorial governments to develop comprehensive plans to ensure that the public is
informed about the operations of all correctional and detention facilities (facilities for the
confinement of individuals for alleged or adjudicated crimes or delinquent acts) within
their jurisdiction and that those facilities are accountable to the public.
FURTHER RESOLVED, That the American Bar Association urges federal, state,
and territorial governments to establish public entities that are independent of any
correctional agency to regularly monitor and report publicly on the conditions in all
prisons, jails, and other adult and juvenile correctional and detention facilities operating
within their jurisdiction.
FURTHER RESOLVED, That the American Bar Association urges federal, state,
local, and territorial governments to ensure that these monitoring entities meet the
appended “Key Requirements for the Effective Monitoring of Correctional and Detention
Facilities.”
FURTHER RESOLVED, That the American Bar Association recommends that
the federal government:
(1) Provide technical assistance and training to facilitate the establishment of
monitoring entities that meet the “Key Requirements for the Effective
Monitoring of Correctional and Detention Facilities.”
(2) Require that jurisdictions receiving federal funds for correctional or detention
facilities ensure that the facilities are monitored by at least one entity meeting
these requirements.
(3) Develop common definitions for the collection and reporting of key
performance data by correctional and detention facilities.

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 REPORT
In 1987, Supreme Court Justice Brennan made the following observations about
prisoners and the world in which they live: “Prisoners are persons whom most of us
would rather not think about. Banished from everyday sight, they exist in a shadow
world that only dimly enters our awareness. They are members of a ‘total institution’ that
controls their daily existence in a way that few of us can imagine . . ..” O’Lone v. Estate
of Shabazz, 482 U.S. 342, 354 (1987) (Brennan, J., dissenting). Justice Brennan’s
observations apply equally today. Prisoners still live in a netherworld with which few of
us are familiar. While at times a horrific problem or scandal in a correctional facility or
facilities, such as the sexual abuse of inmates, attracts headlines, the public is mostly
oblivious about conditions in prisons, jails, and other correctional and detention facilities,
even those within their own communities.
While the inner workings and conditions of correctional and detention facilities
largely are insulated from the public eye, they need not be. As is true with public schools
and other governmental entities, the operations of correctional and detention facilities can
be transparent and accountable to the public they serve. And, for a number of reasons,
they should be.
First, the public identification of significant problems in correctional conditions and
operations can and should lead to the rectification of those problems, resulting in
correctional and detention facilities that are safer, operated in conformance with the
Constitution, other laws, and best correctional practices, and equipped to better prepare
inmates for a successful reentry into society. Second, through the objective observations
of an entity that is wholly independent of the facility being inspected, potential problems
that have been overlooked at the facility can be detected, preventing them from becoming
major problems for correctional officials. Third, external oversight of correctional
operations and the problem solving that it catalyzes can be a cost-effective and proactive
means to potentially avert lawsuits challenging the legality of conditions of confinement
or the treatment of prisoners. Fourth, the factual findings of the monitoring entity can
substantiate the need for funds requested by correctional administrators. And finally, the
revelation by a monitoring entity of what is and is not happening behind prison walls can
lead to better-informed decisions about a jurisdiction’s sentencing and correctional
policies.
At a conference on prison oversight in 2006, 115 of the world’s top experts on
correctional oversight convened at the University of Texas to discuss a variety of
domestic and international oversight models. See 1 OPENING UP A CLOSED
WORLD: WHAT CONSTITUTES EFFECTIVE PRISON OVERSIGHT?:
CONFERENCE PROCEEDINGS (Michele Deitch, ed., The University of Texas at
Austin, forthcoming 2008)1 The conference revealed that correctional oversight by an
independent entity whose findings are disseminated to the public is a relative rarity in the
1

Videos of the conference sessions are available at
http://www.utexas.edu/lbj/prisonconference/video.php.
2

 United States, although some such monitoring does occur in this country, such as that
conducted at the federal level by the Inspector General of the United States Department
of Justice. (For other examples of monitoring bodies in the United States, see infra note
2.) By contrast, prisons in all of the countries (over forty-five) that are members of the
European Union are subject to independent monitoring by the European Committee for
the Prevention of Torture (CPT). Michele Deitch, Why You Should Love Watchdogs:
The Case for Effective Prison Oversight and the British Experience, THE STATE OF
CORRECTIONS: PROCEEDINGS OF THE 2005 AMERICAN CORRECTIONAL
ASSOCIATION ANNUAL CONFERENCES 147-48 (2006). The diverse group of
stakeholders represented at the conference – correctional administrators, judges, humanrights advocates, policymakers, representatives of prison monitoring bodies, and scholars
– reached a consensus about the value of, and need for, expanded external oversight of
prisons and jails in the United States. See Michele Deitch, Conference Report: Opening
Up a Closed World: What Constitutes Effective Prison Oversight?, XVIII
CORRECTIONAL L. REP. 22 (Aug./Sept. 2006).
I.

