Texas Gov. Rick Perry's dramatic rejection last month of the federal Prison Rape Elimination Act (PREA) called attention to the fact that many states are having trouble complying with 288 regulations required to follow the 11-year-old law.
On March 28, Perry said that his state would not comply with new federal standards aimed at preventing sexual assaults in prisons, calling them a “burden” and “ill-conceived” in a letter to Attorney General Eric Holder.
The standards he referred to are mandated by PREA. A majority of states, however, are unlikely to follow Texas’ lead.
Instead, most want to comply with the new standards and have taken significant steps to do so. Nevertheless, many won't be in full compliance by the May 15 deadline, according to a non-government source closely involved with PREA.
The reason: the standards are still being revised—and an audit component to verify compliance is not fully staffed.
As a result, those states not in compliance will be penalized with a loss of five percent of federal grant funding for programs that help victims of crime and juveniles, and reduce recidivism.
The regulations that stem from PREA come more than a decade after the law, which received unanimous support from both parties in Congress, was passed in 2003 and signed by President George W. Bush.
The final rules were released in June 2012 after a series of public hearings and commissions weighed in on the rulemaking process. However, they continue to be amended by the Department of Justice. Currently, there are 288 items that correctional facilities must follow to be in compliance—such as security cameras, hotlines for inmates to report assault, and training programs for staff.
If even one item were not followed, the state would be subject to the 5 percent penalty to grant funding.
“We're all working diligently to meet the goals of PREA to ensure the safety of offenders, but our biggest challenge has been the timeline—it's impossible to meet,” said Rob Coupe, chair of the PREA committee for the Association of State Correctional Administrators in Hagerstown, MD.
Since audits are conducted on a three-year cycle, with one-third of a state’s facilities audited each year, the first governor certifications could be erxpected in mid to late 2017, said the non government source, who spoke on background to The Crime Report.
Meanwhile, states will receive the five per cent penalty to certain components of their grant funding.
To prove compliance, states must be audited by Justice Department-certified auditors. The first audit cycle began in August 2013, but only a handful of auditors had been trained. To date, there are 114 auditors, but with thousands of prisons to assess before the May 15 deadline, compliance will be unachievable for most states—causing frustration among correctional facility leaders.
Justice Department officials told corrections administrators that, if that happens, “it's not a failure, you're just not in compliance,” said Coupe.
“But if you're not in compliance and there's a penalty associated, it feels like a failure. And even if every facility were ready, there aren't enough auditors to do it, and that's frustrating.”
States that can't certify compliance can instead sign an “assurance” letter, which says that they agree to take the 5 percent of grant funds lost through the penalty and apply it toward efforts to become compliant with PREA.
In Iowa, Gov. Terry Branstad and Attorney General Tom Miller are meeting this month to decide whether the state will opt to certify compliance without a full audit, or will instead sign the assurance letter, according to Iowa Corrections Director John Baldwin.
Coupe and his organization advocated for a one-year extension or for the ability to self-audit in the first year so as not to incur the penalty, but the Justice Department has not adjusted its deadline.
“The timeline is not practical or fair to the states and it doesn't acknowledge the work that we have done,” added Coupe. “But that being said, we're focused, we're committed, and we're going to continue to work towards compliance.”
According to informed sources who spoke on background to The Crime Report, other states considering opting out of PREA include Wisconsin, Idaho and Arizona.
While it sounds like states that lose grant money will get it back to improve prisons, the funds are being taken from a category of grants that support violence against women programs, drug courts and re-entry services so individuals stay out of prison, for example; the penalties could force some states to cut such programs altogether.
In Iowa, “the 5 percent hit will hardly touch our correctional facilities,” said Baldwin. “Instead it will impact our (Violence Against Women Act) victim grants—and I find it incredible that people might consider punishing the state by hitting victims.”
Other programs that would be impacted include substance abuse programs and those that help keep people out of prison, Baldwin adds.
Still, facilities in Iowa are working hard to come into compliance with the new standards.
“PREA is just good corrections, it's the right thing to do,” said Baldwin. “Nobody (who) works in corrections wants to have sexual assaults in their facilities.”
The vast majority of PREA standards are already in place in Iowa, but a few go against “normal business practice”—particularly those that restrict female guards from performing their duties in male facilities and vice versa, Baldwin said.
One standard that was revised just last week originally said that female security directors investigating assault cases would not be able to view videos of sexual assault incidents at the male facilities where they work (and the same would be true if the genders were reversed).
But in her role as security director, she has to see it, Baldwin said.
Keeping Prisons Safe
“That's the kind of thing that was causing us frustration—how do we comply with PREA and at the same time try to keep our institutions as safe as we can,” he said.
The rule was recently changed to allow viewing of such videos, but Baldwin and his staff spent more than six months trying to figure out how to work around that.
Similarly, one of the new standards requires unannounced inspections of units. But another rule says that if a person of a different gender enters a unit, he or she must be announced. Not only does Iowa have several opposite-gender staff in its prisons; but also the only supervisor on duty is one of the opposite gender.
“So how could they do unannounced inspections if they had to announce that they're on the unit?” Baldwin asked. “It's impossible to meet that standard if you have a large number of staff of the opposite gender than those they supervise.”
Staff reassignments are not the answer, Baldwin said, because those positions are covered by unions, which prohibit such action.
Plus, “I'm intensely proud that we have a lot of women in supervisor and manager roles in our penal institutions,” Baldwin said, adding that he continues to ask that the same-gender regulations be revised.
Speaking before the U.S. House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies on April 4, Attorney General Eric Holder said, “We are confident that these standards, which were the result of extensive public comment, are attainable.”
“The problem of sexual assault in prisons,” he continued, “is too great to settle for anything less than an aggressive approach to implementing these key reforms.”
Just Detention International, a Los Angeles-based nonprofit that actively participated in PREA's rulemaking process, wants stakeholders to remember that this is a human rights issue and that those in prison deserve to be safe.
Executive Director Lovisa Stannow called Perry's rejection of the regulation “a misguided effort to politicize prison rape.”
The group works with people who have survived “horrific abuse and life-shattering assaults,” Stannow said. “The idea that the governor would reject these standards because they are too burdensome is disgraceful.”
Deirdre Bannon is a journalist based in Washington, D.C. She welcomes readers' comments.