1. What are the PREA standards and when are they effective?

The Prison Rape Elimination Act (PREA) was passed in 2003. The law created the National Prison Rape Elimination Commission (NPREC) and charged it with developing standards for the elimination of sexual abuse in confinement. The law required the Department of Justice (DOJ) to review the NPREC standards, make revisions as necessary, and pass the final standards into law.

The final rule was published in the federal register on June 20, 2012, and became effective on August 20, 2012. Certain standards do not go into effect until a later date. The standard that governs external audits provides that the first audit cycle begins on August 20, 2013, and, to be in compliance, that jurisdictions must have at least one third of their facilities audited within the subsequent 12-month period ending August 20, 2014. The restrictions on cross-gender pat-down searches of female inmates in prisons, jails, and community confinement facilities (115.15(b) and 115.215(b)) do not go into effect until August 20, 2015, for facilities whose rated capacity is 50 or more inmates, and August 21, 2017, for facilities whose rated capacity does not exceed 50. The standard on minimum staffing ratios in secure juvenile facilities (115.313(c)) does not go into effect until October 1, 2017, unless the facility is already obligated by law, regulation, or judicial consent decree to maintain the minimum staffing ratios set forth in that standard.

2. How can the PREA Resource Center help?

The PREA Resource Center (PRC) is designed to offer assistance to state and local agencies working to address sexual abuse in their confinement facilities, adult and juvenile. One of our primary purposes is to help with implementation of the standards, but we have a broader mission to help address the issue of prison rape by providing a forum for exchanging ideas and sharing examples of innovation and emerging best practices. This website offers a full library with research and tools to help agencies learn about the issue and to learn about strategies for preventing, detecting, and responding to sexual abuse in confinement. In addition, the library contains tools to help agencies develop PREA policies and implement the standards. To search the library, click here. The PRC library also contains links to resources for survivors.

The PRC offers training and technical assistance in a variety of forms. We host frequent webinars on topics relevant to standards implementation and addressing sexual abuse in confinement in general. You can find a listing of webinars and other upcoming and archived events here. Where there is need, we sponsor trainings around the country on PREA-related topics, and the PRC responds to individual requests for technical assistance from agencies and facilities. To learn more about our training and technical assistance, click here.

1. What information is forthcoming on the audit?

The DOJ, in collaboration with the National PREA Resource Center (PRC), has convened a PREA audit workgroup to develop the audit tool that will be used to assess compliance with the PREA standards. The audit tool, once completed, will provide guidance regarding audit methodology and, where possible, enumerate compliance measures for each standard. The expectation is that the audit tool will be beta tested in the early winter and finalized by Spring 2013. It will be shared publicly, with guidance on preparation for audits, once it is finalized. DOJ fully understands agencies’ needs for guidance on the audit component of the final PREA standards. Consequently, DOJ is working as quickly as possible to release information on the audit—both timing and compliance measures—to the agencies and the field.

2. What is the minimum period of time, prior to the start of an audit, that an agency needs to demonstrate compliance with the standards in order to achieve favorable audit findings? For example, if an agency can demonstrate it is in compliance on a specific standard for 30 days prior to the audit, but not the eight months prior to the audit, is the agency considered compliant?

The answer to this question is dependent on the development of the audit tool and compliance measures for each standard. DOJ recognizes that audits conducted toward the beginning of the first audit cycle, which begins August 20, 2013, will take into consideration the fact that facilities will have spent a significant period of time institutionalizing the standards. By contrast, a short period of compliance during the end of the audit review period (meaning closer to August 2014 or thereafter) would not be sufficient to achieve compliance. DOJ will work with PRC to define the measures auditors will use to assess compliance during the early auditing period, and additional information will be forthcoming as we approach the initial auditing cycle. Additionally, pursuant to PREA Standard 115.404(d), facilities that auditors find not in compliance with provisions of PREA have an automatic 180-day corrective action period during which auditors will work with agencies to remedy and verify remedial action for any deficiencies. This process provides additional time for facilities to achieve compliance before the auditor issues a final audit determination.

