The Landscape of Recent State and County Correctional Oversight Efforts

Correctional institutions — prisons and jails — are considered closed facilities. Few visitors gain access to these institutions, even though they house people for months, years, decades, and, sometimes, entire lifetimes. As Justice Kennedy wrote in his 2015 concurrence to the Court’s opinion in Davis v. Ayala, “Prisoners are shut away—out of sight, out of mind,” while their conditions of confinement are “too easily ignored” by the public and the legal academy.

These institutions are also coercive environments with marked power differentials between corrections staff and incarcerated people that make facilities ripe for abuse. Because jails and prisons exert total authority over individuals’ bodies and liberty, transparency and accountability are necessary to ensure that facilities uphold their duty of care to respect the dignity of people who are imprisoned and ensure that prisons are safe and secure.

One way to achieve the goals of transparency and accountability, while ensuring safe and humane conditions of confinement, is a formal and independent system of oversight of jail and prison operations. As the Brennan Center has noted before, although the U.S. has more people behind bars than any other country on the planet, “it lacks a cohesive or integrated system of oversight for its vast network of prisons and jails.”

The country currently has about 18 entities overseeing prisons, such as the Correctional Association of New York, the John Howard Association in Illinois, and the Pennsylvania Prison Society. There are also a number of independent agencies that conduct prison oversight housed within the executive branch of state governments, such as the Office of the Inspector General in California. Additionally, a handful of independent entities oversee local jails, such as the New York City Board of Corrections and the Texas Commission on Jail Standards. Meanwhile, most state prisons — through their own internal accountability mechanisms — rely on monitors who work for the very state correctional agencies that manage these facilities. The inherent problem in this setup is that such internal accountability mechanisms lack independence. 

This patchwork of oversight provides insufficient coverage. And the public health crisis resulting from the highly contagious and deadly Covid-19 virus has shone a spotlight on the prevalence of inhumane conditions of confinement in America’s correctional facilities. These conditions predated the pandemic but worsened in many jails and prisons after March 2020.

Even before Covid-19 infiltrated their walls, jails and prisons across the country had already been deemed inhumane places to live. For example, in June of 2019, Mississippi’s State Health Department issued a report finding that the Mississippi State Penitentiary had dozens of broken or missing sinks and toilets and cells with no lights, hot water, or mattresses.

But the pandemic adds a new — and deadly — layer. Given the inability to social distance behind bars, the constant turnover in jails, lack of masks, and the inability to wash one’s hands frequently, it has been difficult for incarcerated people to avoid contracting Covid-19. Although these counts are likely underestimates, at least 3,059 incarcerated people and 308 correctional staff have died from Covid-19, and over 592,148 incarcerated people have contracted the virus. The situation has only been exacerbated by the lack of transparency about the spread, toll, and management of Covid-19 across the country’s thousands of correctional and detention facilities.

Many facilities have devolved into crisis since March 2020, as correctional officers called out sick or quit their jobs. Many of them worry about their own health as Covid-19 continues its persistent transmission within jails and prisons. And the outflow of staff is stark. For example, the vacancy rate for correctional officer positions in Florida’s prisons nearly doubled from December 2019 to September 2021.

This severe understaffing has exacerbated already dire conditions. In 2021 alone, 16 people died in the custody of New York City’s jail system. The city’s chief medical officer at Rikers Island even acknowledged that “in 2021, we have witnessed a collapse in basic jail operations, such that today I do not believe the City is capable of safely managing the custody of those it is charged with incarcerating in its jails, nor maintaining the safety of those who work there.”

In Philadelphia’s jails, 18 people died* in 2021, and the city’s controller found that the facilities are continuously operating 382 officers below the minimum level deemed safe for staff and detained people alike. In yet another pandemic-era disaster, the jail facility in Washington, D.C., entered a 23-hour-a-day lockdown in March 2020. It lasted for about 400 days straight and left the 1,500 people held there suffering from what experts referred to as “mass solitary confinement” and “a grave human rights abuse.” Last summer, the lockdown was loosened — to 22 hours per day.

Inhumane conditions of confinement in America’s prisons and jails continue to persist, and the nation is in dire need of more preventative and independent correctional oversight to rein these abuses in. This resource explores the landscape of prison and jail oversight reform since 2018. It highlights both progress in strengthening correctional oversight and failed attempts to improve monitoring of conditions inside these institutions. 

