U

N I V E R S I T Y

O F

A

R K A N S A S

AT

L

I T T L E

R

O C K

LAW REVIEW
ARTICLES
Diagrammatics and the Proactive Visualization of Legal Information
Michael D. Murray

ESSAYS
A License to Plagiarize
Brian L. Frye

NOTES
CIVIL RIGHTS LAW Out of the Shadows: The Case for Arkansas to
Achieve Full Compliance with the Prison Rape Elimination Act
Connor Thompson
CONSTITUTIONAL LAW Ballot Initiatives and Direct Democracy
Amendment 100 to the Arkansas Constitution: Constitutional Issues
Surrounding Ballot Initiatives and Local Legislation.
Michael Stiritz
CONSTITUTIONAL LAW The Powers of State Attorneys General to
Determine the Public Interest
J. Dillon Pitts
CRIMINAL LAW An Analysis of the Scope of Unlicensed Concealed Carry
of a Firearm in Arkansas Pursuant to Arkansas Code Annotated Section
5-73-120 as Amended by Act 746 of 2013.
Hannah Webb Howard

UA:
LITTLE
ROCK

WILLIAM H. BOWEN
SCHOOL OF LAW

VOLUME 43

SPRING 2021
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NUMBER 3

CIVIL RIGHTS LAW—OUT OF THE SHADOWS: THE CASE FOR ARKANSAS
TO ACHIEVE FULL COMPLIANCE WITH THE PRISON RAPE ELIMINATION ACT
I.

INTRODUCTION

The United States Congress passed the Prison Rape Elimination Act
(PREA) in 2003, and yet in 2021, Arkansas still does not fully comply with
PREA and sexual violence remains a persistent problem in Arkansas state
prisons. The consequences of Arkansas’s failure to protect prisoners from
sexual violence can be seen in the ongoing lawsuit Villarreal v. Dewitt.1
Leticia Villarreal, a mother and Mexican national, was sentenced in 2005 to
40 years imprisonment at the Arkansas Department of Correction (ADC)
women’s McPherson Unit in Newport, Arkansas for a controlled substance
violation.2 At the same time, Carolyn Arnett had been held at McPherson
since 1999 and was serving a life sentence without parole for capital murder.3 These two women sought religious solace and, in the case of Villarreal,
the possibility of favorable parole review, through participation in a program
called Principles and Application for Life (PAL).4 PAL is an ADC program
that provides “worship services, religious materials, and counseling services,
to all inmates within the ADC, by community involvement of outside representation.”5
PAL was run at McPherson Unit by chaplain Kenneth Dewitt, a former
ADC probation officer, with authority delegated by the warden to dole out
privileges and punishments.6 Dewitt had a uniquely influential role at the
ADC. He not only encouraged select PAL members to inform on fellow
inmates but keeping in Dewitt’s good graces could influence an early parole
release from the Parole Board.7 In 2016, Dewitt was charged with 50 counts
of third-degree sexual assault against inmates at McPherson Unit and ultimately pleaded guilty to three charges.8

1. See Villarreal v. Dewitt, No. 1:16-CV-00163 KGB, 2017 WL 5659824 (E.D. Ark.
Aug. 28, 2017); Villarreal v. Dewitt, No. 1:16-CV-00163 KGB, 2018 WL 4701788 (E.D.
Ark. Sept. 28, 2018).
2. Villarreal, 2017 WL 5659824, at *2.
3. Villarreal, 2018 WL 4701788, at *3.
4. Villarreal, 2017 WL 5659824, at *2.
5. Id.
6. Id. at *2.
7. Id.
8. Villarreal, 2018 WL 4701788, at *3; Melissa Jeltsen, The Rape Victims Silenced By
Their Prison Cells, HUFFINGTON POST (Jul. 16, 2016, 8:05 AM), https://www.huffpost.com
/entry/sexual-assault-prisons_n_578808e5e4b0867123e0893c.

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Villarreal and Arnett were among Dewitt’s victims, with Villarreal
claiming that she was repeatedly raped and assaulted by Dewitt from January 2013 through July 2014. 9 She alleges in her lawsuit that Dewitt manipulated his power and authority as an ADC chaplain and conspired with corrections officers to maintain his streak of sexual violence without interference.10 Arnett alleges that Dewitt assaulted her regularly from September
2010 until his resignation as chaplain in September 2014.11 Villarreal was
released from prison in 2015 and was subsequently deported to Mexico.12
Arnett remains at McPherson Unit where she is serving the term of her life
sentence.13 On June 11, 2015, the United States Department of Justice (DOJ)
announced that it was investigating allegations of sexual abuse and sexual
harassment by correctional staff at the ADC McPherson Women’s Prison to
determine whether the prisoners there were subjected to a pattern or practice
of sexual abuse in violation of their Constitutional rights. 14 The outcome of
that investigation has not been made public.
Villarreal’s case and Arnett’s have been consolidated and are, at the
time of writing, being litigated in the United States District Court for the
Eastern District of Arkansas.15 The filings and orders released up to now
shed light on the ways that the ADC currently enforces internal procedures
for addressing sexual violence suffered by incarcerated Arkansans.16 Arkansas has adopted a “PREA” policy for its state prisons that is independent of
the federal PREA statute.17 The ADC PREA policy mirrors the federal
PREA regulations in many respects,18 but the gaps between ADC PREA
policy and federal PREA regulations reveal the ways Arkansas falls short of
national standards to prevent and address prison rape.19
Arkansas is one of two states, along with Utah, that as of 201720 has not
provided an assurance or certification to the DOJ that it will reach full com9. Villarreal, 2017 WL 5659824, at *3.
10. Id.
11. Villarreal, 2018 WL 4701788, at *6.
12. Jeltsen, supra note 8.
13. Villarreal, 2018 WL 4701788, at *3.
14. Press Release, U.S. Dep’t of Justice, Justice Department Announces Investigation
Into Allegations of Sexual Abuse at the McPherson Women’s Prison in Newport, Arkansas
(June 11, 2015), https://www.justice.gov/opa/pr/justice-department-announces-investigationallegations-sexual-abuse-mcpherson-womens-prison.
15. Villarreal, 2018 WL 4701788, at n.1.
16. Villarreal, 2018 WL 4701788; Prison Rape Elimination Act of 2003, S. 1435, 108th
Cong.
17. See ARKANSAS DEPARTMENT OF CORRECTIONS, ADMINISTRATIVE DIRECTIVE 15 – 29
PRISON RAPE ELIMINATION ACT (PREA) (June 9, 2017).
18. Id.
19. See infra Section III.
20. Fiscal Year 2017 is the most recent year that the Bureau of Justice Assistance has
publicly released the Governors’ Certification and Assurance submissions. See Governors’

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pliance with PREA.21 Arkansas Governor Asa Hutchinson’s justification for
Arkansas’s failure to fully comply with PREA is a 1997 settlement and consent decree between Arkansas and the DOJ that mandates equal employment
opportunities for female correctional officers in the ADC.22 Hutchinson
claims that the required provisions of the PREA regulations conflict with the
settlement’s terms.23 As a consequence of this non-compliance, Arkansas
does not take part in three-year PREA audits of its state-run prisons.24 Further, open questions remain about the state’s adherence to other requirements of PREA compliance, such as the Youthful Inmate Standard, designed to protect incarcerated children under the age of 18 in adult jails and
prisons.25 This note argues that, contrary to Governor Hutchinson’s statement, there are no legal barriers for Arkansas to achieve full compliance
with national PREA standards, and as such, Arkansas should implement
those standards so that the state can better understand and address continuing sexual abuse in its prisons. This note also addresses how Arkansas’s
state PREA policy has created barriers for individuals who have been sexually harmed in prison and seek recompense through litigation.
Section II of this note provides the background and purposes behind
the passage of PREA into federal law, a brief history of responses to prison
sexual abuse in Arkansas before PREA, and an overview of current PREA
procedures in Arkansas state prisons.26 Section III examines the rationale for
why Arkansas is currently not in full compliance with PREA and what the

