Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 18

11-18-2010

Accrediting the Accreditors: A New Paradigm for
Correctional Oversight
Lynn S. Branham

Recommended Citation
Lynn S. Branham, Accrediting the Accreditors: A New Paradigm for Correctional Oversight, 30 Pace L.
Rev. 1656 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/18
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
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

Accrediting the Accreditors:
A New Paradigm for Correctional
Oversight
Lynn S. Branham*
This conference has reminded me of a quandary
confronting my family. We live in a home with a surfeit of
advantages, including a small forested area in the backyard
that brings an oasis of calm to our very busy lives. And yet the
vintage sixties-era master bathroom is in dire need of
remodeling, the “recreation room” in the basement is an
eyesore, and, most disconcerting of all for a writer with four
children and a husband often in the house, the house lacks a
study.
Now my family has several options from which it can
choose. None is wholly palatable. We can, at considerable
expense and some inconvenience, add a study to the house and
remodel its dilapidated rooms. Or we can move to another
house or build a new one, incurring the physical, emotional,
and financial tolls that accompany the uprooting of a family
from one place to another. Or we can do nothing.
This conference, commendably, has highlighted an array of
options for opening up the netherworld of prisons, jails, and
other correctional facilities. Our primary focus has been on
innovative oversight mechanisms currently in place, both
within and outside the United States. The description of these
oversight tools has planted seeds that are percolating in all of
us, prompting us to ask how these cutting-edge programs and
approaches can be further refined and then transplanted in
jurisdictions across the country.
But while we embrace the allure of promising new ideas
for correctional oversight, we must be mindful not to overlook
*
Lynn S. Branham is a Visiting Professor of Law at Saint Louis
University School of Law. She was a member of the Commission on
Accreditation for Corrections for thirteen years, serving for eleven years as
the American Bar Association’s representative on the Commission.

1656

1

2010]

ACCREDITING THE ACCREDITORS

1657

the reality that there already is an oversight mechanism,
national in scope, in place in this country—correctional
accreditation. And however imperfect that process may be—
and it is flawed—we would be remiss if we were to ignore the
questions of whether and how the correctional accreditation
process can be modified, improved, and perhaps revamped to
better achieve at least three goals: one, making correctional
operations and conditions more transparent to governmental
officials and the public; two, holding governmental officials
accountable for decisions they make bearing on correctional
operations and conditions; and three, ensuring that
correctional operations and conditions comport with sound
correctional practices, legal requirements, and basic humanrights precepts. To ignore these questions would be, at least in
some ways, the equivalent of my family reflexively moving from
our “flawed” house without first considering whether it would
be more cost-effective and preferable in the long run to correct
these flaws instead of supplanting them with the inevitable
imperfections and disadvantages of a new house.
In other ways though, the housing analogy is inapposite.
While my family must live in one house or another, individuals
developing a template for the oversight of prisons, jails, and
other correctional institutions need not, and indeed should not,
confine themselves to the selection of only one correctional
oversight mechanism to achieve the three goals described
earlier. Each correctional oversight mechanism, including
those discussed at this conference, has its own unique
advantages and disadvantages.
By adopting an optimal
number and blend of oversight mechanisms, a jurisdiction can
capitalize on the strengths of the mechanisms selected and
utilize one or more mechanisms to compensate for the
deficiencies in another.
The point then is not that we should first determine the
extent to which the correctional accreditation process can be
refined because those refinements can stave off the need for the
adoption of other oversight mechanisms. They cannot. The
point rather is a bit more nuanced: that the correctional
accreditation process, for at least two reasons, should be the
starting point for an assessment of the efficacy of prisonoversight systems in this country and the development of
recommendations to augment and improve those systems.

