 Print
The following comments were submitted to the Department of Justice Office of Legal Policy on April 4, 2011.
I submit these comments on behalf of Prison Fellowship in response to the Department of Justice's proposed standards on prison rape. Prison Fellowship, the nation's largest ministry to prisoners and their families, has been active at every stage of the effort to eliminate rape in American prisons. We assisted in drafting the original legislation, testified before Congressional hearings, encouraged our supporters to write their representatives and called the Church to action on behalf of the victims of prison rape who have no voice. Further, I served as a member of the National Prison Rape Elimination Commission.
To read the NPREC’s comment to the Department of Justice, click here.
|
The high incidence of rape in our prisons is a blot on the character of the nation. The studies by the Bureau of Justice Statistics, called for in the Prison Rape Elimination Act (PREA), found that in a year's time there were over 216,000 sexual assaults in our prisons, jails and detention centers. Yet, for years many prison officials have scoffed at the notion that rapes were taking place in our prisons. Others shrugged it off as an expected part of prison life. When asked about prison rape, one spokesperson for the Massachusetts Department of Correction said, "Well, that's prison . . . I don't know what to tell you." In that offhand remark, he was expressing what many feel in their hearts but are loath to admit-"they deserve it."
But the inmates don't deserve it. Regardless of the crimes they have committed, no offender's sentence includes being raped while in the custody of the government. By its very nature, imprisonment means a loss of control over the circumstances in which inmates live. They cannot choose their neighbors (cellmates), nor where to shower, nor arm themselves, nor take other steps to protect themselves. Because the government has total control over where and how inmates live, it is the government's responsibility to make sure they aren't harmed while in custody. Our prisons have failed in that duty. That is why Congress passed PREA unanimously.
The failure of prison officials to take prison rape seriously is why the standards are so important. Theses standards will be the rules by which prison officials will be held accountable for what they have not done so far - protecting inmates from being raped while in their custody. While the Justice Department made some modest improvements to the standards proposed by the NPREC, in most instances the DOJ's changes substantially weaken them. Prison Fellowship's founder, Chuck Colson, has described the horror of rape in our prisons. "Since my release I've visited hundreds of prisons. I've met many inmates who had been raped. I've seen blood on the floor of a cell after a rape, and my heart grieved for the victim. For decades, this barbarism has been hidden from public view. But finally, prison officials and politicians are talking about it and doing something about it." Prison Fellowship's volunteers are frequently confronted with inmates broken in spirit as well as body by vicious rapes at the hands of fellow prisoners or by the officers who are supposed to guard them. How could we not speak up on these inmates' behalf? They have no other voice than ours. That is why we object so strongly to the weakening of the standards as proposed by DOJ.
The Prison Rape Elimination Act (PREA) prohibited the Attorney General from establishing "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." Otherwise the Attorney General was required to give "due consideration" the standards proposed by NPREC. He was given the authority to exercise his independent judgment" informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider."
Prison Fellowship feels that the standards proposed by the Justice Department weaken the standards without justification. The Booz Allen review of the cost of implementing the NPREC standards shows that most of those standards do not impose substantial costs. The DOJ changes to those standards which have no substantial costs are instead based on mere preferences of DOJ. There is no indication that the DOJ working group gave due consideration to the years of NPREC's work as required by PREA.
We object to the entire process DOJ has undertaken in reviewing NPREC's proposed standards, and object to those standards that weaken them as beyond the scope of the Attorney General's authority under PREA. We expressed this objection in letters to the Attorney General, and after he did not respond to those letters, we repeatedly stated them in op-ed columns and other media.
Congress did not intend for the Attorney General's review process to set aside the work of the Commission and undertake an ab initio consideration of prison rape. Yet, that is exactly what the DOJ has done, in the process allowing the very institutions that have failed to protect inmates from sexual assault to undercut the NPREC standards and limit their accountability under PREA.
Prison Fellowship asks that the NPREC standards be adopted unless the DOJ can show that those standards are unreasonable or that the DOJ proposal will provide more protection from sexual assaults than the NPREC standards will.
The appropriate test of the standards should be a two-pronged analysis. First, do the proposed standards taken as a whole impose substantial additional costs compared to the $74 billion being spent on corrections in the United States? If the answer "No", then each NPREC standard should be compared with the proposed DOJ revision. The Attorney General should choose the standard that would provide inmates the greatest protection from sexual assault. That is the intent of PREA, and this two-pronged test should guide the Attorney General in this final phase of adopting standards.
Prison Fellowship asks that the Attorney General give due consideration to the NPREC standards and each be adopted unless the DOJ can show that those standards are unreasonable or that the DOJ proposal will provide more protection from sexual assaults than the NPREC standards will.
We incorporate the comments of the former NPREC commissioners as fully in keeping with Prison Fellowship's position on the standards.
In particular, Prison Fellowship asks that the standards adopted should:
- Prohibit cross-gender pat down searches except in emergencies. Many sexual assaults by officers on inmates start with aggressive pat searches. This prohibition should apply to both sexes. Is it any less offensive to have unwarranted aggressive groping to a man than a woman?
- Restore the strict standards of independent audits proposed by NPREC. Without outside oversight to ensure compliance the standards will have little effect.
- Protect immigrants in ICE detention centers. PREA was enacted when INS centers were under DOJ and the clear intention was to include detainees in immigration facilities under its protections.
- Restore the requirement that prisons enforce PREA. The DOJ's standards don't require enforcement of PREA, but merely requires the prison develop a plan to protect inmates. There is no provision that requires enforcement of those plans. There should be.
If rapes are to be eliminated from American prisons we must not continue with business as usual in our prisons. Several states and jails have already implemented these standards without difficulty and without excessive costs. It is possible to protect inmates from sexual assaults. It is now up to the Attorney General to provide strong standards to hold prison officials accountable for eliminating rapes in our prisons. We urge him to set aside the proposed standards that weaken these protections, and reinstate the NPREC standards where they are stronger. The Attorney General has the ability, indeed the duty, to establish strong standards to protect those in the government's care. We are a better people than our record on prison rape would indicate. And the strength of the prison rape standards will determine if the stain of prison rape will be addressed and our national honor restored.
Respectfully submitted,
Pat Nolan
Vice President, Prison Fellowship
Former member, National Prison Rape Elimination Commission |
