By Daniel LaLonde

What does it mean for a supervisee to answer to a supervisor? Does it remind you of your workplace? Where a supervisor can punish the supervisee if they do not perform their tasks appropriately? Do images of a supervisee working to handle their job appropriately to avoid reprimands from their supervisor spring into your mind? If so, to whom do you think the Virginia Department of Corrections (VDOC), the agency in charge of Virginia’s prisons, answers? Unfortunately, the short answer is almost no one.

If every state in the United States were its own country and those new countries were ranked from highest to lowest by incarceration rate, the top thirty-eight on the list would be American states.[1] Cuba would be the thirty-ninth country.[2] And then there would be even more American states until we finally reach countries like Rwanda[3] and Russia.[4] The point is that the United States is obsessed with incarceration. Virginia is no exception. In the list mentioned previously, Virginia would be fourteenth, ahead of the leading human rights advocates[5] of Iran, Saudi Arabia, and Venezuela.[6] Nevertheless, with such a robust prison population, Virginia lacks almost any independent oversight.

VDOC claims that the assertion that it is not accountable to anyone is invalid. It argues that an audit is performed every three years by the American Correctional Association (ACA) (VDOC’s independent auditor), the U.S. Department of Justice requires an audit related to sexual assault allegations, and it is also accountable to the Virginia Secretary of Public Safety and Homeland Security.[7] So let us consider these three VDOC arguments.

While ACA has contributed to standardizing prison standards across many U.S. state prison systems, they are hardly independent of VDOC’s influence. In addition, ACA lacks any teeth to enforce any recommendations it makes. ACA states that it “define[s] policies and procedures necessary for the operation of correctional programs that safeguard life, health and safety of the personnel who work in juvenile and adult facilities and programs; as well as the offenders who are a part of the correctional system.”[8] ACA accredits sixty facilities in Virginia[9] and over 1,300 internationally.[10] While a facility must meet specific standards to receive accreditation from ACA,[11] the worst action that ACA can take against a non-compliant facility is to withhold its accreditation,[12] making accreditation little more than a stamp of approval.

Furthermore, this stamp might be little more than a rubber stamp. Some observers have pointed out that ACA charges fees for their accreditation.[13] In 2011 these fees were $4.5 million, almost half of the total revenue for ACA in 2011.[14] Therefore ACA has a vested financial interest in providing accreditations to as many facilities as possible.[15]

While the U.S. Department of Justice does require an audit of sexual assault allegations, this program is woefully inadequate to oversee U.S. prisons, and the audit is only focused on a narrow sliver of prison issues. Under the Prison Rape Elimination Act, each confinement center[16] must receive an audit at least once every three years.[17] Unfortunately, this timing means that in a prison population where nearly 16%[18] of prisoners are sexually abused yearly,[19] the surrounding circumstances are only audited once every three years. If the statistics continue, over half a million incarcerated humans will be sexually abused before another audit is completed. And even if these numbers were deemed acceptable for some reason, prison sexual assault issues are hardly the only problem that needs oversight in Virginia prisons. There are issues with food quality, housing quality, disability accommodations, mental health, physical health, adequate staffing, religious accommodations, access to courts and legal assistance, and so on.

Finally, as an argument goes, the fact that VDOC is “accountable” to the Virginia Secretary of Public Safety and Homeland Security (PSHS) is almost laughable. When VDOC says that they are “accountable” to the Secretary, it simply means that VDOC is housed under the Office of Public Safety and Homeland Security.[20] PSHS, in its own words, describes VDOC as a “model correctional agency” and an “innovative leader” that uses “cutting edge research-based programs” to produce “outstanding results[.]”[21] These are hardly the types of words that one would expect to hear coming from the mouth of someone who is supposed to be a check on the agency’s actions. Unless, of course, that “check” had the same incentive as the agency itself to continue to look good to the public.