http://digitalcommons.pace.edu/plr/vol30/iss5/18

2

1658

PACE LAW REVIEW

[Vol. 30:5

First, that process is already in place, and many of the
jurisdictions in this country with the largest prison
populations, including the Federal Government and the State
of Texas, participate in it. If efforts to refine prison-oversight
processes are to have their maximal effect and to have that
effect as soon as possible, the examination and upgrading of
the correctional accreditation process, followed by its
expansion, must be a top priority.
Second, decisions as to what additional oversight
mechanisms are needed in a particular jurisdiction and how
they should be structured may hinge in part on how the
accreditation process operates and the kinds of modifications, if
any, made to it. Certain oversight mechanisms may not be
needed, certain others may need to be adopted, and still others
may need to be reshaped depending on the changes made or
not made in the accreditation process. If, for example, the
correctional accreditation process were to be changed to require
regular and unannounced visits to correctional institutions,
similar unannounced visits by certain other oversight bodies
might not be necessary or, if necessary, might be scheduled at
times and frequencies that do not duplicate, but complement,
the work of the accrediting body. Alternatively, prudence
might dictate that, at least sometimes, the unannounced visits
of another oversight entity occur at times close to the
accreditation audit to ensure that the visits of the accreditation
auditors yield thorough and accurate findings regarding the
conditions and operations of a correctional facility.
This article focuses on correctional accreditation,
specifically the accreditation of correctional institutions by the
Commission on Accreditation for Corrections. The Commission
is the only entity that accredits entire correctional facilities
nationwide, although several other accrediting bodies accredit
correctional healthcare programs. The Commission works
under the auspices of the American Correctional Association
(ACA), an organization comprised largely, but not exclusively,
of correctional professionals. The accreditation process is
commonly referred to as the “ACA accreditation process.”
Part I of the article begins with a general overview of the
ACA accreditation process, including a profile of some of its
strengths and one systemic weakness. Part II then describes
several key structural features of a different kind of

3

2010]

ACCREDITING THE ACCREDITORS

1659

accreditation system—the system for accrediting colleges,
universities, and other higher-education institutions. Part III
concludes with a proposal for a paradigmatic shift in
correctional accreditation, one that, I believe, will enable the
correctional accreditation process to better achieve the goals of
securing transparency, accountability, and compliance with
legal and professional requirements in the operation of this
nation’s prisons, jails, and other correctional facilities.
I. The ACA Accreditation Process
A. General Overview
The Commission on Accreditation for Corrections accredits
a wide range of correctional facilities and programs, including
prisons, jails, boot camps, juvenile detention facilities, juvenile
training schools, juvenile and adult community residential
facilities, and probation and parole programs. While I will
describe the process followed when accrediting prisons, the
Commission adheres to the same general procedures when
determining whether to accredit or reaccredit other kinds of
correctional institutions or programs.
The two most important stages of the formal accreditation
process are the standards-compliance audit and the
accreditation hearing. During the audit, a team of auditors
with correctional expertise inspects the prison, formally or
informally interviews some inmates, line staff, and
administrators, and reviews the documentation that the prison
personnel must compile to demonstrate compliance with the
accreditation standards. The audit team typically is comprised
of three to four members. When an accreditation audit
includes an inspection and accreditation of healthcare services,
the audit team also includes a healthcare professional.
An accreditation audit normally is completed within two to
three days. The audit team then submits a written report to
the Commission on Accreditation for Corrections recounting its
findings. That report specifies what standards the audit team
considers inapplicable to the applicant prison. For example,
the standard governing the housing, services, and programs
provided in prisons with both male and female inmates would