Comprehensive Oversight Plans That Include Monitoring by
Independent, Public Entities

The American Bar Association is calling on federal, state, local, and territorial
governments to develop comprehensive plans to make the operations of their correctional
and detention facilities more transparent and accountable to the public. The facilities on
which this resolution focuses are those, both public and private, in which individuals are
confined for alleged or adjudicated crimes or delinquent acts, whether or not immigrants
are also confined in them. Prisons, jails, police lockups, juvenile detention facilities, and
juvenile training schools are examples of such facilities. But while this resolution solely
concerns facilities within criminal- and juvenile-justice systems, the public’s interest in
transparency and accountability obviously transcends those systems, extending to other
types of facilities, such as mental-health institutions and immigration facilities, in which
individuals are confined involuntarily.
As a first step towards injecting more transparency and accountability into the
operations of correctional and detention facilities, the ABA is urging federal, state, and
territorial governments to establish public entities, independent of any correctional
agency, to regularly monitor and publicly report on conditions in prisons, jails, and other
correctional and detention facilities for adults and juveniles in their jurisdictions. Other
countries, such as Great Britain, already utilize such independent monitoring entities, and
the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment recognizes their value. But the comprehensive
oversight for which the ABA is advocating entails more than external monitoring by an
independent entity. Examples of other components or potential components of a
comprehensive oversight plan include: monitoring by citizens’ groups, accreditation,
legislative oversight, media access, and special mechanisms for the prosecution of crimes
committed by correctional staff. The attentive monitoring by correctional officials of the
implementation of their contracts with private correctional facilities is another example of
a way to supplement the external monitoring for which this resolution calls. All of these

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 oversight processes and tools can complement, though not supplant, the external
monitoring that is the focal point of this resolution.
It bears emphasizing that the external monitoring that is the focus of this
resolution is not intended to replace, and should not replace, the internal mechanisms that
correctional administrators can and should set up to evaluate correctional operations and
programs. Internal evaluation is vital to the efficient and effective functioning of
correctional facilities. But external monitoring can bring accountability and transparency
to correctional facilities and, in turn, improve their functioning in ways that internal
evaluation mechanisms simply cannot.
In order for the work of the monitoring entities to be marked by the
professionalism, expertise, and insulation from cronyism that are essential to the
fulfillment of their objectives, they should be established at the state and federal levels.
At the same time, it is essential that local officials be informed in a timely fashion of the
monitoring entity’s findings about jails, juvenile detention centers, or other facilities in
their community, that they respond promptly to correct noted deficiencies in those
facilities, and that they are vigilant in ensuring that the monitoring of conditions in their
local facilities is thorough, accurate, and effective. Periodic assessments of confinement
conditions conducted by local bodies themselves may be one means of achieving the
latter objective and of bringing added transparency and accountability to local
correctional and detention facilities.
II. Key Requirements for Effective Monitoring
The resolution specifies certain key requirements that must be met in order for the
goals of correctional monitoring to be realized. The reason many of these requirements
need to be met is readily apparent, but several warrant elaboration:
Requirement #1: In order for monitoring assessments and evaluations to be
objective and undistorted by inappropriate pressures, the monitoring entity must be
wholly independent of the correctional agency that is operating or utilizing the facility
being inspected. The monitoring entity, for example, should not be under the correctional
agency’s authority or supervision and should not be dependent on the agency for funding,
space, staff support, or the meeting of other operational needs.
Requirement #2: Each monitoring entity must be adequately funded and staffed,
allotted the resources necessary to ensure that inspections occur regularly, that
monitoring teams are well-trained and large enough to perform their work well, and that
there is sufficient time to prepare thorough and timely reports that achieve the objectives
of external oversight. Since budgetary constraints and cutbacks can be used to hamper
the work of the monitoring entity and even retaliate against it for the candor of its
findings, mechanisms must be in place to protect the entity’s funding and independence.
An example of one possible such mechanism is the set allocation of a fixed percent of the
correctional budget to fund the monitoring entity rather than having it subject to the
vagaries and political pressures that can attend ad hoc appropriations.

