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Prison Rape and the Government

Darcy Padilla
Inmates in an isolation unit for HIV-positive convicts at the California Medical Facility in Vacaville, 1990; photograph by Darcy Padilla, winner of the 2010 W. Eugene Smith Award in Humanistic Photography

The Prison Litigation Reform Act of 1996, which was written with the explicit purpose of limiting inmates’ access to judicial redress, insists that prisoners must successfully follow the grievance procedures of the facilities where they were abused before seeking help from a judge. Many prison systems have harsh requirements about how quickly after an assault complaints must be filed. Such deadlines often take no account of the likelihood that a victim will still be in shock or in the hospital when that time expires, or of many inmates’ very reasonable fear of retaliation if they do file a grievance within their facilities.10 Recognizing this, the commission tried to ensure that reasonable access to the courts would be restored to victims of prisoner rape. But the Justice Department’s draft requires facilities to adopt grievance policies like the one used by the federal Bureau of Prisons—which has even stricter deadlines than those currently used in eighteen states, giving inmates only twenty days to file complaints after an assault, and an additional ninety-day extension only if they are able to document trauma.11 In many places, therefore, this PREA standard might have the perverse effect of further limiting recourse for people raped in prison.

The department is also weakening one of the commission’s recommendations by allowing adult facilities to place victims or those at high risk in segregated, isolated housing for ninety days, even against their will, in order to prevent further assaults. But “solitary confinement” is more commonly used as punishment; it can have devastating psychological effects, especially to people already traumatized. Such segregation has been used with particular frequency against gay inmates in the past, again purportedly for their protection, but often against their will and when no abuse has taken place. Some inmates request segregated housing for their own protection, and they should have that right. No one should be subjected to it involuntarily, however, simply for reporting abuse. The risk of such isolation now contributes to many inmates’ reluctance to file grievances. When a victim and his assailant must be separated, it would be more appropriate to isolate the abuser.

The department has essentially eliminated the commission’s requirement that inmates be able to report abuse confidentially to people unaffiliated with their facilities. Like the commission, it gives victims access to an advocate during the investigation process; unlike the commission, though, it does not require these advocates to be outsiders, but would allow them to be “qualified”12 employees of the facility where the abuse took place. Here we suspect that the department may have given in to pressure from corrections officials who fear opening their facilities to outside scrutiny. But if the department is serious about wanting to prevent sexual abuse in detention, it must open prisons to outsiders. It cannot allow them to continue policing themselves.

Much more difficult problems emerge when the Justice Department considers supervision of inmates by officers of the opposite sex. Since this can lead to elevated rates of abuse, the commission recommended standards limiting staff’s ability to view inmates of the opposite sex while undressed or to touch them during searches, except in emergencies—recommendations that still came far below international norms. The department has weakened them even further. It bans officers from performing strip searches and visual body-cavity searches on inmates of the opposite sex, except in emergencies, but not from pat-searching them, or viewing them in the shower or on the toilet during cell checks.

The department is worried that a ban on cross-gender pat-searches might mean facilities would have to fire many of their female employees and hire more men, which would be very expensive and perhaps illegal. And it maintains (something we agree with) that it can be beneficial for inmates to have staff of the opposite sex in their facilities. The problem, though, is that a significant majority of staff-on-inmate sexual abuse is cross-gender—women abusing men, as well as men abusing women—and much of it starts during (but then is not limited to) pat-searches.

But it is possible to have both male and female employees available in a facility when nonemergency searches are required so that pat-searches could be conducted by members of the same sex. There are also simple ways to limit the incidental viewing of inmates on the toilet, by, for example, installing small privacy screens, or where that’s impractical, allowing inmates to hang a towel from the bars of their cells for a few minutes. In any case, the department should not give higher priority to the employment concerns of corrections staff than to an essential purpose of their jobs, which is ensuring the safety of inmates in their care.