PREA Certifications and Assurances, BUREAU OF JUST. ASSISTANCE, https://bja.ojp.gov
/program/prison-rape-elimination-act-prea/overview#governor (last visited Nov. 21, 2020).
However, as recently as Fiscal Year 2019, Arkansas’s failure to assure or certify compliance
with PREA resulted in a federal grant reduction of $61,138 for that year. Impact of PREA on
Department of Justice Grants for Fiscal Year, 2019, BUREAU OF JUST. ASSISTANCE,
https://www.bja.gov/programs/FY2019-PREA-Grant-Impact.pdf (last visited Nov. 21, 2020).
21. U.S. Dep’t of Justice, FY 2017 Certification and Assurance Submissions; John
Moritz, State: Can’t fulfill prison-rape law, ARK. DEMOCRAT-GAZETTE (May 15, 2017, 4:30
a.m.),
https://www.arkansasonline.com/news/2017/may/13/state-can-t-fulfill-prison-rapelaw-201-1/.
22. U.S. Dep’t of Justice, FY 2015 Certification and Assurance Submissions (June 29,
2015).
23. Id.
24. See 28 C.F.R. § 115.401(a) (2020) (“During the three-year period starting on August
20, 2013, and during each three-year period thereafter, the agency shall ensure that each
facility operated by the agency, or by a private organization on behalf of the agency, is audited at least once.”); 28 C.F.R. § 115.401(b) (“During each one-year period starting on August
20, 2013, the agency shall ensure that at least one-third of each facility type operated by the
agency, or by a private organization on behalf of the agency, is audited.”); Arkansas has not
provided any PREA audit reports to the DOJ. State PREA Submissions, BUREAU OF JUST.
ASSISTANCE, https://www.bja.gov/state-PREA-submissions (last visited Nov. 22, 2020).
25. See infra Section III.A.2.
26. See infra Section II.

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effects of non-compliance mean for the state and for prisoner safety.27 Finally, Section IV surveys Section 1983 prisoner rights cases in Arkansas federal district courts and examines how the ADC’s PREA procedures affect the
requirement of exhausting prison grievance procedures under the Prison
Litigation Reform Act (PLRA).28
II.

HISTORICAL BACKGROUND AND THE PASSAGE OF PREA

Sexual violence in prison has a devastating impact on individuals and
costly ramifications for the state and society. Prisoners are uniquely vulnerable to violence and exploitation, and exposure to sexual violence in prison
contributes to elevated levels of depression, psychological distress, and negative long-term health outcomes, including HIV risk-related behaviors.29
Incarcerated women in particular are disproportionately victims of sexual
violence at the hands of correctional staff, constituting 7% of all prisoners
nationwide, yet making up around 33% of substantiated custodial rape victims.30 Problems tracking the scope of rape and sexual assault in prison are
compounded by the fact that prison sexual violence, particularly when perpetrated by staff against prisoners, is almost certainly underreported due to
the disincentives of possible retaliation by prison staff and fear of being labelled a snitch.31 More than 80,000 prisoners each year experience a sexual
assault, but only about 8% of prisoners report their assault.32

27. See infra Section III.
28. See infra Section IV; 42 U.S.C. § 1997e (2020); Jones v. Bock, 549 U.S. 199, 202
(2007) (upholding the requirement under the PLRA that prisoners exhaust prison grievance
procedures before filing suit).
29. Tawandra L. Rowell-Cunsolo, Roderick J. Harrison, & Rahwa Haile, Exposure to
Prison Sexual Assault Among Incarcerated Black Men, 18 J. OF AFR. AM. STUD. 54, 56
(2013).
30. Elana M. Stern, Comment, Accessing Accountability: Exploring Criminal Prosecution of Male Guards for Sexually Assaulting Female Inmates in U.S. Prisons, 167 U. PA. L.
REV. 733, 737 (2019).
31. Id. at 742; Elizabeth A. Reid, The Prison Rape Elimination Act (PREA) and the
Importance of Litigation in Its Enforcement: Holding Guards who Rape Accountable, 122
YALE L. J. 2082, 2086 (2013). According to Elizabeth Reid, a formerly-incarcerated prison
rights advocate, “There was a penalty for reporting sexual abuse under PREA; a stiff penalty.
Everyone knew this. So there was a decision to make. Speak up and go to the hole for months
only to be found incredible. Speak up and be returned to prison and stay in the hole until your
release date. Speak up and paint a great big target right on your forehead. There was no winning when you spoke up. The only option left was to be abused and not say a word.”
32. Sheryl P. Kubiak, et al., Sexual Misconduct in Prison: What Factors Affect Whether
Incarcerated Women Will Report Abuses Committed by Prison Staff? 41 LAW & HUM.
BEHAV. 361, 370 (2017). This statistic is based on the difference between the number of
officially reported acts of sexual violence and the number of incarcerated women in the same
year who disclosed in a confidential survey that they had experienced sexual victimization.

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A.

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Enactment of PREA

The Prison Rape Elimination Act (PREA) was passed unanimously by
Congress and signed into law by President Bush in 2003.33 The Act establishes a “zero-tolerance standard” for rape and sexual assault in prisons in
the United States and seeks to protect the Eighth Amendment rights of prisoners.34 The Act functions primarily by instituting a scheme of data collection on the incidence of prison rape nationwide,35 calling for training and
assistance to corrections professionals on the detection and prevention of
sexual violence,36 disbursing grant funding to federal, state, and local agencies,37 and creating the National Prison Rape Elimination Commission
(NPREC) to review policies that address prison sexual violence and propose
standards to the Attorney General.38 PREA applies to all detention facilities
in the United States, including private companies contracting with the government, county jails, and juvenile facilities.39
Prior to PREA, existing studies on the incidence of rape in prison faced
practical difficulties that made it difficult to ascertain the scope of the problem.40 The literature on prison sexual violence was rife with methodological
deficiencies such as small sample sizes, low response rates, long time horizons, and non-random sampling.41 The drafters of PREA sought to improve
the availability and reliability of national survey data by mandating that the
Bureau of Justice Statistics (BJS) carry out a statistical review and analysis
of prison rape in America for each calendar year with a sample of “not less
than 10% of all Federal, State, and county prisons, and representative sample of municipal prisons.”42 Federal data collection and standards-setting
allows for comprehensive tracking of prison rape and comparisons among
jurisdictions.43
33. Prison Rape Elimination Act of 2003, S. 1435, 108th Cong.
34. 34 U.S.C. § 30302 (2020).
35. 34 U.S.C. § 30303.
36. 34 U.S.C. § 30304.
37. 34 U.S.C. § 30305.
38. 34 U.S.C. § 30306.
39. 34 U.S.C. § 30309.
40. See Kim Shayo Buchanan, Engendering Rape, 59 UCLA L. REV. 1630, 1645 (2012).
41. Id.
42. PREA Data Collection Activities, 2018, BUREAU OF JUST. STAT.,
https://www.bjs.gov/content/pub/pdf/pdca18.pdf (last visited Nov. 21, 2020). In the most
recent Survey of Sexual Victimization nationwide, substantiated allegations of sexual victimization (where an investigation determined that the report of abuse was credible) rose from
902 in 2011 to 1,473 in 2015 (up 63%). Id. In 2015, “58% of substantiated incidents were
perpetrated by inmates, while 42% were perpetrated by staff members.” Id.
43. See Brenda V. Smith, The Prison Rape Elimination Act: Implementation and Unresolved Issues, 3 CRIM. L. BR. 10, 11 (2008) (“The simple requirement of data collection has
created important changes that have the potential to reduce sexual violence in custody. . . .