3. What are the financial consequences to a state if it is not in compliance with the standards?

The PREA statute provides that a state whose governor does not certify full compliance with the standards is subject to the loss of five percent of any DOJ grant funds that it would otherwise receive for prison purposes, unless the governor submits an assurance that such five percent will be used only for the purpose of enabling the state to achieve and certify full compliance with the standards in future years. 42 U.S.C. 15607(c).

4. Does PREA require the governor to submit a certification of compliance, and if so, when is the first certification of compliance due to the Department of Justice?

Pursuant to the PREA statute, the governor has three options: 1) submit a certification that the state is in full compliance; 2) submit an assurance that not less than five percent of its DOJ funding for prison purposes shall be used only for the purpose of enabling the state to adopt and achieve full compliance with the PREA standards; or 3) accept a five percent reduction in such grants. The specified date for the submission of either a certification or assurance by the Governor has not yet been determined.

5. On what basis can the governor make a certification decision? Is it the audit finding alone, or should the governor base certification on other items? If other items are applicable for a certification, what are some examples of these items? 

Pursuant to PREA Standard 115.501(a), governors shall make their certification of compliance taking into consideration the results of the most recent agency audit results. DOJ intends audits to be a primary, but not the only, factor in determining compliance. For example, audit results for a particular period may show the selected one third of audited facilities in compliance; however, the governor may have determined that other facilities under his/her control are, in fact, not in compliance with the standards.

Neither the PREA statute nor the PREA standards restrict the sources of information governors may use in deciding whether or how to certify compliance.

6. In which fiscal year will the five percent penalty for non-compliance begin?

Federal fiscal years begin on October 1. The first year of the non-compliance penalty period is fiscal year 2014, which will commence on October 1, 2013, and end on September 30, 2014.

7. Which federal grant programs will the five percent penalty for non-compliance affect?

It is important to note that if a governor submits an assurance to DOJ that not less than five percent of the state’s DOJ funding for prison purposes will be used to support implementation of the PREA standards, then no penalty will be imposed, although the state may need to reallocate some of its DOJ funding such that five percent of the total is being used to support implementation of the standards.

Under PREA, the attorney general is required to publish a list each fiscal year of those grant programs that may be at risk for failure to comply with the standards. See 42 U.S.C. § 15607(c)(1)(B). That list has not yet been finalized because the penalties will not take effect until fiscal year 2014, and it is not yet known which current grant programs will continue to be funded, and which new grant programs may be created, by that year. That said, as an example, if the list were created using the fiscal year 2012 appropriations, the list would likely include, most notably, the Edward Byrne Memorial Justice grant program, the Juvenile Justice and Delinquency Prevention Act formula grant program, and the Juvenile Accountability Block Grant program. 

8. Would a five percent reduction in federal grant funds be applied to all funds within the designated grant program or only those budgeted “for prison purposes”?

The reduction of federal funds would apply to all DOJ funding that the state could use for prison purposes. This includes dollars that could be used for prison purposes but that the state intended to use for other purposes. See 42 U.S.C. § 15607. In any event, it is important to note that “prison” is defined broadly by the statute to cover “any confinement facility” and includes the four covered facility types included in the standards. See 42 U.S.C. § 15609(7).

9. Does my agency have to audit exactly one third of its facilities each year? We are on an ACA audit schedule and ACA does not audit exactly one third of our agencies per year. Do we need to change the auditing schedule to comply with PREA?

 Standard 115.401 discusses the audit frequency and timeframes and specifies that the agency shall ensure that each facility operated by the agency, or by a private organization on behalf of the agency, is audited at least once during each three-year period. The standards require an audit during each one-year period of at least one third of each facility type (prison, jail, juvenile facility, overnight lockup, and community confinement facility) operated by an agency, or by a private organization on behalf of an agency. DOJ is still determining potential coordination between ACA audits and PREA audits; in the future, the PREA and ACA audits may work in tandem. However, regardless of any such coordination, agencies must audit one third of each type of facility as specified in Standard 115.401 (b), irrespective of the timing of any ACA audit schedule.