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 Requirement #3: The requirements that the head of the monitoring entity be
appointed for a fixed term by an elected official, be confirmed by a legislative body, and
be subject to removal only for just cause also are designed to preserve the independence
of the monitoring entity. Depending on the jurisdiction’s preferences and needs, the
monitoring entity may be headed by either an individual or a board.
Requirements #8 and 9: External oversight works best – is more effective,
efficient, and less costly – when the monitoring process is collaborative, cooperative, and
collegial, rather than adversarial. Consequently, correctional and other governmental
officials should not only be authorized, but also required, to cooperate fully and promptly
with the monitoring entity. In turn, the monitoring entity should strive to work
collaboratively and constructively with correctional administrators, the legislature, and
others who have the authority or capacity to ameliorate problems in monitored facilities.
But the monitoring entity must be careful to ensure that it is not co-opted by correctional
officials– that its independence and the need for accuracy and rigor in its fact-finding are
preserved and not compromised as it works closely with correctional and other
governmental officials.
Requirements # 10, 11, 12, 13, and 14: One of the keys to full and accurate
reporting of conditions in a correctional facility is granting the monitoring entity broad
and unhindered access to the facility, correctional personnel, and inmates, as well as
records bearing on the facility’s operations and conditions. There are monitoring
prototypes already in place that exemplify this kind of unimpeded access to the
information needed to ascertain and verify the true state of conditions in a correctional
facility.2 Of course, even the broad access to information accorded the monitoring entity
may be subject to certain limited confidentiality requirements, such as those that apply to
private medical information.
Because the monitoring entity’s efforts to collect accurate information about a
correctional facility may be stymied by the fear of line staff, inmates, and others that they
may be retaliated against for their forthright disclosures, procedures must be in place to
enable facility administrators, line staff, inmates, and others to communicate
confidentially with the monitoring entity about the facility. In addition, it is essential that

2

For examples of external-monitoring entities with this level of access to facilities, see
Prison Oversight and Systems of Accountability: National Prison Rape Elimination
Commission Hearing (Dec. 6, 2007) (statement of Michele Deitch), available at
http://www.nprec.us/docs3/Deitch%20Testimony.pdf. (citing, among other oversight
bodies, the Inspector General of the United States Department of Justice, the California
Inspector General, the Ohio Correctional Institutions Inspection Committee, the Texas
Youth Commission’s Office of the Independent Ombudsman, the Correctional
Association of New York, the New York City Board of Correction, the British Prison
Inspectorate, the European Committee for the Prevention of Torture (CPT), and the
British Independent Monitoring Boards).
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 adequate safeguards be established to protect those who communicate with the
monitoring entity from retaliation or threats of retaliation for those comments.
Finally, because obstructionism, a “code of silence,” and layers of secrecy may
surround correctional operations and conditions, the monitoring entity must be vested
with the authority to subpoena witnesses and documents. But if correctional officials and
the monitoring entity build a collaborative relationship, this power to subpoena witnesses
and documents can be exercised sparingly and may not need to be utilized at all.
Requirement #16: The reports disseminated by a monitoring entity should review
and assess a facility’s policies, processes, programs, and practices objectively and
accurately. Since a monitoring report is supposed to provide an objective account of
correctional conditions and operations, it typically will include positive as well as
negative findings. But if the impetus for the preparation and issuance of a special report
is some discrete problem, such as reported excessive use of force by staff, the report may
not include any positive findings.
The significance of some facts that a monitoring report discloses about a
correctional or detention facility may not be readily apparent without some benchmark
against which to measure those facts. Legal requirements are one example of a
benchmark that should be utilized by the monitoring entity when reviewing and assessing
a facility’s conditions and the treatment of its inmates. Constitutional and statutory
requirements, as well as obligations under human-rights or other treaties signed by the
United States and ratified by Congress, are examples of the legal requirements to be
considered during the assessment process.
What are considered “best correctional practices” also provide helpful and
illuminating criteria for evaluating a facility’s operations, conditions, programs, and
services. This resolution reserves the question of how to define the “best correctional
practices” and certain other objective criteria to be utilized when assessing a facility’s
performance. Professional standards, such as those developed by the American Bar
Association, American Correctional Association, and National Commission on
Correctional Health Care, may provide a helpful starting point for jurisdictions
determining what assessment criteria to apply when monitoring correctional facilities.
But at this point in time, according jurisdictions flexibility to explore and pilot different
ways of defining “best correctional practices” and other assessment criteria seems
advisable as this country begins to utilize, on a widespread basis, systematic, external
monitoring of correctional and detention facilities by independent, public entities to
promote transparency and accountability as national norms.
This resolution confirms that the purpose of monitoring reports is not simply to
inform the public and policymakers about conditions of confinement. The reports also
should be designed and disseminated to prompt change -- the timely implementation of
corrective measures to eliminate the problems monitoring reports have revealed.
Consequently, when possible, monitoring reports should pinpoint the reasons for a noted
deficiency, particularly when actions need to be taken by individuals or entities other than

