PLN PREA adult standards letter July 2008
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PRISON LEGAL NEWS Dedicated to Protecting Human Rights www.prisonlegalnews.org firstname.lastname@example.org Please Reply to Tennessee Office: Direct Dial: 615-495-6568 5341 Mt. View Rd. #130 Antioch, TN 37013 July 4, 2008 SENT VIA FAX AND MAIL National Prison Rape Elimination Commission Attn: Public Comments on Standards 1440 New York Avenue NW, Suite 200 Washington, DC 20005-2111 RE: Comments on Proposed NPREC Standards for Adult Prisons and Jails Dear Commissioners: Prison Legal News hereby submits the following comments on the proposed NPREC Standards for the Prevention, Detection, Response and Monitoring of Sexual Abuse in Adult Prisons and Jails (“Standards”). Prison Legal News (PLN) is a monthly publication that reports on criminal justice and corrections-related litigation and news. We have extensively covered topics related to the rape and sexual abuse of prisoners, and PLN’s editor, Paul Wright, served on the advisory board of Stop Prisoner Rape until May 2008, when the advisory board was dissolved. Our comments are categorized by section of the proposed Standards, plus general comments: Detection and Response 1. Mandatory reporting of staff sexual abuse to prosecuting authorities Under proposed Standard DI-1 (p. 38), the Committee notes in the Discussion section that “the agency should refer any substantiated allegations for criminal prosecution.” However, there is no requirement that correctional agencies refer incidents of employee sexually abusive conduct for prosecution. It would be a much stronger deterrent if staff knew that sexual misconduct of a criminal nature would not only result in termination, but also would result in the mandatory notification of prosecuting authorities. Allowing corrections officials discretion as to whether substantiated cases of sexually abusive conduct are referred to law enforcement could result in National Prison Rape Elimination Commission July 4, 2008 Page 2 disparate treatment based upon improper factors such as race, gender, sexual orientation or the influence that certain staff members wield as a result of high-ranking positions or relations with other prison staff. Making notification of prosecutorial authorities a requirement would ensure equal treatment for all prison employees accused of engaging in sexually abusive conduct that constitutes a criminal act. At the very least, mandatory referral to prosecuting authorities should be required for staff accused of sexually abusive penetration. Similar reporting requirements are currently in place for a number of professions – including teachers, medical professionals and counselors – for suspected sexual abuse involving children; thus, mandatory reporting to law enforcement authorities would be neither a new nor novel requirement. 2. Provisions of the Prison Litigation Reform Act Under Section III (A) of Standard RE-1 (p. 33), the Committee suggests “Any report of sexual abuse made at any time after the abuse, which names a perpetrator and is made in writing to the agency, satisfies the exhaustion requirement of the Prison Litigation Reform Act [PLRA].” Likewise, the Standard should specify that the PLRA’s current requirement that prisoners show “physical injury” before bringing suit for mental or emotional damages (42 U.S.C. § 1997e(e)) does not apply to acts of sexually abusive conduct, or that prisoners who have been subjected to sexually abusive conduct have satisfied the physical injury requirement of the PLRA. In at least one case a court has held that sodomy did not meet the PLRA’s “physical injury” requirement. See: Hancock v. Payne, 2006 WL 21751 at *1, 3 (S.D. Miss., Jan. 4, 2006) (holding plaintiffs’ allegations of abuse, including that a staff member “sexually battered them by sodomy,” were barred by § 1997e(e)). As noted in the Committee’s discussion of Standard IN-1 (p. 37), “Unlike other forms of brutality or violence that may occur in correctional facilities, sexual abuse is less likely to be witnessed, cause visible injury, or leave other physical evidence.” Prisoners who have been subjected to sexual abuse may suffer mental or emotional injuries but have no overt physical injuries. Allowing such victimized prisoners the ability to seek damages for emotional or mental injuries would incentivize prison agencies to take measures to minimize sexual abuse and would provide such prisoners some measure of justice and compensation. Similarly, other provisions of the PLRA limit the ability of sexually abused prisoners to obtain relief through the courts, including the PLRA’s exhaustion requirement (which, in some cases, may result in grievances concerning sexual abuse being decided by prison employees who are complicit in such abuse); the PLRA’s limitation on attorney