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Prison Rape Elimination Act Standards Finally in Effect, but Will They be Effective?

"Sexual abuse is not an inevitable feature of incarceration. Leadership matters because corrections administrators can create a culture within facilities that promotes safety instead of one that tolerates abuse." – National Prison Rape Elimination Commission

A report released by Human Rights Watch in 2001, titled "No Escape: Male Rape in U.S. Prisons," served as a catalyst which, in conjunction with increased public awareness about the issue of prison rape, led numerous organizations to lobby for federal legislation to address the dilemma of sexual abuse behind bars.

Michael J. Horowitz, a senior fellow at the Hudson Institute, garnered support for the legislation from a number of conservative and evangelical organizations – particularly Prison Fellowship, founded by former special counsel to President Nixon (and ex-federal prisoner) Charles "Chuck" Colson.

Groups from opposite ends of the political spectrum joined together to back the bill, including Just Detention International (formerly Stop Prisoner Rape), the NAACP, Amnesty International, National Council of La Raza, Concerned Women for America, the Salvation Army, Penal Reform International and Focus on the Family.

For some, legislation to protect prisoners from sexual abuse was preferable to enlarging their legal rights. According to a 2002 article in the National Review, "While some on the left – most prominently the group Human Rights Watch – have proposed anti-prison-rape solutions such as expanding prisoners' rights to sue corrections officials, the new proposal represents a sensible middle-ground solution."

The lead sponsors of the bipartisan bill, entitled the Prison Rape Elimination Act (PREA), included Senator Jeff Sessions and Rep. Frank Wolf, both Republicans, and Democrats Senator Edward Kennedy and Rep. Bobby Scott.

When PREA was passed by Congress by unanimous consent and signed into law by President George W. Bush on September 4, 2003, some of the bill's supporters may have envisioned that it would provide a timely response to redress the serious problem of prison rape and sexual abuse.

Unfortunately it would be another ten years before the PREA standards went into effect.

The Long Road to PREA Standards

Granted, during the decade it took to implement PREA, much was done to formulate the standards to ensure they meet their laudable goal of eliminating prison rape. The eight-member National Prison Rape Elimination Commission (NPREC), chaired by District of Columbia U.S. District Court Judge Reggie B. Walton, was established in June 2004 – around seven months after the 60-day deadline specified by PREA, which is codified at 42 U.S.C. §§ 15601-15609.

While the Commission had subpoena power to collect information to fulfill its mandate to develop draft PREA standards, that power was not all-encompassing. When signing PREA into law, President Bush issued a signing statement that specified the executive branch of the federal government could "withhold information when its disclosure could impair deliberative processes of the Executive or the performance of the Executive's constitutional duties." This served as an exemption to the NPREC's "right of access to any Federal department or agency information it considers necessary to carry out its duties."

Over the next three years the Commission held eight public hearings and one public meeting that included testimony from "corrections leaders, survivors of abuse, health care providers, researchers, legal experts, advocates, and academics." Based on that testimony and information received during two public comment periods, the Commission released draft PREA standards for immigration detention facilities and adult prisons and jails on May 5, 2008, and draft standards for lockups, juvenile facilities and community corrections programs the following month.

Although the NPREC engaged in important work by holding hearings, accepting public input and creating the draft standards, some criticized the lengthy amount of time – over five years – it took the Commission to eventually complete its task.

As Mike Farrell, board president of Death Penalty Focus, wrote in 2008, "the National Prison Rape Elimination Commission meets periodically to 'study the impact of prisoner rape.' While they study, rape continues."

In fact, the process took so long that Congress had to pass legislation, included in the Second Chance Act, to extend the statutory life of the NPREC.

The Commission's work culminated on June 23, 2009 with a comprehensive 276-page final report that included nine findings and numerous proposed PREA standards, which was forwarded to Congress, Attorney General Eric Holder, President Obama and other federal and state officials.

"Protecting prisoners from sexual abuse remains a challenge in correctional facilities across the country," the NPREC wrote. "Too often, in what should be secure environments, men, women, and children are raped or abused by other incarcerated individuals and corrections staff."

Having fulfilled its purpose, the Commission then disbanded.

Although the U.S. Department of Justice (DOJ), through the Attorney General's office, was required to use the Commission's recommendations to develop a formal rule implementing the PREA standards within one year, the process took significantly longer.

An alliance of advocacy organizations, the Raising the Bar for Justice and Safety Coalition, launched a campaign in February 2010 to urge the Attorney General to act promptly to implement the PREA standards. The Coalition advocated for the "full, effective implementation of, and monitoring of compliance with, the United States PREA Standards in jails, prisons, juvenile detention facilities, immigration detention centers, and community confinement throughout the country."

Headed by Just Detention International, the Coalition was composed of more than 60 organizations, including the ACLU, American Legislative Exchange Council, Center for Constitutional Rights, National Gay and Lesbian Taskforce, National Immigrant Justice Center, Southern Center for Human Rights, Prison Fellowship and the Human Rights Defense Center, which publishes Prison Legal News.

The DOJ issued an Advance Notice of Proposed Rulemaking with respect to the draft PREA standards on March 10, 2010, followed by a 60-day public comment period. A proposed final rule was released on January 24, 2011 that included four sets of national PREA standards – for adult prisons and jails, juvenile facilities, community confinement facilities and lockups (e.g., holding cells in police stations). Immigration detention centers were not covered. Another 60-day public comment period followed.

The final rule implementing the PREA standards was issued by the Justice Department on May 17, 2012 – nearly two years after the statutory deadline.

The same day, President Obama directed "all agencies with federal confinement facilities that are not already subject to the Department of Justice's final rule" to develop rules that comport with the PREA standards. This included the Department of Homeland Security (which operates immigration detention facilities), the Department of the Interior (which operates jails in Indian Country through the Bureau of Indian Affairs), the Department of Defense (military prisons) and the Department of Health and Human Services (facilities that house certain juvenile immigration detainees).