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PREA does not provide a private cause of action or affirmative defense
for prisoners to seek justice for harm committed.44 An earlier attempt to pass
anti-prison rape legislation, the Prisoner Custodial Sexual Abuse Act of
1998, was focused primarily on protecting women who faced sexual harm at
the hands of prison staff45 and would have allowed for damage awards and
attorneys’ fees46 as well as a registry of staff who had committed sexual
abuse of prisoners.47 The 1998 legislation never garnered enough support for
consideration, and its failure influenced the ultimate form that PREA took as
an information-gathering and standards-disseminating law that relies on
voluntary top-down compliance among states rather than bottom-up rights
enforcement on the part of prisoners.48
In 2012, the DOJ issued regulations implementing PREA based on the
recommendations of the NPREC to the Attorney General.49 The standards
set forth in the regulations seek to “prevent, detect and respond to sexual
abuse” through requirements in how correctional facilities hire and train
their employees, screen prisoners for risk of vulnerability to sexual abuse,
disseminate policies for reporting abuse, provide medical and mental health
care to victims, and discipline perpetrators of sexual violence, among other
requirements.50 These regulations are binding on the Federal Bureau of Prisons, but states are incentivized to comply with the regulations with the threat
of reductions in federal funding.51 States must have their prisons audited by
external examiners at least once within a three-year cycle, and if a state’s
detention units are not in full compliance with PREA, the state’s federal
DOJ grants may be reduced by five percent unless the Governor certifies
that those funds will only be used to come into full compliance.52
Finally, in 2016, Congress passed the Justice for All Reauthorization
Act, which includes a requirement that the Attorney General publish all final
PREA audit reports from each state-run prison on a public website.53 These
Prior to enactment of PREA, there was tremendous variation in definitions between and
within states about what constituted sexual violence against inmates.”).
44. See Hendrickson v. Schuster, No. 16-CV-05057, 2018 WL 1597711, at *12
(“[T]here is no private right of action under PREA for failure to investigate a sexual assault
claim.”); Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (discussing the standard for determining a private right of action in federal statutes).
45. See Smith supra note 43, at n.37.
46. Id. at 11.
47. Id. at 10.
48. Id.
49. Press Release, U.S. Dep’t of Justice, Justice Department Releases Final Rule to
Prevent, Detect and Respond to Prison Rape (May 17, 2012), https://www.justice.gov
/opa/pr/justice-department-releases-final-rule-prevent-detect-and-respond-prison-rape.
50. Id.
51. Id.
52. Id.; 28 C.F.R. § 115.401(a) (2020); 34 U.S.C. § 30307(e) (2020).
53. Justice for All Reauthorization Act, Pub. L. No. 114-324, 130 Stat. 1948 (2016).

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reports are accessible from the Bureau of Justice Assistance website.54 Arkansas has not provided PREA audit reports for any of the audit cycles
listed.55
B.

Sexual Violence in Arkansas Prisons
1.

Prisoner sexual violence in Arkansas prior to PREA

The Arkansas prison system has had a fraught history with federal
oversight and regulation. In a landmark series of prisoner rights cases from
the late 1960s and early 1970s, Holt v. Sarver I56 and Holt v. Sarver II,57 a
federal judge held that the totality of the conditions of the Arkansas prison
system constituted a form of cruel and unusual punishment in violation of
the prisoners’ rights under the Eighth and Fourteenth Amendments.58 The
opinions describe the hands-off approach toward inmate sexual violence in
the prison barracks during this period.59 Leading up to the Holt v. Sarver
decisions, the Arkansas State Police conducted an investigation in 1966 that
included interviews with over 100 inmates in the Arkansas prison system.60
The report documented widespread sexual abuse:
Sexual abuse of inmates by other inmates was commonplace. Sometimes
such abuse was physically forced (particularly in the case of younger
inmates), while in other cases sexual favors were exchanged for food.
Sexual misconduct reportedly extended to prison employees, who offered preferential treatment or early release to inmates in exchange for
sexual favors from the inmates’ wives or female friends. 61

Prior to the enactment of PREA, the Supreme Court of the United
States stated in Farmer v. Brennan that “[b]eing violently assaulted in pris54. See BUREAU OF JUST. ASSISTANCE, supra note 20.
55. Id.
56. Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969).
57. Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff’d and remanded, 442 F.2d
304 (8th Cir. 1971).
58. Id. at 365.
59. Holt, 309 F. Supp. at 377 (“In an effort to protect young men from sexual assaults,
they are generally assigned to the two rows of cots nearest the front bars of the barracks,
which portion of the barracks is called ‘punk row.’ It appears, however, that if would-be
assailants really want a young man, his being assigned to the ‘row’ is no real protection to
him. To the extent that consensual homosexual acts take place in the barracks, they are not
carried out in any kind of privacy but in the full sight and hearing of all of the other inmates.
Sexual assaults, fights, and stabbings in the barracks put some inmates in such fear that it is
not unusual for them to come to the front of the barracks and cling to the bars all night”).
60. M. KAY HARRIS & DUDLEY P. SPILLER, JR., AFTER DECISION: IMPLEMENTATION OF
JUDICIAL DECREES IN CORRECTIONAL SETTINGS 36 (American Bar Association, 1976).
61. Id. at 38.

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on is simply not part of the penalty that criminal offenders pay for their offenses against society,”62 and ruled that a prison official may be liable under
the Eighth Amendment for a prisoner’s sexual victimization at the hands of
fellow inmates if two requirements are met: (1) the prisoner has shown that
he or she is “incarcerated under conditions posing a substantial risk of serious harm,” 63 and (2) the prison official was deliberately indifferent in both
knowing that a prisoner faces a substantial risk of serious harm and disregarding the risk “by failing to take reasonable measures to abate it.”64
Following Farmer, the Eighth Circuit in Spruce v. Sargent found that a
prisoner incarcerated in the ADC in 1998 who had been repeatedly raped by
over twenty different inmates was held in “conditions that posed a substantial risk that he would be sexually assaulted,” satisfying the first prong of
Farmer.65 The decision came down to whether there was sufficient evidence
to prove that Willis Sargent, the Unit Warden, and Larry Norris, the Associate Director of the ADC, were deliberately indifferent to the risk under the
second prong of Farmer.66 The Eighth Circuit held that evidence of Warden
Sargent denying a request for the plaintiff to be separated from a cellmate
who forced him to perform oral sex and testimony by Warden Sargent that
prisoners had a responsibility to fight off sexual aggressors on their own
were sufficient to conclude that Sargent was deliberately indifferent.67 The
Eighth Circuit did not find, however, that Director Norris had subjective
knowledge of a significant risk to the plaintiff’s safety based on a single
grievance form signed by Norris in which the plaintiff complained of “being
forced to cell with inmates from the general population, of being ‘jumped
on’ by an inmate, and of mental stress.”68 The facts of this case reveal how
even two decades after the Holt decisions, ADC officials prior to PREA left
protection from sexual violence in the hands of the incarcerated individuals
themselves.
2.

