Bill S.1548

SENATE DOCKET, NO. 2071 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 1548

By Ms. Miranda, a petition (accompanied by bill, Senate, No. 1548) of Liz Miranda, William N. Brownsberger and Patricia D. Jehlen for legislation to establish a correctional inspector general office. Public Safety and Homeland Security.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act establishing a correctional inspector general office.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Clause twenty-six of section 7 of chapter 4 of the general laws is hereby amended by inserting after subclause (v) the following subclause:

(w) information and records acquired under chapter XX by the office of the corrections inspector general.

SECTION 2. The General Laws are hereby amended by inserting after chapter XX the following chapter:-

CHAPTER XX

CORRECTIONAL TRANSPARENCY AND ACCOUNTABILITY

Section 1. Definitions

As used in this chapter, unless the context otherwise requires, the following words shall have the following meanings:

“correctional facility”, any building, enclosure, space, structure, or vehicle used for the custody, control and rehabilitation of committed offenders or of such other persons as may be placed in custody therein in accordance with law regardless of whether the facility is owned, operated, or controlled by a county sheriff or by the department of correction; provided however, this shall not include the facilities operated by the department of youth services;

“department”, the department of correction;

“division”, the division of the correctional ombuds, as established by section 7;

“incarcerated person”, a committed offender or such other person as is placed in custody in a correctional facility in accordance with law;

“office”, the office of corrections inspector general, as established by section 2;

“underrepresented population”, groups who traditionally, or historically, have not had equal access to opportunities because of discrimination or other societal barriers. This may include race, gender, gender identity, ethnicity, sexual orientation, or disability.

Section 2. Establishment of office; appointment and removal of corrections inspector general

There is hereby established an office of the corrections inspector general, hereinafter called the office. There shall be in said office a corrections inspector general, who shall be the administrative head of said office and shall devote full-time to the duties of the office. The corrections inspector general shall be appointed by a majority vote of the attorney general, the state auditor and the treasurer from a list of 3 nominees submitted by a nominating committee to recommend a corrections inspector general. The nominating committee shall consist of: the secretary of the executive office of public safety and security; the secretary of health and human services; the commissioner of the department of corrections; the executive director of the Massachusetts Sheriff’s Association; the commissioner of mental health; the commissioner of public health; an attorney who shall be designated by Prisoner’s Legal Services; a representative who shall be designated by Families for Justice as Healing; an attorney who shall be designated by the Committee for Public Counsel Services; a representative who shall be designated by the Disability Law Center; a representative who shall be designated by the Massachusetts Bar Association; a person with experience in the criminal justice system who shall be designated by the chief justice of the trial court; and a representative who shall be designated by the Massachusetts Correction Officers Federated Union. The work of the nominating committee shall be coordinated by the executive office of public safety and security.

Any person appointed to the position of corrections inspector general shall be selected without regard to political affiliation and solely on the basis of integrity and knowledge of correctional law, policy and practice. Any person so appointed shall be a civilian and shall not have been or have any immediate family members who were previously employed in the department of correction, employed in any county sheriff office, or served as a sheriff. Any person so appointed shall be a resident of the commonwealth within 90 days of appointment and shall not: (i) hold, or be a candidate for, federal, state or local elected office; (ii) hold an appointed office in a federal, state, or local government; or (iii) serve as an official in a political party.

The correctional inspector general shall serve for a term of five years. In case of a vacancy in the position of correctional inspector general their successor shall be appointed in the same manner for the unexpired term. No person shall be appointed for more than two five-year terms.

Appointing authorities shall make due efforts to assure that underrepresented populations have notice when the corrections inspector general position is vacant.

The person so appointed may be removed from office, but only for just cause, by a majority vote of the attorney general, the state auditor, and the treasurer. Such cause may include substantial neglect of duty, gross misconduct or conviction of a crime. The reasons for removal of the correctional inspector general shall be stated in writing. Such writing shall be sent to the clerk of the senate, the clerk of the house of representatives and to the governor at the time of the removal and shall be deemed to be a public document.

Section 3. Advisory board.

There shall be a corrections inspector general advisory board. The governor shall appoint three members, one of whom shall serve as chair of the board, the president of the Senate shall appoint three members, and the speaker of the House of Representatives shall appoint three members. The advisory board may designate up to ten additional members to supplement its expertise. At least one additional member of the advisory board shall be an immediate family member as defined in section 1 of chapter 268A of an incarcerated person serving in a Massachusetts correctional facility at the time of their appointment. At least one additional member shall be a formerly incarcerated person who served in a department correctional facility within the last five years at the time of their appointment. At least one additional member shall be a formerly incarcerated person who served in a county correctional facility within the last five years at the time of their appointment. At least one additional member shall be an individual from an underrepresented population. Appointing authorities shall make due efforts to assure that underrepresented populations have notice when advisory board positions are vacant.