"Sexual abuse should never be a penalty for any crime – and today's regulations are the first step to ending the shameful history of prison rape in our country," said ACLU National Prison Project senior staff counsel Amy Fettig.

The Justice Department's final rule was published in the Federal Register and became effective on August 20, 2012. The rule was "immediately binding on the Federal Bureau of Prisons," though there was a one-year implementation period for state and local corrections agencies and private contractors.

For example, they had a one-year period following the effective date of the rule to provide initial PREA training to current employees. Also, the PREA standard governing annual compliance audits specified that the first audit cycle would not start until August 20, 2013 – requiring corrections agencies to have at least one-third of their facilities audited by August 20, 2014.

According to the PREA Resource Center, standards that impose "restrictions on cross-gender pat-down searches of female inmates in prisons, jails, and community confinement facilities ... do not go into effect until August 20, 2015, for facilities whose rated capacity is 50 or more inmates, and August 21, 2017, for facilities whose rated capacity does not exceed 50." Further, the PREA standard governing minimum staffing ratios in certain juvenile facilities goes into effect on October 1, 2017.

Thus, the PREA standards as implemented by the final rule issued by the DOJ will not become fully effective until 14 years after PREA was signed into law.

Criticism of the Proposed Standards

Hundreds of people and organizations submitted comments to the NPREC as the draft standards were being developed, and to the Department of Justice during the two public comment periods following the DOJ's release of the Advance Notice of Proposed Rulemaking and the proposed final rule.

The Justice Department received almost 2,000 public comments from various groups and stakeholders, including the American Correctional Association, National Women's Law Center, Prison Fellowship, National Sheriff's Association, American Probation and Parole Association, American Bar Association, Youth Law Center, Just Detention International, International Community Corrections Association, Human Rights Watch and Association of State Correctional Administrators.

Many of the comments included recommendations to strengthen the proposed PREA standards or expand them in certain areas. However, other comments, mainly from organizations representing corrections agencies and employees, expressed concerns as to how some of the standards would impact staff members and the operation of correctional facilities, and the effect the standards would have on labor contracts with unionized prison and jail employees.

"A particularly thorny issue in management-union relations, and one with significant repercussions in the area of sexual abuse, concerns management's authority to reassign or sanction staff," the NPREC noted in its final report.

Some critics, including former members of the National Prison Rape Elimination Commission, complained that the proposed PREA standards were being weakened by the Department of Justice – possibly because they would be too expensive to implement, or to accommodate the concerns of corrections officials.

Former NPREC member Pat Nolan said the Justice Department's proposed rule for implementing the PREA standards would "significantly weaken the standards that will hold prison officials accountable for eliminating rapes in their prison."

Cynthia Totten, senior program director for Just Detention International, added the DOJ's proposed rule had "watered down" the NPREC's draft standards.

The Human Rights Defense Center (HRDC) – the parent organization of Prison Legal News – submitted comments to the NPREC in July 2008 and to the Department of Justice on May 3, 2010 and April 4, 2011 during the public comment periods. PLN has taken a vigorous stand against prison rape and sexual abuse from its inception, and has reported extensively on the sexual victimization of prisoners, particularly by corrections staff, for the past 23 years.

HRDC made suggestions to strengthen the standards in specific areas and wrote "that the DOJ's proposed rules for the PREA standards are a hollow shell of what was originally envisioned by prisoners' rights advocates and others concerned about the issue of prison rape and sexual assault. If the intent is to provide the greatest possible protections for prisoners against being sexually assaulted and raped while in custody, then the watered-down rules proposed by the DOJ fail to reach that laudable goal. Rather, the proposed rules constitute weaker standards that are apparently designed to be more palatable to corrections officials, many of whom expressed opposition to the standards as developed by the Commission."

Specifically, HRDC addressed the following issues in its comments submitted to the Department of Justice, and several of HRDC's recommendations were incorporated into the DOJ's final rule.

Costs to Implement PREA

When PREA was enacted it included language stating "the Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities."

HRDC objected to this statutory provision, arguing it was unacceptable to "put a price tag on the trauma of rape and sexual abuse experienced by prisoners.... When Congress limited the PREA standards by specifying that measures to prevent prison rape must not 'impose substantial additional costs,' it placed cost considerations above efforts to stop the sexual abuse and rape of prisoners. Consequently, the DOJ's proposed rules reflect the fact that we get only what we are willing to pay for."

Indeed, after the NPREC issued its final report, the Department of Justice hired consulting firm Booz Allen Hamilton to conduct a cost impact analysis of the draft PREA standards. The analysis, released on June 18, 2010, found that implementing the standards as proposed by the NPREC would result in substantial costs in terms of both upfront and ongoing expenses. The highest costs were associated with requiring correctional facilities to install additional monitoring equipment such as video cameras, staff supervision of prisoners, and limiting cross-gender observation and searches of prisoners by staff members. [See: PLN, July 2011, p.38].

But as noted by Lovisa Stannow, executive director of Just Detention International, "Booz Allen Hamilton only examined the cost of each proposed standard, without considering the benefits and cost-savings that would result from instituting these basic measures to improve safety and decrease sexual violence in detention. Beyond the dramatic impact on the well-being of inmates, staff, and society at large, the prevention of prisoner rape will decrease costs of litigation, grievance petitions, staff turnover, and the need for medical and mental health treatment."

"If states don't want to pay the costs, then they have to reduce their prison populations," added Jamie Fellner, a senior advisor with Human Rights Watch and a member of the NPREC, addressing the correlation between prison overcrowding and increased rates of rape and sexual abuse. "If you are going to put them in prison, you have to keep them safe."

PREA Enforcement Provisions

In its comments submitted to the NPREC and the Department of Justice, HRDC repeatedly cited problems with PREA's enforcement provisions, or rather the lack of same, since compliance by corrections agencies is voluntary.

As the DOJ acknowledged, "PREA does not require full nationwide compliance with the standards, nor does it enact a mechanism for the Department to direct or enforce such compliance; instead, it provides certain incentives for State (but not local or privately-operated) confinement facilities to implement them."

