BOP agreed to inform all relevant employees that there is no blanket ban on considering inmate testimony and that the credibility of each witness should be assessed on a case-by-case basis.

BOP agreed to inform all relevant employees that there is no blanket ban on considering inmate testimony and that the credibility of each witness should be assessed on a case-by-case basis. David Madison / Getty Images

Federal Prisons Are Discounting Inmates' Sexual Assault Allegations Against Officers

Bureau of Prisons will not pursue misconduct cases based on inmate testimony, IG says.

The federal Bureau of Prisons is regularly excluding credible inmate testimony making or corroborating allegations of sexual assault and misconduct against agency employees, according to a new report, which found the informal policy could embolden bad actors to continue their inapprorpiate behavior. 

The bureau’s Office of Internal Affairs will only consider inmate testimony when a case is accepted for criminal prosecution or if it is substantiated by video, conclusive forensic evidence or a confession. If a sexual assault allegation against an employee depends on an inmate’s account, then BOP does not pursue a misconduct case, the Justice Department’s inspector general found in a management advisory issued Thursday. That applies even when multiple inmates offer corroborating testimony, the IG said. 

Bureau officials told the IG they generally only use inmate statements as an investigative lead. The investigators said the policy is in contradiction to inmate testimony being admissible in civil and criminal court and such accounts often being relied upon to make convictions against federal prison staff. The IG added the pattern of only considering cases that have been accepted for criminal prosecution was troubling, as administrative actions carry a lower evidentiary standard.

“Inmates are not disqualified from providing testimony with evidentiary value in federal courts, and there is no valid reason for the BOP to decline to rely on such testimony other than for investigative lead purposes in administrative matters, where the evidentiary standard is the preponderance of the evidence,” the IG said. 

Agency officials pushed back on the IG’s findings. 

“OIA did not say that BOP will not rely on inmate statements, nor did OIA say that it will substantiate misconduct only if there is evidence aside from inmate testimony, nor that inmate statements are used solely for investigative lead purposes,” the bureau said. “OIA routinely collects inmate statements during investigations which are relied upon during the course of the investigation. In some cases, inmate statements are used for investigative lead purposes, but that is not the sole purpose.”

The IG, however, said it received statements directly contradicting that statement on multiple occasions. The investigators went back to bureau employees and spoke to more individuals who substantiated the IG’s initial findings, noting the policy was never formalized but existed in practice nonetheless. The IG found multiple occasions in which the bureau substantiated allegations based on inmate statements but submitted lesser findings to the Office of Legal Counsel and the employee’s specific facility. 

In the case that led to Thursday’s advisory, for example, the IG found through the testimony of multiple inmates and other evidence that a BOP employee “engaged in serious misconduct involving sexual activity with two inmates,” as well as failed to provide truthful information to the investigators. The bureau suspended the employee for 10 days, saying it was only penalizing the staffer for an inappropriate relationship with an inmate and not for the sexual misconduct or lying to the IG. Eventually, after facing further allegations and additional IG inquiry, the employee was criminally convicted of engaging in a sexual act with an inmate. 

The IG noted it can often corroborate inmate testimony with evidence that, on its own, would not lead to a finding of misconduct. In the aforementioned case, video showed the employee took a female inmate into an office and remained in it with the door closed and the lights off for nine minutes. Other inmates gathered to watch what was happening through the window and they later told the IG they had observed sexual activity. 

Despite the bureau’s protestations, the IG said it maintained “significant concerns about the BOP’s handling of disciplinary matters in cases where inmate testimony is necessary to sustain misconduct charges.” 

Agency officials said they disregarded inmate testimony because it was unreliable and they could not always compel the inmates to testify at adjudicative hearings. They declined to even attempt to bring inmates to arbitration or Merit Systems Protection Board hearings, the IG said, noting some inmates may be willing to voluntarily testify if asked or could be subpoenaed by MSPB. The IG suggested the bureau was lessening its punishments to 10-day suspensions because only those of 14 days or longer open the door to appeals. 

BOP agreed to inform all relevant employees that there is no blanket ban on considering inmate testimony and that the credibility of each witness should be assessed on a case-by-case basis. It also said it would train its staff on the preponderance of evidence standard. The agency declined, however, to formalize a new policy that compels internal investigators to consider inmate testimony when appropriate. 

The IG cautioned the bureau’s approach was enabling problematic employees to remain on staff and increasing “the risk of serious harm to inmates.” 

By allowing its employees to go un- or under-punished, the IG said, BOP “emboldens miscreant staff members in their interactions with inmates because such staff members may act without fear of disciplinary consequences.”