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Through a cooperative agreement between BJA and NCCD

Frequently Asked Questions

The final Department of Justice PREA Standards became effective on August 20, 2012. The Department will have more information forthcoming about compliance and monitoring of the standards, and that information will be available on the PRC website.

Please note that standards referenced throughout this FAQ often apply to multiple sets of PREA Standards. Along with different standard numbers, the different sets of standards use different terminology to refer to the population they house including “inmate,” “detainee,” and “resident.” When referencing a standard that applies equally to Adult Prisons and Jails, Lockups, Community Confinement facilities, and Juvenile facilities, the language in the question and answer will, unless specified, refer to the Adult Prisons & Jails standard numbers and use the term “inmate” to refer generally to the populations in those facilities.

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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.

Last updated July 9, 2013.


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. The PREA Essentials page is a great starting place for reviewing the standards, including common issues and resources specific to various standard sections. The PRC 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 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, the PRC responds to individual requests for technical assistance from agencies and facilities. To learn more about our training and technical assistance, click here.

Last updated April 18, 2014. 


3. 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.

Last updated February 7, 2013.


4. What constitutes “repeated” to satisfy the definition of “Sexual harassment”?

Relevant Standard Language:/p>

Sexual harassment includes—

(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and

(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.

"Repeated,” in the context of this provision, means more than one incident. Please note that the seriousness of the conduct should be taken into account in determining the appropriate commensurate response by the agency or facility. Serious misconduct along these lines, even if committed once, should still be addressed by the agency or facility.

Last updated February 19, 2014.

 

5. Does the Health Insurance Portability and Accountability Act (HIPAA) limit the ability of medical professionals to report information to a facility related to sexual abuse of an inmate? Does HIPAA limit an agency’s ability to disclose medical information to a PREA auditor?

No. The HIPAA regulations expressly allow medical providers to provide to a facility with lawful custody of an inmate any information necessary for (among other things) “[t]he health and safety of such individual or other inmates” or “[t]he administration and maintenance of the safety, security, and good order of the correctional institution.” 45 C.F.R. § 164.512(k)(5)(i).

Disclosures made pursuant to a PREA audit are also permissible under HIPAA pursuant to the regulatory exception for “health oversight activities.”  45 C.F.R. § 164.512(d). The HIPAA regulations allow disclosure to “a health oversight agency for oversight activities authorized by law, including audits,” where necessary for appropriate oversight of (among other things) “[e]ntities subject to government regulatory programs for which health information is necessary for determining compliance with program standards” or “[e]ntities subject to civil rights laws for which health information is necessary for determining compliance.” 45 C.F.R. § 164.512(d)(1). The HIPAA regulations define “health oversight agency” to include any person or entity operating under the authority of a public agency who is legally authorized “to oversee . . . government programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is relevant.” 45 C.F.R. § 164.501. Because a PREA auditor qualifies as a health oversight agency, and the auditor’s work qualifies as a health oversight activity, HIPAA poses no bar to the disclosure of relevant information to the auditor. Although information may be disclosed to a certified PREA auditor, any public report or statement released by the PREA auditor must not include protected health information.

Last updated July 11, 2013.


6. What is the distinction between a facility that is under the operational control of the state’s executive branch via a contract, and therefore subject to the governor’s certification or assurance, and a facility with which the state contracts for beds, and is therefore subject to the requirements of § 115.12 but not deemed to be under the governor’s operational control?

A facility operated by a private organization “on behalf of an agency” is generally controlled by the parent confining agency.  Typically, such a facility has a dedicated (or primarily dedicated) inmate population in the legal custody of the parent agency.  In addition, such facilities generally operate within the confines of the parent agency’s policies, procedures, and practices.  Such facilities are usually owned by (or controlled by) the parent agency.  The parent agency typically contracts with private correctional entities to operate the facilities for finite and/or renewable durations.