http://digitalcommons.pace.edu/plr/vol30/iss5/18

4

1660

PACE LAW REVIEW

[Vol. 30:5

be deemed inapplicable to a prison housing male inmates only.1
The audit report also identifies the applicable standards
with which the prison is not in compliance. Another section of
the report evaluates the “quality of life” at the prison. This
part of the report summarizes strong suits of the prison such as
its cleanliness at the time of the audit, highlights conditions
that imperil the health or safety of prisoners and staff, and
denotes palpable deficiencies in the programs and services
afforded prisoners at the prison.
In order to be accredited, a prison must meet 100% of the
mandatory accreditation standards and 90% of the
nonmandatory standards.2 In practice, only rarely does the
Commission accredit a correctional facility or program with a
compliance score of less than 95%. Even if a prison attains the
required numerical score for accreditation, the Commission
still can deny accreditation if it finds that conditions at the
prison are adversely affecting the life, health, or safety of staff
or inmates.3
The Commission on Accreditation for Corrections currently
is comprised of twenty-eight individuals.4 Most of its members
are correctional administrators who work in a correctional
facility or program, or a central office that oversees operations
at a number of correctional facilities or programs. In addition,
the American Bar Association, the American Institute of
Architects, the National Association of Counties, and the
National Sheriffs’ Association appoint representatives to serve
on the Commission, and one of the elected citizens-at-large on
the Commission must come from outside the field of
corrections.5
At the accreditation hearing, representatives from a prison
that has applied for accreditation or reaccreditation appear
before a Commission panel comprised of three to five members.
1. See AM. CORR. ASS’N, STANDARDS FOR ADULT CORRECTIONAL
INSTITUTIONS, Standard 4-4278, at 76 (4th ed. 2003).
2. Mandatory standards are defined as those which “directly affect the
life, health, and safety of offenders and correctional employees.” Id. at 192.
3. COMM’N ON ACCREDITATION FOR CORR., COMMISSIONERS’ MANUAL 28-29
(2008).
4. American Correctional Association: Standards and Accreditation,
http://www.aca.org/standards/faq.asp#commission_who (last visited Aug. 27,
2010).
5. Id.

5

2010]

ACCREDITING THE ACCREDITORS

1661

One of the primary responsibilities of the panel during the
hearing is to render decisions on the audit team’s preliminary
findings that the prison is in noncompliance with certain
standards. A prison has four options when an audit team
reports that it is in violation of an accreditation standard. The
prison can appeal the finding of noncompliance, and if the
Commission grants the appeal, the prison’s compliance score
will be adjusted upwards.
The prison’s second option is to submit a “plan of action”
outlining how and by when the prison will come into
compliance with the standard. The Commission assesses the
plan of action for its feasibility and adequacy and may require
that the prison modify the plan of action, changing the steps
that the prison will take to come into compliance with the
standard or the timetable for achieving compliance.
The prison’s third option is to request a waiver of the
requirement that it meet the terms of the standard. According
to the Commission’s policies, it is supposed to grant a waiver
request only when the prison demonstrates that it is “unable”
to comply with the standard for one of four specified reasons:
(1) a statute “specifically prohibits” compliance; (2) bringing the
physical plant of the prison into compliance with a standard
would require “substantial expenditures”; (3) the violation of
the standard is de minimis in nature; or (4) the prison has
striven repeatedly and unsuccessfully to obtain the funds that
would enable it to come into compliance with the standard and
can document those efforts.6
Even if a prison establishes that it meets one of the four
prerequisites for a waiver set forth above, the prison must
surmount two other hurdles before the Commission is
authorized to grant a waiver request. First, the prison must
document that its noncompliance is de minimis and, if not, that
the prison has taken adequate steps to mitigate the adverse
effects stemming from its noncompliance with an accreditation
standard.7 An example of such mitigation would be limiting
the amount of time that prisoners are required to be in cells
that do not meet the ACA standards’ cell-size requirements.

6. COMM’N ON ACCREDITATION
in the original).
7. Id. at 26.

http://digitalcommons.pace.edu/plr/vol30/iss5/18

FOR

CORR., supra note 3, at 25 (emphasis

6

1662

PACE LAW REVIEW

[Vol. 30:5

Second, the prison must prove that the noncompliance is not
jeopardizing the lives, health, or safety of prisoners or staff, or
compromising the meeting of constitutional requirements.8
In 2005, the Commission created a fourth option for
prisons (and other correctional facilities and programs) not
meeting an accreditation standard.9
Under certain
circumstances, the prison simply can opt out of the
requirement that it comply with a particular standard. This
option, which is formally known as “discretionary compliance,”
is different from a waiver. While waiver requests purportedly
are grounded, at least generally, on a prison’s inability to meet
a standard,10 a prison can choose, in many instances, to
designate a nonmandatory standard as “discretionary” when
the prison “does not wish to comply with” the standard.11
A prison can denominate a particular nonmandatory
standard as “discretionary compliance” if two requirements are
met. First, the prison’s reason for not wanting to meet the
standard must correspond with one of the five reasons set forth
in the Commission’s policies:
1. An unwillingness to request funds from a
parent agency or funding source; or,
2. A preference to satisfy the standard/expected
practice’s intent in an alternative fashion; or
3. An objection from a parent agency, higher
level government official, or funding source to
the nature of the standard/expected practice;
or
4. A clear policy in place at a higher level that is
8. Id.
9. See Melissa J. Mall, Commission on Accreditation for Corrections
Adopts a New Policy, 67 CORRECTIONS TODAY 105 (July 2005). It bears
mentioning that while I was not on the Commission in 2005, I had opposed
for many years the adoption of this noncompliance option.
10. Several of the delineated reasons for granting a waiver seem to
conflict with the statement in the Commission’s policy manual that the
inability to comply with a standard is a precondition for a waiver. For
example, although a prison might be able to come into compliance with a
physical-plant standard, it might be eligible for a waiver because of the
significant renovation or construction costs that would need to be incurred in
achieving compliance.
11. COMM’N ON ACCREDITATION FOR CORR., supra note 3, at 27.