The primary means by which PREA attempts to ensure compliance by the states is through a financial incentive: "For each fiscal year, any amount that a State would otherwise receive for prison purposes for that fiscal year under a [federal] grant program covered by this subsection shall be reduced by 5 percent, unless the chief executive of the State submits to the Attorney General – (A) a certification that the State has adopted, and is in full compliance with, the national [PREA] standards... or (B) an assurance that not less than 5 percent of such amount shall be used only for the purpose of enabling the State to adopt, and achieve full compliance with, those national standards...." 42 U.S.C. § 15607(c)(2).

That is, a state risks losing only 5% of federal grant funding "for prison purposes" if it fails to certify that it is in full compliance with PREA, which, as HRDC noted, "is an indication of the low priority that Congress placed on preventing prisoner rape – as the loss of 10 percent, 20 percent or a higher percentage would have been a much more effective deterrent for states that fail to comply with PREA." In fact, for some states it might actually cost less not to abide by the PREA standards, as the cost of compliance could exceed the 5% loss of federal prison-related grant funding they receive.

According to the PREA Resource Center, the potential 5% loss of federal funds for non-compliance with the standards would likely apply to money received by the states from the Edward Byrne Memorial Justice grant program, the Juvenile Justice and Delinquency Prevention Act formula grant program and the Juvenile Accountability Block Grant program, based on fiscal year 2012 appropriations.

Yet a state not in compliance with the PREA standards will not lose 5% of its federal prison-related grant funding so long as the governor "submits an assurance that such five percent will be used only for the purpose of enabling the state to achieve and certify full compliance with the standards in future years."

Notably, for PREA enforcement purposes, the potential loss of federal prison-related grant funding only applies to the states – it is not applicable to local corrections agencies, the federal Bureau of Prisons or other federal agencies that operate detention facilities, nor to private prison contractors.

As a form of disincentive for failure to comply with the standards, PREA provides that each year "the Attorney General shall publish a report listing each grantee that is not in compliance with the national standards...." Presumably, inclusion in such reports will prove embarrassing and corrections agencies will thus endeavor to follow the standards.

HRDC wrote, however, that "Given the documented abuses that have been inflicted upon prisoners [by corrections officials], it is highly unlikely that including agencies that fail to comply with the PREA standards on a list, for the purpose of shaming them into compliance, would be successful. Some prison officials have already demonstrated that they engage in shameless conduct; others, through their reluctance to embrace necessary reforms, have shown they have no shame."

Some corrections officials, for example, have suggested that prisoners falsely reported incidents of sexual abuse because they were given "bags of cookies" by staff conducting the survey, while others have compared prison rape to "cultural delusions" such as UFO sightings. [See: PLN, April 2012, p.1].

Finally, the standards do not provide a private cause of action for enforcement purposes; i.e., prisoners who are raped or sexually abused due to the failure of corrections agencies to adopt or enforce PREA standards can not file suit against the agency based solely upon that failure (although such claims can still be brought under the 8th or 14th Amendments). Consequently, HRDC encouraged the Department of Justice "to lobby Congress to strengthen PREA by including a private cause of action for victimized prisoners when agencies do not follow the standards."

Staff-related Issues

The DOJ's proposed standard for conducting criminal background checks of corrections employees stated that such checks should be conducted "at least every five years." HRDC observed that
"[g]iven the sensitive security functions of correctional facilities, background checks conducted on a more frequent basis, such as annually or every two years, would be more appropriate. Otherwise, if staff engages in criminal sexual misconduct after being hired, which is not brought to the attention of the agency they work for, they could continue working in a correctional setting for up to five years before the misconduct is discovered under the proposed rule."

Additionally, the proposed PREA standards did not require agencies to discipline or sanction employees who fail to report knowledge, suspicion or information regarding an incident of sexual abuse. "Requiring staff to report such incidents, while failing to mandate any disciplinary measures for not making such reports, is insufficient," HRDC wrote. "Agencies should be required to impose disciplinary measures on staff who do not report their knowledge, suspicion or information related to sexual abuse."

This is already common practice for teachers, doctors and others who work with children, known as "mandated reporters," who face the loss of their jobs and professional licenses, and possible criminal prosecution, if they are aware of or suspect child abuse and fail to report it to the appropriate authorities. The proposed PREA standards did not extend similar penalties to corrections staff who are aware of or suspect sexual abuse of prisoners; this is especially troublesome given the "code of silence" prevalent among prison employees, who are reluctant to report coworkers guilty of misconduct.

Private Contractors

HRDC noted that "private prison contractors differ in several material respects from public-sector corrections agencies," as they have a "profit motivation to minimize reporting of incidents that may subject them to contractual penalties, result in the cancellation or non-renewal of contracts, or have an adverse impact on their stock performance."

Thus, specific guidance as to monitoring private prison contractors was recommended. Further, such "[m]onitoring should be conducted by the same public agency staff responsible for reviewing PREA compliance at the agency's publicly-operated facilities, if applicable, or by staff retained specifically to ensure PREA compliance by the contractor," and "monitoring staff should have no current or prior financial or employment relationship with the private prison contractor."

Additionally, the DOJ's proposed standard related to disciplinary sanctions imposed on staff who engage in sexual misconduct apparently did not extend to private contractors and volunteers who engage in sexual abuse or harassment. "Contractors and volunteers should be subject to termination/dismissal and reporting to law enforcement agencies to the same extent as sexually abusive staff members," HRDC stated in its comments submitted to the Department of Justice.

HRDC further noted that the proposed standards defined "agency head" as being "the chief authority of a Federal, State, or local correctional or law enforcement system," which did not include the director or CEO of a corporate entity that operates correctional facilities. Thus, it was recommended that the definition of "agency head" be expanded to encompass corporate officers of private prison companies.

Also, as stated above, PREA's enforcement mechanism to elicit compliance with the standards – withholding 5% of a state's federal prison-related grant funding – does not apply to private contractors.