By contrast, a mere “contract for the confinement of inmates” between a public agency and a private (or another public) agency pursuant to standard 115.12 is generally an arrangement to confine inmates for a fixed or variable fee or on a per diem basis.  This arrangement is typically considered a rental of bed space for holding inmates.  Contracted facilities in this category will often rent bed space or confine inmates from multiple external public agencies.  While the contract may impose a number of requirements or standards on the contracted agency, it is generally a much lower level of operational control than a facility “operated on behalf of” the contracting agency as described in the paragraph above.

It should be noted that, pursuant to standard 115.12, any new contract or contract renewal must include the contracted entity’s obligation to comply with PREA and to allow for appropriate contract monitoring.

See also related FAQs in the Governor Certification’s and Contracts sections.

Last updated June 11, 2014.


7. When a confining agency maintains relationships with facilities in both categories, what is the confining agency’s obligation under the auditing standards and the audit count calculation?

A facility “operated… by a private organization on behalf of an agency” is required to be audited in accordance with the agency’s audit schedule, and will count as an agency’s facility for purposes of determining the “one-third” annual audit calculation. 

A mere “contract facility” pursuant to standard 115.12 does not count in the contracting agency’s audit requirements.  However, the contracted agency is considered its own “agency” for purposes of PREA, and has its own independent obligations to comply with the PREA standards (including the auditing standards).  This obligation becomes explicit when a contracting agency enters into, or renews its contract with a contracted facility pursuant to the standards.

If a public agency maintains relationships with both types of agencies, the agency should determine which facilities fall within each of the two categories, and include only the former category within its audit timelines and obligations.

See also related FAQs in the Audit and Compliance and the Contracts section.

Last updated June 11, 2014.


8. Under what circumstances would medical and mental health care providers who provide services to inmates or residents off-site be subject to the background check requirement in § 115.17(d), the contractor training requirement under § 115.32(a), and/or the specialized training requirement for medical and mental health care providers in § 115.35?  Must a formal contract for services exist for these requirements to be triggered?  Are the specialized training requirements ever triggered in the case of off-site medical or mental-health providers, for instance, when there is no health care available at the facility and so all health care is provided off-site?

Medical and mental health care providers who provide services to inmates or residents off-site are not subject to the background check requirement in § 115.17(d), the contractor training requirement under § 115.32(a), and/or the specialized training requirement for medical and mental health care providers in § 115.35.  Generally, inmates are taken off-site for medical or mental health care when the required services are not available at the correctional facility.  In many rural or isolated locations, the facility’s access to medical and mental health specialists, even off-site, is very limited.  As such, requiring facilities to only utilize off-site medical or mental health providers who have complied with the PREA background check and training requirements could impede inmate access to necessary medical and mental health care.  When inmates are taken off-site for medical or mental health care, they are generally transported and supervised by correctional staff, though they should have private contact with the medical or mental health provider during an examination or therapy session.  Should an off-site medical or mental health provider engage in inappropriate or abusive behavior towards an inmate, the inmate will have the opportunity to report the incident upon leaving the provider’s office.

Last updated June 20, 2014.


9. Many corrections agencies, particularly community confinement agencies, place their inmates or residents in employment settings off-site. In many cases, there is no explicit contractual arrangement between the correctional agency and the employer. However, these employers have significant contact with inmates. In some cases, inmates are sent to other correctional facilities during the day to work.  Are there any circumstances in which off-site supervisors would be subject to either the requirements of 115.17(d) or 115.32(a)?

In interpreting the standards requiring training and background checks for non-facility staff who have significant contact with inmates, it is appropriate to limit those requirements to individuals who provide services on the facility campus.  Inmates who go off-site for work, programming, or other services often are under the supervision of facility staff while off-site.  In other cases, the inmates have unsupervised access to the community while off-site, such as in a work-release program.  In either of these situations, inmates should have the opportunity to report or seek assistance with regard to any off-site abuse or violations, either when the inmate is out in the community or when the inmate returns to the facility.  Moreover, requiring background checks and training for all off-site providers or employers could severely limit the inmates’ access to these programs.