7

2010]

ACCREDITING THE ACCREDITORS

1663

contrary to the requirements of the
standard/expected practice; or,
5. An existing provision in a collective
bargaining agreement that makes compliance
impossible (without bargaining with the
employees’ union to effect such a change).12
Second, the prison must describe how noncompliance with
the standard will not have a “significant” detrimental effect on
the life, health, and safety of staff or inmates, or on the
operation of the prison in conformance with constitutional
requirements “to any degree.”13
If the Commission panel concludes that the above two
requirements are met, the prison is exempted from the
requirement that it meet the standard. But the Commission
places a cap on the percentage of nonmandatory standards that
a prison, at its discretion, can opt out of. If the prison is in
compliance with 95% or more of the nonmandatory standards,
it can designate up to 2% of the noncompliant, nonmandatory
standards as “discretionary.”14 If the compliance score for
nonmandatory standards is below 95%, the prison can
denominate 1% of the nonmandatory standards with which it is
noncompliant as “discretionary.”15
B.

Some Observed Benefits and a Systemic Weakness of
Correctional Accreditation

Like any human endeavor, the correctional accreditation
process is imperfect. Yet having served for thirteen years as a
member of the Commission on Accreditation for Corrections,
eleven of those years as the American Bar Association’s
representative on the Commission, I have witnessed the
dramatic potential that the accreditation process has to
catalyze improvements in conditions of confinement, abate
practices that transgress constitutional requirements or
professional norms, and transform the culture of a correctional
12.
13.
14.
15.

Id. at 26-27.
Id. at 27.
Id.
Id.

http://digitalcommons.pace.edu/plr/vol30/iss5/18

8

1664

PACE LAW REVIEW

[Vol. 30:5

institution from one marked by the debasement of staff and
inmates to one suffused with a commitment to professionalism.
I have observed the expenditure of millions of dollars to
eradicate physical-plant problems in correctional facilities, the
closing of unsafe and dilapidated housing units in correctional
institutions, the adoption and refinement of programs to train
thousands of correctional staff, and the overhaul of policies,
procedures, and practices as correctional facilities have striven
to meet the requirements for accreditation. I can attest that
because of correctional accreditation, many correctional
facilities in this country are far safer, more humane, and better
operated than they were before undergoing what can be the
rigors of accreditation.
As a Commissioner, I also have seen firsthand the
weaknesses in the correctional accreditation process and have
labored, as have other Commissioners, ACA staff, accreditation
auditors, and others both from within and outside the
corrections field, to correct perceived deficiencies in the ACA
accreditation process. This reform process has been, and will
be, never-ending, because whether dealing with the operation
of an accreditation process, a correctional facility, an
educational institution, a business, or some other human
enterprise, we always can “do things better.”
The purpose of this section of the article is not to identify
the myriad steps that the Commission on Accreditation for
Corrections already has taken to improve the accreditation
process. Nor is it to prescribe the many additional steps that
can be taken to further refine accreditation as a tool of
correctional oversight. Rather, the purpose of this portion of
the article is to highlight one systemic feature of accreditation
that detracts substantially from, and potentially could
eviscerate, its efficacy as an oversight mechanism. That
feature is the voluntary nature of accreditation—the fact that,
with few exceptions, participation in the accreditation process
is optional.16
The accreditation process is fee-based; in other words,
16. Some states do require that a private prison or jail be ACAaccredited in order to house inmates or certain inmates in that state. See,
e.g., COLO. REV. STAT. § 17-1-105.1(3)(a) (2009); IDAHO CODE ANN. § 20805(2)(m) (2008); NEB. REV. STAT. § 47-803(2)(a) (1995); N.M. STAT. § 33-153(A)(3) (2006); OKLA. STAT. tit. 57, § 563.3(C) (2009).