10. Please provide recommendations for identifying an auditor while maintaining appropriate independence from the state criminal justice department. What role, if any, should the state criminal justice department play in identifying the auditor? Will the DOJ publish a list of certified PREA auditors?

Prospective auditors will apply to be PREA-certified auditors. Only DOJ can certify auditors. In order to be certified, auditors must 1) meet a number of qualifications; 2) submit to a criminal records background check; and 3) pass DOJ-developed auditor training. DOJ plans to hold auditor training in spring 2013 in advance of the first audit cycle, which begins August 20, 2013. A complete list of PREA-certified auditors will be maintained publicly on the DOJ and PRC websites.

DOJ has not placed restrictions on how agencies choose auditors. Each agency should develop its own process, consistent with PREA Standard 115.402, which provides that 1) the auditor cannot be part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant state or local government); 2) an auditor cannot be a person who has received financial compensation from the agency being audited (except for compensation received for conducting prior PREA audits) within three years prior to the agency’s retention of the auditor; and 3) the agency cannot employ, contract with, or otherwise financially compensate the auditor for three years subsequent to the agency’s retention of the auditor, with the exception of contracting for subsequent PREA audits.

1. What facilities are covered under PREA and the PREA standards?

 PREA directed the attorney general to promulgate standards for all confinement facilities including, but not limited to, local jails, police lockups, and juvenile facilities. See 42 U.S.C. § 15609(7). DOJ has promulgated standards for prisons and jails (28 C.F.R. §§ 115.11 – 115.93), lockups (28 C.F.R. §§ 115.111 – 115.193), residential community confinement facilities (28 C.F.R. §§ 115.211 – 115.293), and juvenile facilities (28 C.F.R. §§ 115.311 – 115.393).

Additionally, on May 17, 2012, the President directed “all agencies with federal confinement facilities that are not already subject to the Department of Justice’s final rule” to develop rules or procedures that comply with PREA.

2. Do the standards apply to locally operated facilities?

Yes. PREA standards apply equally to locally operated facilities, such as lockups, jails, juvenile detention centers, and locally operated residential community confinement facilities. The statute imposes certain financial consequences on states that do not comply with the standards. However, for local facilities or facilities not operated by the state, PREA provides no direct federal financial penalty for not complying.

 If a local facility has a contract to hold state or federal inmates, however, it may lose that contract if it does not comply with PREA standards. If a governor should certify compliance, he/she must certify that all facilities under the state’s authority, including all local facilities the state contracts with to hold inmates, are in compliance. Furthermore, states that operate unified systems must demonstrate that all state-operated facilities, including jails, comply with the PREA standards.

Finally, all agencies, state or local, have obligations under federal and state constitutions to provide safety for individuals in their custody. While PREA does not create any new cause of action, private civil litigants might assert noncompliance with PREA standards as evidence that facilities are not meeting constitutional obligations.

3. Do the standards apply to non-confinement community correctional settings such as probation and parole? 

No, the PREA standards do not apply to non-confinement community corrections functions such as probation and parole supervision. The PREA standards do apply to residential community confinement facilities such as halfway houses operated by community corrections agencies. The PREA standards apply to confinement facilities defined in section 115.5 General Definitions as “a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community correctional facility (including residential reentry centers), other than a juvenile facility, in which individuals reside as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision, while participating in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during nonresidential hours.” DOJ declined to adopt recommendations to adopt a set of standards that included pre-trial release, probation, and parole.

4. Do community corrections standards apply to juvenile community confinement settings?

No. Juvenile community confinement facilities are covered by the juvenile facility standards. See 28 C.F.R. § 115.5 (definition of community confinement facility). The community confinement facility standards do not apply to juvenile community confinement facilities.

