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Pace Law Review Prison Oversight Sourcebook Article 3 Distinguishing Functions of Oversight 2010

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Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 3


Distinguishing the Various Functions of Effective
Prison Oversight
Michele Deitch
University of Texas

Recommended Citation
Michele Deitch, Distinguishing the Various Functions of Effective Prison Oversight, 30 Pace L. Rev.
1438 (2010)
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Distinguishing the Various
Functions of Effective Prison
Michele Deitch*
Editor’s Note: This speech, slightly revised for publication,
was one of the introductory presentations made at the “Opening
Up a Closed World: What Constitutes Effective Prison
Oversight?” conference held at the University of Texas in April
One of the challenges in organizing a conference—or an
edited volume of papers—on prison oversight is that the term
“oversight” is hardly a term of art. While the phrase is often
used, there has been little effort made either on the part of
professionals or in the literature to understand what is meant
by those words.
I thought it would be helpful as we begin this endeavor if
we could identify and work from a shared analytic framework,
and to create a common terminology to guide our thinking and
discussions as we move forward.
While the conference and this volume highlight the
importance of oversight, any discussion of this issue in the
correctional context must begin with the recognition that
oversight is not a goal in and of itself. Rather, oversight is a
means of achieving the twin objectives of transparency of
public institutions and accountability for the operation of safe
* Senior Lecturer, The University of Texas at Austin-Lyndon B. Johnson
School of Public Affairs and the University of Texas School of Law. B.A.
Amherst College, M.Sc. Oxford University, J.D. Harvard Law School. The
author organized and chaired the Texas conference on prison oversight in
2006. She was a 2005-06 Soros Senior Justice Fellow, and is grateful to the
Open Society Institute of the Soros Foundation for supporting her research
on the topic of independent prison oversight.






and humane prisons and jails.
My own professional
experiences have persuaded me that “oversight” does not come
in one flavor, and that it is neither desirable nor effective to
adopt a “one size fits all” strategy. There can be—and should
be—many different effective ways to identify and correct safety
problems in correctional institutions, and to increase public
awareness. In combination, these mechanisms can work to
provide the levels of transparency and accountability that
public institutions demand.
I should mention at the outset that I am referring to
external oversight mechanisms, that is, to entities that exist
outside the correctional agency. While it is critical that prisons
and jail systems have their own internal accountability
mechanisms—for identifying problems, informing management
about these concerns, and addressing wrongdoing—such
internal measures do not provide public accountability.
Moreover, most internal review processes are designed to
remain confidential. They support the needs of management
for information and accountability without being designed to
further the additional goal of public transparency.
“Oversight” as an Umbrella Concept
It might be helpful if we begin to frame the concept of
“prison oversight” as a catch-all, umbrella term that refers to at
least seven distinct functions:

• Regulation
• Audit
• Accreditation

• Investigation
• Legal
• Reporting
• Inspection/Monitoring

I would argue that each of these functions is an essential—but
separate—part of effective prison oversight. Each contributes
to the overall goals of transparency and accountability—
sometimes to one of these goals and sometimes to both. But
there should be a variety of separate mechanisms in place to




[Vol. 30:5

serve each of these functions. While there are certainly some
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
The problem is that when we speak of “oversight,” we tend
to merge these concepts and assume that they are in
competition with each other when it comes to which is “most
effective.” Moreover, we each have in mind a different one of
these functions when we talk about oversight, which makes
communication about these issues very difficult: we are often
talking at cross-purposes. I think we need to begin to talk
about these as separate functions, and consider how to make
each of these specific functions as strong and effective as
Distinguishing the Discrete Functions of
Correctional Oversight
Let me be more precise about the key differences I see
among each of these oversight functions, with particular
inspection/monitoring function.
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 these standards and policies through, for
example, the imposition of fines, the ability to close an
institution, or the ability to hire or fire directors. Similarly,
legislative bodies also serve a regulation function, since they
control the operations of the agency through the passage of
laws and the ability to control the purse strings of the agency.
The key concepts at work here are “enforcement authority” and
The audit function is concerned with whether the agency
is meeting established performance indicators, standards, or
policies, or whether it is being fiscally responsible. While we
typically think of audits as focused on financial issues, many





auditing bodies similarly audit agency performance. The
standards against which audits are conducted could be
performance indicators mandated by the legislature, standards
required by an accreditation body such as the ACA, generally
accepted accounting standards, or even requirements or
procedures set by the agency itself. Audits could be as simple
as a paper review involving a checklist, or they could be a more
complex audit to see if an agency is worthy of accreditation.
They could be either comprehensive or focused on just a single
issue. But as a general matter, 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 doing and/or whether tax monies are being wellspent. The emphasis is on the audit as a management tool: are
agency staff following established policy or standards? Is there
any gap between policy and practice? Are statistics changing
over time and, if so, why? Answers to those questions are very
valuable to prison administrators and they aid in effective and
proactive prison management. But audits do not necessarily
focus on the treatment of prisoners or even on issues of direct
concern to prisoners.
The accreditation function is a form of oversight insofar
as it requires an agency to meet certain standards in order to
be eligible to receive what amounts to a stamp of approval by a
professional organization in the field.
As the standards
developed by these professional organizations (such as the
American Correctional Association and the National
Commission on Correctional Health Care) have become more
performance-based in recent years, accreditation has become
more meaningful as a form of correctional oversight.
Accreditation is designed to measure an agency’s specific
operations against best practices in the field, rather than to
assess whether any wrongdoings or human rights violations
have occurred. It is also a relatively static form of oversight, as
it is based on a snapshot view of the facility at a particular
point in time. Accreditation is typically a voluntary process in
the correctional context, which means that it is initiated from
within the agency, and the agency under review usually pays
for the accreditation process. Accreditation is often associated
with an audit of the facility to assess institutional compliance
with the applicable standards. There is little transparency




