In an apparent reversal of position, Texas Gov. Greg Abbott said earlier this year that his state would comply with the Prison Rape Elimination Act (PREA)—but his assurance came with a catch, which advocates say could erode the federal government's “zero tolerance” policy on sexual assaults in correctional facilities.
Abbott wrote in an annual PREA compliance report, filed May 15 to the Attorney General, that Texas would implement PREA standards “wherever feasible.” His predecessor, Gov. Rick Perry had famously rejected the PREA standards, calling them a “burden” and “ill conceived.”
The standards include more than 275 regulations aimed at increasing prisoner safety, such as adding security cameras, hotlines for inmates to report assaults, and training programs for staff.
Despite the change in Texas' position, Attorney General Loretta Lynch rejected Abbott's approach. The governor's letter did not include the required written commitment that Texas would use at least five percent of certain federal grant funds for prison purposes to achieve compliance with PREA regulations.
On May 28, Abbott revised his letter to add that Texas would use five percent of those grant funds for PREA compliance, but the “wherever feasible” clause remained. Lynch accepted this revised stance, which riled advocates.
“The DOJ determined that the insertion of the phrase 'wherever feasible' in the letter may be understood to qualify how reallocated fiscal year 2015 DOJ grant funds will be spent in the coming year or so,” said Tom Talbot, a DOJ senior policy advisor with the Bureau of Justice Assistance.
He oversees the PREA Management Office, which was created to carry out DOJ's responsibilities related to PREA implementation.
“The DOJ components that oversee these grant funds will closely monitor how these funds are used by Texas to improve the state's compliance with PREA standards,” Talbot explained in an interview with The Crime Report.
Advocates fighting to end prison rape are concerned that DOJ's acceptance of Texas' terms could have a domino effect, encouraging states to pick and choose which PREA standards to follow and thus weakening PREA's goal of zero tolerance for prison rape.
Chris Daley, deputy executive director of the nonprofit Just Detention International, said that while his organization is happy with Texas' change in tone, the Justice Department's stance is problematic.
“We are concerned though that by accepting this 'wherever feasible' piece that the DOJ has kind of created a 'Texas exception' to the statute,” said Daley. “The statutory language is really clear that assurance is for 'a state that wants to achieve full compliance with the national standards.'”
“This 'wherever feasible' clause doesn't indicate full compliance,” Daley added. “There's not anything in the statute or the regulations that modifies full compliance to be about feasibility.”
Daley is among a group of advocates that have proposed an amendment to PREA, which proponents say would strengthen the legislation. Advocates are working with Sen. John Cornyn (R-Texas) and other members of the Judiciary Committee to introduce the legislation this fall with bipartisan support, according to Daley.
The amendment would keep intact the financial penalty for noncompliance while restructuring how the penalties are assessed. It would also beef up the requirements for annual reporting by states, including making more information public; and eliminate by 2018 the option to file an assurance that a state will eventually comply with the standards—at which time all states would be required to be in compliance with PREA.
It's been 12 years since the Prison Rape Elimination Act was signed into law by President George W. Bush. Since then only 11 states and the District of Columbia have certified that they are in full compliance with the regulations issued in August 2012 by the Justice Department to put it into effect.
“We should not be tolerating rape in prison,” President Barack Obama told the NAACP convention in Philadelphia last month in a speech on criminal justice reform.
Assistant Attorney General Karol Mason has stated that “significant progress” is being made on compliance with the regulations due to the substantial PREA audit activity taking place. However, it will take several years to audit the nation’s 13,000 correctional facilities subject to PREA regulations to determine if they are in compliance, Talbot said.
The most recent DOJ estimates indicate that 4 percent of state and federal prison inmates reported being sexually assaulted between 2011 and 2012, which is about the same number that had been victimized in the previous five years.
The department's next “Survey of Sexual Violence in Adult Correctional Facilities,” a comprehensive report on the incidents and prevalence of sexual assaults in prisons and jails, which will cover 2012 to 2014, isn't expected to be published until next fall.
