PREA Standards:
Federal Recommendations or Binding Law?

By Expert:  Gary DeLand

Over the past two months, I have provided training for nearly 300 participants in five states.  During those training sessions, I asked those Sheriffs and jail officials in attendance whether they believed the Prison Rape Elimination Act (PREA) standards were mandatory federal law.  Depending on the venue between 40 and 70 percent of the attendees believed that the PREA standards are federal law binding on jail officials.  Is that the case?  To properly answer that question, it is important to distinguish the PREA statute[1] from the PREA standards written by the U.S. Department of Justice (DOJ).[2]  The Act passed by Congress requires the DOJ to write standards to “develop and implement national standards for the detection, prevention, and punishment of prison rape.”[3]  Those standards – now that they have been published – have resulted in some misunderstanding of the authority of the standards.


Authority of DOJ PREA Standards
The DOJ PREA standards “shall apply to the Federal Bureau of Prisons immediately” after their adoption;[4] however, the decision regarding whether to adopt the DOJ PREA standards at the local level is within the lawful discretion of the individual Sheriffs who operate jails.  The U.S. Department of Justice (DOJ) states their PREA standards are not mandatory for county jails.  “PREA does not require State and local facilities to comply with the Department [of Justice]’s standards, nor does it enact a mechanism for the Department to enforce such compliance; instead the statute provides certain incentives for such confinement facilities to implement the standards.”[5]  Thus, Sheriffs and their jail officials should not assume that the DOJ PREA standards are legal requirements.  Jail policies and procedures should clearly state that the DOJ PREA standards do not create constitutional or other legally enforceable requirements, nor do the standards protect against prisoner litigation.  Jail officials should rely on constitutional and statutory law as the authority upon which to base the formulation of written policies and procedures.

The DOJ in its summary of the act makes it clear that the DOJ PREA standards do not set or define constitutional minima.  “The [PREA] standards are not intended to define the contours of constitutionally required conditions of confinement.”[6]  On the contrary, they are simply what the DOJ considers to be “a variety of best practices.”[7]  And, the standards are simply “based on the independent judgment of the [U.S.] Attorney General”[8], not on legal precedents.  Simply because the DOJ enacts standards does not mean they can set constitutional minima.

Prior standards administratively established by the DOJ have been found lacking in legal authority.  For example, in 1978, the DOJ published federal correctional standards with the intention of defining requirements for incarcerating pretrial detainees; however, the standards were rebuffed by the U.S. Supreme Court.  In that case, the Court ruled:

[T]he draft recommendations of the Federal Corrections Policy Task Force of the Department of Justice regarding conditions of confinement for pretrial detainees are not determinative of the requirements of the Constitution. See Dept. of Justice,Federal Corrections Policy Task Force, Federal Standards for Corrections (Draft, June 1978).[9]


Compliance as a Protection from Prisoner Litigation
The Sheriff and his jail officials have the discretion to decide whether to seek to become accredited under the DOJ PREA standards. I recently heard a representative of a national correctional association assert that regardless of whether compliance was or was not required, accreditation under the DOJ PREA standards would protect jail officials from liability in prisoner sexual abuse litigation.  That is simply not true.  The DOJ itself states that noncompliance with PREA does not create liability nor does compliance with PREA protect jail officials from liability.[10]

There may a number of reasons to adopt and implement the vast majority of the DOJ PREA standards; however, their use as a silver bullet to protect against litigation is not a viable justification.  It would be folly to implement the DOJ PREA standards due to a mistaken belief that the standards are mandatory requirements enforceable in federal court or because of an expectation that the PREA standards can prevent prisoner litigation.  If jails are sued as a result of alleged sexual abuse of a prisoner, the county officials will be facing the Constitution-based duty to protect requirements set forth by the U.S. Supreme Court in Farmer v. Brennan,[11]  not the DOJ PREA standards.


No Penalties,Only Consequences
Noncompliance with the DOJ PREA standards does not expose Sheriffs or jail officials to penalties.  The DOJ PREA standards are binding only on the Federal Bureau of Prisons.[12]  There are no penalties for counties that do not achieve accreditation or seek compliance.  The federal government may, however, have some leverage through the U.S. Marshals Service (Marshals) and Immigration and Customs Enforcement (ICE).  Those two agencies seek to require compliance with the DOJ PREA standards through contracts with those jails that house their prisoners for a fee.  I suppose it would create an interesting dilemma for ICE and the Marshals if Sheriffs in areas where the federal need for jail beds was high – but beds were scarce – opted not to sign contracts that demanded full compliance with the DOJ PREA standards.  Would the need to secure beds for federal prisoners soften contract requirements?

While there are no federal penalties that can be levied against non-participating Counties, there are potential  “consequences” for the State.

A State whose Governor does not certify full compliance with the standards is subject to a loss of five percent of any Department of Justice grant funds that it would otherwise receive for prison purposes, unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years.[13]

If the loss of that small part of DOJ grant funds is sufficient to cause a State’s Governor or legislature to create a mandate at the state level, then matter would be a subject to penalties the state may choose to impose, if any.  The State would have additional leverage over any counties that contract with the State to house its prisoners or who receive grant moneys through the State, in the event the State made those grant funds conditional on achieving full compliance.

The PREA language places limits on what the DOJ PREA standards can impose in terms of costs.

The Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities. The Attorney General may, however, provide a list of improvements for consideration by correctional facilities.[14]


Summary of the DOJ PREA Authority

The DOJ PREA standards were created as a requirement of Congress to provide recommendations or standards to assist agencies to come into compliance with the provisions of Public Law 108-79, the Prison Rape Elimination Act of 2003.  PREA is well-meaning legislation intended to curb sexual abuse of prisoners in prisons, jails, lockups, and juvenile facilities.  The stated purpose of PREA is to prevent sexual assaults and sexual harassment of prisoners, a duty already imposed on county jail officials by the U.S. Constitution’s 8th and 14th Amendments.

While it is my belief that a substantial part of the DOJ PREA standards that can provide  benefit and aid to jail officials in their efforts to curb sexual abuse or harassment of prisoners, some parts are – in my judgment – not helpful, arguably even counter-protective.  In future articles those issues will be discussed; however, the purpose of this article is not to provide a cost-benefit analysis of the standards or to discuss the various provisions of the Act, it is simply to evaluate the legal authority and compliance enforcement questions that have surfaced with the publishing of the DOJ PREA standards.


     [1]42 USC § 15601 et seq.

     [2]28 CFR § 115.

     [3]42 USC § 15602(3).

     [4]42 USC § 15607(b).

     [5]U.S. Department of Justice, National Standards to Prevent, Detect and Respond to Prison Rape, Executive Summary, p. 10 (emphasis added).

     [6]U.S. Department of Justice, National Standards to Prevent, Detect and Respond to Prison Rape, Executive Summary, p. 2

     [7]Executive Summary, U.S. Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, p. 2 (emphasis added).

     [8]42 USC § 15607(a)(2) (emphasis added).

     [9]Bell v. Wolfish, 441 U.S. 520, 543 n. 27 (1979) (emphasis added).

     [10]Executive Summary, U.S. Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, p. 2 (emphasis added).

     [11]511 U.S. 825 (1994).  Also see Hudson v. Palmer, 468 U.S. 517, 526-527, 548 (1984).

     [12]42 USC § 15607(b).

     [13]42 USC § 15607(c).

     [14]42 USC § 15607(a)(3) (emphasis added).