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Prison Rape: Obama’s Program to Stop It

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Jane Evelyn Atwood/Contact Press Images
A maximum-security prisoner and guard, Lemon Creek Correctional Center, Juneau, Alaska, 1993

It took much too long to create the PREA standards. A commission charged with issuing recommendations didn’t do so until six years after the bill’s passage; then Attorney General Eric Holder missed by nearly two years the statutory deadline for promulgating them. But the standards that Holder’s Department of Justice finally did issue are very strong.

To prevent inmate-on-inmate sexual abuse, for example, they require that all inmates be screened for their risk of being either victimized or abusive, according to well-understood criteria. Those screenings must then guide housing and programming assignments. Inmates must now be given at least two different ways within their facilities to report sexual abuse, and one way to report to an external authority (anonymously, if they wish).10 And there are substantial new training requirements for staff.

Facilities must now prepare written plans for how they will respond whenever allegations of sexual abuse are made. Inmates who report abuse must be given quick medical treatment and counseling, and investigators must collect evidence in ways that maximize the possibility of successful criminal prosecutions of the abusers. Every corrections agency and facility must now have a formal zero-tolerance policy toward sexual abuse and must designate an employee with the time and authority to coordinate compliance with all of the PREA standards (too numerous to be discussed in their entirety here). Most importantly, the standards require every facility that holds detainees overnight to be audited for PREA compliance every three years; the standards insist that the auditors be qualified and fully independent.

With regulations like these, the devil tends to lie in the details, in camouflaged provisions and lawyerly phrasing—though he also makes frequent appearances when it comes to their funding, implementation, and enforcement. A close look at these standards, however, shows that the Justice Department was not trying to create legal loopholes or built-in excuses for failure. Instead, for the most part, the standards are conscientious and enlightened.

Recognizing the catastrophic levels of abuse suffered by gay, bisexual, and other particularly vulnerable inmates—according to the new BJS study, 3.5 percent of men who identified themselves as heterosexual had been sexually abused by another inmate, but 34 percent of bisexual men had, and 39 percent of gay men—the department has mandated strong measures for their protection. Facilities will no longer be allowed to segregate LGBTI inmates against their will unless ordered to by a court.11 Decisions about whether transgender and intersex inmates are to be put in men’s or women’s facilities must be made by staff in each individual case, taking into account the inmate’s vulnerability and not just genitalia. Wherever such inmates are housed, they must be allowed to shower apart from other inmates.

Recognizing the vulnerability of juveniles held in adult prisons and jails, the standards severely restrict such placements.12 Since women raped by their guards sometimes become pregnant—The New York Times reported two such cases in Alabama days after the standards were released—the standards require that inmates be given timely, free access to emergency contraception, as well as prophylaxis against sexually transmitted infections.13 And there are a number of standards intended to prevent sexual harassment by staff. Also, staff who supervise inmates of the opposite sex must now announce their presence when entering housing units. Such commonsense measures, already the norm in Canada and elsewhere, will go a long way toward making the atmosphere in our detention facilities more respectful, and so less dangerous.

We believe that the cumulative effect of all the standards will be to improve institutional culture throughout the prison system. Preventing sexual abuse and responding appropriately when it does occur will now be routine parts of every corrections officer’s job: an explicit institutional priority, a matter of daily professional obligation, and, if it matters enough to his or her supervisors, a factor in decisions about compensation and promotion. Audits will identify facility leaders who do well at preventing sexual abuse and those who do poorly, and corrections agencies will have to encourage effective compliance through their own decisions about compensation, promotion, and firing.

The Justice Department estimates that compliance with the new standards will cost about $55,000 a year per prison, and somewhat less for jails and other facilities. According to its cost-benefit analysis, this would be “justified” in financial terms if, nationally, the standards “reduced the annual number of victims of prison rape by 1,671 from the baseline levels, which is less than 1 percent of the total.”14

During the first few years in which standards are implemented, the rate of sexual abuse as measured by the BJS may actually go up, since inmates may become less afraid to report it. Thereafter, though, the trend should reverse, and much more dramatically than the department has dared predict. Previously in these pages, we have argued that even by a conservative means of calculation, reasonably well-crafted standards should reduce the incidence of prisoner rape by more than half.15 These standards—always assuming, of course, that they are adequately funded, carried out, and enforced—are good enough to do markedly better than that.