Thus, HRDC recommended that the "Standards should require federal, state and county/municipal corrections agencies to withhold 5% of funds paid to private prison contractors if such contractors fail to comply with the [PREA] Standards. Alternatively, the Standards could require government agencies that contract with private prison companies to specify, as part of their contract, that the company must comply with the Standards or face a 5% reduction in its contractual payments."

The DOJ's final rule implementing the PREA standards did not extend financial penalties to private contractors, but did denote that a public agency "that contracts for the confinement of its inmates with private agencies or other entities ... shall include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards," and to monitor such compliance.

One possible reason that the PREA standards as initially proposed did not adequately address issues related to privately-operated correctional facilities may be related to the fact that Gustavus A. Puryear IV, then-general counsel for Corrections Corporation of America (CCA), the nation's largest for-profit prison firm, served as a member of the NPREC and was involved in creating the draft standards upon which the DOJ's proposed final rule was largely based.

The private prison industry has a particularly poor track record in terms of rape and sexual abuse of prisoners, and as an indicator of the lack of importance that Puryear placed on his duties as a member of the NPREC, he missed half of the Commission's public hearings. [See: PLN, May 2009, p.1; March 2009, p.6].

CCA has the dubious distinction of operating a facility – the Otter Creek Correctional Center in Kentucky – where two states withdrew all of their female prisoners due to repeated sexual abuse by the company's employees. [See: PLN, Sept. 2011, p.16; Oct. 2009, p.40]. Plus CCA strenuously – and successfully – objected to a shareholder resolution that would have required the company to issue reports on its efforts to reduce incidents of rape and sexual abuse in CCA-operated prisons and jails. [See: PLN, June 2012, p.32; March 2012, p.18].

Prison Litigation Reform Act

The application of the Prison Litigation Reform Act (PLRA) to victims of prison rape and sexual abuse was a matter of much contention during the drafting of the proposed PREA standards. PLRA provisions such as requiring exhaustion of administrative remedies and prohibiting prisoners from seeking compensatory damages for mental or emotional injuries in the absence of physical injury are especially problematic for incarcerated victims of sexual abuse. The PLRA also makes it difficult for prisoners to obtain counsel, and places restrictions on court-ordered injunctions to remedy unconstitutional practices or conditions in correctional facilities.

The NPREC's final report recommended that Congress amend the PLRA with respect to prisoners who have been sexually victimized, as the PLRA "has compromised the regulatory role of the courts and the ability of incarcerated victims of sexual abuse to seek justice in court."

Although PREA did not authorize the Attorney General's office to override the PLRA, a number of advocacy organizations, including HRDC, noted that prisoners who report sexual abuse may not have timely access to the grievance process in order to exhaust administrative remedies, and that the PLRA's physical injury requirement should not apply to victims of prison rape and sexual assault.

"[F]or purposes of administrative exhaustion under the PLRA, we do not believe that victims of sexual abuse or harassment should have to file a formal grievance if other types of reporting put staff on notice of the sexual abuse or harassment," HRDC wrote. "Further, despite the DOJ's decision not to address the physical injury component of the PLRA, we submit that the standards should specify that the PLRA's requirement that prisoners show 'physical injury' before bringing suit for mental or emotional damages (42 U.S.C. § 1997e(e)) is inapplicable to acts of sexual abuse, or that prisoners who have been subjected to sexual abuse have per se satisfied the physical injury requirement of the PLRA."

Only recently has the PLRA's physical injury requirement been addressed relative to rape and sexual abuse claims involving prisoners. [See: PLN, July 2013, p.30]. It was addressed by Congress, not by the DOJ or the PREA standards.

Compliance Audits

The DOJ's proposed final rule implementing the PREA standards required corrections agencies to be regularly audited to ensure compliance, with such audits to occur once every three years. HRDC and other organizations took issue with the length of time between audits, and suggested that "audits of 1/3 of the agency's facilities be conducted annually, with the facilities being selected randomly so they do not have advance notice they will be audited. Thus, over a three-year period, each of an agency's facilities will be audited at least once." For corrections agencies with a small number of facilities (such as jails and police lockups), annual audits were recommended.

Additionally, HRDC noted that "the proposed rule should include a provision for an immediate or emergency audit if it is determined there are excessive reports of sexual abuse or sexual harassment at a given facility."

Attorney General's Conflict of Interest

HRDC was one of few organizations to raise concerns regarding an apparent conflict of interest involving the U.S. Attorney General's office. Although the Attorney General was charged with developing a final rule to implement the PREA standards, it is also the agency that defends the federal government in lawsuits filed by prisoners who have been raped or sexually assaulted while in federal custody.

Thus, "the U.S. Attorney General's office has an inherent conflict of interest in regard to promulgating the PREA standards and with any monitoring of those standards," because the standards "may have an effect on civil cases in which the Attorney General's office represents federal prison staff accused of raping or sexually abusing prisoners."

Unsurprisingly, this issue was not addressed in the DOJ's final rule.

Final Rule Implementing
the Standards

Despite the apparent shortcomings of the PREA standards and the glacial pace at which they were promulgated, they indisputably include a number of useful provisions that, if adopted and enforced, will have a significant impact on reducing prison rape and sexual abuse. Although separate sets of standards were developed by the DOJ for different types of correctional facilities – adult prisons and jails, police lockups, juvenile facilities and community confinement centers – most of the respective standards are similar.

First and foremost, the PREA standards require corrections agencies to have a "written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency's approach to preventing, detecting, and responding to such conduct."

Noteworthy areas covered by the DOJ's final rule are summarized below with respect to the PREA standards for adult prisons and jails.

Sexual Abuse and Harassment Defined

The final rule defines prisoner-on-prisoner sexual abuse as being any of the following acts if the victim does not consent, is coerced by overt or implied threats of violence, or is unable to consent: 1) Contact between the penis and the vulva or anus, including any penetration; 2) Contact between the mouth and the penis, vulva or anus; 3) Penetration of the anal or genital opening of another person by a hand, finger, object or other instrument; and 4) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh or the buttocks of another person, excluding contact incidental to a physical altercation.

