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Pace Law Review Prison Oversight Sourcebook Article 17 What Can We Learn From Aca Standards 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 17

11-18-2010

Effective Corrections Oversight: What Can We
Learn from ACA Standards and Accreditation?
David M. Bogard
Pulitzer/Bogard & Associates

Recommended Citation
David M. Bogard, Effective Corrections Oversight: What Can We Learn from ACA Standards and
Accreditation?, 30 Pace L. Rev. 1646 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/17
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
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Effective Corrections Oversight:
What Can We Learn from ACA
Standards and Accreditation?
David M. Bogard, M.P.A., J.D.
This brief essay will discuss the nexus between the
standards and accreditation process of the American
Correctional Association (ACA) and the call for increased
external oversight of our nation’s jails, prisons, and juvenile
detention and correctional facilities.
By way of background, the American Correctional
Association is a private, non-profit professional association
representing corrections practitioners. Among the activities it
promotes are two that pertain directly to the issue of
corrections oversight—the promulgation of standards and the
maintenance of an accreditation process. These two functions
work hand-in-hand but, as will be explained below, are also
somewhat severable.
ACA publishes more than twenty distinct manuals of
correctional standards, covering a variety of facility types and
programs, including prisons, jails, juvenile detention facilities,
juvenile correctional facilities, probation/parole, and numerous


David M. Bogard is a corrections consultant with the New York-based
criminal justice consulting firm, Pulitzer/Bogard & Associates (P/BA). In
addition to operations consulting, policy/procedure development, and facility
planning, the firm has worked with government officials throughout the
country on a variety of compliance monitoring and performance reviews of
correctional facilities. He is currently serving as a federal court inspector for
the Houston, TX City Jails’ Morgan Consent Decree, and is a consultant to
the federal court monitor of the juvenile correctional system in Puerto Rico.
His experience includes: director of corrections for Arlington County, VA;
labor relations attorney with a law firm in Philadelphia, PA; special assistant
to the commissioner of corrections in Philadelphia; and, special assistant in
the Office of the Deputy Mayor for Criminal Justice in New York City. From
1998-2006, he was a commissioner on the American Correctional
Association’s Commission on Accreditation for Corrections, and he also
served as a member of the ACA Standards Committee. He has been an
expert witness in numerous jail operations cases, and was an adjunct
professor of law at Howard University’s School of Law. He holds a J.D. from
Temple University and an M.P.A. from New York University.

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others. In addition, over the past several years, ACA has
ventured into the all-important realm of institutional health
care standards, publishing its first such manual of standards
for health care in 2002.
The ACA Standards Committee, composed of twenty
members with extensive corrections expertise, such as prison
and jail administrators, community corrections administrators,
attorneys, architects, consultants, etc., promulgates standards
for all the manuals.
Members represent all realms of
corrections—adult and juvenile, institutional and field, longterm and shorter-term facilities and programs. The Standards
Committee meets twice a year to consider the adoption of new
or revised standards, typically acting on recommendations that
come from the field through an active and formal solicitation
process. Recommended changes to standards are generated by
prisoners’ advocacy organizations; managers of facilities;
architects, consultants, and others who use the standards;
physicians and other health care providers who provide care in
correctional institutions; as well as by members of the
Commission on Accreditation for Corrections who must
interpret and rely on these standards in the context of their
accreditation decisions (more on this later). Several of the
positions on the Standards Committee are held by Commission
members, who bring to the table their individual expertise and
knowledge of how the standards are used in the accreditation
process.
Standards Committee decisions are frequently subject to
robust discussion and debate, and persons recommending
changes are afforded the opportunity to address the Committee
directly. Debate often centers on whether proposals will serve
to “water down” standards or make them more practical and
achievable. Members of the Committee who are administrators
will frequently voice concern about the cost of implementing
proposed standards and whether the bodies that fund them will
agree to absorb the cost implications of adherence to proposed
standards. Occasionally, attorneys will propose changes to
standards to reflect changes in law based on federal statutes or
appellate court decisions. New or revised standards are
sometimes the inevitable product of compromises forged to
address concerns, albeit not to the degree or in the same
manner that some would prefer.
Moreover, sometimes