Enforcement remains an issue, however. While there is no procedure for the enforcement of individual complaints under PREA, the attorney general is responsible for making sure that federal prisons comply with the new standards. States that fail to comply risk a significant loss of federal funding for their prisons, but the DOJ has not yet fully determined how compliance will be ascertained. Private organizations that assess prisons at any level, such as the American Correctional Association, would also not receive any federal grants unless they require compliance with the PREA standards as a condition of their giving accreditation to particular facilities. (Many facilities voluntarily undergo such accreditation in order to identify problems, protect themselves from litigation, and increase their credibility with lawmakers and the public.) But PREA did not establish any office or ombudsman within the DOJ responsible for enforcement, and further measures will clearly be needed as the standards are put into effect.

Other serious weaknesses in the standards will also need to be addressed. Although they ban pat searches of female inmates by male staff, for example, they do not prohibit female staff from pat searching male inmates, even though the BJS data indicate that most staff sexual abuse is committed by women against men.16 And although they say that termination should be the “presumptive sanction” for staff who sexually abuse inmates, they do not insist that staff abusers be fired. (Many, now, are not.)

The standards do not require prisons and other facilities to monitor possible retaliation against inmates who allege sexual abuse if investigations determine that those allegations were unfounded, and they allow staff to punish inmates deemed to have made false allegations “in bad faith.” The department’s intentions here are understandable, but in bad prisons they will mean opportunities for abuse. After all, where is the guarantee that a facility’s investigator will not make his determinations in bad faith? According to the latest report of the review panel, a gay man who had been raped by different inmates in Louisiana’s Orleans Parish Prison “so many times I lost count” filed six separate grievances with no response. When at last he begged an officer directly for help, the officer replied, “a faggot raped in prison—imagine that!”17 Administrators and staff acting in bad faith are, in fact, the main reason why prisoners are raped so often.

Contrary to the clear intent of Congress, which for the purposes of PREA defined “prison” as “any confinement facility of a Federal, State, or local government,” and despite the particular vulnerabilities of confined immigrants, the Justice Department’s standards will not apply to immigration detention facilities.18 However, on the same day that its standards were released, President Obama issued a memorandum stating that “PREA applies to all Federal confinement facilities, including those operated by executive departments and agencies…other than the Department of Justice.” This brave and badly needed affirmation means that the Department of Homeland Security must adopt its own “high standards” for all Immigration and Customs Enforcement and Border Patrol detention facilities. Secretary of Homeland Security Janet Napolitano has already confirmed that it will do so. Staff at the Bureau of Indian Affairs, too, have indicated their willingness to comply fully with Obama’s directive.

The Department of Defense has been less forthcoming. Staff there have told our organization, Just Detention International, that they know their confinement facilities for service members will have to comply with the presidential memo.19 However, the department has not yet indicated how strong its standards will be. Moreover, it seems to believe that its overseas facilities for “enemy combatants” (including the one at Guantánamo Bay) will be exempt from PREA.20

Meanwhile, some staff within the Department of Health and Human Services, which has custody of immigrant children who are unaccompanied by adults when detained within the US, are considering whether they can avoid adopting PREA standards through a spurious argument that the shelters in which they hold these children are not confinement facilities.21 This is despite the facts that the shelters are locked, the children are not allowed to leave them, and those who escape are caught and brought back.

It will be up to Obama to enforce his authority over these various departments of the executive branch. Whatever the legal merits of the theory that the Defense Department’s overseas prisons are exempt from US law, the president can and should still demand that they adopt PREA standards. And he should insist that the “high standards” he called for from every federal department and agency be at least as strong and comprehensive as the Justice Department’s.

Obama could simply have required every department to adopt the Justice Department’s standards. He chose not to because, as the Justice Department explained, the other departments’ confinement facilities differ “with regard to the manner in which they are operated and the composition of their populations.” However, they should all use the Justice Department’s as a template, deviating from them only where they can show they have good reason to do so.

The standards’ greatest weakness comes not from any decision made by the Obama administration, but from the original PREA legislation. Because the state prisons and local jails that confine most inmates are governed by state law, the federal Congress chose not to impose the standards on them. State and local agencies and facilities that fail to comply with the standards, therefore, are not automatically acting illegally, and inmates who have been sexually abused cannot obtain relief in court under PREA. Instead, Congress passed PREA under its spending power, threatening to withhold 5 percent of the federal grants to a state’s prison system if the Justice Department finds that state out of compliance with the standards. Since nationally our entire prison system costs about $80 billion a year, this can mean a great deal of money. Still, it may not be enough to force all states to comply with the standards.