Staff-on-prisoner sexual abuse (which includes sexual abuse by contractors and volunteers) is defined as: 1) Contact between the penis and the vulva or anus, including any penetration; 2) Contact between the mouth and the penis, vulva or anus; 3) Contact between the mouth and any body part where the staff member has the intent to abuse, arouse or gratify sexual desire; 4) Penetration of the anal or genital opening by a hand, finger, object or other instrument that is unrelated to official duties or where the staff member has the intent to abuse, arouse or gratify sexual desire; 5) Any other intentional contact, either directly or through the clothing, with the genitalia, anus, groin, breast, inner thigh or the buttocks that is unrelated to official duties or where the staff member has the intent to abuse, arouse or gratify sexual desire; 6) Any attempt, threat or request by a staff member to engage in the activities described above; 7) Any display by a staff member of his or her uncovered genitalia, buttocks or breast in a prisoner's presence; and 8) Voyeurism – i.e., an invasion of a prisoner's privacy by staff for reasons unrelated to their official duties.

Sexual harassment constitutes: 1) Repeated and unwelcome sexual advances, requests for sexual favors or verbal comments, gestures or actions of a derogatory or offensive sexual nature by one prisoner directed toward another; and 2) Repeated verbal comments or gestures of a sexual nature made to a prisoner by a staff member, including demeaning references to gender, sexually suggestive or derogatory comments about a prisoner's body or clothing, or obscene language or gestures.

Standards for Corrections Agencies

Corrections agencies, as defined in the final rule, must "designate an upper-level, agency-wide PREA coordinator" to develop, implement and oversee the agency's efforts to comply with the standards.

Correctional facilities shall ensure that staff members do not "conduct cross-gender strip searches or cross-gender visual body cavity searches except in exigent circumstances or when performed by medical practitioners." Nor shall cross-gender pat-down searches of female prisoners be permitted except in exigent circumstances – although that standard does not go into effect until August 20, 2015, or August 21, 2017 for facilities with a rated capacity of 50 beds or less. There is no comparable PREA standard that prohibits cross-gender pat-down searches of male prisoners.

Additionally, prisoners shall be allowed to "shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering a housing unit."

Correctional facilities must "provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, [and] retaliation by other inmates or staff for reporting sexual abuse and sexual harassment," including at least one way to report such incidents to an outside agency with the ability to remain anonymous.

Corrections agencies are required to collect data regarding allegations of sexual abuse that occur at their facilities, aggregate the data at least annually and make such aggregated data "readily available to the public."

Standards Related to Corrections Staff

Each corrections agency is required to "make its best efforts to comply on a regular basis with a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse." Minimum staffing levels are not specified with the exception of certain secure juvenile facilities.

Corrections agencies shall not hire, promote or contract with anyone who has engaged in sexual abuse in a correctional facility or who has been convicted of engaging or attempting to engage "in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse." Agencies are required to conduct criminal background checks before hiring new employees or enlisting the services of contractors who may have contact with prisoners. Criminal background checks of existing employees and contractors must be conducted at least every five years.

Corrections staff who have contact with prisoners must undergo training on the agency's PREA-related policies, including prisoners' right to be free from sexual abuse and sexual harassment, and from retaliation for reporting such incidents. PREA training for current employees must be completed within one year of the effective date of the DOJ's final rule, with "refresher training every two years."

Staff members who conduct internal investigations shall receive training on investigating PREA-related incidents, and medical and mental health care employees must be trained to recognize and respond to incidents of sexual abuse.

Corrections staff are required to report "any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation." The standards do not specify or require any penalties for staff who fail to make such reports.

The "presumptive disciplinary sanction" for staff members who engage in sexual abuse is termination, although the PREA standards do not require that such employees be fired. Importantly, "All terminations for violations of agency sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies."

Standards Related to Contractors

When corrections agencies contract with private companies to house prisoners, they must "include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards."

Because this standard requires that PREA compliance be specified only in new contracts or contract renewals, existing contracts with private companies such as CCA and the GEO Group presumably do not have to include PREA compliance provisions until they are renewed or rebid – which is problematic as some existing private prison contracts extend for terms of 10 or even 20 years. [See: PLN, Nov. 2012, p.16].

Additionally, each corrections agency is required to "obtain incident-based and aggregated data from every private facility with which it contracts for the confinement of its inmates," to the same extent it collects sexual abuse data from its own facilities.

Standards Related to Prisoners

Prisoners must be informed about a correctional facility's PREA policies, including its zero tolerance policy for sexual abuse and sexual harassment, during the intake process. Comprehensive education on prisoners' PREA-related rights must be provided within 30 days after intake.

Additionally, during the intake process or upon transfer to another facility, prisoners must be screened "for their risk of being sexually abused by other inmates or sexually abusive toward other inmates." The screening data shall be used with respect to housing, work, education and program assignments, with the goal of separating prisoners at high risk of being sexually victimized from those who are sexually abusive.Prisoners who sexually abuse other prisoners shall be subject to disciplinary sanctions or criminal charges, depending on the circumstances of the incident. The disciplinary process shall "consider whether an inmate's mental disabilities or mental illness contributed to his or her behavior."

Prisoners who report sexual abuse "in good faith based upon a reasonable belief that the alleged conduct occurred" shall not be subject to disciplinary charges for "falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation."

Standards for Special Prisoner Populations

The PREA standards provide that correctional facilities "shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate's genital status." Further, corrections agencies shall train security staff "in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs."

Correctional facilities must take appropriate steps to ensure that prisoners with disabilities – including those who are deaf or hard of hearing, blind or have poor vision, and who have intellectual, psychiatric or speech disabilities – have an equal opportunity "to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment."

For prisoners with limited English proficiency, corrections agencies likewise "shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment ... including steps to provide interpreters."

A number of the PREA standards are specific to juvenile detention facilities; additionally, adult prisons and jails that house juveniles must ensure they do not have "sight, sound or physical contact" with adult prisoners. Also, both male and female juveniles cannot be subjected to cross-gender searches, including pat-down searches, except in exigent circumstances.