Independent oversight is critical to making prisons and jails safer, more accountable, and transparent. Without it, legislators and taxpayers alike are often left in the dark about the true status of the criminal legal systems they fund. As correctional oversight expert Michele Deitch recently pointed out, “the national landscape for independent correctional oversight is improving, with greater awareness of this issue, more calls for the creation of oversight mechanisms, more concrete efforts to establish these entities, and the successful implementation of several new oversight bodies.” Over the past few years, despite some stalled legislative efforts to expand oversight bodies, a noteworthy number of states expanded their independent monitoring of state prison facilities and some jurisdictions have instituted new accountability mechanisms for local jails.

• Washington State’s legislature had considered proposals to create a prison ombudsman office for years. State policymakers finally acted in 2018 after incarcerated individuals sued the state over their conditions of confinement, including improper use of solitary confinement. That year, Washington became the seventh state (joining Hawaii, California, Indiana, Michigan, Nebraska, and New Jersey) to create an Office of Corrections Ombuds (OCO) to field complaints related to the health, safety, welfare, and rights of those in the state’s prison system; monitor and ensure state Department of Corrections compliance with statutes, rules, and policies regarding the treatment of prisoners; and produce public reports explaining OCO findings and recommendations. The OCO is authorized to publicize its reports and recommendations, and it must report investigative findings to the governor and appropriate legislative committees if there is a substantial health, safety, welfare, or rehabilitation issue.

• Minnesota re-created the Office of the Ombuds for Corrections (OBFC) in 2019. It had eliminated a similar body in a round of 2003 budget cuts, after 30 years in operation. The revived OBFC has the authority to investigate all decisions and policies of the Department of Corrections, and agencies are now required to provide ombuds access to facilities and documents. The OBFC can also subpoena witnesses and file lawsuits to invoke its powers. The new office opened in January 2020 and began by evaluating correctional responses to the Covid-19 pandemic; it opened for general complaints in September 2020. 

• Connecticut launched a Correctional Ombudsman Program to address the complaints of incarcerated individuals and investigate allegations of mistreatment in the 1970s. But in 2010, the office was eliminated in a round of state agency budget cuts. Almost a decade later, in 2019, the state passed HB 7389 to introduce ombuds services for incarcerated minors. This bill was prompted by a report from the Office of the Child Advocate condemning the “overall lack of rehabilitative structure and the harmful practices related to isolation and restraint” for young people within the state’s prison system. As of July 1, 2020, the independent ombudsperson service has the power to tour facilities as well as receive, investigate, and recommend remedies to complaints from minors spending time in adult prison facilities.

• New Jersey passed AB 3979 in 2019, which was signed by the governor in 2020 and revamped the Office of the Corrections Ombudsperson. The ombudsperson is now able to conduct unannounced inspections of prisons in the state. The law also allows the ombudsperson to receive and investigate complaints from those who are incarcerated, their families, advocates, government agencies, and others with information about conditions in the facilities. However, almost two years later, the state has not yet implemented the legislation that gave such broad powers to the corrections ombudsperson nor created an advisory board to assist in oversight efforts. Seats on the advisory board still remain open, and the existing board members have been unable to meet given the lack of quorum and no active ombudsperson with whom to coordinate. 

• The Correctional Association of New York (CANY) was founded 175 years ago and is the only independent organization in the state with statutory authority to monitor prisons and report its findings to the legislature and the public. In 2020, the state significantly increased the organization’s statutory authority through AB 10194. The law permits CANY to access, visit, inspect, and examine all state prisons without advance notice. During such visits, the association can speak publicly or confidentially with any correctional employee, any incarcerated individual, or any other person who provides services in a New York state prison.

• Hawaii established its own Correctional Systems Oversight Commission in 2019, appointing five commissioners to lead the new oversight effort. However, Governor Yutaka Ige’s administration delayed for years on releasing funding to hire staff. The team was finally approved to hire a full-time oversight commissioner in October 2021, but the hiring process is ongoing. 

• In Pennsylvania, the Delaware County Council approved a resolution in 2019 to remake the oversight mechanism for its county correctional facility — replacing the Board of Prison Inspectors with a new Jail Oversight Board. The county houses the only privately run prison in Pennsylvania, and the previous board’s ability to make financial and policy decisions about the facility without council approval has long been a source of controversy. The new, expanded membership includes the county sheriff, controller, executive director, two judges, the council’s chairperson, and three members of the public. 

