On June 18, 2010, the U.S. Department of Justice (DOJ) released a report on the estimated fiscal impact of the Prison Rape Elimination Act (PREA) standards that had been proposed by the National Prison Rape Elimination Commission (NPREC) the previous year.
PREA, which was signed into law by President George W. Bush on September 4, 2003, is intended to prevent prison rape and sexual abuse by setting standards related to various areas of prison and jail operations such as staffing, reporting of offenses, staff disciplinary action, investigative procedures, employee training, prisoner education and security monitoring technology. [See: PLN, March 2004, p.6].
Booz Allen Hamilton, a consulting firm, was hired by the DOJ to audit compliance with the proposed PREA standards at 49 sites in the U.S. The selected sites included 13 state prison systems, 15 county jails, 1 city jail, 9 state juvenile prison systems, 1 county juvenile detention facility, 6 state community corrections systems and 4 city police department lockups. The Massachusetts Department of Youth Services had the highest overall rate of compliance, at 88%. The Idaho Department of Juvenile Corrections had the lowest overall compliance rate, at 38%.
The report indicated that compliance with most of the standards could be achieved at little or no cost. Of the 41 standards proposed by the NPREC, 12 had no or negligible costs and 26 had minimal to moderate costs. The majority of the compliance costs was driven by two of the PREA standards related to staffing levels and limiting cross-gender searches, which accounted for 86% of the ongoing (annual) costs, and a single standard requiring the use of monitoring technology such as video surveillance systems, which accounted for 96% of the upfront costs.
Of the audited sites, 73% were already compliant with the prisoner supervision standard but only 39% complied with the limited cross-gender viewing and searching standard. Nineteen of the 49 sites were considered “nearly compliant” because they prohibited male staff from conducting pat searches of female prisoners or banned male staff from female facilities, but did not have similar restrictions for female staff at male facilities. Rhode Island was the only state prison system audited that was fully compliant. Only 6 jails, 7 juvenile systems, 2 community corrections systems and 1 lockup reported full compliance with the cross-gender viewing and searching standard.
Just 31% of the sites complied with the proposed monitoring technology standard. Hampering compliance was the difficulty and significant expense of retrofitting older facilities with video cameras. Of the state prison systems studied, only Arkansas was compliant with the monitoring technology standard.
More surprising than the failure of many sites to comply with the expensive standards was their failure to comply with those having minimal or moderate costs. For example, a mere 8% of the sites had a zero-tolerance policy for sexual abuse, only 22% used the standards for hiring and promotion decisions, just 31% complied with the prisoner education standards, and none had completed an audit of their own compliance with the standards – possibly because standardized audit materials had not yet been made available. Only 33% of the sites met the exhaustion of administrative remedies standard, 41% met the standard to give specialized training to investigators, and 59% complied with the standard for protection against retaliation for reporting sexual abuse.
Compliance rates for standards with negligible or no costs were higher, ranging from 96% compliance with the prisoner reporting standard to 55% compliance with medical and mental health screening standards.
The estimated cost of full compliance with the PREA standards for the 13 state prison systems audited in the report ranged from $11,000 in upfront costs and $433,000 in annual costs in Minnesota to $628 million in upfront costs plus $44 million in annual costs in New York.
The estimated costs for full compliance in other state prison systems included $286,000 upfront and $12.5 million annually in Arkansas; $8.8 million upfront plus $30.4 million annually in California; $3.5 million upfront and $2.9 million annually in Colorado; $20 million upfront plus $5.3 million annually in Indiana; $4.3 million upfront and $710,000 annually in Massachusetts; $3.2 million upfront plus $63.9 million annually in Missouri; $258,000 upfront and $774,000 annually in Oregon; $803,000 upfront plus $265,000 annually in Rhode Island; $4.3 million upfront and $3.3 million annually in South Carolina; $31 million upfront and $16.5 million annually in Virginia; and $3.2 million upfront plus $12.3 million annually in Washington State.
However, there were systemic flaws in the methods used by the various sites to calculate the estimated cost of PREA compliance. For example, sites with a large number of facilities tended to estimate greater costs, depending on how they interpreted “cost effective” and “appropriate” requirements for monitoring technology. The sites also tended to focus on the cost of limiting cross-gender searches to routine pat searches, assuming that the guard gender ratio would have to reflect the prisoner gender ratio to be compliant. Since this would mean replacing many female guards with male guards, it would be very expensive and potentially expose agencies to gender discrimination lawsuits. However, that basic premise is false. The gender ratio of guards does not have to match the prisoner gender ratio in order to limit cross-gender searches. The report did not address this fact or point out that the first step should be a study to determine when and where searches are effective and appropriate.
A further flaw in the report is the failure of the sites to take into account the interdependent nature of the costs when calculating the cost of implementing individual standards. For instance, if a prison added cameras and microphones to comply with the monitoring technology standard, it might be able to reduce staffing yet still be compliant with the staffing standard because the newly-added electronic monitoring would suffice.