Arkansas PREA Procedures

The Arkansas Board of Corrections enacted the Arkansas PREA regulations in 2005.69 Because the 2003 federal PREA law and 2012 regulations
are non-binding on states, each state has developed its own PREA policies

62.
63.
64.
65.
66.
67.
68.
69.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Id.
Id. at 847.
Spruce v. Sargent, 149 F.3d 783, 785–86 (8th Cir. 1998).
Id. at 786.
Id.
Id.
ARK. BOARD OF CORRECTIONS, Administrative Regulation 413.

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that apply to its state Department of Corrections.70 The PREA policy for the
ADC is codified in Administrative Directive 15-29.71 As discussed in Section III, infra, Arkansas PREA policies selectively match the language of the
DOJ regulations and elide particular wording of the federal standards.72 Additionally, because the ADC does not take part in external PREA audits as
mandated under the federal PREA statute73 and regulations,74 there is currently no oversight into whether ADC prisons are upholding federal PREA
standards in practice.75
Arkansas participates in the BJS Survey of Sexual Violence, and the
data collected that is responsive to the Survey is released publicly in the
ADC’s Annual PREA Report.76 These reports provide aggregated data on
substantiated PREA investigations, broken down by categories such as the
type of sexual violence (e.g., inmate-on-inmate, staff sexual misconduct),
the time and location of the incident (e.g., in the dorms, common rooms, or
offsite), the victims’ sex or gender identity, race, and age, and the staff
members’ demographics, age, race, and position.77 The reports also include
five-year trends for particular allegations (e.g., inmate-on-inmate nonconsensual sexual acts or staff-on-inmate sexual misconduct) that have been
investigated each year across the state prison system as a whole.78 The BJS
Survey of Sexual Violence responses from 2009–2011 suggest that prisoners
in Arkansas correctional facilities were, at that time, “more than twice as
likely to be the victims of a substantiated instance of sexual abuse or harassment than state and federal prisoners nationwide[.]”79 The responses from
70. See Kevin R. Corlew, Congress Attempts to Shine A Light on A Dark Problem: An
in-Depth Look at the Prison Rape Elimination Act of 2003, 33 AM. J. CRIM. L. 157, 186
(2006) (“PREA is a good example of legislation in which the scope, tone, priority, and basic
standards are set at the federal level, but the ‘nuts and bolts’ implementation decisions are left
to the states. The Act provides general structure; corrections officials fill in the details.”).
71. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 17.
72. See, e.g., infra Section II.1, on the requirement that opposite-gendered staff announce their presence when entering a prison housing unit.
73. 34 U.S.C. § 30307(e)(2)(B) (2020).
74. 28 C.F.R. § 115.401 (2020).
75. See BUREAU OF JUST. ASSISTANCE, supra note 20. The DOJ, pursuant to the PREA
amendment of the Justice For All Reauthorization Act of 2016, has requested from all fifty
governors PREA audit reports for every detention center under the control of the state’s executive branch. FAQs for the State PREA Submissions Website, BUREAU OF JUST.
ASSISTANCE.
https://www.bja.gov/state-PREA-submissions/JFARA%20Website_FAQs
_FINAL_101617_508.pdf (last visited Nov. 22, 2020).
76. CY2017 Annual PREA Report, ARK. DEPT. OF CORRECTION, https://adc.arkansas.gov
/images/uploads/CY17_PREA_Annual_Report_Final_-_2_27_2019.pdf (last visited Nov. 22,
2019).
77. Id.
78. Id.
79. Jeannie Roberts, State Wouldn’t Sign on to Prison-Rape Law Before Inquiry, ARK.
DEMOCRAT-GAZETTE (June 13, 2015, 3:59 a.m.), https://www.arkansasonline.com

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the BJS 2018 National Survey of Youth in Custody reported that an Arkansas youth detention center, the Arkansas Juvenile Assessment and Treatment
Center, had the sixth-highest percentage of youth reporting sexual victimization among comparable juvenile lockups across the country.80
These survey results offer a glimpse of areas where Arkansas prisoners
report high rates of abuse, but without comprehensive external auditing, the
state’s overall rates of prisoner sexual victimization cannot be fully quantified. As discussed in Section II A, supra, the DOJ enforces state compliance
with federal PREA standards by mandating that states have their prisons
audited once every three years or risk losing five percent of their DOJ grant
funds.81 According to a spokesperson for Governor Hutchinson, the ADC
refuses to take part in federal PREA audits because this penalty costs the
state less than comprehensive auditing of the prison system that the state
knows it would fail.82 Without these audit reports to compare how each prison under state control is complying with each federal standard,83 there is
currently no federal oversight or public accountability into how the ADC
carries out its written policies to address sexual violence.
III.
A.

ARKANSAS’S FAILURE TO FULLY IMPLEMENT PREA

Background on Arkansas’s Non-Compliance with PREA

In March 2015, the Office of Justice Programs and the Office of Violence Against Women sent letters to the governors of all fifty states requesting either certification that their states were in full compliance with PREA
or a letter of assurance that they would work toward complete compliance.84
In May 2015, Governor Hutchinson replied in a letter to the DOJ that Arkansas “could not certify full compliance with the National PREA Standards, or submit an assurance of future compliance.”85 Governor Hutchinson
/news/2015/jun/13/state-wouldn-t-sign-on-to-prison-rape-l-1; See Ramona R. Rantala, Jessica
Rexroat, & Allen J. Beck, Survey of Sexual Violence in Adult Correctional Facilities, 2009–
11 - Statistical Tables, BUREAU OF JUST. STAT (Jan. 2014), https://www.bjs.gov
/content/pub/pdf/ssvacf0911st.pdf.
80. Erica L. Smith & Jessica Stroop, Sexual Victimization Reported by Youth in Juvenile
Facilities, 2018, BUREAU OF JUST. STAT (Dec. 2019), https://www.bjs.gov/content
/pub/pdf/svryjf18.pdf.; Tony Holt, Sex-abuse survey finds high rate at teen lockup in Arkansas, ARK. DEMOCRAT-GAZETTE (Dec. 16, 2019, 7:22 a.m.), https://www.arkansasonline.com
/news/2019/dec/16/sex-abuse-survey-finds-high-rate-at-tee/.
81. 28 C.F.R. § 115.401(a) (2020); 34 U.S.C. § 30307(e) (2020).
82. Moritz, supra note 21.
83. See PREA Audit Report Template, https://www.prearesourcecenter.org/sites/default
/files/library/Prisons%20and%20Jails_Audit%20Report%20Template_Version5.pdf
(last
visited Dec. 22, 2019).
84. U.S. Dep’t of Justice, supra note 22; Roberts, supra note 79.
85. U.S. Dep’t of Justice, supra note 22.

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stated that he did believe that the Arkansas Community Correction Department would be found to be in full compliance with national PREA standards
were it subject to an audit.86 However, “ADC cannot fully comply with the
limits to cross-gender viewing and searches found in 28 § C.F.R. 115.15,
due in part to the terms of a settlement in United States v. Arkansas.” 87 This
1997 settlement resolved a Title VII suit filed by the DOJ in 1995 alleging
gender discrimination in hiring and placement of female correctional officers in male prison facilities.88 Furthermore, the letter included that the state’s
juvenile corrections system, the Division of Youth Services (DYS), was not
fully compliant with PREA either.89 Wendy Kelley, the Director of the ADC
during this time, gave further elaboration of the justifications for Arkansas’s
non-compliance with PREA in a newspaper interview.90
In the sections that follow, this note will address the justifications offered by Governor Hutchinson and Director Kelley for non-compliance with
federal PREA standards and argue that the 1997 consent decree does not
pose a true legal barrier to full compliance and that Arkansas should enact
further measures to protect prisoners that are vulnerable to sexual victimization.
1.