Because local jails are not as dependent on federal money as state prison systems, Congress could not threaten them with equivalent sanctions, and so it is even more questionable whether they will comply with the PREA standards. An association called the County Sheriffs of Colorado has already declared that it will not adopt the standards in its jails. But as Colorado’s sheriffs are likely to discover soon, jails also have good reasons to comply with the standards—even apart from concern for the people they confine.

In recent years, inmates have been increasingly successful at bringing lawsuits against the agencies and facilities in which they were sexually abused, winning damages of as much as $100 million. As more has been learned about the problem of prisoner rape, and especially now that the government has codified practices for preventing it, agencies and facilities that refuse to adopt these basic protections have become exceptionally vulnerable to such actions. The Justice Department’s Civil Rights Division also has the authority to investigate and file suit against any state or local agency suspected of violating inmates’ civil rights, and it will be able to use that power to encourage compliance with the standards.

More legislation will probably be needed to strengthen the incentives for compliance, both by Congress and by the individual states, which have broader powers to regulate local jails. For now, though, it’s worth taking a moment to appreciate what has just been accomplished. Prisoner rape, long thought to be an intractable horror, as much a part of life in confinement as barred cells and guards, appears to be something we can largely eradicate. And the powerful standards produced by Obama’s Department of Justice are the most important step yet in this effort.

  1. 10

    California, for example, will probably allow inmates to report sexual abuse directly to the Office of the Inspector General, a body independent of the California Department of Corrections and Rehabilitation that is responsible for its oversight. 

  2. 11

    Placing LGBTI inmates in special wings or units on the basis of their sexual orientation or gender identity tends to be punitive, causing these inmates to lose access to essential prison services and programs. Separate housing for LGBTI inmates can also increase the risk of sexual abuse, as vulnerable and predatory prisoners are placed together solely because of their LGBTI status. 

  3. 12

    Currently, on any given day, there are about 10,000 minors in adult prisons and jails. According to the standards, no juvenile may be put in a housing unit where he or she might have contact with an adult inmate. The standards also prohibit contact between juvenile and adult inmates elsewhere except when directly supervised by staff, and insist that agencies make their “best efforts” not simply to put youth in solitary confinement in order to comply with these requirements. 

  4. 13

    The BJS reports that “among former inmates tested for HIV, a significantly higher percentage of those who had been sexually victimized by other inmates (6.5%) or by staff (4.6%) were HIV -positive, compared to those who had not been victimized (2.6%).” We do not know, however, to what extent this is because the infection is carried at higher rates by the most frequently targeted groups, and to what extent it is because inmates are likely to contract the infection from their rapists. 

  5. 14

    For a more detailed discussion of cost-benefit analysis as it applies to sexual abuse in detention, see David Kaiser and Lovisa Stannow, “ Prison Rape: Eric Holder’s Unfinished Business,” NYRBlog, August 26, 2010. 

  6. 15

    See David Kaiser and Lovisa Stannow, “ Prison Rape and the Government,” The New York Review, March 24, 2011. 

  7. 16

    The BJS reports that of former state prisoners alleging sexual misconduct by staff, 79 percent were men reporting sexual activity with female staff; an additional 5 percent were men reporting sexual activity with both female and male staff. This can be at least partly explained by the fact that there are many more incarcerated men than women. 

  8. 17

    Just Detention International brought this man to the review panel’s attention. 

  9. 18

    See David Kaiser and Lovisa Stannow, “ Immigrant Detainees: The New Sex Abuse Crisis,” NYRBlog, November 23, 2011. 

  10. 19

    According to the 2008–2009 BJS study, while two of the three military detention facilities surveyed had rates of sexual abuse that were significantly lower than the national average for prisons and jails, “the US Disciplinary Barracks, which is operated by the US Army and holds the most serious offenders under military jurisdiction, had a rate of staff sexual misconduct (5.6%) that was double the average of prisons nationwide (2.8%).” Interestingly, according to David Haasenritter of the Army Review Board Agency in Corrections Today, the journal of the American Correctional Association, “up until the 1970s, most military inmates were convicted of alcohol abuse and military offenses—disrespect, disobedience, and desertion…. [But] today there are more crimes against people and drug offenses than property and military crimes.” Moreover, “military prisons may now confine civilian government employees and contractors.” 

  11. 20

    One of the “enhanced interrogation techniques” employed by United States government agents at Guantánamo has been the threat of rape. See David Cole, “ What To Do About Guantánamo?,” The New York Review, October 14, 2010. 

  12. 21

    Approximately 90,000 unaccompanied immigrant children are apprehended every year, but most are immediately repatriated. At any one time, fewer than 3,000 are in the Department of Health and Human Services’ custody. 

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