• In New York’s Erie County, the legislature created the Corrections Specialist Advisory Board in 2019 to provide increased oversight of the Erie County Holding Center and the County Correctional facility in Alden. The board began meeting in early 2020, when its first official action was to recommend the release of most people held in county jails during the beginning of the Covid-19 pandemic.

• In Essex County, New Jersey, the legislature approved a civilian review panel — the Correctional Facility Civilian Task Force — in late 2019 to review conditions at the county jail, including immigrant detainees who are housed there. The ordinance empowers the group to ensure conditions of confinement are “safe, sanitary, respectful and humane” through regular visits and reporting. But after two years in existence, the board has failed to meet its annual reporting requirement or conduct visits to the jail and interview people in custody. 

Litigation is a tool that can force jail and prison facilities to implement certain protocols and protections to improve conditions. Independent and preventive oversight can help ensure that conditions do not deteriorate enough that a lawsuit is necessary. But changing circumstances can also raise new concerns. In some states, the Covid-19 virus produced such worry about incarcerated individuals’ health and concern about compliance with constitutional norms that federal courts stepped in. The results of these interventions have been mixed.

• In Hawaii, incarcerated people filed a class action lawsuit in federal court in April 2021 alleging that state correctional officials had failed to implement most of the guidelines that public health experts issued to prevent the spread of Covid-19 in Hawaii’s prisons. In July 2021, U.S. District Court Judge Jill Otake issued a 69-page ruling granting partial injunctive relief, finding that the state Department of Public Safety (DPS) had failed to protect incarcerated people from Covid-19 outbreaks that caused the deaths of at least nine prisoners. As part of this ruling, Judge Otake ordered the DPS to follow its own response plan for coping with the Covid-19 pandemic and to specifically implement social distancing measures, provide personal protective equipment, and create new intake screening procedures. The federal judge also ordered DPS to “provide sanitary living conditions to all inmates in DPS custody, i.e., regular access to a working toilet, sink, and drinking water” and to “prohibit DPS employees from restricting access to inmate grievance forms or from preventing the submission of grievances with respect to COVID-19 issues.”

• In July 2020, a federal judge in Connecticut approved a class action settlement that required increased medical monitoring for incarcerated individuals who test positive for Covid-19 in addition to improving how the state Department of Corrections (DOC) quarantines these individuals. The agreement also required the creation of a five-member panel to monitor compliance, make recommendations to help the DOC comply with federal guidelines, and produce public reports about its findings. However, the ACLU Foundation of Connecticut had already uncovered “systemic patterns of non-compliance by the Department of Correction” by October 2020, and the settlement expired at the end of the year. Since then, conditions within the Connecticut DOC have continued to deteriorate.

• At the end of March 2020, incarcerated people in a geriatric prison in Texas filed a class action lawsuit against the Texas Department of Criminal Justice (TDCJ), alleging that the prison system had violated their Eighth and Fourteenth Amendment rights protecting them from cruel and unusual punishment, as well as the Americans with Disabilities Act and Rehabilitation Act, by failing to make reasonable accommodations to protect them from Covid-19. During review by the district court, the incarcerated people were granted a permanent injunction that required TDCJ to implement Covid-19 safeguards, including providing cleaning supplies, enforcing social distancing, compelling the use of personal protective equipment by staff, testing people inside the facility, and creating a contact tracing plan. However, in mid-October, the Fifth Circuit stayed enforcement of the injunction two weeks later, and the Supreme Court refused to reinstate it. Justice Sonia Sotomayor wrote in dissent: “If the prison fails to enforce social distancing and mask-wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.” Ultimately, the Fifth Circuit denied the plaintiffs any relief in March of 2021. 

Increased media interest and public concern toward the conditions inside America’s jails and prisons have not yet translated to the necessary infrastructure of robust oversight policies which would safeguard the human dignity of those housed in America’s correctional facilities. But even in places that have not yet taken affirmative steps to protect incarcerated people, there is progress. While many of these bills did not make it through their state legislatures, they indicate an increasing effort to establish meaningful independent oversight of prisons and jails.