Title VII and Cross-Gender Contact

The specific PREA regulation on cross-gender viewing and searches
identified by Governor Hutchinson in his letter as being in conflict with the
state’s gender discrimination settlement specifies that a prison “shall not
conduct cross-gender strip searches or cross-gender visual body cavity
searches (meaning a search of the anal or genital opening) except in exigent
circumstances or when performed by medical practitioners.”91 The regulation also does not permit cross-gender pat-down searches of incarcerated
women for prisons with a population of fifty inmates or more; prevents opposite-gendered staff from viewing the breasts, buttocks, and genitalia of
incarcerated people while they are showering, changing and performing
bodily functions; requires opposite-gendered staff to announce their presence before entering a housing unit; and prevents staff from physically examining transgender or intersex incarcerated people for the sole purpose of
determining that person’s gender.92 This language from the federal standards
has been incorporated into the ADC’s PREA Administrative Directive, ex86.
87.
88.
89.
90.
91.
92.

Id.
Id.
Id.
Id.
Roberts, supra note 79.
28 § C.F.R. 115.15(a) (2020).
28 §§ C.F.R. 115.15(b), (d), (e).

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cept that the language requiring opposite-gendered staff to announce their
presence when entering a housing unit is not included in Arkansas’s PREA
policy.93
The $7.2 million settlement that serves as the rationale for Arkansas’s
current noncompliance, United States v. Arkansas, ended in a June 19, 1997
consent decree that ordered the State to provide employment opportunities
to female correctional officers on an equal basis with men.94 Under the
agreement, the state was ordered to “open all correctional officer positions
and assignments at ADC facilities housing male inmates to women on an
equal basis with men—with limited exceptions necessary to protect the privacy interests of male inmates.”95 The consent decree makes a specific exception that “the ADC shall not be required to assign a female correctional
officer to conduct a strip search of a male offender. A strip search involves
the removal of all of an inmate’s clothing.”96 Therefore, the consent decree
specifically excepts women under its terms from having to do the kinds of
invasive searches prohibited under PREA regulation 28 § C.F.R. 115.15(a).
Furthermore, the consent decree is silent about restricting male staff
from engaging in any of the conduct prohibited under the PREA regulations,
and the following case law suggests that if male staff were to bring a lawsuit
in response to restrictions on their duties to perform invasive searches of
cross-gender inmates, their lawsuit would not prevail.97 Thus there is no
legal barrier in the consent decree nor the case law preventing Arkansas
from complying with the audit requirement.
In a case brought by male correctional officers on the basis of sex discrimination for their denial of positions that require strip and cavity searches
of inmates in a women’s prison, the Sixth Circuit held that gender is a bona
fide occupation qualification (a “BFOQ”) under Title VII of the Civil Rights
Act of 1964 for positions that require those specifically invasive tasks. 98 The
Sixth Circuit reasoned that the Michigan Department of Corrections
(MDOC) was owed deference in its determination that male corrections of93. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 17, at 11–12.
94. United States v. Arkansas (Correctional Discrimination Elimination Decree), C.A.
No. LR-C-95-543 (E.D. Ark. June 19, 1997).
95. Press Release, U.S. Dep’t of Justice, Justice Department Reaches Agreement with
Arkansas Corrections System Ensuring Equal Employment Opportunities for Women (Apr.
14, 1997), https://www.justice.gov/archive/opa/pr/1997/April97/152cd.htm.
96. Correctional Discrimination Elimination Decree, C.A. No. LR-C-95-543, at 4.
97. See, e.g., Everson v. Mich. Dep’t. of Corrs., 391 F.3d 737 (6th Cir. 2004); Tharp v.
Iowa Dep’t. of Corrs., 68 F.3d 223 (8th Cir. 1995); Breiner v. Nevada Department of Corrections, 610 F.3d 1202 (9th Cir. 2010).
98. Everson, 391 F.3d at 753. Title VII broadly prohibits gender-based discrimination in
the workplace, but the statute provides a defense “in those certain instances where ... sex ...is
a bona fide occupational qualification reasonably necessary to the normal operation of that
particular business or enterprise.” 42 U.S.C. § 2000e–2(e) (2020).

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ficers could be excluded from female prison housing units, as this policy
gets to the essence of the MDOC’s mandate to safeguard female prisoners
from sexual abuse.99 Further, the court rejected proposed alternatives to a
female BFOQ, such as pre-employment psychological screening.100
The Eighth Circuit decided a case in 1995, prior to the passage of
PREA, that “a prison employer’s reasonable gender-based job assignment
policy, particularly a policy that is favorable to the protected class of women
employees, will be upheld if it imposes only a ‘minimal restriction’ on other
employees.”101 Factors that the court considered in determining that the prison’s gender-based assignment policy imposed only minimal restrictions
included that the male plaintiffs did not suffer termination, demotion, reduced pay, or lack of access to promotions as a result of the policy.102 The
Eighth Circuit did not address the specific issue of whether or not gender is
a BFOQ in this context,103 but the Sixth Circuit included favorable discussion of this case in its reasoning that gender was a BFOQ in that jurisdiction.104
The Ninth Circuit held in 2010 that sex is not a BFOQ in the context of
male correctional officers in Nevada challenging a women’s prison’s policy
of only hiring women to be correctional lieutenants.105 The Ninth Circuit
reasoned that employers seeking to justify a BFOQ must show “a high correlation between sex and ability to perform job functions,” and that employment restrictions based on preventing abuse of prisoners must be supported by evidence or logical inferences that opportunities for abuse are
inherent to the position.106 In the opinion of an author of an unsigned case
comment on Breiner v. Nevada Department of Corrections, the difference
between the holding of the Ninth Circuit in Breiner that sex is not a BFOQ
and the Sixth Circuit in Everson that sex is a BFOQ likely comes down to
the fact that the job positions at issue in Breiner were merely supervisory in
nature, while the job positions in Everson involved contact between guards
and inmates.107 The job duties prohibited in the PREA regulations and excepted by the terms of the consent decree are the types of invasive and con99. Id.
100. Id. at 756.
101. Tharp, 68 F.3d at 226.
102. Id.
103. Id. at 225 n.2.
104. See Everson, 391 F.3d at 758.
105. Breiner, 610 F.3d at 1216.
106. Id. at 1213–14 (citing Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 202
(1991)).
107. Case Comment, Employment Discrimination - Title VII - Ninth Circuit Holds That
Excluding Men from Supervisory Positions in Women’s Prison Violates Title VII. - Breiner v.
Nevada Department of Corrections, 610 F.3d 1202 (9th Cir. 2010), 124 HARV. L. REV. 1588,
1593 (2011); Everson, 391 F.3d at 740.

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tact-based tasks that the Sixth Circuit found warranted a BFOQ in its decision. Following the PREA regulations would not require that the ADC restrict its opposite-gendered prison staff from access to supervisory positions
that do not involve invasive contact and cavity searches.
Therefore, applying Eighth Circuit precedent and persuasive Sixth Circuit case law to the issue of reasonable restrictions to male contact positions
with female inmates, such cross-gender distinctions as mandated under the
PREA regulations would violate neither Title VII nor the terms of United
States v. Arkansas. If concern about violating the consent decree or making
the ADC liable to further employment discrimination lawsuits is truly preventing the state from coming into compliance with federal PREA standards, this concern has no support from either the terms of the consent decree
or the relevant case law.
2.