5. Do the standards apply to facilities that hold youth in the custody of a juvenile justice agency if those youth are not the totality of the population held in that particular facility? For example, are contracted secure juvenile facilities; contracted halfway houses, group homes, and community correctional facilities; and state department of social services secure facilities that provide services to juveniles who are under juvenile court jurisdiction through a contract with the state juvenile justice agency all covered? If so, to what extent?

The PREA standards make clear that a juvenile facility is one that is primarily used for the confinement of juveniles. If a majority of a facility’s residents are under the age of 18 (unless under adult court supervision and confined or detained in a prison or jail), it will fall within the scope of the juvenile facility standards, even if non-delinquent youth are part of the facility’s population. One example is a facility that houses 10 youth and only two of those youth are under the jurisdiction of juvenile justice agencies. According to the standard, because less than a majority of the youth in that facility are in the custody of the juvenile justice department, the facility does not need to comply with PREA juvenile facility standards. For example, if the facility is used to house individuals “as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision…” then the community confinement standards would apply. See 28 C.F.R. § 115.5 (definition of community confinement facility).

In addition, as in all custodial settings, agencies have state and federal legal obligations to protect those in custody, irrespective of obligations under PREA.

Finally, PREA Standard 115.312 provides that “a public agency that contracts for the confinement of its residents with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards and any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.”

6. Is PREA Standard 115.14 Youthful Inmates applicable to juvenile settings? Often juvenile settings can house youth committed to the department of juvenile justice until age 21. Do youth in juvenile custody need to be sight and sound separated if they are over 18?

No. Individuals confined in juvenile facilities are defined as “residents” and may reside in juvenile facilities until the age allowable by state law, which in most states is 21, and in some as high as 25. The PREA standards do not provide for any sight and sound separation of residents in juvenile facilities either because of age or court of conviction. Neither the standard on youthful inmates (115.14) nor the standard for youthful detainees (115.114) is applicable in juvenile facilities. The Youthful Inmate standard requiring separation of those under age 18 from those over 18 is “setting specific,” applicable only in prisons, jails, and lockups. Even where state law provides for automatic prosecution in adult court of individuals at age 16 (e.g., NC, NY) and age 17 (e.g., GA, NH, IL, LA, MD, MA, MI, SC, TX, WI) when those persons are detained or confined in an adult prison, jail, or lockup, such individuals must be sight and sound separated from those over the age of 18. 

Screening instruments, such as risk assessments, are tools that can assist in identifying vulnerabilities for particular individuals in custody. They are not a complete answer to sexual safety. To date, no single nationally validated instrument can identify inmates who are at risk for abuse or predation. Moreover, validation of risk-screening instruments may differ jurisdiction to jurisdiction and depend on the unique characteristics of the inmate population and facility type. Agencies should use screening instruments to keep inmates safer, but they do not take the place of good operational practices. They should be used to complement other necessary safety precautions such as supervision and monitoring, staff training, inmate orientation, and a zero tolerance policy for sexual abuse.

1. Is there a validated and objective screening instrument to assess risk of sexual victimization?

 PRC has not identified a national validated PREA-specific risk assessment tool currently in operation. DOJ chose not to include a validation requirement for risk assessment tools in the final standards, recognizing that the cost of the validation process is often prohibitive for small agencies. Instead, DOJ decided that objectivity is the most important component of risk assessment tools in the final standards. Standards 115.41, 115.241, and 115.341 address the elements that must be a part of objective risk assessment tools. DOJ takes the position that all staff, with appropriate training, can complete the risk assessment for incoming inmates.

The National PREA Resource Center is collecting risk assessment tools from juvenile and adult agencies. The PRC will make those tools available on its website.

2. What are appropriate ways to use PREA screening information? Should we base housing decisions on the PREA risk screening information?

PREA screening information should be used to inform agency or facility decisions regarding a particular inmate/resident’s housing unit, security level, and programming needs and interventions. For example, if, upon intake, an inmate is a risk of committing predation, an agency would not place him/her in a two-person room with an inmate/resident who classified as at risk for victimization. Agencies should note, however, that DOJ, in its final standards, directed agencies to implement appropriate controls on the dissemination of information gathered during assessment so that the information is not used to the inmate/resident’s detriment. See, for example, Standard 115.41(i).