To have any hope of keeping inmates safe, staff must know what is happening to them. The department’s standard on supervision, which addresses both staffing levels and video monitoring, is one of its most important. Yet neither the department nor, before it, the commission has defined what would be adequate supervision. (It does not, for example, point out where recording cameras are needed to detect rape in such places as closets or require extra monitoring for inmates with known histories of sexual assaults.) This is a terribly disappointing failure after seven years of work.13

Even more troubling is the lack of any mechanism for holding facilities accountable when they do not give inmates the supervision that is needed. All the department proposes is that corrections agencies be responsible for writing annual supervision plans for each of their facilities; they must also devise backup plans in case the first plans cannot be met. But even after deciding for themselves what would be sufficient, agencies face no penalties, either for failing to provide adequate supervision or for failing to implement their backup plans.14

None of the department’s standards, in fact, will be meaningful unless sufficient mechanisms exist to enforce them. Unfortunately, the department has not yet reached decisions on many important aspects of monitoring compliance—raising the possibility that it might ultimately issue weak auditing standards without even submitting them for public comment first. Indeed, the department has hinted at such a possibility, by proposing that the standards not require true independence from those who judge compliance: that instead, audits could be conducted by “an internal inspector general or ombudsperson who reports directly to the agency head or to the agency’s governing board” (emphasis added). Anyone answering directly to the agency, though, could easily be pressured to minimize or ignore certain conditions, or prevented from fully examining conditions should the agency not provide sufficient funding.15

As is abundantly clear from the Justice Department’s draft, its primary consideration in weakening the standards was expense. The government must fulfill its human rights obligations: this is a constitutional and moral imperative to which budgetary considerations are secondary, especially when, as the department affirms here, the measures in question will not “have [a significant] effect on the national economy.”16 On the other hand, PREA stipulated that no standards should be issued “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities,” and the department was obligated to take that seriously.17

Given the scope of the standards, it was not only appropriate but legally mandated that the department conduct a cost-benefit analysis of the standards’ projected financial impact, which it has done.18 It projected costs not only for its own standards but for their “most obvious alternative”—e.g., the commission’s recommendations—and found that its proposals would require about $544 million per year in ongoing costs, or, it believes, about a tenth of the commission’s. This last assertion is a dubious one, because the cost projections for the commission’s recommendations are deeply questionable, but it does at least suggest the extent to which the department has diluted the commission’s standards. Having also projected the financial benefits of preventing the various kinds of sexual abuse in detention, the department then determined that its proposed standards would be fiscally justified if they reduced the number of victims by only about 3 percent19—something it is so confident they would achieve that the department simply asserts it. On that point, so far as it goes, we more than share the department’s confidence.

The assumptions and valuations the department has made in estimating the financial benefits of preventing prisoner rape are extremely conservative.20 By erring on the side of great caution in its projections of those benefits, and then showing that they would still outweigh costs even if the standards saved only 3 percent of all victims, the department has made it very difficult for anyone to complain about its proposals on the basis of extravagance. But cost-benefit analysis is not meant to be a tool with which bureaucrats and political appointees protect themselves from criticism; it is meant to help them maximize the public good achieved through their regulations. To have used it responsibly for that purpose, though, the department would have had to make some effort to estimate how many inmates would in fact be spared abuse by the standards. Its assertion that the standards could reduce sexual abuse in detention by 3 percent is not good enough. It is clear to anyone who has studied them that they could do that, and much more than that. The question is, how much more?

Since the standards are an effort to codify innovations and best practices of facilities that have already had some success in reducing their rates of sexual abuse, we propose looking more closely at the last BJS study of sexual abuse in adult facilities, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–09.21 This study from August 2010 was based on surveys administered at 167 prisons and 286 jails. If we take the average rates of abuse in the best half of those facilities, and then imagine that these rates could become the national averages, that would give us an estimate of possible gains that was both realistic and conservative, based on what has already been accomplished across the country.22 The top half of all facilities have made their achievements without explicitly stated standards; there is still plenty of room for them to improve, and every reason to expect that they will once the standards are in place, though probably not as dramatically as the bottom half of facilities. In our opinion, if the department issues strong standards, it wouldn’t be unrealistic to expect that the national rates of abuse could sink to those of the best quarter or even the best tenth of all facilities.

But even if the standards allowed all facilities to do only as well as half do now, they would be saving not 3 percent of the people sexually abused in detention, but over 53 percent.23 This means that had the standards been in place in 2008, instead of the 199,500 people who the department says were abused in adult prisons and jails, there would have been about 93,100. More than 100,000 adults (as well as many thousands of children) would have been saved an experience from which few recover emotionally.