fees, which makes attorneys less willing to represent prisoners victimized by sexual abuse; and the PLRA’s time restrictions on consent decrees and injunctions – including those designed to remedy prison conditions which facilitate sexual abuse. In short, the PLRA operates to seriously hamper the ability of prisoners who are sexual abuse victims to obtain relief through the courts. It is therefore suggested that the PLRA not be applied to prisoners who raise claims of rape or sexual abuse. National Prison Rape Elimination Commission July 4, 2008 Page 3 Monitoring 1. Public access to sexual abuse data from private prison companies In the Committee’s discussion of standard DC-2 (p. 44), the Committee notes “...the public may have a legitimate interest in the data collected by agencies because of the information it provides about the safety of these public institutions,” and specifies that “All aggregate data ... should be readily available to the public. Agencies should also establish a nonburdensome process to allow researchers, academics, journalists, and others access to incident-based data.” This is especially true for privately-run prisons, as the Freedom of Information Act (FOIA) and state public record laws often do not apply to private prison firms. The Standards should specify that private prison firms which are otherwise not required to comply with public records laws or FOIA must provide public access to aggregate and incident-based data collected pursuant to the NPREC Standards. This is necessary because most private prison companies are secretive about their internal incident-reporting data. CCA, for example, routinely labels such data as attorneyclient privileged, or “proprietary” and not for distribution. CCA is presently lobbying to defeat H.R. 1889, which would require private prison companies that contract with federal agencies to comply with FOIA requests. Thus, this Standard should provide specific disclosure requirements for private prison companies that otherwise are not obligated to disclose the data collected under NPREC Standards to members of the public. Government agencies also are sometimes reluctant to disclose data related to sexual assaults, and the Standards should include provisions for review or oversight of an agency’s refusal or failure to publicly disclose such data. General Comments and Concerns 1. Compliance with and enforceability of NPREC Standards PLN has significant concerns regarding the enforceability of the NPREC Standards. When we raised this issue during the NPREC’s May 5, 2008 media conference call, we were informed that compliance with the Standards would be achieved through the following mechanisms, which we address separately below: A. States that fail to adopt and comply with the NPREC Standards would forfeit funds received under certain federal grant programs. The PREA states, “For each fiscal year, any amount that a State would otherwise receive for prison purposes for that fiscal year under a 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 statement that they have adopted and are in compliance with the NPREC Standards. National Prison Rape Elimination Commission July 4, 2008 Page 4 First, PLN is unaware of any example where federal funds were withheld from a state corrections agency due to its failure to comply with federal statutory mandates. Such financial penalties are largely meaningless without strict and consistent enforcement. More importantly, this incentive to comply with the Standards only applies to states; it does not apply to county or municipal agencies (which also may receive federal funds either directly or indirectly), to the federal Bureau of Prisons or other federal agencies that house prisoners (such as ICE or the Department of Defense), or to private prison companies. In order to ensure that non-state prison agencies comply with the Standards under this incentive mechanism, the Standards should require state agencies to withhold 5% of any funds disbursed to county or city corrections agencies that fail to comply with the Standards – e.g., 5% of funds disbursed by the state through federal grants or block grant programs, or from direct payments to county or municipal agencies for housing state prisoners in local facilities. Further, 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 NPREC 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 NPREC Standards or face a 5% reduction in its contractual payments. B. Prison agencies that fail to comply with the Standards will be included in an annual report issued by the Attorney General’s office, which will serve as a means of embarrassment and an incentive for compliance with the Standards. The PREA states, “Not later than September 30 of 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 agencies will endeavor to comply with the Standards