9

2010]

ACCREDITING THE ACCREDITORS

1665

correctional facilities or programs that want to go through the
ACA accreditation process must pay a large sum of money to
the American Correctional Association.17 The voluntary nature
of accreditation, combined with the fact that it is fee-based,
makes the accreditation process vulnerable, both financially
and operationally. Large prison systems involved in the
accreditation process can and do wield enormous power over
that process, since they can withdraw their institutions from
the process if it is not changed in ways that they see fit. And if
those withdrawals were to occur, the Commission and the ACA
would be sapped of the funds needed to maintain, expand, and
improve the accreditation process.
One of the chief negative repercussions of a voluntary
system of accreditation then is that it spawns unrelenting, and
sometimes irresistible, pressures to water down accreditation
standards and make accreditation procedures more lax. To
their credit, the Commission on Accreditation for Corrections
and the ACA Standards Committee, the entity which adopts,
modifies, and repeals accreditation standards, often have
resisted these pressures. Other times, though, both the
Commission and the Standards Committee have succumbed to
demands to make it easier for prisons to be accredited,
changing the accreditation process in ways that, at least in my
opinion, are not in keeping with the avowed purposes of
accreditation and, in the long run, could lead to its
denouement.
Perhaps the best example of the fragility of the
accreditation process due to its voluntary nature is the
Commission’s adoption of the “opt-out provision,” the policy
that allows correctional facilities, up to a certain limit, to pick
and choose the nonmandatory standards with which they will
comply. For years, a state department of corrections with a
large number of prisons involved in the accreditation process
tendered formal and informal proposals to the Commission to
17. Effective January 1, 2009, the accreditation fee became standardized
for all correctional facilities, regardless of their size or type. Facilities must
pay $3,000 for each day of an accreditation audit plus $1,500 for each auditor
on the audit team. Facilities are eligible for a discounted fee based on the
number of other facilities within the agency that are participating in
accreditation. Letter from James A. Gondles, Jr., Executive Dir., Am. Corr.
Ass’n, to “To Whom It May Concern” (Nov. 20, 2008), available at
http://www.aca.org/standards/pdfs/AccreditationFeeLetter.pdf.

http://digitalcommons.pace.edu/plr/vol30/iss5/18

10

1666

PACE LAW REVIEW

[Vol. 30:5

adopt such an opt-out option, but the Commission always
rebuffed these proposals. But when several other large prison
systems involved in the accreditation process joined in this
lobbying effort, the Commission capitulated.
I do not mean to imply that the individuals whose efforts
culminated in the approval of the opt-out provision acted with
sinister motives. Far from it. The provision was drafted and
approved by individuals who, for years, have evinced a deep
commitment to accreditation and to improving conditions and
operations in correctional facilities. The opt-out provision
primarily was the byproduct of the frustration felt by prison
officials who needed assistance from a third party, typically
funding from the legislature, in order to meet certain
accreditation standards, but who found that such assistance
was never forthcoming. But however understandable those
frustrations, the fact remains that the prospect of a feared
mass exodus of institutions from the accreditation process, if
the Commission failed to approve the opt-out proposal,
overhung the Commission’s deliberations of the proposal to
which it ultimately acquiesced.
The question then is whether the correctional accreditation
process can be restructured in a way that would capitalize on
its strengths while avoiding the pitfalls that attend a wholly
voluntary process. Other accreditation processes, those outside
the field of corrections, can provide guidance in answering that
question. Set forth below is an overview of the structural
framework of one of those other processes—that which pertains
to the accreditation of colleges, universities, law schools, and
other institutions of higher learning.
II. Accreditation of Higher-Education Institutions
The structure for accrediting higher-education institutions
differs from the structure for accrediting correctional
institutions in a number of ways, three of which warrant
mentioning here. First, a federal statute requires that colleges,
universities, and other institutions of higher education be
accredited as a condition of receiving certain federal funds,
including federal student loans.18 This statutory provision, as
18. 20 U.S.C. § 1099b(j) (2006).