Policy Arguments Against Compliance

According to ADC Director, Wendy Kelley, should Arkansas attempt
to reach full PREA compliance, “[t]he number of units where female employees could be assigned would be reduced—which means an overall reduction in female employees departmentwide.”108 But apart from the already-excepted restrictions on cross-gender strip searches and restrictions on
viewing the genitalia of opposite sex inmates, the remaining regulations
apply to male staff, not female.109 Furthermore, Director Kelley’s position
on the requirement under federal PREA regulations that opposite-gendered
prison staff announce their presence before entering a housing unit is that
the practice “lessens the ability to enforce rules and conduct inspections.”110
Specifically, Kelley stated that the announcement guidelines in the regulations would give inmates an opportunity to hide contraband before the opposite gendered correctional officer could conduct an inspection.111 This is a
policy determination on the part of Director Kelley, but implementing an
announcement requirement would not subject the ADC to any legal liability.112 And the DOJ, in promulgating this regulation, determined that the

108. Roberts, supra note 79, at 4.
109. See 28 § C.F.R. 115.15 (2020).
110. Roberts, supra note 79, at 4.
111. Id.
112. A male prisoner in California argued that a female guard’s alleged failure to announce her presence before entering his housing unit as required under 28 § C.F.R. 115.15(d)
amounted to sexual harassment in violation of his rights under the Eighth Amendment, but
the federal magistrate judge dismissed the claim, reasoning that such a claim on its own does
not state sufficient facts to support an Eighth Amendment violation and the PREA statute’s
lack of a private cause of action. Hardney v. Moncus, 215CV1842KJMACP, 2016 WL
7474908, at *4 (E.D. Cal. Dec. 28, 2016).

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interests of prisoners to be free from custodial sexual assault outweighed
any concerns about contraband.
Additionally, at the time of the DOJ settlement with the state of Arkansas, the DOJ had reached similar agreements with other state corrections
departments that employed similar practices, including Indiana, Massachusetts, Florida, Delaware, New Jersey, and North Carolina.113 As of Audit
Year 2017, the Governors of each of these states provided either certifications (New Jersey and Delaware) or assurances (Indiana, Massachusetts,
Florida, North Carolina) of full PREA compliance.114 For these states, a
comparable consent decree with DOJ has posed no barrier to good-faith
efforts at PREA compliance.
Given that the terms of the consent decree, cited by Governor
Hutchinson as the primary legal barrier to full compliance with federal
PREA standards,115 do not conflict with the requirements of the federal regulations, Arkansas has no basis to claim that complying with federal PREA
standards would open the state to additional liability. Rather, the justifications given for non-compliance are policy disagreements with, at minimum,
the requirement of officers to announce their presence before entering opposite-gendered housing units,116 complete adherence to the Youthful Inmate
Standard,117 and the expense of auditing every prison at least once every
three years as required.118 Arkansas’s refusal to comply with the Youthful
Inmate Standard deserves particular attention.
3.

The Youthful Inmate Standard

One of PREA’s regulations, the Youthful Inmate Standard, prohibits
youth under the age of 18 from being housed in adult jails and in prisons
where the youth would have sight, sound, or physical contact with the general adult population.119 Prisons must also maintain separation between
youth and adults in common areas, unless the youth are directly supervised
by staff, and avoid placing youthful inmates in isolation.120 This language
has been incorporated into the ADC’s PREA Administrative Directive.121
However, the ADC’s PREA Administrative Directive makes an exception to
113. Press Release, U.S. Dep’t of Justice (1997), supra note 95.
114. U.S. Dep’t of Justice, supra note 21.
115. Indeed, in 2017, the governor’s senior advisor for criminal justice reiterated that “I
don’t know that we can ever come into full compliance because of that settlement.” Moritz,
supra note 21.
116. See Roberts, supra note 79; 28 C.F.R. § 115.15(d) (2020).
117. Roberts, supra note 79.; 28 C.F.R. § 115.14.
118. See Moritz, supra note 21; 28 C.F.R. § 115.401.
119. See 28 C.F.R. § 115.14.
120. Id.
121. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 17, at 10.

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the requirement of separating youthful inmates from sight, sound, or physical contact with adult inmates in housing, allowing that “[t]he Director may
approve youthful inmates being housed as necessary for healthcare or to
participate in an early release program such as boot camp or a re-entry center.”122 Director Kelley’s interview with the Arkansas Democrat-Gazette
further reinforced that such exceptions in violation of the federal Youthful
Inmate Standard have been made: “a recent decision she made to allow a 17year-old to attend a boot camp to earn early release would also be a violation of the federal standards, which dictate that juvenile inmates must either
be separated from the adult population or have an officer with them at all
times.”123
In a letter cosigned by the American Civil Liberties Union (ACLU) of
Arkansas and Arkansas Advocates for Children and Families, those organizations called on Governor Hutchinson to implement the Youthful Inmate
Standard, pointing to research indicating that youth in adult prisons run the
greatest risk of sexual victimization.124 States such as Oregon and South
Dakota have met the requirements of the Youthful Inmate Standard by transferring youth convicted as adults to juvenile facilities.125 Arkansas should
follow the example of Oregon and South Dakota and amend its youthful
transfer law and policies to keep all children under the age of 18 out of ADC
jurisdiction.
B.

Consequences of Non-Compliance

By refusing to fully comply with PREA, Arkansas has suffered reductions each year in federal grants allocated for law enforcement officers, juvenile justice and delinquency prevention, and preventing violence against
women. Withheld grant funding totaled $148,023 in 2014,126 $138,206 in

122. Id.
123. Roberts, supra note 79.
124. Letter from ACLU of Arkansas & Arkansas Advocates for Children and Families, to
Arkansas Governor Asa Hutchinson (Oct. 3, 2016), http://cfyj.org/images/Arkansas_
PREA_Letter_2016.pdf.
125. Oregon transfers youth convicted as adults to a juvenile facility based on factors
such as whether the youth will complete their sentence before they turn 25, and age, maturity
and risk of physical harm in adult prison, while South Dakota entered into an agreement with
the North Dakota Department of Corrections to send its young offenders to a State Industrial
School where the entire inmate population is under the age of 18. CARMEN E. DAUGHERTY,
CAMPAIGN FOR YOUTH JUSTICE, ZERO TOLERANCE: HOW STATES COMPLY WITH PREA’S
YOUTHFUL INMATE STANDARD 5 (2015).
126. BUREAU OF JUST. ASSISTANCE, IMPACT OF PREA ON DEPARTMENT OF JUSTICE
GRANTS (FY 2014), https://www.bja.gov/Programs/14PREA-Reallocations.pdf (last visited
Nov. 22, 2020).

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2015,127 and $148,311 in 2016.128 With the passage of the Justice for All
Reauthorization Act of 2016, grants administered by the Office of Violence
Against Women are no longer subject to PREA129 and consequently, the
total amount of federal grant funding withheld from Arkansas for PREA
non-compliance in 2019 was $61,138.130 As discussed above, a spokesperson for the Governor has stated that losing this amount in grant funding is
preferable to the $100,000 that the spokesperson quotes would be the cost to
conduct an audit of the state’s prisons that the state knows it will fail.131 But
the ADC’s assured failure to pass an audit of its prisons is a consequence of
its voluntary refusal to adopt federal PREA standards rather than an avoidance of liability as the Governor claims. In the absence of audits, abuses are
currently going unchecked and unmonitored (as evidenced by prisoners’
rights litigation), and the audit process, albeit imperfect,132 would bring a
minimum standard of oversight and accountability to a closed system.
C.