The advisory board members shall serve for a term of three years and shall be compensated for work performed for the corrections inspector general advisory board at such rate as the secretary of administration shall determine and shall be reimbursed for expenses necessarily incurred in the performance of their duties. The corrections inspector general shall meet with the corrections inspector general advisory board at least quarterly and may consult or request the assistance of members of the corrections inspector general advisory board with respect to the duties and responsibilities of the office.

Section 4. Duties

(a) The office shall act to protect the welfare of incarcerated persons and all who work in corrections by assuring accountability and transparency within the department and each county.

(b) The corrections inspector general may inspect, examine, or assess any aspect of a facility’s or system’s operations or conditions including, but not limited to:

(1) staff recruitment, training, supervision, and discipline;

(2) death of, injury to, or harassment of incarcerated persons;

(3) incidents of assault, battery, or sexual misconduct;

(4) medical or mental health care, including care provided to incarcerated persons by third parties;

(5) violence among incarcerated persons;

(6) conditions of confinement;

(7) incarcerated person disciplinary processes;

(8) incarcerated person grievance processes;

(9) substance use disorder treatment;

(10) educational, vocational, and other programming;

(11) family visitation and communication practices; and

(12) rehabilitation, reentry, and integration practices.

(c) The corrections inspector general shall gather public input into the office’s activities and priorities, which shall include at a minimum quarterly public meetings.

(d) The corrections inspector general shall monitor department and county compliance with applicable federal, state, and local laws, rules, regulations, and policies as related to the health, safety, welfare, and rehabilitation of incarcerated persons.

(e) The corrections inspector general shall utilize a range of methods to gather and substantiate facts, including observations, interviews with incarcerated persons, surveys of incarcerated persons, document and record reviews, reports, statistics, and performance-based outcome measures.

(f) The corrections inspector general may, at their sole discretion, use findings from other reports to avoid redundant inspections.

(g) The corrections inspector general shall maintain, monitor, and provide a system of response for a statewide toll-free telephone number, a collect telephone number, a website, and a mailing address for the receipt of complaints and inquiries.

(h) The corrections inspector general shall provide information, as appropriate, to incarcerated persons, family members, representatives of incarcerated persons, department or county employees, and others regarding the rights of incarcerated persons.

(i) The corrections inspector general shall establish a statewide uniform database to collect and analyze data related to complaints received by the corrections inspector general.

(j) Department and county officials and employees shall be authorized and required to cooperate fully and promptly with the corrections inspector general. To the greatest extent possible and consistent with the corrections inspector general’s duties and responsibilities in this chapter, the corrections inspector general shall collaboratively and constructively work with administrators, legislators, and other appropriate persons.

(k) The corrections inspector general may identify ways in which management information and data collection can be improved.

(l) The corrections inspector general shall conduct regular inspections of all facilities.

Section 5. Powers

(a) The office shall be independent of any supervision or control by any executive agency.

(b) The office shall have all powers necessary or convenient to carry out and effectuate its purposes, including, but not limited to, the power to:

(1) initiate investigations of any matter pertaining to a correctional facility on its own initiative or based on information from any source;

(2) examine the health, safety, welfare, rehabilitation, care and services that the department and each county correctional facility provides incarcerated persons;

(3) identify systemic issues and responses upon which the Governor and Legislature may act;

(4) identify non-compliance with relevant statutes, rules, regulations, and policies concerning corrections facilities, services, and treatment of incarcerated persons under the jurisdiction of the department and within each county;

(5) hire and employ staff to perform duties and exercise the same powers as the corrections inspector general;

(6) enter into agreements or other transactions with a person, including, but not limited to, a public entity or other governmental instrumentality or authority in connection with its powers and duties under this chapter;

(7) execute all instruments necessary or convenient for accomplishing the purposes of this chapter;

(8) appear on its own behalf before boards, commissions, departments or other agencies of municipal, state or federal government;

(9) apply for and accept subventions, grants, loans, advances and contributions of money, property, labor or other things of value from any source, to be held, used and applied for its purposes; and

(10) provide and pay for advisory services and technical assistance as may be necessary in its judgment to carry out this chapter and fix the compensation of persons providing such services or assistance.

(c) The corrections inspector general shall be authorized to hold public hearings, to subpoena witnesses and documents, and to require that witnesses testify under oath.

(d) The corrections inspector general may make referrals to any other civil or criminal enforcement authority as it may see fit.

Section 6. Access to facilities, incarcerated persons, records

(a) The corrections inspector general shall have access to correctional facilities at all times. This access includes, but is not limited to:

(1) Access, with or without advance notice, to any part or all of any correctional facility at any time. The corrections inspector general shall adopt procedures to ensure that unannounced inspections are conducted in a reasonable manner.

