First short assignment on PREA

Writing 2 Tim Fitzmaurice Due April 1, 2911
Comment on the enactment of PREA
all the information in this prompt is based on
The FEDERAL REGISTER Vol 76, No 23, 2/1/2011/proposed rules (50pp)
http://community.nicic.gov/blogs/prea/archive/2011/02/10/proposed-standards-comparison-charts-available.aspx

In 2003 Congress enacted the Prison Rape Elimination Act (PREA). A report was written by a Commission to determine what to do next. That was finished in 2009. Now the Department of Justice is formulating the regulations. They want input from the community on whether or not the rules are good enough and should be enacted. The comments on these rules are due by April 4 at midnight.
Soon the government will make rules that every lock-up, prison, juvenile hall, and jail must spend money to eliminate rape in their facilities. If they do not, they could be fined 4% of the federal money they get. This unfunded mandate is often seen as objectionable. Locals want the feds to pay for what they require. Is this true in this case? Or should a prison be by definition safe from sexual abuse? The proposed rules state that some stakeholders may question whether economic analysis is even relevant to the implementation of a civil rights statute. (p.6267)
One study states that in 2008-9 200,000 adult prisoners suffered some sort of sexual abuse while incarcerated. There are 2.000.000 people in prison in the U.S. In juvenile halls 17.100 were abused or 12% of the total population. (p. 6249) In some facilities it was 36%. Should there be special concern/rules for juveniles in adult facilities? Should Juveniles, violent felons, ever be transferred into adult prisons or jails?
The new rules include: Not hiring people with sexual abuse histories; improving reporting and forensic exams to prosecute abuse; giving victims protective custody; educating inmates; training employees; screening inmates for their potential for victimization—e.g., mental disability, physical build, age, nonviolence; sexual orientation, the inmates self-identified risk, or inmates held for immigration charges alone. The rules on reporting were expanded to include the ability to speak to people not in the system. Someone has to be the reporting officer. There was disagreement about the coordinator position. Should they be only doing that one job? Or can they be part time? Or should the job be done by someone not in the chain of command?
Do you think that inmates and others should be protected from sexual abuse? Is this abuse to be expected in systems of punishment? Most people see it as almost a joke. How have you seen this described or explained? Were you aware that such abuse exists?

Please write a comment in less than one page, giving your reaction to the promulgation of these regulations.

Address it to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, Washington D.C., 20530
This letter must be postmarked by April 4th. So I want the letters to be completed by April 1st. I will provide the envelopes and stamps. Please do not write personal identifying information.



www.wcl.american.edu/nic/prea.cfm

an end to silence
Charts to compare the stats

http://community.nicic.gov/blogs/prea/default.aspx
PREA
Prison Rape, the PREA, and the PLRA
MARCH 7, 2011
tags: Department of Justice, Eric Holder, Just Detention International, PLRA, PREA, Prison Litigation Reform Act, Prison Rape Elimination Act, prisoner lawsuits
by SOLITARY WATCH GUEST AUTHOR
Guest Post by Jennifer Wedekind
Editor’s Note: Jennifer Wedekind is a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law.
The public comment period for the PREA regulations extends through April 4, 2011. To submit a comment or read the full text of the proposed standards, go to this page on the website of Just Detention International, an organization devoted to exposing and eliminating the epidemic of prison rape.
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The Department of Justice in early February opened a comment period for proposed regulations under the Prison Rape Elimination Act (PREA). Passed in 2003, the Act requires the Attorney General to promulgate national standards for the detection, prevention, reduction and punishment of prison rape. While its ultimate aim is to stem the rampant sexual abuse that occurs in prisons and jails across the country, up until now PREA has largely been an aspirational and fact-gathering statute.
The proposed regulations are structured around recommended standards put forth by the Prison Rape Elimination Commission, established by PREA, in a comprehensive 2009 report on the “the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States.” However, subsequent comments by interested parties citing concerns about prison security and inmate “gamesmanship” have resulted in some of the recommendations being largely neutered. Additionally, a statutory mandate that no regulation impose substantial additional costs on prison authorities may limit the types of programs the regulations can implement. However, the comment period will allow for criticism and revision of the proposed regulations and provides an open forum for prisoner-rights advocates to be heard.
The problem of prison rape that PREA is attempting to address is nothing short of staggering. An estimated 88,500 adult inmates — 4.4 percent of prison inmates and 3.1 percent of jail inmates — reported at least one instance of sexual victimization in the previous year, according to a 2010 Bureau of Justice Statistics report. At a Hughes Unit prison in Texas, the facility with the highest rates of reported victimization, 8.6 percent of inmates reported being sexually assaulted by another inmate. Sexual victimization by guards is equally as prevalent. In the Crossroads Correctional Facility in Missouri, the male facility with the highest rates of guard sexual misconduct, 8.2 percent of inmates reported being victimized. At the women’s Bayview Correctional Facility in New York, 11.5 percent of inmates reported sexual victimization by guards.
When a prisoner comes forward and reports a sexual assault, he or she is more likely to face retribution than redress. Complaining prisoners frequently face retaliatory harassment, discipline or further abuse. A full 25 percent of inmate victims are summarily sent to solitary confinement, according to the Department of Justice’s own numbers.
Additionally, an inmate complaint will rarely result in legal sanctions for the perpetrator or prison authorities, despite the fact that the Supreme Court has held that placing an inmate at risk of sexual assault with deliberate indifference can be a violation of the 8th Amendment. The main obstacle between inmates and a courtroom is the 1996 Prison Litigation Reform Act (PLRA). Congress passed the PLRA in an effort to prevent “frivolous” inmate lawsuits and created considerable hurdles that an inmate must overcome to see his or her day in court. Significantly, any regulations passed under PREA will have to be in compliance with the PLRA, which may hamper its effectiveness in some areas.
In cases of sexual assault, inmates are most often stymied by two PLRA requirements — an exhaustion of all administrative remedies and a showing of physical harm. If a prisoner fails to comply with the technical and often arbitrary requirements of the administrative procedures, or if the inmate misses one of the filing deadlines — which may be as short as 48 hours — his or her right to sue is forever forfeited. Cases are frequently dismissed because of technical errors, because the wrong form was used or because the complaint was submitted to the wrong entity within the sprawling prison system.
In a notable 2003 case, Human Rights Watch reported that sixteen female inmates filed suit alleging systematic sexual abuse by prison staff, including forcible rape, coerced sexual activity, oral and anal sodomy, and forced pregnancies. The federal court hearing the case refused to address the merits, instead taking nearly five years to conclude that the women’s use of informal reporting procedures provided by the prison resulted in a failure to adequately exhaust all administrative remedies.
The PLRA also requires a showing of physical injury — and many jurisdictions do not consider a sexual assault to constitute a physical injury per se. This provision in particular is frequently relied upon to dismiss claims by victims of sexual assault, who frequently have no proof of physical injury due to delay in reporting, lack of additional violence during the assault, or inadequate prison medical providers, who often do not have the resources or willingness to administer a rape kit.
Advocates hope the final PREA regulations will provide more services for inmates and more accountability for prison administrators. However, while the regulations may be able to ease some of the administrative burdens currently on inmate victims, it will not provide a private cause of action and the PLRA will still dictate access to courts.
The proposed regulations would ban cross-gender strip searches, create minimum standards for investigations following a report, require correctional facilities to provide medical and mental health care, and institute a zero tolerance policy for sexual assault and harassment. The regulations also purport to make the prison grievance systems more accessible, however they don’t go as far as most advocates think necessary. It remains to be seen what effect, if any, the regulations will have.