Prison Oversight Bills

• In November 2018, Texas state legislators in both chambers introduced identical bills that would have created an independent oversight ombuds office for the Texas Department of Criminal Justice. Though the corrections system already has an internal ombuds office, the bills aimed to make it independent and therefore able to report findings more objectively to lawmakers without fear of repercussions within the agency. The bill failed in committee six months later.

• In January 2021, in response to allegations of abuse at the Lowell Correctional Institution in Ocala, Florida, state representatives introduced HB 537, which aimed to create a Citizens Oversight Council for the state’s correctional facilities. The bill was withdrawn in February, and some of its tenets were incorporated in the much broader criminal justice reform bill HB 1609, which died in committee in April.

• Virginia’s HB 2325 and SB 1363, which would have created a Department of Correction ombuds and state oversight board, respectively, both failed in 2021. The primary reason for the proposals’ failure was concerns raised by the Department of Corrections over costs.

• In Arizona, HB 2167 was introduced in 2021 to increase accountability and transparency by establishing an independent ombuds office with authority to inspect prisons, propose and monitor improvements to prison conditions and facilities, and assist with concerns of prisoners, their families, and staff. The bill passed the House, but then died in committee during its Senate review.

• Despite the state legislature passing a bill in 2021 to expand ombuds services — reinstated in 2019 for minors only — to all those incarcerated in state prisons, Connecticut Ned Lamont vetoed the legislation, which would have also ended the use of solitary confinement and abusive restraints, among other policy changes. In a letter explaining his decision, Lamont cited confidentiality risks in allowing the ombudsperson to access sensitive Department of Corrections records; safety and security risks by failing to provide the Department of Corrections flexibility to limit facility visitors; and safety risks in the bill’s limitations on the use of restraints and solitary confinement that he called “far out of line with what has been successfully implemented in other states.”

Jail Oversight Bills

• Following a series of deaths and investigative journalism revelations in 2020, Georgia lawmaker David Wilkerson introduced HB 678 to mandate the investigation of any future jail deaths in the state. The legislation would have required outside, independent investigations into all fatalities, but it died in committee during the 2021 legislative session.

• In Massachusetts, lawmakers introduced S 1578, a criminal justice reform bill that would, among other things, establish an oversight committee to monitor the use of solitary confinement in county jails. The proposed law would have required the commissioner to report quarterly to the commission and tasked the Department of Corrections with improving mental health care and due process protections for people held in segregated housing. The bill stalled in committee but will be revisited during the 2022 legislative session. 

To illustrate why independent oversight entities are so necessary, some existing organizations made serious attempts to glean detailed information from incarcerated people about their conditions of confinement during the Covid-19 pandemic. These efforts to learn more about how people behind bars were treated during this national health crisis provide a rare glimpse into the closed-door system of America’s jails and prisons.

Progress Toward Oversight 

• In Illinois, the John Howard Association (JHA), an independent nonprofit that provides citizen correctional oversight of Illinois prisons, launched a Covid-19 survey across the state’s entire prison system, receiving more than 16,000 responses completed between April 24 and May 20, 2020. Questions included: Did individuals have enough soap to regularly wash their hands in the past week? (Only 61 percent said yes.) How often individuals received cleaning chemicals from the Illinois Department of Corrections to clean their cells and sleeping areas? (48 percent said that they never had, and 24.5 percent said just once in the preceding week.) Did they have outdoor recreation time at least once in the past week? (43 percent said no, not allowed to.) And did they get at least one free phone call in the last week, while no in-person visitation was allowed? (Only 9 percent said yes “and it worked.”) This survey provided critical information on the policies implemented and the day-to-day conditions in Illinois prisons during the pandemic. It also provided better insight into how to hold the state’s corrections department accountable for the way it cares for its incarcerated people.

• In Pennsylvania, the Pennsylvania Prison Society (PPS), a nonprofit organization that has been charged with prison advocacy and civilian oversight since 1787, sent periodic Covid-19 surveys to incarcerated people and issued reports on the experience of living through the pandemic inside prison facilities. In its latest state prison survey, conducted between September and December 2021, PPS found that personal safety concerns grew as the pandemic worsened, as only 33 percent of respondents reported feeling safe (as compared to 44 percent in the first survey). Less than 50 percent of respondents reported that staff “always” or “often” wore masks, and only 16 percent shared that they felt satisfied with their available medical care.