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standards are not modified as proposed because the Committee
does not believe that the issue is of sufficient gravity to
warrant a change, or because it is believed that the value of
continuity outweighs the need for change.
The decisions of the Standards Committee are typically
reflected in the inclusion of new or modified standards in
supplements, which are published every two years, and in new
manuals that are released about every ten years.
Since 2001, there has been a significant push toward the
adoption of performance-based standards. This new focus on
results, as opposed to the prescriptive approach that goes to
only what or how something ought to be done, is a positive
change. Recently published manuals for jails (Adult Local
Detention Facilities), community residential facilities,
correctional industries, and correctional healthcare have been
prepared to reflect this new approach. The performance-based
standards include: standards (statements that define a
required condition to be achieved), outcome measures
(measurable events or conditions that demonstrate whether the
performance standard has been achieved), expected practices
(actions and activities that should produce the desired
outcome), protocols (written instructions that guide
implementation, such as policies and procedures, forms, etc.),
and process indicators (documentation and other evidence that
can be examined to determine that practices are being
implemented properly).
Standards are grouped into such categories as “Safety,”
“Care,” “Justice,” and “Security.” Many can be said to be
aspirational, although others might be viewed as “minimum”
standards and myriad others will fall somewhere in between.
Of the more than 400 standards in each manual, approximately
10% will be weighted as “Mandatory”—these standards are
generally those that most directly and profoundly affect
institutional policies and practices that have the most direct
impact on the health and life safety of inmates and staff. For
example, many of the mandatory standards are in the area of
fire safety, while others drive critical health care concerns or
govern the use of force and restraints.
In 2002, a substantial effort resulted in the substantial
reconciliation of ACA’s standards with those of the
international community, specifically the United Nations’

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Standard Rules for the Treatment of Prisoners. At that time,
some international standards were deemed by U.S. corrections
professionals to be either outdated or just inconsistent with
contemporary best practices, such as those that required that
prisoners’ families be allowed to bring food to them, or the
practice of strict separation based on legal status (as opposed to
more contemporary best practices, employed especially in jails,
of disaggregating and classifying based on risk and behavior,
and doing so based on validated objective scales and measures).
Many correctional agencies use the ACA standards as a
foundation on which to base their policies and procedures, even
without committing to the accreditation process. According to
the ACA website, there are some 130 accredited jails (out of
more than 3,300)1 and 5902 accredited prisons throughout the
country. But myriad others have modeled their processes and
expected practices on the ACA standards, and architects and
consultants typically design facilities or recommend practices
in strict compliance with the standards.
Separate and apart from the publishing of standards, ACA
also maintains an accreditation process. It is voluntary in most
instances inasmuch as accreditation by ACA is typically not
required and agencies enter into the process on their own
volition. There are exceptions to this rule, however. For
example, the Maine legislature passed a law requiring that all
of that state’s adult and juvenile institutions take all necessary
steps to become accredited3, and the vast majority of contracts
between government agencies and private contractors for
facility operations require the operator to obtain and maintain
accreditation as a strict contractual mandate. Occasionally,
courts will mandate compliance with standards or
accreditation, or parties to a settlement agreement may make
this a requirement. But, for the most part, accreditation is a
voluntary process, undertaken by agency administrators who
recognize the value of the process in terms of improved
operations.
1. E-mail from Kathy B. Dennis, Director, Standards and Accreditation
of the American Correctional Association, to author (Apr. 19, 2010) (on file
with author). Note that the number of accredited jails includes federal jails,
immigration detention centers, and other non-county/city level jails.
2. Id. The 590 figure includes publicly and privately operated prisons.
3. ME. REV. STAT. ANN. tit. 34-a, § 1215 (2009).