Ultimately, the only way to deal with prison conditions is to increase transparency in the prison system and use truly independent oversight. Virginia lawmakers tried to make this a reality. In February 2022, Democratic lawmakers tried to introduce a bill that would have created an independent ombudsperson and civilian oversight of VDOC.[22] However, VDOC, along with Republican lawmakers, argued that the bill was unnecessary because there was already enough oversight of VDOC.[23] As proven above, this is unfortunately not the case. Who knows when more independent oversight of VDOC might come. Nevertheless, we can be confident that it is necessary and long overdue.

 

[1] States of Incarceration: The Global Context, Prison Pol’y Initiative, https://www.prisonpolicy.org/global/ (last visited Oct. 23, 2022).

[2] Id.

[3] Who, keep in mind, had a genocide only twenty-eight years ago. Rwandan Genocide, History (Oct. 14, 2009), https://www.history.com/topics/africa/rwandan-genocide.

[4] Prison Pol’y Initiative, supra note 1.

[5] Of course, I am being sarcastic.

[6] Prison Pol’y Initiative, supra note 1.

[7] Patrick Wilson, Va. House Republicans Reject Plan for Independent Oversight of State Prison System, Richmond Times Dispatch (Feb. 3, 2022), https://richmond.com/news/state-and-regional/va-house-republicans-reject-plan-for-independent-oversight-of-state-prison-system/article_f7c654fc-57a2-5a6d-9e83-5b94292e4353.html.

[8] The History of Standards & Accreditation, Am. Corr. Ass’n, https://www.aca.org/ACA_Member/ACA/ACA_Member/Standards_and_Accreditation/SAC_AboutUs.aspx?hkey=bdf577fe-be9e-4c22-aa60-dc30dfa3adcb (last visited Oct. 23, 2022).

[9]  Accredited Facilities, Am. Corr. Ass’n, https://www.aca.org/ACA/ACA_Member/Standards_and_Accreditation/SAC_AccFacHome.aspx?WebsiteKey=139f6b09-e150-4c56-9c66-284b92f21e51&hkey=f53cf206-2285-490e-98b7-66b5ecf4927a&5940f470ebf4=2#5940f470ebf4 (in the “Facility Located in (optional)” dropdown choose “Virginia” and click “Find”).

[10] Id. (leave all fields blank and click “Find”).

[11] Frequently Asked Questions, Am. Corr. Ass’n, https://www.aca.org/ACA_Member/ACA/ACA_Member/Standards_and_Accreditation/Standards__FAQ.aspx?hkey=b1dbaa4b-91ef-4922-8e7d-281f012963ce (last visited Oct. 23, 2022).

[12] Am. Corr. Ass’n, supra note 8 (notice that only accreditation is mentioned and nothing about enforcement).

[13] Alex Friedmann, How the Courts View ACA Accreditation, Prison Legal News (Oct. 10, 2014) https://www.prisonlegalnews.org/news/2014/oct/10/how-courts-view-aca-accreditation/#:~:text=The%20standards%20are%20established%20by,%2C%20e.g.%3A%20PLN%2C%20Aug.

[14] Id.

[15] Id.

[16] Of which there were 1,677 in 2019. Laura M. Maruschak and Emily D. Buehler, Ph.D., Census of State and Federal Adult Correctional Facilities, 2019 – Statistical Tables 1 (2021).

[17] What is a PREA Audit?, National PREA Resource Center, https://www.prearesourcecenter.org/audit/overview (last visited Oct. 23, 2022).

[18] Over 200,000 humans. Frank Lamothe, Sexual Assault in Prison is More Common Than You Might Think, Lamothe Law Firm (June 13, 2019), https://lamothefirm.com/2019/06/13/sexual-assault-in-prison-is-more-common-than-you-might-think/

[19] See The United States is the World’s Leader in Incarceration, The Sent’g Project, https://www.sentencingproject.org/criminal-justice-facts/; see also Lamothe, supra note 18.

[20] Agency Information, Sec’y of Pub. Safety and Homeland Sec., https://www.pshs.virginia.gov/agencies/ (last visited Oct. 23, 2022).

[21] Id.

[22] Wilson, supra note 7.

[23] Id.