Investigative Policy Investigating Allegations of Staff Sexual Misconduct with Offenders The National Institute of Corrections/ Washington College of Law July

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Objectives Review the elements of effective investigative policies Identify the link between policy and investigative decisions Outline the process for policy development Assess policy effectiveness Clarify limitations of investigative policies

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Elements of effective investigative policies  Exists Investigating authority or not  Consistent with statute(s), CBAs, administrative rules  Coverage  Definitions  Chain of Command  Accountability  Protocols  Report Formats  Review  Closing Referrals

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Exists

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Consistent with: Statute(s) PREA (definitions and reporting)  BJA Professional standards/state standards Collective Bargaining Units Administrative rules Memoranda of Agreements

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Coverage Criminal vs. Administrative  No neat packages Inquiry/ Preliminary Notifications Authorize investigation Who can be investigated?  Contract language  Visitor? How reports received  Come in and file a complaint?  Must be in writing?

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Definitions Administrative vs. Criminal Investigation vs. Inquiry BJA definitions  Nonconsensual sexual acts  Abusive sexual contacts  Staff sexual misconduct  Staff sexual harassment

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Chain of Command Clean and distinct lines of authority to authorize, conduct, supervise and conclude investigations Dilemma of criminal and administrative

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Accountability Timelines and frequency of updates  To whom  Method and venue Progress to Completion  When to stop investigations  Link analysis  Coordination with stakeholders Management of victim, witnesses, perpetrator

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Referral for prosecution Follow-Up  Value-added  Victims, witnesses, perpetrators

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Protocols Investigative Sequence  Checklists  Investigations 101 Management of victim, witnesses, perpetrator  Health and mental health issues  During and after the investigation Responsibilities of all parties (MOA)  Stakeholders’ involvement Investigative Techniques  Prohibitions  Authorizations  Employee related (DNA, financial, etc.)

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Protocols, continued Information communicated to staff and offenders  During investigation  After investigation Value-added Media and public relations

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Report Format How its packaged Tense Information sequence Inclusions Exclusions Findings Conclusions Required signatures Distribution Referral Follow-Up/ Additional Data

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Review Who? When? Change?

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Closing Authority Signatures and approvals Refer to administrative or criminal sanctions Media and public information

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Disposition and Conclusion BJA Definitions  Substantiated  Unsubstantiated  Unfounded  Investigation on-going Conclusions  Who decides

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Investigations by Outside Law Enforcement – MOAs – CLARIFY: Role of agency in reviewing protocols, decision-points, consultants, in-put, etc. Access to facility and potential evidence, witnesses, etc.  Access into the facility, escorts, timeliness Review authority of final report When informed of security issues, progress  Need to know Notified/involved when case referred for prosecution, or not

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Using Policy to Make Investigative Decisions Consistency in decisions Continuity of decisions Integrity of decision process Basis of investigation Defensible decision  Referral for prosecutions Value-added

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Process for policy development Statutory limitations What employees must do, or must NOT do Participation by:  Law enforcement  Victim advocates  Sexual assault treatment center  EMS  Prosecutors  Employees  Medical and mental health  Who else?

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Process for policy development Data and reporting Evaluation  Process  Investigators  Outcomes  Amending policies in other areas (value- added)

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Evaluation Process

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Policy Effective? Number of complaints  “Inconclusives” Spikes in reporting Source of allegations Timeliness of allegations False allegations Time lines to conclusions Changes in behaviors? Interviews with staff Offender grievances Turnover of investigators Prosecution  Outcomes  Basis for decision to not prosecute Employee grievances  Union Nature of allegations What else?

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Daskalea v. DC, 227 F.3d 433 (D.C. Cir. 2000) Plaintiff awarded $350,000 in compensatory damages and $5 million in punitive damages by jury  Abuse began when she entered jail  Rumors that she was an FBI agent  Two assaults  Striptease Municipality’s court ordered sexual misconduct policy could not insulate agency even though guard’s acts were against policy  No training on policy  Never gave policy to staff or inmates  Policy not posted  Municipality was indifferent to violations

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Challenges Leadership  Role modeling behaviors and commitment, continuity Culture and history  Unions  Past attempts to address sensitive issues  Code of silence Procedures are in synch with policy Employee training Competency of investigators and investigations  Including those not your own

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Challenges, continued: Offender programming  Gender responsive  Equality and parity Effective investigative protocols/practices Resources and equipment Demystifying the investigative process Gaining cooperation and commitment from the investigating authority Gaining cooperation and commitment from prosecutors

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Challenges, continued: Public and media understanding Aligning contracts Consistently involving stakeholders Transparency

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 Limitations of Investigative Policy Good policy does not guarantee successful investigations, but may guarantee effective investigations  Cannot be all inclusive of all investigative nuances Does not substitute for investigative competency and commitment – from investigators and leaders Cannot sustain its own existence  Training  Accountability  Must continue to secure buy-in of employees, offenders, prosecutors, judges, the public  Evaluation, assessment, adjustment Transparency

Developed by Susan McCampbell under NIC Cooperative Agreement 06S20GJJ1 The Impact of Effective Investigative Policy Demystifies investigative process Enhances thoroughness of process Facilitates integrity of process Facilitates accountability throughout process Facilitates timeliness Facilitates cultural change Facilitates identification of management and training issues