Where PREA Does Not Go Far Enough

Eliminating sexual violence in prisons is one small part of remedying
the inhumanity of the American prison system as a whole. Further, many
scholars have argued that PREA is far from a panacea for addressing prison
sexual violence and that other remedies and strategies should be pursued in
its place.133 For prison abolitionists, PREA is part of a long line of prison
127. BUREAU OF JUST. ASSISTANCE, IMPACT OF PREA ON DEPARTMENT OF JUSTICE
GRANTS (FY 2015), https://www.bja.gov/Programs/2015-PREA-Grant-Impact.pdf (last visited Nov. 22, 2020).
128. BUREAU OF JUST. ASSISTANCE. IMPACT OF PREA ON DEPARTMENT OF JUSTICE
GRANTS (FY 2016), https://www.bja.gov/Programs/FY2016-PREA-Grant-Impact.pdf. (last
visited Nov. 22, 2020). .
129. BUREAU OF JUST. ASSISTANCE, PREA AMENDMENT JUSTICE FOR ALL
REAUTHORIZATION ACT OF 2016 FACT SHEET 2 (Sept. 17, 2019), https://bja.ojp.gov/sites/g
/files/xyckuh186/files/media/document/jfara-fact-sheet_updated-2017.03.01.pdf.
130. BUREAU OF JUST. ASSISTANCE. IMPACT OF PREA ON DEPARTMENT OF JUSTICE
GRANTS FOR FISCAL YEAR 2019 (2019), https://www.bja.gov/programs/FY2019-PREAGrant-Impact.pdf (last visited Nov. 22, 2020).
131. Moritz, supra note 21.
132. The quality of work of some PREA auditors has come under criticism. See Derek
Gilna, Five Years after Implementation, PREA Standards Remain Inadequate, PRISON LEGAL
NEWS (Nov. 8, 2017), https://www.prisonlegalnews.org/news/2017/nov/8/five-years-afterimplementation-prea-standards-remain-inadequate/ (“‘The problem is with the auditors themselves. A handful dominate the market, offering cheap audits and quick assessments of facilities,’ said Stannow. ‘This results in auditors who do little advance research, relying only on
documents provided by the agency.’”).
133. See generally Gabriel Arkles, Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm, 17 N.Y.U. J. LEGIS. & PUB. POL’Y 801, 811 (2014); Giovanna
Shay, PREA’s Peril, 7 NE. U. L.J. 21, 38 (2015); David W. Frank, Abandoned: Abolishing
Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration, 29 BERKELEY

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reform projects that are doomed to fail because prison itself acts as a form of
“sexual punishment” through “loss of privacy and intrusive searches that
may be experienced as sexual assaults,”134 and devoting more money and
resources into the prison bureaucracy acts counter to the goal of ending
mass incarceration.135 Professor Gabriel Arkles has argued that PREA’s lack
of a private right of action raises the barrier of exhaustion of administrative
remedies under the PLRA rather than lowering it, making it more difficult
for victims of prison violence to bring Section 1983 claims.136 In addition,
the use of PREA as a justification to place people who are labeled as sexual
predators into administrative segregation raises concerns about the expansion of solitary confinement as a form of punishment.137
As noted professor and advocate of prison abolition Angela Y. Davis
has written, “[a] major challenge of this movement is to do the work that
will create more humane, habitable environments for people in prison without bolstering the permanence of the prison system.”138 One potential strategy of reconciling Angela Davis’s challenge to seek an end to mass incarceration while also protecting the health and safety of people already in prison
is to pursue non-criminal alternatives to low-level offenses in order to reduce the overall prisoner population,139 while also embracing measures that
seek to improve conditions for those who are currently serving a prison sentence. Encouraging Arkansas to comply with federal PREA standards
should therefore be conceived as part of a larger advocacy effort to make
conditions of confinement more humane across the board and put fewer
people in prison to begin with.
Actions that federal and state officials should take to better address
prison sexual violence beyond simply complying with existing PREA standards include: (1) Congress should amend PREA to include a private right of
action; (2) Arkansas should restrict the use of administrative segregation as
a form of punishment in its PREA procedures; and (3) Arkansas should keep
all children under 18 out of adult prisons.
In the next section, this note will address how PREA procedures in Arkansas have influenced prisoner rights litigation, particularly as the policies
J. GENDER L. & JUST. 1, 11 (2014); Kevin Medina & Brian Nguyen, Acknowledged but Ignored: A Critical Race Theory Approach to the Prison Rape Elimination Act, 2 QUEER CATS
J. L. OF LGBTQ STUD. 59, 72 (2018); Stern, supra note 30, at 735.
134. Shay, supra note 133, at 38.
135. Frank, supra note 133, at 11–20.
136. See Arkles, supra note 133, at 811.
137. See infra Section IV.B.
138. ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 103 (Greg Ruggiero ed., 2003).
139. Stern, supra note 30, at 765 (“Noncriminal alternatives reject using the state or criminal justice system, but instead focus on decriminalizing certain behaviors, addressing underlying sociocultural and economic disparities, and utilizing restorative justice in lieu of criminal sanctions to address interpersonal and domestic violence.”).

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have affected the requirement of administrative exhaustion under the PLRA
and expanded the use of administrative segregation.
IV.

PREA AND SECTION 1983 LITIGATION IN ARKANSAS

Prisoners who have been victims of sexual violence, particularly custodial rape at the hands of prison staff, may not find a suitable remedy in
PREA and instead elect to pursue a civil lawsuit. Nevertheless, enacting
PREA could mitigate against harsh measures such as solitary confinement,
despite PREA not providing a private cause of action. In the aftermath of
Farmer v. Brennan, the typical claim brought for sexual abuse in prison is
through 42 U.S.C. § 1983140 based on a prisoner’s claim of cruel and unusual punishment under the Eighth Amendment. Claims may also be brought
under the Fourth Amendment because an expectation of bodily privacy extends to inmates.141 Finally, prisoners harmed by sexual assault may also
bring state law tort claims.142
A.

PLRA and the Requirement of Administrative Exhaustion

The biggest hurdle for prisoners to overcome in their Section 1983
claims is the requirement to exhaust administrative remedies before bringing
a case in federal court under the PLRA.143 In Woodford v. Ngo, the U.S. Supreme Court held that prisoners must fully exhaust all internal grievance
procedures as defined by the correctional unit before suing under Section
1983.144
Villarreal v. Dewitt provides an illustration of how exhaustion of
grievance procedures imposes a barrier to prisoners attempting to sue for
sexual harm inflicted at the hands of prison staff. In that case, the plaintiff
survived the defendant’s motion for summary judgment on the theory that
prison grievance procedures were not fully exhausted before the plaintiff
brought suit.145 The court held that the record evidence raised an inference
that prison officials at McPherson Unit misled Arnett by informing her that
Internal Affairs would handle her allegations of sexual abuse rather than
140. A claim under 42 U.S.C. § 1983, or a “Section 1983 claim,” may be brought by an
individual who alleges that he or she has suffered a deprivation of Constitutional rights, or
rights secured by a law passed by Congress, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia . . . .” 42 U.S.C.. §
1983 (2020).
141. See Arkles, supra note 133, at 808; Florence v. Bd. of Chosen Freeholders, 132 S.
Ct. 1510, 1523 (2012).
142. Arkles, supra note 133, at 809.
143. 42 U.S.C. § 1997e(a) (2012).
144. Woodford v. Ngo, 548 U.S. 81, 94 (2006).
145. 2018 WL 4701788, at *11 (E.D. Ark. Sept. 28, 2018).