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 correctional officials to cure the deficiency. For example, if a county jail is unable to
attract or retain enough correctional officers because it pays them so little, a monitoring
report needs to denote the reason for the staffing shortage so that the county board can
take the necessary follow-up actions.
Requirement #17. To meet its informational and problem-solving purposes, the
monitoring entity’s report about a facility must be readily available to the public,
including accessibility through the Internet. Occasionally, however, the monitoring
entity may decide that, due to privacy or security requirements, it should not disclose a
portion of its report to the general public. For example, the monitoring entity
appropriately may refrain from disclosing information to the public, such as the presence
of a hole in a prison’s perimeter fence, which will jeopardize institutional security.
In addition to being disseminated to the public, the monitoring report should be
distributed to the media, the legislature, and the jurisdiction’s top elected official. But
while copies of the report must be provided to legislative and executive officials to ensure
that appropriate actions are taken to rectify problems identified in the report, its
dissemination and distribution must not be conditioned on the assent of any governmental
official or entity outside the monitoring body, such as the governor, state legislature, or
county board.
Requirements #18 and 19. There are several steps that jurisdictions can take to
guard against the risk that monitoring reports become meaningless pieces of paper,
largely ignored by correctional and other officials. First, facility administrators should be
required to respond publicly to the reports and to develop and implement in a timely way
action plans to correct identified problems. Since the solving of problems sometimes or
often will require the involvement of other executive officials, the legislature, the county
board, or others, these other individuals and entities may need to play an integral role in
the development and implementation of a viable action plan.
Second, facility administrators should report to the public twice a year, recounting
the progress that has been made in implementing the action plan. To conserve time and
resources, once administrators have reported that a problem has been remedied, progress
reports need not address it further unless the monitoring entity determines that the
problem has not abated or has reoccurred.
Third, the jurisdiction needs to vest some administrative entity with the authority
to enforce the above requirements so that problems identified in a monitoring report are
addressed and resolved with dispatch. The monitoring entity need not be the body
performing this enforcement function.
Finally until a problem highlighted in a monitoring report is resolved, the
monitoring entity should continue to assess and report on the problem and the progress
made in solving it. As part of this ongoing assessment, the monitoring entity should
pinpoint and report on the reason or reasons why a problem persists. In order to meet

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 these responsibilities, the monitoring entity may need to conduct special follow-up
inspections.
Requirement #20. The premise of the ABA’s resolution is that the operations of
correctional and detention facilities should be more transparent and accountable to the
public. These same principles of transparency and accountability apply to monitoring
entities as well. Consequently, states and the federal government should adopt
safeguards to ensure that their monitoring entities are meeting their designated purposes
and performing their functions well. One of the adopted safeguards should require the
monitoring entity to publish an annual report of its activities and findings. This report
should be accessible through the Internet and distributed to the media, the legislature, and
the jurisdiction’s top elected official.
III. The Federal Role
The federal government can and should play a central role in furthering the goals
of making this nation’s prisons, jails, and other correctional and detention facilities more
transparent and accountable to the public. First, the federal government should provide
technical assistance and training to the states to facilitate their establishment of effective
monitoring processes and the development of a professional corps of correctional
monitors.
Second, the federal government should condition its funding of correctional and
detention facilities in states on their compliance with the “Key Requirements for the
Effective Monitoring of Correctional and Detention Facilities” set forth in this resolution.
The federal government understandably can and should be reluctant to funnel federal
funds to correctional and detention facilities that rebuff efforts to make them transparent
and accountable, no longer hidden from the public’s and the federal government’s view.
Finally, the federal government should develop common definitions for the
collection and reporting of key performance data by correctional and detention facilities.
These common definitions, such as the definition of what constitutes an assault on an
inmate or “overcrowding,” will facilitate the reporting and understanding of the true
conditions in the facilities being monitored and will enable the conditions in a facility to
be compared more meaningfully with those in other facilities. In short, the promulgation
of these definitions, in conjunction with the other prescribed steps to be undertaken by
the federal government, will promote the transparency and accountability goals of
correctional oversight. The realization of these goals in turn will help to ensure that
correctional officials operate, and have the resources to operate, correctional and
detention facilities in conformance with legal requirements and best correctional
practices.