The final rule recognizes the economic implications of staffing levels. The standards require agencies with adult facilities to adopt adequate staffing plans and make best efforts to comply with them. In the case of secure juvenile facilities, the standards require particular minimum staffing ratios but allow an extended period of time to comply with the ratio requirements. DOJ recognizes that while technology and cameras, screening assessments, and policies are all effective tools to combat sexual abuse, adequate staffing and supervision are essential to provide safety from sexual abuse in custody.

1. What is adequate staffing?

 The PREA standards do not mandate specific minimum staffing ratios for adult and non-secure juvenile settings. Instead, the PREA rule provides guidance on how agencies can determine adequate staffing levels to protect inmates and residents from sexual abuse. For prisons, jails, and juvenile facilities, the standards require that agencies consider 1) generally accepted practices; 2) judicial findings of inadequacy; 3) findings of inadequacy from federal investigative agencies; 4) findings of inadequacy from internal or external oversight bodies; 5) all components of the facility’s physical plant (including “blind spots,” or areas where staff or residents may be isolated); 6) composition of the inmate/resident population; 7) number and placement of supervisory staff; 8) number and types of programs occurring on a particular shift; 9) applicable state or local laws, regulations, or standards; 10) prevalence of substantiated and unsubstantiated incidents of sexual abuse; and 11) any other relevant factors. See Standards 115.13(a) and 115.313(a). The lockup and community confinement standards provide a similar, albeit abbreviated, list of factors.

In secure juvenile facilities, DOJ defined minimum staffing ratios under PREA Standard 115.313 (c) as 1:8 during resident waking hours and 1:16 during resident sleeping hours. Agencies may depart from these minimum ratios during limited and discrete exigent circumstances, which are fully documented for audit purposes. Id. DOJ noted that many states and localities, as a matter of law or policy, already have minimum staffing ratios in juvenile settings; some state and local facilities exceed the minimum staffing ratios proscribed in the PREA standards and are strongly encouraged to maintain those ratios. In order to provide agencies with sufficient time to readjust staffing levels and, if necessary, request additional funding, the standard provides that any facility that is not already obligated by law, regulation, or judicial consent decree to maintain the required minimum staffing ratios has until October 1, 2017, to achieve compliance. Id.

2. What types of staff count toward an agency’s staffing ratio?

Only security staff are included in the minimum staffing ratio requirement. The PREA standards define security staff as “employees primarily responsible for the supervision and control of inmates, detainees, or residents in housing units, recreational areas, dining areas, and other program areas of the facility.” See 28 C.F.R. 115.5 (definitions).

1. Do all inmates under the age of 18, regardless of court adjudication, need to be housed and managed in an area totally separate from adult inmates while residing in an adult jail or prison?

PREA Standard 115.14 provides that youthful inmates, which the standards define as “any person under the age of 18 who is under adult court supervision and incarcerated or detained in a prison or jail,” must be housed separately from adult inmates in a jail or prison, but may be managed together outside of a housing unit if supervised directly by staff. Standard 115.114 provides analogous but abbreviated standard requirements for lockups.

The standard includes three requirements. First, no youthful inmate may be placed in a housing unit where he/she will have contact with any adult inmate through use of a shared day room or other common space, shower area, or sleeping quarters. Second, outside of housing units, agencies must either maintain “sight and sound separation” between youthful inmates and adult inmates—i.e., prevent adult inmates from seeing or communicating with youth—or provide direct staff supervision when youthful inmates and adult inmates are together. Third, agencies must make their best efforts to avoid placing youthful inmates in isolation to comply with this provision. Finally, absent exigent circumstances, agencies must comply with this standard in a manner that affords youthful inmates daily large-muscle exercise and any legally required special education services, and provides access to other programs and work opportunities to the extent possible.