This year the DOJ received PREA certifications from Arizona, Iowa, Maine, Mississippi, Missouri, New Hampshire, New Jersey, North Dakota, Oregon, Tennessee, Washington and the District of Columbia—all of them filed by May 15. That was the deadline established by DOJ for state and territorial governors to submit letters to the Attorney General certifying that they are in compliance with PREA regulations, or assuring that they will use 5 percent of certain DOJ grant funds to work toward achieving compliance.
Four states refused to file certification or assurance letters: Alaska, Arkansas, Idaho and Utah.
As a consequence, each of those states will forfeit 5 percent of federal grant funds for prison purposes. Since DOJ has not yet released 2014 data on sexual assaults in prisons, it's unclear how many incidents occurred in the states that did not file certification or assurance letters.
The remaining 35 states filed letters that assured the Attorney General they would comply with the regulations and would devote 5 percent of certain DOJ grant funds to implementation.
It was an improvement over last year when only two states, New Hampshire and New Jersey, along with the District of Columbia, certified that they were in compliance with PREA, and six states refused to disclose their plans: Arizona, Florida, Idaho, Indiana, Texas and Utah.
The states that submit assurances are required to provide plans that outline how they will spend their reallocated DOJ grant funds for prison purposes in order to come into compliance with the PREA standards in the future.
The plans are reviewed and approved by DOJ. According to Talbot, DOJ is encouraged by the quality and content of the plans submitted in 2014, and their potential to assist jurisdictions in achieving compliance.
DOJ is currently reviewing the PREA implementation plans of the jurisdictions that submitted assurances in 2015.
Audits May Provide Clarity
Eventually, ongoing audits should help provide a clearer picture on how states are doing with PREA implementation.
PREA regulations require that each state agency responsible for overseeing prisons and jails post audit results online or otherwise make those records public, though there is no deadline for agencies to do so.
More than 13,000 prisons, jails and confinement facilities nationwide are subject to PREA regulations. Of those, DOJ is aware of approximately 1,200 audits that are in process across the nation, with more than 700 completed. The Justice Department relies on PREA auditors to provide information about their audit activity, and it emphasizes that these numbers are likely underestimates for a number of reasons, including non-reporting and errors in reporting by auditors.
DOJ and the National PREA Resource Center continue to work with auditors to improve the accuracy and timeliness of their reporting, Talbot says.
Audits can take upwards of nine months or more to complete, depending on a facility's size, including a six-week pre-audit phase, 180 days to take corrective action on an interim audit and 30 days to issue a final audit report. There are 600 DOJ-certified auditors, with at least one in every state, which Talbot and the National PREA Resource Center project to be enough to meet the demands of the first three-year PREA audit cycle.
By the end of 2015, DOJ anticipates there will be between 800 and 900 certified auditors.
Advocates would like to see the DOJ increase transparency by posting audit results in a single location rather than having to look for audits in myriad state websites.
Among the five states with the highest prison populations—Texas, California, Florida, Georgia and New York—Texas' audit results are the easiest and most clear to find online. One facility, the James V. Allred Unit in Wichita Falls, Texas, which has been singled out by the Justice Department as one of the nation’s 10 most sexually violent prisons, was audited in April.
The audit found the prison met 39 PREA audit standards and exceeded two. Because it met all standards, the audit declared that the facility had passed. However, there are still complaints at the prison. In the 12 months before the audit, Allred received 50 sexual abuse allegations—but the prosecutor accepted only one.
DOJ suggests that momentum for PREA compliance is building, pointing to the number of audits underway or already conducted by states as evidence of this.
“We are just at the beginning of a complex, lengthy, multi-year process to address a really important human rights issue,” Talbot said. “Sexual abuse is never a laughing matter, nor is it punishment for a crime.”
“Rather, it is a crime, and it is no more tolerable when its victims have committed crimes of their own. Prison rape can have severe consequences for victims, for the security of correctional facilities, and for the safety and wellbeing of the communities to which nearly all incarcerated persons will eventually return.”
He added: “I want to emphasize that significant progress is being made to address this human rights issue.”
Deirdre Bannon is a journalist based in Washington, D.C. She welcomes readers' comments.