Prison Litigation Reform Act

To address concerns regarding the PLRA's administrative exhaustion requirement, correctional facilities that have grievance procedures "shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse," nor require prisoners who grieve such issues to use an informal resolution process.

However, prisoners are still required to exhaust available administrative remedies prior to filing a lawsuit in federal court that raises claims related to rape or sexual abuse, pursuant to the PLRA's exhaustion requirement.

The PREA standards also address procedures related to the filing of grievance appeals, third-party assistance in filing grievances and emergency grievances alleging that a prisoner is at imminent risk of sexual abuse.

Standards for Responding to Sexual Abuse

The PREA standards specify that prisoners who are victims of sexual abuse shall be offered "access to forensic medical examinations, whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate." Correctional facilities shall also "attempt to make available to the victim a victim advocate from a rape crisis center. If a rape crisis center is not available to provide victim advocate services, the agency shall make available to provide these services a qualified staff member from a community-based organization, or a qualified agency staff member."

Further, prisoners who are sexually abused shall be provided access to medical and mental health care services, and corrections officials must ensure that prisoners do not face retaliation from staff or other prisoners for having reported incidents of rape or sexual abuse.

Corrections agencies are required to ensure that administrative or criminal investigations are completed for all alleged incidents of sexual abuse and sexual harassment, and that allegations involving potentially illegal acts are referred to an agency with the authority to conduct criminal investigations.

Following an investigation, prisoners who report incidents of sexual abuse shall be informed of the outcome.

Annual Compliance Audits

Corrections agencies are required to conduct PREA compliance audits on an annual basis. During each one-year period beginning August 20, 2013, agencies must ensure that at least one-third of their facilities are audited, including facilities operated by private contractors.

The Department of Justice "may send a recommendation to an agency for an expedited audit if the Department has reason to believe that a particular facility may be experiencing problems relating to sexual abuse."

PREA auditors shall have full access to all facility areas and records, including surveillance video, and shall interview a representative sample of prisoners and staff members during each audit. Auditors must be a "member of a correctional monitoring body that is not part of, or under the authority of, the agency" being audited, and must be certified by the Department of Justice. Additionally, no PREA audit "may be conducted by an auditor who has received financial compensation from the agency being audited (except for compensation received for conducting prior PREA audits) within the three years prior to the agency's retention of the auditor."

If an audit finds that a correctional facility is not in compliance with any of the PREA standards, the facility shall have 180 days to initiate a corrective action plan to achieve compliance. PREA audit reports must be made publicly available.

When determining whether a state is in full compliance with the PREA standards for annual certification purposes pursuant to 42 U.S.C. § 15607(c)(2), the governor "shall consider the results of the most recent agency audits."

But as noted by the PREA Resource Center, there is little oversight with respect to a governor's certification that their state is in compliance with PREA: "Neither the PREA statute nor the PREA standards restrict the sources of information governors may use in deciding whether or how to certify compliance."

Costs to Implement the Standards

The DOJ's final rule also addressed the costs of implementing the PREA standards. The Department of Justice estimated "that the costs of these standards to all covered facilities, assuming full nationwide compliance, would be approximately $6.9 billion over the period 2012-2026, or $468.5 million per year when annualized at a 7 percent discount rate." The average compliance cost per facility was estimated at $55,000 for prisons, $50,000 for jails, $24,000 for community confinement facilities, $54,000 for juvenile facilities and $16,000 for police lockups.

The Justice Department's cost estimate for implementation of the standards relied on the analysis performed by Booz Allen Hamilton plus a regulatory impact analysis conducted by the DOJ.

Certainly, $468.5 million in annual PREA compliance costs for the next 15 years is a significant sum. Consider, though, that according to the Department of Justice this represents less than 1% of the estimated $79.5 billion the U.S. spends annually on our nation's criminal justice system. Thus, the DOJ determined that full compliance with the PREA standards, as implemented by the final rule, would not cause corrections agencies to incur "substantial additional costs."

The DOJ also found that potential savings achieved through the reduction of prison rape and sexual abuse justify the expense of compliance. The Department of Justice estimated that "for the costs of full nationwide compliance to break even with the monetized benefits of avoiding prison rape, the standards would have to be successful in reducing the annual number of prison sexual abuse victims by about 1,671, for a total reduction from the baseline over fifteen years of about 25,000 victims. The Department believes it reasonable to expect that the standards, if fully adopted and complied with, would achieve at least this level of reduction in the prevalence of prison sexual abuse."

Some of the monetized costs that could be decreased include settlements and verdicts in lawsuits involving prison rape and sexual abuse – such as the $100 million settlement paid by the State of Michigan in 2009 to compensate thousands of female prisoners who endured years of systemic sexual victimization by prison employees. [See: PLN, Dec. 2009, p.30].

Other monetized costs include a reduction in the transmission (and subsequent treatment expenses) of communicable diseases spread via sexual abuse – particularly HIV – and related medical and mental health care costs.

"For too long prison rape has been accepted as a normal part of prison life, subjecting inmates, many of them nonviolent offenders, to brutal and repeated rapes that not only scar them physically and emotionally for life but in many cases expose them to AIDS, with a resulting death sentence," then-Prison Fellowship vice president Pat Nolan noted when PREA was enacted into law.

Plus there are costs related to higher recidivism rates of released prisoners who were sexually victimized while incarcerated.

"The [PREA] standards recognize that prisoners usually come back to their communities," said Amy Fettig with the ACLU's National Prison Project. "If they've been so brutalized that they can't become productive members of society, it hurts everyone. If prisoners are badly damaged, their pathologies grow, and this sometimes leads to a return to prison or bad public safety outcomes for the community."

"At worst, prison is a place where men and women pay for their crimes by being isolated from the world. At best, it is a place where they can rehabilitate themselves. Rape should not be part of the punishment, and it certainly doesn't assist in rehabilitation," added Barrett Duke, director of the Research Institute of The Ethics & Religious Liberty Commission of the Southern Baptist Convention. "The sexual brutalization of inmates exposes men and women to punishment that is not only cruel but that also severely impedes their opportunity to rehabilitate themselves to assume lives worthy of the dignity of their humanity."