[Vol. 30:5

associated with the accreditation process, as reports of
accreditation audits—and any determination not to accredit a
facility—are typically not made public.
Investigations are a critical aspect of oversight because
they offer a means to ensure accountability for wrongdoing.
This function can encompass everything from an ombudsman’s
investigation of a prisoner’s complaint, to an inspector
general’s review of an excessive use of force claim, to an
independent commission’s review of agency operations in the
wake of a series of complaints, to criminal prosecution of staff
for official misconduct. What distinguishes the investigation
function from some of the other oversight functions is that it is
essentially reactive. The function is only triggered once a
complaint is received or a scandal breaks.
The legal function involves the use of the 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. In rare
cases, of course, the courts have exercised long-term
supervision over correctional agencies to ensure compliance
with orders. Federal law also allows for the involvement of and
oversight by the United States Department of Justice at a
stage prior to the filing of a lawsuit, under the Civil Rights of
Institutionalized Persons Act (CRIPA). A CRIPA investigation
of poor correctional conditions may lead to an agreed-upon set
of standards that the agency must meet and to long-term
monitoring by the Justice Department to assess compliance
with these standards. The legal function, like the investigation
function, is reactive in nature, though the ongoing supervision
of the legal system is designed to fix an unacceptable set of
conditions and not just punish wrongdoing. Transparency may
be a by-product of court oversight, but it is not the primary
The reporting 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. This function goes
to the heart of the goal of transparency, of course, because it





increases public awareness of prison-related issues. In some
cases, this can lead to public pressure on elected or appointed
officials to change policies or practices, so it potentially serves
the goal of accountability as well. Typically, those who perform
this oversight function do not have the ability to demand access
to prisons, so information has to be gathered through other
means. The distinguishing feature of the reporting function is
that it primarily serves the needs of the public for information
and analysis of prison conditions.
Finally, there is the inspection and monitoring
function, which is perhaps least familiar of all the oversight
functions and thus most in need of our attention at this
conference. Monitoring involves an entity outside of the
corrections agency with the power and the mandate to
routinely inspect all correctional institutions in a jurisdiction—
not just those with publicized problems—and to report publicly
on how people within each prison or jail facility are treated.
More so than any other oversight function, the
inspection/monitoring function is intended to be preventative in
nature. (In contrast, investigations, for example, are focused
on past behavior, and accreditation provides a snapshot.)
Routine and regular reviews of every institution allow
problems to be identified (and hopefully corrected) before there
are lawsuits about conditions or incidents that make the front
page of the newspaper. Regular monitoring helps keep the
quality of correctional services high, because the staff’s
knowledge that an inspector could arrive at any time acts as a
means of informal control over staff behavior. In other words,
it “keeps staff on their toes” and helps them avoid complacency,
even when everything is going well. Monitoring is not about
blame for past mistakes, it is about preventing occurrences in
the future and about improving the current state of the
correctional facilities. It is about finding ways for the agency
and outside stakeholders to meet agreed-upon goals. Notably,
the monitoring function does not necessarily have an
enforcement mechanism (unlike a regulatory body); the
recommendations of an inspector are advisory in nature. The
monitor’s strength comes from the power of persuasion, not
Another distinguishing feature of the inspection function is
that the emphasis is on how prisoners are treated and how




[Vol. 30:5

prison life affects them. The monitor looks holistically at
interactions and institutional cultures that are not always
captured by standards and policies, or even by performance
measures. Similarly, an inspector does not rely too heavily on
general statistical measures for his assessments, given that
aggregate statistics can sometimes mask the fact that
appropriate treatment or services may have been denied to
certain prisoners or groups of prisoners. External scrutiny of
this type helps reassure citizens that prison and jail conditions
with constitutional
In sum, oversight should be thought of as an umbrella
concept rather than as a word with a single meaning. A robust
system of correctional oversight is one that is multi-faceted and
multi-layered, serving each of the seven critical functions, and
is one that involves numerous players both inside and outside
the correctional agency.
It involves sound internal
accountability measures, complemented by credible and
effective forms of external scrutiny. Systems of internal review
offer a valuable management information tool for
administrators, allowing them to identify and correct
operational problems at an early stage. At the same time,
however, external scrutiny is essential any time that a closed
institution is responsible for the control of individuals. Such
transparency provides both a form of protection from harm and
an assurance that rights will be vindicated. External oversight
also benefits administrators by providing them with the
objective feedback they need about their performance. Internal
accountability measures and external forms of oversight are
neither in competition nor mutually exclusive; they are
designed to meet entirely different—but complementary—
Most corrections professionals and most advocates for
prisoners would find common ground in their belief that
prisons and jails should be safe and humane places that respect
inmates’ constitutional rights. Effective oversight allows both
the public and correctional administrators to know whether
that goal is being met. As we continue to discuss the





importance of prison oversight, I hope we can keep in mind
that the best way to ensure that oversight is effective is to
ensure that each of these critical functions is being served
effectively, through whatever oversight mechanisms exist in a
particular jurisdiction.
Readers need to ask themselves
whether each of these functions is served in their own
jurisdictions, or whether there is too great a reliance on a
particular function, perhaps to the exclusion of all others. We
should not be comparing and contrasting the value of different
oversight functions, but rather encouraging the development of
a range of both effective internal accountability measures and
robust external oversight mechanisms. Public institutions—
and correctional facilities in particular—demand such
transparency and accountability.