(2) Access to meet and communicate privately and confidentially with incarcerated persons, and department and county employees, both formally and informally, in person, by telephone, by video conference, and by mail.

(3) Access to provide information about individual rights and the services available from the office, including the name, address, and telephone number of the office.

(4) Access to photograph, or video record any areas of any facility which are used by incarcerated persons or are accessible to incarcerated persons.

(5) Access to office space to conduct administrative tasks related to the facility visit.

(b) The corrections inspector general has the right to access, inspect, and copy any information, records, documents, or video or audio recordings in the possession or control of the department or county that the corrections inspector general considers necessary. No claim of restriction or privilege under state law shall limit the corrections inspector general’s rights under this paragraph. The department or county shall assist the corrections inspector general in obtaining any necessary releases for those documents which are restricted or privileged under federal law.

(c) Following a written demand from the corrections inspector general pursuant to section (b), the department or county shall provide the requested material within twenty days unless the corrections inspector general consents to an extension of that time frame. Where the material requested by the corrections inspector general pertain to an incarcerated person’s death, threats of bodily harm including, but not limited to, sexual or physical assaults, or the denial of necessary medical treatment, the material shall be provided within five days unless the corrections inspector general consents to an extension of that time frame.

(d) Upon notice and request by the corrections inspector general, a state, county, or municipal government agency, other than the department or a county sheriff, that has information, records, documents, or video or audio recordings relevant to a complaint or an investigation conducted by the corrections inspector general shall provide the corrections inspector general with access to the material not later than twenty days unless the corrections inspector general consents to an extension of that time frame.

(e) The corrections inspector general shall work with the department or county to minimize disruption to the department’s or county’s operations due to corrections inspector general activities and shall comply with the department’s or county's security clearance processes, provided those processes do not, in the sole judgment of the corrections inspector general, impede the corrections inspector general from carrying out the responsibilities set forth in this chapter.

Section 7. Division of the corrections ombuds.

(a) There shall be within the office a division of the corrections ombuds, which is responsible for receiving and reviewing individual complaints.

(b) The division shall remain neutral and impartial and shall not act as an advocate for the complainant or for the department or county.

(c) The division may receive complaints from incarcerated persons, family members of incarcerated persons, representatives of incarcerated persons, department or county employees, or any other source, regarding any matter that may adversely affect the health, safety, welfare, or rights of incarcerated persons or correctional employees.

(d) Prior to filing a complaint with the division, a person shall have reasonably pursued resolution of the complaint through the internal grievance, administrative, or appellate procedures with the department or county. However, in no event may an incarcerated person be prevented from filing a complaint more than ninety business days after filing an internal grievance, regardless of whether the department or county has completed the grievance process. This subsection does not apply to complaints related to threats of bodily harm including, but not limited to, sexual or physical assaults or the denial of necessary medical treatment.

(e) The division, in its discretion, may decline to investigate any complaint.

(f) If the division declines to investigate a complaint, the division shall notify the complainant in writing of the decision not to investigate and the reasons for the decision.

(g) If the division decides to investigate a complaint, the division shall communicate in writing the outcome to the incarcerated person or complainant, if any, and to the department or county.

(h) The division may not investigate any complaints relating to an incarcerated person’s underlying criminal conviction.

(i) The division may not investigate a complaint from a department or county employee that relates to the employee's employment relationship with the department or county, unless the complaint is related to the health, safety, welfare, and rehabilitation of incarcerated persons.

(j) The division may refer complainants and others to appropriate resources, agencies, or departments, including to appropriate law enforcement authorities.

(k) The division may not levy any fees for the submission or investigation of complaints.

(l) The division shall monthly publish an anonymized report summarizing each complaint received and the resolution of the complaint. The report shall include the facility to which each complaint pertained.

(m) The department and each county shall report all internal complaints received through its internal grievance process to the division on a weekly basis.

Section 8. Public disclosure following an investigation or inspection.

(a) At the conclusion of an investigation or inspection, the corrections inspector general shall produce a public report on the outcome of the investigation, which shall include any recommendations to the department or county deemed necessary by the correctional inspector general, except that the documents supporting the report are subject to the confidentiality provisions of section 10.

(b) If the corrections inspector general believes that there has been or continues to be a significant threat to the health, safety, welfare, or rehabilitation of incarcerated persons, the corrections inspector general shall promptly report the finding to the governor and the appropriate committees of the legislature.

(c) Before announcing a conclusion or recommendation that expressly, or by implication, criticizes a person, the department, or a county, the corrections inspector general shall consult with that person, the department, or the county. The corrections inspector general may request to be notified by the department, within a specified time, of any action taken on any recommendation presented.