According to the Department of Justice, "The total monetizable benefit to society of eliminating all prison rape and sexual abuse in the facilities covered by [PREA] is at least $52 billion annually," though such savings are unlikely to ever be realized.

Of course there are also the non-monetized costs of prison rape and sexual abuse to be considered, such as the long-term, life-altering trauma that victims experience, and the moral, ethical and legal obligations of corrections agencies to protect prisoners from sexual victimization.

Continued Criticism

While most advocates for reducing prison rape and sexual abuse were somewhat satisfied with the DOJ's final rule implementing the PREA standards, or at least acknowledged the progress that it represented, not everyone was happy. For example, Stark County, Ohio Sheriff's Captain Brian Arnold said the PREA standards envision "a perfect world," but "there's not enough money for a perfect world." He expounded, "It's kind of created a monster. I don't know where the money is going to come from."

The American Action Forum (AAF), a non-profit "center-right policy institute," also complained about the cost of compliance with the PREA standards, stating that despite having an admirable goal, the final rule "imposes a costly, complicated regulatory framework on states currently battling recurring budget deficits, offers little assurance of success, and fails to explain this new burden to the states as required by the Unfunded Mandate Reform Act." The AAF further observed – correctly – that "There are no metrics for success. The DOJ itself admitted, 'a requirement for specific outcome measures would be impractical to implement.'"

The Continuing Problem
of Prison Rape

Although the PREA standards have only recently gone into effect, many corrections agencies and officials have been preparing PREA-related regulations over the past several years in anticipation of the release of the final rule – conducting staff training, implementing policies, setting up hotlines for prisoners to report sexual abuse, etc. Additionally, during that time period there has been a heightened awareness among corrections employees of the issue of prison rape and sexual assault, notably after the NPREC issued draft PREA standards in June 2009.

In spite of this awareness, rape and sexual abuse of prisoners – particularly by corrections employees – remains a persistent problem, and it is doubtful that sexual victimization in correctional facilities will ever be completely eradicated despite the Prison Rape Elimination Act's optimistic title. PREA was originally titled the Prison Rape Reduction Act.

In addition to mandating the promulgation of national standards, PREA required the Bureau of Justice Statistics (BJS) to compile information related to prison rape and sexual abuse. According to a May 2013 BJS report that surveyed over 106,500 adult prisoners in 600 correctional facilities nationwide, 4% of state and federal prisoners and 3.2% of jail detainees self-reported incidents of sexual victimization from 2011 to 2012. Staff-on-prisoner incidents of sexual abuse outnumbered prisoner-on-prisoner incidents – despite the fact that sexual contact between corrections employees and prisoners constitutes a crime in all 50 states, as prisoners cannot legally consent to sex acts. [See: PLN, March 2007, p.32].

Female state and federal prisoners reported being sexually abused at a rate more than four times higher than the average rate for male prisoners, while LGBT prisoners and prisoners with mental health problems were also at greater statistical risk of sexual victimization.

A separate BJS report issued in June 2013 found "an estimated 9.5% of adjudicated youth in state juvenile facilities and state contract facilities (representing 1,720 youth nationwide) reported experiencing one or more incidents of sexual victimization by another youth or staff in the past 12 months or since admission, if less than 12 months." Juvenile offenders were more than 3 times as likely to be sexually abused by a staff member than another juvenile. Almost 90% of the juveniles who were sexually victimized were male offenders who reported sexual contact with female employees.

The numbers are likely much higher – according to a BJS report released in May 2012, 9.6% of former state prisoners reported having been sexually victimized during their most recent period of incarceration. Also, according to a May 17, 2012 regulatory impact assessment prepared for the DOJ's final rule, "the Department estimates that in 2008 more than 209,400 persons were victims of sexual abuse (all forms) in America's prisons, jails, and juvenile confinement centers."

The prevalence of prison rape and sexual assault has remained fairly consistent since 2007, when the Justice Department began collecting comprehensive data through surveys of prisoners and corrections agencies. According to the BJS, "Using the same methodology since 2007, the change in rate of sexual victimization among state and federal prison inmates over the three surveys (4.5% in 2007, 4.4% in 2008-09, and 4.0% in 2011-12) was not statistically significant. Among jail inmates, the rate of sexual victimization was nearly unchanged – 3.2% in 2007, 3.1% in 2008-09, and 3.2% in 2011-12." [See: PLN, June 2011, p.40; March 2010, p.22].

Notably, the time period examined by the Bureau of Justice Statistics – 2007 to 2012 – was well after PREA had been enacted and while the PREA standards were being drafted by the NPREC and implemented by the Department of Justice. Examples of some of the more recent incidents of staff sexual victimization of prisoners, from 2012 to 2013, are detailed in the companion article that follows this cover story.

The Start, Not the End

The final rule issued by the Department of Justice to implement the PREA standards represents the start, not the end, of efforts to curb prison rape and sexual abuse. Much more needs to be done to fully implement the standards and ensure meaningful and continual compliance monitoring.

"We are only going to get real change if people in communities around the country hold their local and state facilities accountable for living up to PREA," remarked Cecilia Chung, a civil rights leader and former chair of the San Francisco Human Rights Commission.

As noted above, in May 2012 President Obama directed all federal agencies with confinement facilities not already subject to the DOJ's final rule to develop equivalent rules that comport with the PREA standards – including the Department of Homeland Security, Department of the Interior, Department of Defense (DOD) and Department of Health and Human Services.

To date only one of those agencies has issued a proposed rule to implement the PREA standards. On December 6, 2012, the Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking for PREA-based standards applicable to immigration detention facilities, which largely mirrored the DOJ's standards for adult prisons and jails.

Just Detention International called the proposed rulemaking "a vital step toward protecting the health and dignity of the nearly 400,000 immigration detainees held by DHS each year. Sexual abuse in detention is devastating to survivors, with physical and emotional effects that often last for years. Immigration detainees are especially vulnerable to this type of violence."

