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On January 24, 2011, the Justice Department released a proposed rule to prevent and respond to sexual abuse in confinement as required by the Prison Rape Elimination Act. The proposed rule contains four sets of national standards aimed at combating sexual abuse in four types of facilities: adult prisons and jails, lockups, juvenile and community corrections facilities. This structure is similar to the National Prison Rape Elimination Commission standards which were given to the Attorney General for his review in June 2009. The former commissioners are deeply concerned about some substantive changes that, in the view of many, will compromise rather than promote the safety of confined and detained men, women and children. The removal of standards to ensure the safety of particularly vulnerable immigration detainees, many of whom have no criminal histories, is a matter of grave concern to the former commissioners.
Former Chair, Judge Reggie B. Walton, issued a statement in which he questioned whether the Department of Justice standards will be as effective as those of the National Prison Rape Elimination Commission in reducing the inexcusable amount of sexual abuse in federal, state and local facilities. Judge Walton noted that the National Prison Rape Elimination Commission standards development process benefited from the contributions of dozens of private and governmental organizations and more than four hundred individuals who provided testimony at hearings, advice at expert committed and stakeholder meetings, and input during an extensive public comment period. Each set of standards has been customized to ensure validity for particular conditions of confinement.
Judge Walton continued that cost appears to be the primary objection of those who would weaken, and in some instances eliminate, certain National Prison Rape Elimination Commission standards. The Department of Justice asserts that the National Prison Rape Elimination Commission standards would cost billions of dollars to implement unlike those proposed by the Department of Justice. The former commissioners disagree. It is likely that the Department of Justice misread some standards, for example, erroneously assuming that all agencies are required to install extensive and expensive video monitoring systems. Judge Walton also questioned the basis of the Department of Justice's estimates and the apparent conclusion that the National Prison Rape Elimination Commission standards constitute a substantial additional cost which is prohibited by statute.
The former commissioners commend the Department of Justice for several enhancements to inmate safety in its proposed standards, particularly in the area of victim services and additional protections for especially vulnerable populations. They do, however, object to the elimination of the requirement that corrections officials demonstrate that the level and type of supervision is adequate to protect inmates from sexual abuse. The Justice Department's standard mandate planning for a safe environment but proof of successful implementation is not required.
The former commissioners are equally troubled by the elimination of regular and independent audits of facilities with outcomes publically posted which are essential for institutional transparency and accountability. The Justice Department's version of an audit compromises both these critical components. Rather than a time certain (every three years is the National Prison Rape Elimination Commission requirement) to ensure the proper treatment and safety of inmates, the Department of Justice is considering several scenarios which may initiate an audit, such as conditions at a facility which engender concern, random sampling, among others.
The Justice Department's standard is regressive on cross gender searches, specifically with regard to security pat-down searches. Virtually all state prison systems presently prohibit male staff from searching women inmates in the absence of exigent circumstances. This view is supported by a 1999 study conducted by the National Institute of Corrections (a Department of Justice component). The former commissioners are informed that a similar ban exists in most jails. The Federal Bureau of Prisons policy and practice, however, routinely permit cross gender pat searches of female inmates by male correctional officers. The former commissioners believe that it is improvident to adopt the Bureau's practice rather than what is prevalent in the majority of correctional institutions and supported by a robust body of case law. Note that the National Prison Rape Elimination Commission's position is that prisons and jails are comparable; therefore, all cross gender pat-downs and searches should be prohibited absent an emergency.
The exclusion of standards for immigration detainees is of the utmost concern. The circumstances of the detained, especially unaccompanied children and youth, render this population particularly vulnerable to sexual abuse. The Justice Department claims that the Department of Homeland Security and Immigration and Customs Enforcement (ICE) have or will develop sexual abuse standards and policies. This outcome creates a double standard; an immigration detainee in a jail would be protected by the Prison Rape Elimination Act standards but would lose that protection if transferred to an ICE facility.
These are just a few of the areas of concern about the Department of Justice proposed standards. The former commissioners are unwavering in their commitment to the safety and decent treatment of the men, women and children who are confined or detained in our Nation's correctional facilities.
About National Prison Rape Elimination Commission:
It is a bipartisan commission created by Congress as part of the Prison Rape Elimination Act of 2003. The Commission was charged with studying federal, state and local government policies and practices related to the prevention, detection, response and monitoring of sexual abuse in correction and detention facilities.
*Judge Walton's statement is in his capacity as former chair of the National Prison Rape Elimination Commission (NPREC) and on behalf of seven of eight members of the commission. Former commissioner Gus Puryear has chosen not to be actively involved after NPREC fulfilled its congressional mandate. |