  1. 10

    About 17 percent of those raped in prison suffer serious additional injuries—knife wounds, broken bones, concussions—and they must often be hospitalized. Sexual abuse of any kind can also cause or exacerbate serious mental and emotional problems: 30 to 40 percent of inmates suffer from such disabilities even prior to any abuse—which, of course, also makes them particularly vulnerable to being abused. And as the department says, “Retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a real and serious threat in correctional facilities. Fear of retaliation, such as being subjected to harsh or hostile conditions, being attacked by other inmates, or suffering harassment from staff, prevents many inmates and staff from reporting sexual abuse, which in turn makes it difficult to keep facilities safe and secure.” An inmate who has been sexually abused typically feels a sense of panic, extreme isolation, and vulnerability; it is very difficult for such a person to trust any member of the facility’s staff when staff have already failed to protect him (or, indeed, when it was staff who abused him). 

  2. 11

    Deadlines are not the only problems inmates face in trying to comply with the grievance procedures of their facilities. Many corrections agencies across the country have taken advantage of the Prison Litigation Reform Act to avoid responsibility for abuses within their walls by creating deliberately confusing or even contradictory grievance requirements. Thus, for example, two recent court cases in Iowa and New York arose after female prisoners followed advice given in agency materials and complained about sexual abuse to officials whom they trusted; but neither the case manager turned to in Iowa nor the inspector general in New York had a role in the official grievance systems of those states, and therefore the courts decided that judicial review was procedurally barred in each case. Such procedural traps and labyrinths are particularly challenging for the country’s many illiterate and mentally ill inmates. The department should insist that all grievance procedures be simple, clear, and possible to follow. 

  3. 12

    Beyond failing to recognize the important reasons why this advocate should be an outsider, the department’s standard gives no binding criteria by which a staff member would be deemed qualified. Its discussion of what it believes might be required for such qualification suggests that it would accept much more limited training than community rape crisis centers typically demand. Moreover, the department has no requirement that staff members go through any screening in order to become qualified, raising the dangerous possibility that staff perpetrators of sexual abuse might serve as victim advocates. 

  4. 13

    Complicated though this question is, some elements of its solution are clear enough. To mention only a few points, recording cameras should be placed in a facility’s known blind spots, including places not designated for inmates but where an abusive staff member could take them, such as closets; similarly, places in a facility where sexual abuse has been known to occur should be monitored, either directly by staff or with cameras; there should be direct “sight and sound supervision” of inmates with a known history of sexual predation when they are in common areas, shared cells, or otherwise interacting with fellow inmates; and the extent to which individual staff members are able to spend time alone with inmates should be minimized. More such suggestions will be forthcoming in the public comment that Just Detention International intends to make in response to the department’s draft standards, and will be available on the organization’s website. 

  5. 14

    The department writes that auditors would probably not “be able to determine the appropriate staffing level in the limited amount of time available to conduct an audit.” Perhaps not, and perhaps asking auditors to create such plans would be too much, but they should certainly be allowed to decide when supervision is inadequate. They must be allowed to reject the plans that agencies have made for their own facilities, and to include failures to provide adequate supervision or to implement backup plans in their public reports. 

  6. 15

    In addition to being truly independent and adequately funded, auditors must have the power to visit every detention facility, unannounced and at any time; to examine and copy documents; to hold private, confidential conversations with all inmates and staff; and to have their findings on noncompliance and recommendations for improvement made publicly available. The standards should require regular document review of the policies and practices of every facility. Ideally, auditors would visit every facility at least every three years. If this isn’t possible due to the immense number of corrections facilities nationwide, the standards should require “for cause” audits of facilities where serious problems have been identified, and also the possibility of random audits for all facilities, so that all have proper incentives to comply with the standards, and so that problems can be identified and addressed before becoming serious. The department’s proposals guarantee none of these things. 

  7. 16

    The sentence reads, “The Department does not believe that these national standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services.” 

  8. 17

    However, as the department says, “Congress understood that such standards were likely to require Federal, State, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing the standards. Given the statute’s aspiration to eliminate prison rape in the United States, Congress expected that some level of compliance costs would be appropriate and necessary.” 