11

2010]

ACCREDITING THE ACCREDITORS

1667

a practical matter, makes accreditation mandatory, because
educational institutions cannot attract students if prospective
students cannot obtain loans to fund their education.
Second, the Department of Education (DOE) must officially
recognize an entity as an accrediting agency in order for it to
have the authority to accredit an institution of higher learning,
making the institution eligible to receive federal funding.19
The American Bar Association, for example, is an entity that
accredits law schools. But the ABA’s accreditation of a law
school will make the school eligible for certain federal funds
only if the Department of Education recognizes the ABA as an
accrediting agency (which it does).
Third, in order to be recognized by the Department of
Education as an accrediting agency, the agency must meet a
number of requirements set forth in a federal statute and in
regulations promulgated by the DOE to implement that
statute.20 In short, an entity that wants to accredit highereducation institutions must itself go through what is in form,
though not in name, an accreditation process—one which
entails a “comprehensive review and evaluation of the
performance” of the accrediting agency.21 The accrediting
agency, for example, must adopt accreditation standards that
meet certain stated requirements,22 must enforce those
standards in a consistent manner,23 and must adopt and follow
certain prescribed procedures when accrediting educational
institutions.24 Ensuring that accreditation auditors are welltrained and disclosing to the public when an institution is
undergoing accreditation or reaccreditation review are
examples of the operating procedures that an agency must
institute in order to be recognized by the Department of
Education as an accrediting body.25

19. Id. § 1099b(m).
20. Id. § 1099b(a)-(c); 34 C.F.R. §§ 602.10-.28 (2009).
21. 20 U.S.C. § 1099b(n)(1).
22. Id. § 1099b(a)(5). The accreditation standards, for example, must
assess the educational institution’s facilities, whether adequate funds have
been allocated for the institution’s operations, and student support services.
Id. § 1099b(a)(5)(D)-(F).
23. Id. § 1099b(a)(4)(A).
24. Id. § 1099b(c).
25. Id. § 1099b(c)(1), (8).

http://digitalcommons.pace.edu/plr/vol30/iss5/18

12

1668

PACE LAW REVIEW

[Vol. 30:5

III. A New Framework for Correctional Accreditation
I believe that the general framework for the accreditation
of institutions of higher education—where accrediting bodies
themselves, in effect, have to be accredited—should be
imported into the realm of correctional accreditation. Under
this new framework, correctional institutions in which
individuals are confined, including prisons, jails, juvenile
detention centers, and juvenile training schools, would have to
be accredited in order to be eligible to receive federal funds.
Since correctional facilities receive federal money for an array
of purposes, including to fund construction and institutional
programs, making the receipt of federal funds contingent on
accreditation likely would propel many more correctional
institutions to become accredited than currently are. And this,
in my opinion, would be a good thing, since accreditation holds
promise, though not fully realized at this point, of ensuring
that correctional institutions across the country meet
standards that reflect legal requirements, sound professional
practices, and human-rights principles.
Under the envisioned framework, the entity or entities
that accredit correctional facilities would have to be certified in
order to have the accrediting authority that would make a
facility eligible to receive federal funds. The Department of
Justice might be the logical locus from which this certification
function would be carried out, but the pros and cons of vesting
the certification authority in the Department of Justice or some
other entity would need to be explored fully. Whoever exercises
this certification power, the certification process, if structured
properly, would make the correctional accreditation process
much more open and accountable.
Just as correctional
accrediting bodies scrutinize correctional institutions or parts
of those institutions to determine if they meet certain
standards, the operations of those accrediting bodies would be
scrutinized to ensure that they comport with certain
fundamental principles of effective institutional oversight.
Examples of such fundamental principles would be the
implementation of safeguards to avoid conflicts of interest
when rendering accreditation decisions and the adoption of
measures to ensure consistency in the enforcement of
accreditation standards.