Persons under 18 who are charged with status offenses and/or delinquent offenses are not covered by Standard 115.14, but they are covered by the Juvenile Justice and Delinquency Prevention Act (JJDPA) and regulations promulgated pursuant to the JJDPA. These requirements ensure that states do not securely detain status offenders in adult facilities and severely limit the time in which accused delinquent youth may spend in adult facilities; status offending and delinquent youth must always be sight and sound separated from adult inmates in prisons, jails, and lockups. More information about JJDPA requirements is available at www.ojjdp.gov/compliance.

In crafting this standard, DOJ was cognizant of agency concerns regarding cost, feasibility, and preservation of state law prerogatives related to youthful inmates. Accordingly, this standard affords facilities and agencies flexibility in devising an approach to separate youthful inmates. In particular, agencies can achieve compliance by 1) confining all youthful inmates to a separate housing unit; 2) transferring youthful inmates to a facility within the agency that enables them to be confined to a separate unit; 3) entering into a cooperative agreement with an outside jurisdiction to enable compliance; or 4) ceasing to confine youthful inmates in adult facilities as a matter of policy or law. Agencies may, of course, combine these approaches as they see fit.

 1. Please explain the adult cross-gender viewing and searches standard.

At its most basic, the standard has three parts. First, it prohibits all cross-gender strip and body cavity searches except in exigent circumstances and disallows the use of cross-gender pat searches for female inmates in jails, prisons, and community confinement facilities (the juvenile facility standards prohibit cross-gender pat searches of both male and female residents). Second, it provides for a “knock and announce” practice when an opposite gender staff member enters a housing unit and, more generally, provides that facilities are to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Third, the standard also provides protection from intrusive searches for the purpose of determining gender for transgender or intersex inmates.

As a practical matter, many agencies already do only same-gender pat-down searches. For example, some juvenile agencies have BFOQ positions based on the privacy rights of girls, and some adult jails that house immigration detainees who are Muslim have banned female staff from searching those detainees. Other agency practices consistent with this standard include knock and announce policies, the use of privacy shields in shower and bathroom areas, and staffing patterns that ensure the availability of male and female staff to perform searches when necessary.

Furthermore, in crafting the final rule, DOJ determined that at least at least 27 states ban the practice, and that it is common practice in several other states for male officers to perform pat-down searches of female prisoners only under exigent circumstances. DOJ believes that adopting such a practice furthers PREA’s mandate without compromising security in corrections settings, infringing impermissibly on the employment rights of officers, or adversely affecting male inmates.

In order to mitigate agency burdens for implementing the staffing changes that PREA standards may require for jails, prisons, and community confinement facilities, DOJ has provided that agencies will have additional time to come into compliance with this particular standard (August 2015, or August 2017 for facilities whose rated capacity is less than 50 inmates). 

DOJ is aware that a prohibition on certain cross-gender searches and viewing will not solve the problem of sexual abuse in totality. DOJ is hopeful that adequate training of staff on conducting searches in a professional and respectful manner will decrease the likelihood of reports of sexual abuse due to an intrusive or improperly conducted search.

2. Can you please clarify the parameters of conducting a search of a transgender or intersex inmate/resident?

An agency cannot search or physically examine transgender or intersex inmates/residents for the sole purpose of determining their genital status. As noted in PREA Standard 115.15, if an inmate’s genital status is unknown, an agency can determine it through conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner. Additionally, agencies must provide training to security staff in how to conduct cross-gender pat-down searches and searches of transgender and intersex inmates. Id. Security staff must conduct these searches in a professional and respectful manner; in the least intrusive manner possible, consistent with security needs; and only if a search needs to occur under exigent circumstances. Id.

Operationally, three options are in current practice for searches of transgender or intersex inmates/residents: 1) searches conducted only by medical staff; 2) searches conducted by female staff only, especially given there is no prohibition on the pat-searches female staff can perform (except in juvenile facilities); and 3) asking inmates/residents to identify the gender of staff with whom they would feel most comfortable conducting the search.