Published in the blog Solitary Watch

http://www.cclp.org/prea.php Center for Children’s Law and policy

http://www.justdetention.org/en/factsheets/Prison_Rape_Elimination_Act.pdf
Fact sheet from Just Detention Blog

NYRB sept 2010



An End to Prison Rape
by Linda McFarlane · July 16, 2009
Change.org blog
When the government removes someone’s liberty, it takes on an absolute responsibility to keep that person safe, including from sexual abuse. This is a difficult task and, unfortunately, prison officials nationwide are failing at this responsibility all too often.
In inmate surveys conducted in 2007, the Bureau of Justice Statistics (BJS) found that 4.5 percent (or 60,500) of the more than 1.3 million inmates held in federal and state prisons had been sexually abused in the previous year alone and that nearly 25,000 jail detainees had been sexually abused in the previous six months. These surveys were snapshots, reaching only inmates present on a particular day. As the annual number of admissions to county jails is 17 times higher than the jail population on any day, the BJS data represent just the tip of the iceberg.
There is hope, however. Last month, the National Prison Rape Elimination Commission (NPREC) released its recommendations for the first-ever binding national standards addressing sexual abuse in U.S. prisons and jails. Mandated by the Prison Rape Elimination Act of 2003, the standards address core prison management issues, such as staff training, inmate education, housing, investigations, and medical and mental health care in the aftermath of an assault. The U.S. Attorney General has until June 23, 2010 (one year from the release of the standards) to codify them into federal regulation.
Developed with input from corrections officials, prisoner rape survivors, and advocates, these standards are one of the best tools to date to help put an end to sexual abuse in the nation’s detention facilities. Many corrections agencies have already begun developing policies to improve inmate safety.
Just Detention International (JDI) is working with officials in Oregon and California to become ‘early adopters’ of these standards – by bringing the Oregon Department of Corrections and the California Department of Corrections and Rehabilitation into compliance even before they are required to do so. In doing so, these state agencies are becoming models for corrections systems nationwide.
Both systems have already made tangible improvements. In California, JDI helped secure a community-based rape crisis counselor on the sexual assault response teams at 31 of the state’s 33 prisons and provided cross-training so that the counselors and prison officials understand each other’s respective jobs and are able to work together in a constructive way. In Oregon, the Department of Corrections established an inmate hotline, so that survivors can safely contact the Inspector General’s office when they are too afraid to report an assault to a prison official.
The effort to implement the standards is also helping to change the violent culture of corrections and to bring a human rights framework into these prisons and jails, often for the very first time. It’s a logical progression from the original reason for engaging in these partnerships: Sexual abuse in detention is wrong. It is an affront to our society’s basic values. It causes terrible harm to survivors and creates unsafe prisons for staff and inmates alike.
The problem of sexual abuse in detention is deeply rooted and will not go away without a fight. There undoubtedly will be setbacks, but it is a battle that we can win. That is what Congress acknowledged in 2003 when it unanimously passed the Prison Rape Elimination Act. That is what JDI has learned by working with corrections agencies to proactively tackle this issue. The new national standards recognize this truth, and are an invaluable tool for corrections agencies to use in this fight.
Now, U.S. Attorney General Eric Holder must send an important signal about the urgency with which we need to address prisoner rape. He can do so by ensuring that the standards provide the tools and protections Congress intended.
No matter what crime someone has committed, rape must not be part of the penalty.