13

2010]

ACCREDITING THE ACCREDITORS

1669

The certification of correctional accreditation bodies, if the
certification process were contoured appropriately, also would
make the operations of prisons and other correctional
institutions more open and accountable. For example, the
statutory or regulatory criteria that have to be met in order for
an agency to be certified as a correctional accrediting body
could include a requirement that the agency conduct site
inspections of prisons and other correctional facilities at
unannounced times, at least in certain circumstances. The
governing statute and regulations also could mandate that
accreditation agencies, such as the Commission on
Accreditation for Corrections, disseminate audit reports and
accreditation decisions to the public.
That way, if an
accrediting agency accredited an institution that clearly does
not meet accreditation standards or whose conditions threaten
the health or safety of staff or inmates at the institution, the
error in the accreditation decision more likely would be brought
to the attention of the accrediting agency. The accrediting
agency then could rectify the error and, perhaps even more
importantly, determine what changes need to be made in its
accreditation standards or processes to avert such errors in the
future. And if the accrediting agency failed to take adequate
corrective measures and was in violation of the requirements
for certification as an accrediting agency, its deficiencies or
derelictions could trigger the revocation or nonrenewal of its
certification as an accrediting agency.26
Several other benefits would accrue from the accreditation
framework outlined above. The requirement that correctional
institutions be accredited as a condition of receiving federal
funding, combined with the requirement that the accrediting
body meet the standards for certification, would dissipate, at
least somewhat, the inexorable pressures that correctional
institutions often exert on an accrediting agency to dilute its
accreditation requirements. Correctional institutions would be
less likely to abandon or refrain from undergoing accreditation
review, or threaten to do so, if the consequence of that decision
was a loss of federal funding.
26. By way of analogy, the DOE can vest an agency or association with
accrediting authority for up to five years, but the DOE can limit, suspend, or
terminate that authority because of noncompliance with the requirements for
DOE recognition as an accrediting body. Id. § 1099b(d).

http://digitalcommons.pace.edu/plr/vol30/iss5/18

14

1670

PACE LAW REVIEW

[Vol. 30:5

It is true that if, as in the field of higher education,27 there
were multiple entities certified as accrediting bodies, some
correctional institutions might troll around for the
accreditation process with the lowest accreditation standards
or threaten to do so if an accrediting agency failed to repeal
certain accreditation requirements. But the statutory and
regulatory specifications that an accrediting agency would have
to meet in order to be certified could be drafted in a way that
guards against efforts to circumvent the purposes of
accreditation and that promotes healthy, not unhealthy,
competition between accrediting bodies.
Requiring that a correctional facility be accredited by a
certified accrediting agency in order to be eligible to receive
federal funds also would provide legislatures (and local
governing bodies) with an added incentive to appropriate the
money needed for correctional facilities to meet accreditation
standards. As many of the speakers at this conference
observed, legislatures repeatedly have failed to allocate the
funds or implement other reforms that would enable
correctional professionals to rectify grave problems in the
conditions in, and operations of, correctional facilities. Linking
federal funding to accreditation would be one way to begin
addressing this endemic failure.
Conclusion
Extending the certification-accreditation framework that
governs the accreditation of institutions of higher education
into the field of corrections would be an important and critical
first step in bringing transparency and accountability into the
“closed world” of corrections and in ensuring that correctional
institutions adhere to legal requirements, professional
standards, and a transcendent obligation to respect basic
human rights. But it would only be a first step. Those of us
who are involved in, and committed to, the accreditation
process and the realization of its potential would need to
continue to examine how that process can be augmented and
27. Links to lists of the many entities that accredit postsecondary
institutions
or
programs
can
be
found
at
http://www.ed.gov/admins/finaid/accred/accreditation_pg7.html#RegionalInst
itutional.

15

2010]

ACCREDITING THE ACCREDITORS

1671

improved within this new framework. And other correctional
oversight mechanisms would need to be developed or refined in
jurisdictions across the country if the objectives of correctional
oversight are to be met fully.
Large-scale change takes time. Effecting such change
requires perseverance and a level of patience that can be
elusive when observing patent problems that can and should be
resolved more quickly than they ever are. Now is the time for
this kind of large-scale change in the ways in which conditions
and operations in this nation’s correctional facilities are
monitored. So let’s roll up our sleeves, get to work . . . and
persevere.

http://digitalcommons.pace.edu/plr/vol30/iss5/18

16