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 KEY REQUIREMENTS FOR THE EFFECTIVE MONITORING
OF CORRECTIONAL AND DETENTION FACILITIES

1. The monitoring entity is independent of the agency operating or utilizing the
correctional or detention facility.
2. The monitoring entity is adequately funded and staffed.
3. The head of the monitoring entity is appointed for a fixed term by an elected official,
is subject to confirmation by a legislative body, and can be removed only for just cause.
4. Inspection teams have the expertise, training, and requisite number of people to meet
the monitoring entity’s purposes.
5. The monitoring entity has the duty to conduct regular inspections of the facility, as
well as the authority to examine, and issue reports on, a particular problem at one or more
facilities.
6. The monitoring entity is authorized to inspect or examine all aspects of a facility’s
operations and conditions including, but not limited to: staff recruitment, training,
supervision, and discipline; inmate deaths; medical and mental-health care; use of force;
inmate violence; conditions of confinement; inmate disciplinary processes; inmate
grievance processes; substance-abuse treatment; educational, vocational, and other
programming; and reentry planning.
7. The monitoring entity uses an array of means to gather and substantiate facts,
including observations, interviews, surveys, document and record reviews, video and tape
recordings, reports, statistics, and performance-based outcome measures.
8. Facility and other governmental officials are authorized and required to cooperate fully
and promptly with the monitoring entity.
9. To the greatest extent possible consistent with the monitoring entity’s purposes, the
monitoring entity works collaboratively and constructively with administrators,
legislators, and others to improve the facility’s operations and conditions.
10. The monitoring entity has the authority to conduct both scheduled and unannounced
inspections of any part or all of the facility at any time. The entity must adopt procedures
to ensure that unannounced inspections are conducted in a reasonable manner.
11. The monitoring entity has the authority to obtain and inspect any and all records,
including inmate and personnel records, bearing on the facility’s operations or conditions.

12. The monitoring entity has the authority to conduct confidential interviews with any

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 person, including line staff and inmates, concerning the facility’s operations and
conditions; to hold public hearings; to subpoena witnesses and documents; and to require
that witnesses testify under oath.
13. Procedures are in place to enable facility administrators, line staff, inmates, and others
to transmit information confidentially to the monitoring entity about the facility’s
operations and conditions.
14. Adequate safeguards are in place to protect individuals who transmit information to
the monitoring entity from retaliation and threats of retaliation.
15. Facility administrators are provided the opportunity to review monitoring reports and
provide feedback about them to the monitoring entity before their dissemination to the
public, but the release of the reports is not subject to approval from outside the monitoring
entity.
16. Monitoring reports apply legal requirements, best correctional practices, and other
criteria to objectively and accurately review and assess a facility’s policies, procedures,
programs, and practices; identify systemic problems and the reasons for them; and proffer
possible solutions to those problems.
17. Subject to reasonable privacy and security requirements as determined by the
monitoring entity, the monitoring entity’s reports are public, accessible through the
Internet, and distributed to the media, the jurisdiction’s legislative body, and its top
elected official.
18. Facility administrators are required to respond publicly to monitoring reports; to
develop and implement in a timely fashion action plans to rectify problems identified in
those reports; and to inform the public semi-annually of their progress in implementing
these action plans. The jurisdiction vests an administrative entity with the authority to
redress noncompliance with these requirements.
19. The monitoring entity continues to assess and report on previously identified
problems and the progress made in resolving them until the problems are resolved.
20. The jurisdiction adopts safeguards to ensure that the monitoring entity is meeting its
designated purposes, including a requirement that it publish an annual report of its
findings and activities that is public, accessible through the Internet, and distributed to the
media, the jurisdiction’s legislative body, and its top elected official.
Respectfully submitted,
Stephen J. Saltzburg
Chair, Section of Criminal Justice
August 2008

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