Last Updated July 3, 2014.


10. Under what circumstances may former sex offenders, as identified in PREA standards 115.17(a)/117(a)/217(a)/317(a), be hired or contracted with by a confining agency when that former offender is utilized in programs to aid in rehabilitative programming for inmates, detainees, or residents?

The prohibition against hiring, promoting, or contracting with individuals who have a history of sexually abusive conduct is intended to serve the important public safety goal of protecting inmates from individuals who are likely to have a heightened risk of committing future acts of sexual abuse. Given the unique nature of the correctional setting, and the vulnerability of some individuals in the inmate population, the hiring/contracting limitation generally provides an appropriate protection for inmates.

Promoting effective policies to aid former prisoners in reentering society is also important public policy. The Attorney General has directed Department components involved in proposing new and revising or updating existing regulations or policy guidance to consider whether the regulation or guidance could impose a barrier to successful reentry. If so, the components must also consider whether the regulation or guidance can be more narrowly tailored, without impeding public safety or other legitimate government interests.

Pursuant to the Attorney General’s directive, the Department hereby provides the following policy guidance regarding the interpretation and scope of the hiring, promoting, and contracting provisions of sections 115.17(a)/115.117(a)/115.217(a)/115.317(a) to remove potential impediments to successful reentry, without jeopardizing public safety for inmates in correctional settings:

An agency may hire or contract with an individual who would otherwise be prevented from such employment or contracting without violating the standards only if the agency head or designee1: (1) determines that the individual does not pose a safety threat, based on considerations such as the length of time that has passed since the activity described in §115.17(a)(1)-(3), the evidence of rehabilitation on the part of the individual, or other relevant factors, and documents all relevant factors and rationale leading to the safety threat determination; (2) considers the individual to be important to the success of a specialized inmate rehabilitative program; and (3) does not permit the individual to have contact with inmates without staff supervision (e.g., circumstances where an individual would have the opportunity to potentially sexually abuse an inmate, due to the ability to privately interact with, or to supervise, inmates). For example, a presentation by an ex-offender, to a group of inmates, under constant in-person supervision, would be acceptable under this section, so long as the above requirements have been met.

1 The designee may not hold a position lower than a facility head.

Last Updated August 12, 2014.

 

11. What constitutes a “relevant licensing body” for the purposes of satisfying the required notifications in § 115.76, § 115.77, §115.176 §115.177, §115.276, §115.277, §115.376, and §115.377?

A “relevant licensing body” is an entity (e.g., medical board, board of social work, board of mental health, bar association, etc.) that licenses an individual to conduct work in a specific profession.

Last Updated August 27, 2014.
 


12. Are teachers and other education workers in a PREA-covered facility required to undergo a criminal records background check and PREA-related training?

Education workers who are employees of the confining agency are subject to the background check requirements of Standards 115.17/117/217/317 and are subject to the employee training requirements of Standards 115.31/131/231/331.

Education workers who are not employees of the confining agency but who provide services in a PREA-covered facility on a recurring basis are considered contractors of the agency, notwithstanding the absence of a formal written contract between the education staff or the educational agency and the confining agency.

The Department has consistently indicated that, for purposes of the PREA Standards, it intends to construe the term “contract” broadly to include, among other things, formal or informal arrangements, intergovernmental services agreements, and other types of agreements to provide services to the agency. Accordingly, non-employee education staff are subject to the background check requirements of Standards 115.17/117/217/317 and are subject to the contractor training requirements of Standards 115.32/132/232/332.

If, however, a teacher or other education worker is not an employee of the confining agency and does not provide services on a recurring basis in the facility (for instance, a guest speaker or a one-time instructor who does not have unsupervised contact with inmates/residents/detainees), the PREA Standards referenced above do not require a criminal records background check or PREA training.

Last updated September 23, 2014.