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informing her of her right to proceed using the correct grievance procedures
that constitute administrative exhaustion.146 Additionally, Arnett followed
the grievance procedures, but did not appeal the decision of the warden
when she was informed that her case was “with merit.”147 Finally, the court
found that Arnett raised an inference that prison officials interfered with her
ability to file grievances through a series of explicit statements and alleged
conduct that pressured her to remain silent about the abuse she suffered at
the hands of Dewitt.148 The Villarreal case is still in litigation and has yet to
reach final judgment, but by withstanding a challenge based on failure to
exhaust administrative remedies under PLRA, the plaintiff has survived the
stage that ends most prisoner Section 1983 claims.
A prisoner reporting her abuse under the ADC PREA procedures must
also separately follow the prison’s internal grievance process in order to
meet the required exhaustion of administrative remedies if she intends to
bring a Section 1983 lawsuit.149 Further, prisoners in Arkansas cannot sustain a Section 1983 suit on the sole basis that an official failed to follow
policies to investigate a PREA complaint.150 Judge Timothy Brooks of the
United States District Court for the Western District of Arkansas, in ruling
on a lawsuit brought by a detainee in a county jail, quotes a decision out of
Alabama, Jacoby v. PREA Coordinator,151 that “[t]he Constitution does not
require officials to investigate or otherwise correct wrongdoing after it has
happened,” and that therefore any alleged failure to “follow PREA investigation regulations did not contribute to the sexual assault of the Plaintiff.”152
Because PREA does not provide a private cause of action for failure to investigate a claim and the Constitution has not been found to guarantee a
right to an investigation, the plaintiff-detainee’s official capacity claim
against the jail staff failed.153 The existence of PREA, therefore, does not
provide a means through which a prisoner can advance a private lawsuit,
146. Id. at *11.
147. Id. at *14. As the opinion explains, “A determination that her grievance was ‘with
merit,’ viewed in the light most favorable to Ms. Arnett, is unlikely to be characterized as an
unsatisfactory response from which to appeal. Id.
148. Id. at *16.
149. See ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 17; ARKANSAS
DEPARTMENT OF CORRECTIONS, ADMINISTRATIVE DIRECTIVE 12-16 INMATE GRIEVANCE
PROCEDURE (May 28, 2012); see also Bledsoe v. McDowel, 4:16-CV-4057, 2017 WL
1091332, at 3 (W.D. Ark. Mar. 21, 2017) (finding that the Plaintiff’s PREA complaint could
not substitute for a properly filed grievance as outlined in Arkansas Department of Community Corrections’ grievance procedure.).
150. Hendrickson v. Schuster, No. 16-CV-05057, 2018 WL 1597711, at *12 (W.D. Ark.
Apr. 2, 2018).
151. 2017 WL 2962858, at *5 (N.D. Ala. Apr. 4, 2017).
152. Hendrickson, 2018 WL 1597711, at *12.
153. Id. at 12.

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and PREA reporting in Arkansas does not fulfill the PLRA’s requirement of
administrative exhaustion.
B.

PREA Segregation Cases

One of the most frequently litigated PREA issues using Section 1983 in
Arkansas is the ADC’s practice of placing prisoners who have been labeled
PREA offenders in administrative segregation.154 According to the ADC
PREA policy, all “PREA inmates” are placed in single-man housing status,
subject to review every six months, and subject to review for eligibility for
programs and/or job assignments every ninety days.155 Once removed from
single-man housing, the PREA label remains with the person throughout his
or her sentence, albeit as inactive.156 When PREA policies came into effect
in the ADC in 2005, plaintiffs in these cases who had received a disciplinary
conviction for rape prior to the enactment of the policies had their housing
policies reviewed and were assigned to single-cell housing for violations
that took place years earlier.157
ADC inmates have been labelled PREA offenders and placed in administrative segregation even when the act that triggered the designation was
consensual sex with a fellow inmate.158 The national PREA standards specify that prisons may not designate non-coerced sexual acts as sexual abuse,159
and the ADC’s PREA policy notes that “consensual sexual activity between
inmates does not qualify as a PREA incident although it is against the ADC
policy and can lead to a disciplinary action.”160 Administrative segregation
as a remedy for PREA violations in Arkansas raises concerns about the expansion of isolation as a form of punishment, particularly as the label of
being a PREA offender or even “victim-prone” remains with a prisoner
throughout his or her sentence and any future terms of imprisonment, open-

154. See, e.g., Bailey v. Hobbs, No. 5:11CV00031 JLH, 2012 WL 3038856 (E.D. Ark.
July 25, 2012); Linell v. Norris, 2009 Ark. 303, 320 S.W.3d 642; Waller v. Maples, No.
1:11CV00053 JLH-BD, 2011 WL 3861370 (E.D. Ark. July 26, 2011), report and recommendation adopted, No. 1:11CV00053 JLH-BD, 2011 WL 3861369 (E.D. Ark. Aug. 31, 2011);
McKnight v. Hobbs, No. 2:10CV00168 DPM HDY, 2010 WL 5056024 (E.D. Ark. Nov. 18,
2010), report and recommendation adopted, No. 2:10-CV-168-DPM HDY, 2010 WL
5056013 (E.D. Ark. Dec. 6, 2010).
155. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 17, at 17.
156. Id. at 18.
157. See Bailey, 2012 WL 3038856, at *1; Linell, 2009 Ark. at 2–3, 320 S.W.3d at 642–
43.
158. Arkles, supra note 133, at 817–18; see Waller, 2011 WL 3861370, at *1; McKnight,
2010 WL 5056024, at *2.
159. 28 C.F.R. § 115.78(g) (2020).
160. CY2017 Annual PREA Report, supra note 76, at 3.

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ing the potential for arbitrary enforcement of administrative segregation at
any time.161
PREA regulations prohibit placing victim-prone individuals in involuntary segregated housing unless “an assessment of all available alternatives
has been made, and a determination has been made that there is no available
alternative means of separation from likely abusers.”162 Arkansas coming
into full compliance with federal PREA standards would therefore act to
mitigate against the use of solitary confinement as a means of protecting
vulnerable prisoners.
V.

CONCLUSION

By being one of only two states refusing to comply with PREA, Arkansas has fallen behind other states in preventing, detecting, and responding to
prison sexual abuse. As this note has argued, the Governor’s justifications
for non-compliance are not a true legal barrier, and meeting national PREA
standards would be an important first step to protect women like Leticia
Villarreal and Carolyn Arnett, as well as children, trans people, and other
particularly vulnerable people in Arkansas prisons whose stories have yet to
come to light.
Because the ADC does not allow its prisons to be audited for PREA,
coming into full PREA compliance would begin to bring a fundamentally
closed system to a minimal standard of transparency and oversight. It is both
achievable and a moral imperative to bring prison sexual violence in Arkansas out of the shadows.
Connor Thompson*

161. See Victoria Law, For People Behind Bars, Reporting Sexual Assault Leads to More
Punishment, JUST DETENTION (Sept. 30, 2018), https://justdetention.org/for-people-behindbars-reporting-sexual-assault-leads-to-more-punishment/ (“When Venus Williams, a 25-yearold trans woman incarcerated in east Arkansas, arrived at the state’s male prison in March
2010, she was immediately placed in segregation. Why? Because she informed staff that she
was trans and, during her previous incarceration in 2007, had been caught having consensual
sex with another incarcerated person. At the time, she was told that consensual sex does not
exist in prison, was written up for violating the prison’s rule against sexual activity, and was
placed in segregation until her release a year later. In 2010, when she re-entered the prison
system on a parole revocation, staff labeled her “victim-prone” and placed her in segregation,
where she has remained for the past eight years.”).
162. 28 C.F.R. § 115.43(a) (2020).
* Connor Thompson is a concurrent J.D. and M.P.S. candidate at the University
of Arkansas at Little Rock, William H. Bowen School of Law and the University of Arkansas
Clinton School of Public Service. I am grateful to Professor andré douglas pond cummings
for his insightful critiques and to my parents for their support and encouragement.

Electronic copy available at: https://ssrn.com/abstract=3951949