  9. 18

    Cost-benefit analysis, as the name suggests, is an effort to quantify both the price and the measurable savings or positive monetized gains associated with a proposed regulation. Ideally it is used to maximize the social good; at a minimum (and perhaps more commonly in practice) it is used to ensure that the achievements of any regulation aren’t outweighed by its expense. For a more complete discussion of cost-benefit analysis and its applicability to the department’s efforts to prevent sexual abuse in detention, see David Kaiser and Lovisa Stannow, “Prison Rape: Eric Holder’s Unfinished Business,” NYRblog, August 26, 2010, available at http://www.nybooks.com/blogs/nyrblog/2010/aug/26/prison-rape-holders-unfinished-business/. See also Institute for Policy Integrity, Letter to Robert Hinchman, dated May 10, 2010, available at http://policyintegrity.or/documents/IPI_PREA_Comments_-_FINAL.pdf, and Institute for Policy Integrity, Memo to DOJ PREA Working Group and Office of Information and Regulatory Affairs dated September 10, 2010, available at policyintegrity.org/documents/PREA_Memorandum_September_2010.pdf

  10. 19

    More precisely, the department says that “the proposed standards would have to yield approximately a 2.3–3.5 % reduction from the baseline in the average annual prevalence of prison rape for the ongoing costs and the monetized benefits to break even, without regard to the value of the nonmonetary benefits.” For the commission’s standards to “break even” with the department’s projection of their costs, the department estimates that they would have to reduce sexual abuse in detention by 22 percent. 

  11. 20

    For example, the department has assigned a value to saving an inmate from “nonconsensual sexual acts involving pressure” that is only one fifth the better-established benefit of preventing rape by force, suggesting a similar differential in the “cost” of these crimes. This seems especially low considering that mental trauma and loss of quality of life account for 85 percent of the department’s estimate of the “cost” of forcible rape; we believe that the psychological damage inflicted by the two kinds of abuse is similar. The value it assigns to preserving an adult from “abusive sexual contact” is only $375; for a juvenile, it is $500.

    More generally, the department has not attempted to quantify all the measurable benefits of preventing sexual abuse in detention. For example, it writes that “sexual assault in prison often leads to long-term trauma, especially if victims are not treated properly in the immediate aftermath of their victimization. When victims return to their communities, this trauma frequently results in an inability to maintain stable employment. The standards will improve the reentry of offenders into society after their incarceration, reducing the likelihood that they will require public assistance (such as welfare, disability benefits, housing vouchers, food stamps) and other forms of governmental support upon their reentry.” Although the benefits mentioned in this passage are difficult ones to measure, they are the sorts of things normally thought susceptible to quantification in cost-benefit analysis.

    The department also writes that “implementation of the standards will enhance public safety by reducing the likelihood that inmates released from prison and jail each year will commit crimes (especially violent crimes) after their release…. Reducing recidivism could potentially save society and government tens of millions of dollars per year by avoiding the economic and human costs of crime, the cost of investigating and prosecuting crimes, and the considerable expense of incarceration itself ($22,600 per prisoner per year, or $62 per day, as of 2001).” But it doesn’t attempt to include quantification of these benefits in its analysis, either. 

  12. 21

    This study was the primary source from which the department derived its estimate of the number of victims in 2008. It is available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf

  13. 22

    Nationally, 4.4 percent of prison inmates are sexually abused every year, as are 3.1 percent of jail inmates. In the better half of all facilities, 2.069 percent of prisoners are abused, and 1.436 percent of jail inmates. 

  14. 23

    To reach this number, we took the rates of abuse from the better-performing 84 prisons in the BJS study and averaged them; we did the same for the better-performing 143 jails. (The figures we reached this way are not weighted averages: we did not try to account for the size of each different facility or the number of inmates who responded to the survey in each.) Then, for both prisons and jails, we divided the rate of abuse for the top half of facilities by the overall rate found by the BJS; we multiplied the numbers this produced by the department’s estimate of the numbers of victims in prisons and jails to reach our absolute numbers. We did not attempt to perform the same calculation for juvenile facilities out of concern that the more limited data we have there might not support such an exercise; however, we are confident that strong standards could make an enormous difference in juvenile facilities, just as they would in adult prisons and jails. 

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