so as to avoid this “shaming” disincentive. However, states previously have engaged in systemic sexual abuse of female prisoners (Michigan); segregating HIV-positive prisoners in separate-and-unequal settings (Alabama); providing grossly deficient medical care resulting in dozens of unnecessary deaths each year (California); depriving prisoners of food as punishment (South Carolina), etc. Given the documented abuses that have been inflicted by prison agencies upon prisoners, it is highly unlikely that including agencies that fail to comply with the NPREC Standards on a list, for the purpose of shaming them into compliance, would be successful. Some prison agencies have already demonstrated that they are perfectly willing to engage in shameless conduct; others, through their reluctance to embrace reforms, have proven they have no shame. Therefore, PLN does not believe this is an effective means of ensuring compliance. National Prison Rape Elimination Commission July 4, 2008 Page 5 C. The NPREC Standards will become standards of care which can be used in civil litigation; agencies that do not adopt or comply with the Standards therefore risk liability, which serves as an incentive for compliance. The problem with this incentive approach is that compliance with the NPREC Standards is not statutorily required or legally enforceable. Like the prison and jail standards of the American Correctional Association (ACA), they do not create enforceable rights and do not determine the legality of an act or failure to act. See, for example: Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) (“It is absurd to suggest that the federal courts should subvert their judgment as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards”); also see Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) (ACA standards “may be a relevant consideration,” but compliance “is not per se evidence of constitutionality”). Based upon the foregoing, PLN feels that absent the force of law to ensure compliance with and enforcement of NPREC Standards, the incentives for voluntary compliance are inadequate. The Standards notably do not provide for a private cause of action for enforcement purposes, which in our view is a grave failing and weakness. 2. Use of one-piece garments for female prisoners PLN is aware that some jails require female prisoners to wear one-piece garments; e.g., jumpsuits. When such prisoners use the toilet facilities they have to remove the jumpsuit to below their waists, which exposes their breasts. As housing units are routinely monitored by prison staff, including the toilet areas, staff are able to view the exposed breasts of female prisoners when they use the toilet facilities. There is no legitimate penological reason as to why female prisoners should have to expose their breasts when using the toilet, and this practice results in unnecessary voyeurism by prison staff. Thus, the Standards should require prison agencies to provide female prisoners with two-piece garments to alleviate this problem. 3. Inclusion of kissing in sexual abuse/harassment definitions The Glossary of terms for the NPREC Standards for sexual abuse does not include any mention of unwanted, forcible or unwelcome kissing (mouth to mouth contact). Certainly, however, staff members who kiss prisoners are engaging in inappropriate conduct, and kissing can be used as a “grooming” technique that leads to further inappropriate sexual acts. Thus, the Standards should include or address kissing under the definition of sexual abuse and/or sexual harassment. National Prison Rape Elimination Commission July 4, 2008 Page 6 4. Cross-gender supervision of prisoners Under proposed Standard PP-3 (p. 19), agencies must restrict cross-gender supervision in nonemergency situations where inmates disrobe or perform bodily functions. To further reduce the possibility of sexual abuse or harassment resulting from cross-gender supervision, we suggest the Commission consider requiring agencies to adopt policies whereby same-gender supervision is the rule in all nonemergency custodial situations rather than only those that involve disrobing and bodily functions. Alternatively, staff positions can be prioritized to facilitate same-gender supervision. For example, following systemic sexual abuse of female prisoners in the Michigan prison system, the U.S. Sixth Circuit Court of Appeals upheld a Dept. of Corrections policy that required same-gender staff positions in female housing units. See: Everson v. Michigan DOC, 391 F.3d 737 (6th Cir. 2004), petition for rehearing en banc denied, cert. denied. Thank you for your consideration of our comments on the proposed NPREC Standards; please contact us should you require any additional information or clarification of our comments. Sincerely, Paul Wright, Editor Alex Friedmann, Assoc. Editor