(d) Facility administrators may be provided an opportunity to review reports and provide feedback about them to the corrections inspector general before their dissemination to the public; provided, however that the release of the reports is not subject to approval from any entity or person outside the office nor it is contingent of the review of the report by the facility.

(e) Reports shall 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 recommend possible solutions to those problems.

(f) The correctional inspector general may redact a report for public release if, after consultation with the department or county, such redaction may be necessary to protect the safety or privacy of persons or the safe, secure, and orderly operation of correctional facilities.

(g) Except as provided in paragraph (f), the corrections inspector general’s reports shall be public, accessible through the Internet, and distributed to the media, legislature, attorney general, and governor.

(h) The department or county shall, within thirty days, respond in writing about any action taken on the recommendation or any additional action the department or county will take. This written response shall include timelines for implementation. If the department or county disputes the findings or recommendation, the department or county shall, within thirty days, respond in writing with the reasons for not complying with the recommendation. This written response shall be public, accessible through the Internet, and distributed to the media, legislature, attorney general, and governor.

(i) The corrections inspector general shall continue to assess and report on previously identified problems and the progress made in resolving them until the problems are resolved. These reports shall be public and accessible through the Internet.

Section 9. Annual and Interim Reports.

(a) The office shall submit annually to the governor's office, the house and senate committees on ways and means, the executive office for administration and finance, the chairs of the joint committee on the judiciary, and the chairs of the joint committee on public safety and homeland security, and in document form and downloadable spreadsheet form on the website of the office by November 1st of each year, a report that includes, at a minimum, the following information:

(1) The budget and expenditures of the corrections inspector general for the prior fiscal year;

(2) The number of complaints received and resolved by the division for the prior four quarters;

(3) A description of significant systemic or individual investigations or outcomes achieved by the corrections inspector general during the prior four quarters;

(4) Any outstanding or unresolved concerns or recommendations of the corrections inspector general; and

(5) Input and comments from the public regarding the corrections inspector general’s activities during the prior four quarters.

(b) The office shall submit a report to the governor, the chairs of the joint committee on the judiciary, and the chairs of the joint committee on public safety and homeland security, within ten days if the department or a county is not in compliance with section 6 or subsection (h) of section 8 of this chapter.

Section 10. Confidentiality of correspondence, communications, investigations

(a) Correspondence and communication with the office is confidential and shall be confidential and protected as privileged correspondence in the same manner as legal correspondence or communication.

(b) The office shall establish confidentiality rules and procedures for all information maintained by the office.

(c) The corrections inspector general shall treat all matters under investigation, including the identities of complainants, and individuals from whom information is acquired, as confidential, except as far as disclosures may be necessary to enable the corrections inspector general to perform the duties of the office and to support any recommendations resulting from an investigation. Upon receipt of information that by law is confidential or privileged, the corrections inspector general shall maintain the confidentiality of such information and shall not further disclose or disseminate the information except as provided by applicable state or federal law or as authorized by this section. All records exchanged and communications between the office and the department or county to include the investigative record are confidential and are exempt from public disclosure.

(d) To the extent the corrections inspector general reasonably believes necessary, the corrections inspector general:

(1) Shall reveal information obtained in the course of providing corrections inspector general services to prevent reasonably certain death or substantial bodily harm; and

(2) May reveal information obtained in the course of providing corrections inspector general services to prevent the commission of a crime.

(e) If the corrections inspector general believes it is necessary to reveal investigative records for any of the reasons outlined in subsection (d), the corrections inspector general shall provide a copy of what they intend to disclose to the department or county. If the corrections inspector general receives personally identifying information about individual corrections staff during the course of an investigation that the corrections inspector general determines is unrelated or unnecessary to the subject of the investigation or recommendation for action, the corrections inspector general will not further disclose such information. If the corrections inspector general determines that such disclosure is necessary to an investigation or recommendation, the corrections inspector general will contact the staff member as well as the bargaining unit representative before any disclosure.

Section 11. Civil immunity and retaliatory actions

(a) A civil action may not be brought against any employee of the office for good faith performance of responsibilities under this chapter.

(b) No discriminatory, disciplinary, or retaliatory action may be taken against a department or county employee, subcontractor, or volunteer, an incarcerated person, or a family member or representative of an incarcerated person for any communication made, or information given or disclosed, to aid the office in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.

(c) This section is not intended to infringe on the rights of an employer to supervise, discipline, or terminate an employee for other reasons.

Name:	District/Address:
Liz Miranda	Second Suffolk
William N. Brownsberger	Suffolk and Middlesex	1/24/2023
Patricia D. Jehlen	Second Middlesex	3/6/2023
Erika Uyterhoeven	27th Middlesex	5/15/2023
Lindsay N. Sabadosa	1st Hampshire	6/20/2023
John J. Cronin	Worcester and Middlesex	1/17/2024