Solutions to PREA – Part 1

By Expert:  Tate McCotter, NCCE

A headline like “Jail Fails to Comply with PREA”1   is not uncommon to read in the daily news.  Unfortunately, some information being put out by various organizations is misrepresented on PREA and has caused confusion among our jails.  Perhaps worse, they have negatively altered public perception of the Sheriff’s office and jails (After all, if you aren’t DOJ PREA compliant, you must not care about protecting the inmates from rape, right?)

That conclusion is, of course, false and sheriffs and jails need to be articulate in defending their positions.  Governor Perry (TX) recently announced their state would not comply with the DOJ PREA standards and cited specific reasons.2   While he was still attacked by some inmate right advocate groups, many agreed and felt the Governor was justified in the decision because of the proof provided showing what Texas was doing and had done already to create a zero tolerance toward sexual abuse in prisons and jails.  It was interesting to note that cost was just a minor part of that reasoning.

Sheriffs, jail administrators and county commissioners responsible for funding jails have turned their full attention to PREA.  Many sheriffs have elected not to follow the voluntary DOJ PREA standards.  Others have decided to adopt the standards.  And some are still trying to figure out what the best interests are for the sheriff’s office, inmates and county to address PREA.

Outside organizations have also paid close attention to PREA and have hit the media to promote their own agendas.  Recently, the North Carolina American Civil Liberties Union sent out letters to every sheriff in their state asking for copies taken on the project to  of their PREA policies under their state open records act.  According to ACLU policy director Sarah Preston, the ACLU has determine whether county sheriffs and their jails are in compliance with PREA because no one else checks on them, Preston said, “Nobody really has control over the sheriffs except whoever elects them,” she said. “That’s part of why we’re investigating them.”3

In discussions with them, the ACLU told NIJO they see PREA as an opportunity to get the laws changed regarding incarcerated juveniles in their state.  Currently juveniles age 16-17 can be housed with adults, which statute they strongly oppose.  There are other issues as well they hope to address using PREA as a platform for change.

Here are some facts about PREA every sheriff, jail administrator and line level officer should know.

  1. Compliance with the DOJ PREA standards is VOLUNTARY.4 Because the phrase PREA is often incorrectly associated with the DOJ PREA standards, especially since their release in 2012, the Act5 and the DOJ PREA6 standards have become synonymous as one and the same to many who do not know the difference.  This is not true and is the root of many of the misunderstandings.In the follow up letters that were sent out to the NC sheriffs who were not DOJ PREA compliant,the ACLU wrote “It is deeply troubling that your facility is making no efforts to comply with PREA given that this law is intended to realize the laudable goal of preventing sexual assault in jails and make reporting of assault easier for detainees.”  The letter, signed by ACLU-NC Policy Director Sarah Preston and ACLU-NC Legal Director Chris Brook reads “PREA compliance is not optional and failure to implement the changes required by PREA puts your facility at risk.”7In phone calls made to the North Carolina ACLU office by the National Institute for Jail Operations staff, there wasn’t a distinction made or recognized between the Act and the DOJ PREA standards whatsoever. Sheriffs and jail administrators should take opportunities to clarify the differences while emphasizing the importance and efforts made to run constitutional jails.
  2. All jails should comply with the Prison Rape Elimination Act passed in 20038 to create a zero-tolerance culture of preventing sexual abuse and assaults in all correctional facilities.  While there has been a lot of buzz about PREA, there is essentially no new cause of action in the Act for jails – the duty to protect inmates from sexual abuse and assault was established well before the 2003 Act was passed. It does certainly put more awareness and attention on sexual abuse in jails than ever before.  Jails should continue to exercise all available means to prevent sexual assault from occurring.  The degree at which jails should focus on PREA should be based on available resources.  Running a constitutional jail requires much more than the prevention of sexual abuse and assault. There are many high liability issues jails face daily that create considerable risk including inmate discipline, use of force, suicide prevention, medical and mental health care. Prioritizing those with PREA is challenging but is the responsibility of the keeper of the jail.
  3. Saying you are PREA compliant, whether you are adopting the DOJ PREA standards or not isn’t enough! Jails need policies,procedures and training which address PREA and document how they have created a zero tolerance environment toward sexual assault and abuse.  Just like any other issue facing jails, PREA policies and practices must be legal-based,updated, and documented to beat claims of deliberate indifference.10

 

Many jails had widely implemented a large chunk of the provisions of the DOJ PREA standards well before they were released as a proactive means of addressing the need to protect inmates from sexual assaults.  Others have used the DOJ PREA standards as a measuring stick and as a resource to update their current policies and procedures.   With all the attention on PREA, many facilities have become painfully aware that their policies and practices need to be refined or put into an official format via a formal policy with documented training plans.

Policy and procedure writing is a daunting task.  Limitations on staff, budget, technical writing skills, and time often result in outdated policies or worse, relying on cookie-cutter policies and procedures borrowed from other facilities which are not legal-based or applicable to the facility adopting them.  If applied and not followed, the results can be more devastating in a court of law.

CONTINUED:  Are You PREA Ready?  – Part II 
AUTHOR: Tate McCotter is the Executive Director for the National Institute for Jail Operations (NIJO).  He has presented and trained on legal-based jail standards, policy and procedure development, creating constitutionally safe jails, PREA, and auditing and inspection programs at numerous National Sheriffs’ Association annual and winter conferences, state sheriff association meetings, state jail administration seminars and other training venues for correctional staff and administrators.

 


REFERENCES:

  1. Velliquette, Beth. (2014, April 20).  ACLU checking for compliance with rape-prevention law.  The Charlotte Observer.  Retrieved from http://www.newsobserver.com/2014/04/20/3799199/aclu-checking-jails-for-compliance.html?sp=/99/102/110/113/#storylink=cpy
  2. Chen, Cathaleen Qiao. (2014, March 31).  Perry:  Anti-Prison Rape Standards “Impossible.”  Retrieved from: https://www.texastribune.org/2014/03/31/perry-anti-prison-rape-standards-impossible/
  3. American Civil Liberties Union of North Carolina (2014, April 2). Many N.C. Jails Fail to Comply With Prison Rape Elimination Act.  Retrieved from http://acluofnc.org/index.php/blog/many-n-c-jails-fail-to-comply-with-prison-rape-elimination-act.html
  4. 42 USC § 15607(b).
  5. 42 USC § 15601
  6. 28 CFR § 115.
  7. Velliquette, Beth. (2014, April 20).  ACLU checking for compliance with rape-prevention law.  The Charlotte Observer.  Retrieved from http://www.newsobserver.com/2014/04/20/3799199/aclu-checking-jails-for-compliance.html?sp=/99/102/110/113/#storylink=cpy
  8. 42 USC § 15601 et seq.
  9. See 8th and 14th Amendments of the U.S. Constitution
  10. 511 U.S. 825 (1994).  Also see Hudson v. Palmer, 468 U.S. 517, 526-527, 548 (1984).

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