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The accreditation process is also fee-based; agencies pay
ACA for the costs associated with their audits and the
maintenance of the overall structure that governs and
implements accreditation. It is a moneymaking venture for
ACA that helps to support the full range of its professional
development activities.
And, with the fee-based system
naturally come concerns (and rumors) about the power of the
candidate agencies to directly or indirectly influence decisionmaking. To the degree that these rumors continue to circulate,
or such influence does actually occur,4 it serves to compromise
the integrity and value of the accreditation process as an
oversight mechanism.
The accreditation function is overseen and managed by a
combination of paid ACA staff and a board of commissioners.
The Commission on Accreditation for Corrections is composed
of twenty-eight practitioners representing both adult and
juvenile corrections, institutional and community. In addition
to agency and facility administrators, the Commission includes
attorneys (including a representative of the American Bar
Association), an architect (selected by the American Institute of
Architects) as well as corrections consultants, physicians,
nurses, and citizens not employed in corrections.
Agencies that apply for accreditation must first employ a
self-evaluation, which then triggers the ACA audit. The selfevaluation is an internal review, typically conducted by agency
staff but frequently undertaken by colleagues from other
nearby facilities to inject a more objective perspective of the
agency’s status of compliance before ACA auditors arrive.
Where agencies discover that they are not as compliant as they
believed they would, or should, be at a certain juncture, they
can delay the audit to allow for additional time to correct the
deficiencies that were discovered via the self-evaluation
process. After the self-evaluation is submitted to ACA, the
audit is scheduled and an audit team, comprised of three to
four experienced correctional practitioners (typically including
one with corrections health care expertise), is selected.
Prior to arriving on site, the facility is required to post
notice of the audit to all inmates, including an invitation to
4. In eight years as a commissioner on the Commission on Accreditation
for Corrections, I did not experience any external pressure or undue
interference with panel decisions concerning accreditation.

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send confidential communications to the audit team in advance
of their arrival and to speak with auditors while they are onsite (this occurs occasionally). The audits typically last two or
three days, depending on the size of the institution. Auditors
review files of documentation provided by the agency as
evidence of compliance with the applicable standards. The
team visits all areas of the facility, speaking with staff and
inmates along the way. In addition to speaking privately and
confidentially with any inmates who indicated a desire to speak
with the team before or during the audit, auditors generally
select inmates with whom they will speak informally, during
the course of their tours of the facility, and have free reign as to
which inmates they will interview. The results of these
interviews are summarized in the audit report (e.g., “numerous
inmates complained about the temperature of food,” or “there
was general agreement among the 70 inmates interviewed that
it takes too long to see a nurse”). The results of inquiries into
more specific complaints raised by individual inmates are also
published, which typically result in auditors checking inmate
records, or interviewing staff, to determine whether the
complaints are valid or indicative of larger concerns.
While a significant element of the audit involves paper
documentation, the auditors are also tasked with assessing the
climate of the facility and the quality of life for inmates and
staff. Here, the auditors go beyond the four corners of the more
than 400 standards, to evaluate such issues as safety,
sanitation, life safety, programming, inmate complaints, staff
working conditions, health care, recreation, and security. The
auditors also review records and interview administrators
about statistical incident data provided by the facility (inmateinmate assaults, inmate-staff assaults, use of restraint chairs,
suicide attempts/deaths, escapes, injuries, grievances
filed/resolved for the inmates, etc.).
The results of all of these audit elements are compiled into
a report for the Commission staff and members. While the
compliance score is important, it is not, by any measure, the
only factor that commissioners look to for guidance when
making an accreditation decision. Most commissioners pay
close attention to the Quality of Life discussion, the incident
data, and the comments/complaints of inmates and staff.
Certainly, the efficacy of the audit team’s assessment is key to

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the ability of the commissioners to reach judgments concerning
the facility’s accreditation status. A score of 90% on nonmandatory standards and 100% on mandatory standards is
required; however, contrary to popular belief, these scores only
make a facility eligible for consideration and do not by any
means guarantee it. It is not at all infrequent for agencies with
scores in the 90-95% range to be denied initial or reaccreditation, to receive a probationary status, or to be
subjected to monitoring visits simply because they have missed
20-30 standards, which is often, although not always,
indicative of a larger set of concerns. A poor quality of life
assessment will frequently result in accreditation being denied
or some alternative mechanism being required to provide
assurance to the Commission that concerns will be addressed
and remedied.
Commissioners can entertain requests for waivers—for
non-compliances deemed de minimus or where a statute
requires a different course of action than a standard—or can
require plans of action for non-compliances with deadlines
associated with specific implementation steps. Additionally, in
recognition of political realities or forces beyond the agencies’
control, such as decisions by governors to suspend furloughs or
union agreements that just cannot be undone, agencies can
apply for a limited number of “discretionary non-compliances,”
where failure to satisfy the standard is deemed to have no
negative impact on the life, health, safety or constitutional
operation of the facility.5
The question then is whether the ACA standards and
accreditation process, in and of itself, is a sufficient form of
external oversight.
The ACA accreditation process is as close as we currently
get to a national corrections oversight process. The standards
are, by and large, well-conceived and indicative of sound
correctional practices. There is general agreement in the field
5. The Commission of Accreditation implemented this policy in 2005 as a
measure to increase the integrity of the process. The objective was to allow
agencies to avoid committing to plans of action that they knew they could not
meet for political or policy reasons (e.g., a governor decreed that there would
no longer be furloughs) or because of labor relations agreements that cannot
be abrogated (e.g., collective bargaining agreements frequently allow staff to
bid on posts and give management little or no leeway to require certain
rotations as set forth in standards).