Additionally, since Booz Allen Hamilton relied on the sites’ self-reported cost projections and methods of achieving compliance, the estimated costs may have been exaggerated compared to the actual costs of implementing the standards.
The focus of the report was solely on the costs for individual sites to implement the PREA standards. No study was made of the savings which would result from the prevention of prison rape. Such savings include reduced litigation, grievance, medical treatment and mental health costs, plus the costs of prosecuting staff who engage in rape and sexual abuse. The value of general benefits to prisoners, employees and society in the reduction of prison rape also was not addressed. Such benefits include fewer cases of sexually-transmitted diseases (including HIV), fewer unwanted pregnancies, a reduction in violence-related injuries, improved reintegration of released prisoners, and improved employee and prisoner well-being and morale.
The report seemed to make excuses for the sites in regard to their lack of compliance with some of the standards. For example, when noting an 8% compliance rate with a zero-tolerance policy for sexual abuse, the report stated that this was because few agencies had designated on-site PREA coordinators. However, establishing such a policy does not depend on coordinators being available. Texas, one of the largest prison systems in the nation (which was conspicuous in its absence from the report), established a zero-tolerance policy two years before PREA was enacted. In Texas, PREA coordinators have other assigned duties, often Security Threat Group Sergeant. Thus, establishing an on-site PREA coordinator does not require an additional full-time staff position.
The attitude of corrections officials and the general public contributes to the failure to fully implement the PREA standards. According to Robert Weisburg, a Professor of Law at Stanford University, prison rape is so widely accepted in our society and ingrained in popular culture that TV shows, movies, newspapers, novels, magazines and even commercials treat it as a normal and expected part of imprisonment.
“So accepted is [sexual] assault as part of prison life that an outsider might conclude that on some basic, if unarticulated level, we think it an appropriate element of the punishment regimen,” Weisburg observed.
Certainly, some corrections agencies don’t seem very interested in preventing prison rape. For instance, while stating it had every intention of complying with the PREA standards (and complaining that it would be very expensive), the New Mexico Corrections Department made a revealing comment: “A simple cost-benefit analysis showed that when weighed against the twelve million dollar cost of compliance, non-compliance would be much cheaper.” Implicit in this statement is the notion that the benefit of preventing hundreds or perhaps thousands of prison rapes is valueless – or at least worth much less than the $12 million cost of PREA compliance. Similarly, the Alabama Department of Corrections estimated that the cost of compliance would be $58 million, but that such costs could be reduced by limiting the definition of “prison rape.” Such attitudes bode ill for the future of prison rape prevention.
“Despite promises (or threats) in [PREA] to take prison officials or state governments to task for failure to stop rape and assault, the real cause probably lies in a more mundane and intractable reality: Inmates will attack inmates if enough of them live in sufficient proximity, with insufficient security, for long enough periods of time. That means that while Congress funds lots of studies, we already know that the key variables are really the sheer rates of incarceration in the United States, the density of prison housing, the number and quality of staff, and the abandonment of any meaningful attempts at rehabilitation. If it is honest, the [NPREC] will suggest what we already know is necessary: that we lower incarceration rates, reduce the prisoner-to-space ratio, train huge numbers of new guards to protect prisoners, and abandon the purely retributive and incapacitative function of prisons. But there is no political will for such changes, which is perhaps why we fund studies of the obvious in the first place,” Professor Weisburg stated.
Although he failed to address the issue of prisoners who are raped or sexually abused by staff, Weisburg is certainly correct in his assessment. PREA was enacted in September 2003. It took almost six years for the NPREC to issue the proposed standards. A cost analysis study released a year later is unlikely to reveal anything that is not already known on how to eliminate prison rape, and merely serves to further delay actions that could actually achieve that laudable goal.
The DOJ’s public comment period on the final PREA standards that are being promulgated by the U.S. Attorney’s Office ended on April 4, 2011. More than 1,300 public comments were submitted, including comments by the Human Rights Defense Center, PLN’s parent organization.
Just Detention International (formerly Stop Prisoner Rape) is coordinating the Raising the Bar Coalition, which advocates for swift adoption of the PREA standards. Sadly, while the U.S. Attorney’s Office drags its feet – the deadline for issuing the final standards came and went on June 23, 2010 – prisoners continue to be victims of rape and sexual abuse. [See, e.g.: PLN, June 2011, p.40].
The PREA cost impact analysis report is available online on PLN’s website and at: www.ojp.usdoj.gov/programs/pdfs/preacostimpactanalysis.pdf.
Sources: Prison Rape Elimination Act (PREA) Cost Impact Analysis (Booz Allen Hamilton Final Report, June 18, 2010), www.informant.kalwnews.org, www.raisingthebarcoalition.org
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