• In New York State, the Correctional Association of New York (CANY), an independent organization with legislative authority to monitor the state’s prisons, surveyed friends and family of incarcerated individuals about the prison system’s response to Covid-19. Because of the pandemic, CANY visits to facilities were paused, and mail processing inside facilities slowed considerably, making it more difficult to communicate with those behind bars except during video/phone visits. The survey covered topics such as pre-existing medical conditions that might make incarcerated people more susceptible to Covid-19 (64.8 percent of respondents reported their loved one had a pre-existing condition); access to hygiene items (90 percent of respondents reported their loved one did not have access to a face mask); disruptions in communication tools (86.8 percent of respondents expressed an inability to communicate with their incarcerated loved one as usual); and satisfaction with the prison system’s Covid-19 response (only 4.8 percent marked the response more than halfway up the satisfaction scale). 

• These organizations (JHA, PPS, and CANY) also published a collaborative report to document the impact of Covid-19 and their efforts to impact prisons’ pandemic responses across their states. After repeated requests by JHA, Illinois began posting updated information on cases, deaths, tests, and vaccination rates every day, while also sending memos with this information to incarcerated individuals. PPS lobbied for months to correct flawed information posted on the Pennsylvania state prisons website and was eventually successful in convincing the department to correct its data issues. In New York, advocacy from CANY and others has only been successful in convincing the state to post a monthly report (rather than weekly or daily, as requested) on cases and deaths, along with a list of response actions by the department. The joint report also notes the measures — or lack thereof — taken to protect incarcerated individuals from the virus and to communicate with incarcerated people, their families, the public, and oversight bodies.

• In Washington State, the Office of Corrections Ombuds created a dedicated phone hotline for “questions, concerns, or information” about the DOC’s handling of Covid-19. The ombuds office also surveyed incarcerated individuals at least twice during the pandemic, publishing survey results online and releasing investigations of multiple facility responses to Covid-19 outbreaks. In its report on the Coyote Ridge Corrections Center, the ombuds office found that prison administrators worsened the spread of Covid-19 by not requiring masking, not quarantining symptomatic people, and mismanaging medical care. Similarly, the ombuds report on pandemic response at the Monroe Correctional Complex found ineffective social distancing measures, mistreatment of people in solitary confinement, and “grim” conditions for symptomatic people in isolation.

• Because incarcerated people from Washington, D.C., are held at prison facilities across the country, the D.C. Corrections Information Council — an independent monitoring body established through Congress and the D.C. Council — sent a 20-question survey to the D.C. population inside Bureau of Prisons facilities in June 2020, releasing its results in July 2021. The survey focused on four areas of concern, namely: institutional cleaning (for example, only 28 percent of respondents shared that staff always wore masks and gloves); access to medical care (81 percent of respondents were not tested for Covid-19 between June and August 2020); movement (81 percent of respondents shared that their facility had been on continuous lockdown for over a month); and communication (25 percent of respondents were not able to send email correspondence).

In states and localities across the nation, the need for consistent, powerful oversight over what happens behind jail and prison walls continues to grow. In addition to the numerous steps toward increased oversight taken in the past three years, there are additional legislative actions being debated this session.

For example, Nebraska is considering launching an oversight task force to evaluate its Justice Reinvestment Initiative programs and help implement other changes to its criminal justice system. In response to a recent scathing California State Auditor report, San Diego is considering implementing legislative oversight mechanisms for its county jails — as an interim measure, the civilian oversight board for the sheriff’s department will be tasked with investigating jail deaths directly. The Louisiana Legislature passed a resolution in 2021 to study the health and safety conditions in its local jails, develop basic jail standards, and propose a new jail oversight mechanism. And in Missouri, lawmakers are debating the creation of an oversight committee tasked with investigating complaints, collecting data, and monitoring conditions within the Department of Corrections.

In another promising endeavor, Deitch recently founded the Prison and Jail Innovation Lab (PJIL) at the University of Texas at Austin, which will provide help to jurisdictions looking to implement better oversight of their facilities. These ongoing movements to increase oversight bode well for the potential of even more coordinated efforts to come.

*CORRECTION: The number of people who died in Philadelphia jails during 2021 was 18, not 14.