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that the standards are reasonable and that the process of
accreditation is extremely beneficial to participating agencies
in terms of internal quality assurance and self-awareness
enhanced by external oversight.
While pressure may
sometimes be brought on the Association by applicant agencies,
this hopefully occurs in relatively few cases and does not
diminish the value of the process to all the other participating
agencies. Most people who have been involved in the ACA
accreditation process as agency heads, facility administrators,
auditors, or commissioners will say that while all accredited
agencies are not necessarily model facilities, they are likely
better than many or most facilities that are not accredited, and
they are better facilities than they would otherwise be if they
were not accredited. The process of designing an operation
around the widely accepted professional practices and
standards, combined with the objective evaluation of a facility
by professionals in the field, and the necessary follow-up
activities to redress non-compliances, almost always results in
improved operations. This clearly is beneficial to inmates, staff
and the public.
As it is presently configured, however, the ACA standards
and accreditation process does not alone satisfy some of the key
elements of external oversight: it is not transparent and it does
not generally enhance accountability, in terms of allowing the
public or policy makers to hold corrections administrators
responsible for the quality of institutions and how they care for
people. The fact that the accreditation process operates
pursuant to a fee-based contract with a contractual guarantee
of confidentiality clearly mitigates the degree to which it allows
for transparency and accountability to the public. This is not
offered as criticism; it is the process that works best for the
current goals and objectives of the accreditation process that
the association and its applicants desire, and, as stated above,
it is highly valuable from those perspectives. However, the
process does not satisfy other important objectives.
I am reluctant to suggest that the existing ACA process be
fundamentally altered to become the external oversight format
of choice. In some respects, the strength of the current
standards and accreditation process of ACA is in the fact that it
is voluntary. The fact that the impetus for accreditation, on
the part of many agencies at least, derives from an internal

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quest for enhanced professionalism can mean that there is
more ownership in the process. I worry that making it
mandatory may result in agencies seeking shortcuts or
attempting to deceive auditors because the objective will be the
certificate, rather than an internal desire for excellent
operations.
The Maine experience referred to earlier offers some
lessons. Although the legislature mandated accreditation, each
of the state’s adult and juvenile correctional facilities that have
been working toward accreditation have viewed the process as
more than something they must do because it was mandated.
Facility staff members have invested great amounts of time
and effort, plus a huge emotional investment, in ensuring that
their facilities measure up to the ACA standards.6 Further,
although any funding body can certainly require that the
correctional agency share the results and content of an
accreditation audit, in Maine, the legislative requirement
means that policy makers clearly have access to the audit
reports as a matter of legislative oversight, and this could be a
step in the direction of transparency and increased
accountability.
While we can learn from Maine, we must consider that the
application there is limited to state institutions, and there is
presently only one ACA-accredited jail in the state.7 Requiring
county jails and juvenile detention facilities to become
accredited carries with it obvious funding questions and
concerns about unfunded state mandates. For that matter, a
federal law mandating that states accredit all of their
institutions would likely carry the same objection.
Those of us who embrace the central tenets of external
oversight should look to the ACA standards and to the ACA
accreditation process as two existing mechanisms that have
stood the test of time and offer much in the way of a foundation
from which the external oversight movement can build. While
these mechanisms are not without their flaws, and bad
incidents certainly do occur in accredited facilities, there is
6. The author and his associates assisted the Maine Department of
Corrections in the planning of new adult and juvenile facilities and
development of policies and procedures that would meet ACA standards.
7. The Cumberland County Jail in Portland, Maine was first accredited
in 2002 and has subsequently been reaccredited.

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much to be learned and applied. Without question, we have
many safer and more humane correctional facilities in this
country because of the ACA standards and the accreditation
process.

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