DHS provided a public comment period for its proposed rule that ended on February 26, 2013 and resulted in more than 1,700 comments being filed. No final rule implementing the standards for DHS facilities has yet been released.

With respect to the Department of Defense, it admittedly may be difficult for the DOD to establish PREA standards for all of its detention facilities, particularly overseas facilities that hold "enemy combatants." As a May 20, 2013 Slate article observed, sexual abuse has been used by the U.S. military as an interrogation and torture technique – and also, apparently, as a means of amusement, as demonstrated by the widely-distributed photos of prisoners who were stripped naked and sexually humiliated at the then-U.S. controlled Abu Ghraib prison in Iraq.

In response, Pentagon spokesman Lt. Col. Jeff Pool stated, "The Department is committed to ensuring that captured enemy forces are held in safe, humane, detention facilities. Although the PREA doesn't technically apply to such facilities, the Department has robust mechanisms in place to ensure the health and safety of all detainees, which are consistent with the PREA."

Then again, "doesn't technically apply" may not be the best starting point when discussing standards intended to prevent rape and sexual abuse.

Like the DOD, the Department of the Interior and Department of Health and Human Services have not issued proposed rules to comply with the PREA standards, more than a year after being directed by the President to take such action.

Further, and ironically, PREA standards do not apply to secure civil commitment facilities that house sex offenders who have completed their prison sentences. Nor do the standards apply to probation and parole agencies – even though numerous cases of parole and probation officials engaging in sexual misconduct have been documented.

Once all corrections agencies required to do so have adopted rules to implement the standards, those rules must then be rigorously enforced and monitored on an ongoing basis. Effective oversight of the standards – even though they could have been stronger and more comprehensive – will undoubtedly reduce PREA-related incidents.

Regardless, the fact remains that during the 3,638 days from when PREA was signed into law in September 2003 to when the DOJ's final rule implementing the PREA standards went into effect for most corrections agencies on August 20, 2013, hundreds of thousands of prisoners suffered rape and sexual abuse.

According to the Department of Justice, approximately 209,400 prisoners were victims of sexual abuse in 2008 alone, including those held in prisons, jails and juvenile detention facilities, with a conservative "lower bound" estimate of 149,200. Assuming those numbers have remained consistent over time, during the decade since PREA was enacted an estimated 1.49 million to 2 million prisoners in U.S. correctional facilities have been sexually victimized.

If justice delayed is justice denied, then those prisoners who were raped and sexually abused while the long-delayed PREA standards remained pending have been denied justice in the most egregious, inexcusable manner possible.

Sources: "Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12," U.S. DOJ, Bureau of Justice Statistics, NCJ 241399 (May 2013); "Sexual Victimization in Juvenile Facilities Reported by Youth, 2012," U.S. DOJ, Bureau of Justice Statistics, NCJ 241708 (June 2013); "Sexual Victimization Reported by Former State Prisoners," U.S. DOJ, Bureau of Justice Statistics, NCJ 237262 (May 2012); "Regulatory Impact Assessment: National Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act," U.S. DOJ, Docket No. OAG-131, RIN 1105-AB34 (May 17, 2012); "Criminal Victimization in the United States, 2008," U.S. DOJ, Bureau of Justice Statistics, NCJ 227669 (March 2010); "The Prison Rape Elimination Act of 2003: A Primer," by James E. Robertson, 40 No. 3 Criminal Law Bulletin 5 (May 2004);;;;;;;;; Huffington Post;;;;;; Columbus Dispatch; New York Review of Books; New York Times;;;;

Editor's Note by Paul Wright:

Sexual abuse of prisoners by corrections staff and other prisoners is so endemic to our nation's criminal justice system that it is fair to say it is an integral part of U.S. prison and jail management. Only with the tacit acceptance of corrections officials could a problem so pernicious and widespread persist. The lack of meaningful enforcement provisions for the PREA standards, and the opposition of corrections agencies and officials to more stringent standards, evince the implicit role that rape and sexual abuse play in controlling our nation's overcrowded prisons and jails.

Indeed, former Virginia Attorney General Mark Earley once said that prison officials "turn their back on unspeakable acts in order to maintain 'peace' – allowing aggressive predators to have their way," and Eli Lehrer wrote in the National Review in 2002 that "While inmate rapists bear the ultimate responsibility for their crimes, prison administrators are complicit in the prison-rape epidemic. A divided inmate population living in fear [] is easier for administrators to manage. Some hugely negligent prisons even encourage rape...."

The mainstream media is complicit in this state of affairs, too. According to the Department of Justice, in 2008 an estimated 164,240 women (excluding prisoners) were victims of rape or sexual assault, based on the National Crime Victimization Survey. In a nation of around 300 million people that is a horrifying number. However, the Justice Department also reported that in that same year up to 209,400 prisoners were raped or sexually abused in a criminal justice system with a population of 2.2 million – which is even more horrific yet rarely reported.

To listen to the media it is only prisons in the Balkans that are referred to as "rape camps," and the silence of mainstream news agencies with respect to the ongoing outrage of prison rape and sexual abuse makes it clear that prisoners are generally viewed as an expendable, and rapeable, population. Also, unlike sexual assault victims outside of prison, incarcerated victims often – literally – have no way to escape their attackers, especially when they are raped or abused by corrections employees.

PREA is a valuable first step and should be recognized as exactly that: A first step. There is a reason why no one talks about the Civil Rights Act of 1957, which did not accomplish much of what it purported to do, such as to ensure African Americans could exercise their right to vote. But the Act's obvious shortcomings and toothlessness set the stage for the Civil Rights Act of 1960 and then the Civil Rights Act of 1964 – which forever changed the American social and political landscape.

Similarly, PREA requires successive legislation to give incarcerated victims of rape and sexual abuse real rights with enforceable remedies. Only then can it be said that our government is actually doing something to reduce sexual victimization in prisons and jails, and that laws such as PREA are more than mere symbolic legislative gestures.

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