13. What is meant by “the use of physical barriers” and “intensive staff supervision” in the definition of a Secure Juvenile Facility in § 115.5?

§ 115.5 defines, in part, secure juvenile facility to mean “a juvenile facility in which the movements and activities of individual residents may be restricted or subject to control through the use of physical barriers or intensive staff supervision.”

This definition generally includes both hardware-secure facilities and staff-secure facilities. A hardware-secure facility means a facility that relies primarily on the use of construction and hardware such as locks, bars, and fences to restrict freedom. A staff-secure facility means a facility with continuous staff or contractor presence, and (1) a facility operated or structured so as to ensure that entrances and exits from the facility are under the exclusive control of the staff of the facility, or (2) a facility where staff or contractor duties include physical intervention to prevent residents from the unauthorized exit from the facility.

Last updated September 23, 2014.

 

14. How is “housing unit” defined for the purposes of the PREA Standards?

The question has been raised in particular as it relates to facilities that have adjacent or interconnected units.

The most common concept of a housing unit is architectural. The generally agreed-upon definition is a space that is enclosed by physical barriers accessed through one or more doors of various types, including commercial-grade swing doors, steel sliding doors, interlocking sally port doors, etc. In addition to the primary entrance and exit, additional doors are often included to meet life safety codes. The unit contains sleeping space, sanitary facilities (including toilets, lavatories, and showers), and a dayroom or leisure space in differing configurations.

Many facilities are designed with modules or pods clustered around a control room. This multiple-pod design provides the facility with certain staff efficiencies and economies of scale. At the same time, the design affords the flexibility to separately house inmates of differing security levels, or who are grouped by some other operational or service scheme. Generally, the control room is enclosed by security glass, and in some cases, this allows inmates to see into neighboring pods. However, observation from one unit to another is usually limited by angled site lines. In some cases, the facility has prevented this entirely by installing one-way glass.

Both the architectural design and functional use of these multiple pods indicate that they are managed as distinct housing units.

Last updated October 22, 2014.

 

15. Do employees who have contact with inmates need to be trained pursuant to § 115.31 prior to being placed in positions that put them in contact with inmates?

Standard 115.31 outlines the topics on which all employees who have contact with inmates must be trained. All employees must receive training on these topics prior to having contact with inmates, except in very rare circumstances where a slight delay may be reasonable and the employee will not have unsupervised contact with inmates until the required training occurs. If, for example, a new employee who has not yet been trained finds himself or herself in a first-responder situation after a sexual assault has occurred, the consequences for the victim and for the investigation could be very serious and possibly beyond remedy. If the new employee does not know how to preserve physical evidence and finds himself or herself in a situation where there is physical evidence of a sexual assault, that evidence could be irrevocably lost because of the individual’s lack of training.

The Department does, however, recognize that in some agencies and facilities, comprehensive PREA training that goes beyond the basic training required in § 115.31 may be conducted periodically and, as a result, agencies and facilities would have to leave open positions vacant for long periods of time if they waited to fill them until new staff members participated in comprehensive PREA training. The Department recognizes that open positions that are left vacant for long periods of time may have a negative impact on facility safety and security.

In light of these challenges, the Department has determined that while training on the specific topics outlined in § 115.31 must occur before new staff members have contact with inmates (except as outlined above), agencies and facilities can implement effective ways to ensure that such training occurs, so that vacant positions are not left open for long periods of time. For example, agencies and facilities may offer pre-service orientation training that focuses on a host of issues critical to interacting with inmates and supporting safety and security in confinement settings, including all of the topics identified in § 115.31. While more comprehensive, in-depth training may be provided later, the pre-service training must cover all of the topics identified in § 115.31, including providing new staff members with a clear understanding of their roles and responsibilities related to preventing, detecting, and responding to sexual abuse in the confinement settings. Such pre-service orientation training can be reinforced and enhanced by on-the-job training, where experienced and knowledgeable staff members partner and work with new hires to educate them further about the topics in § 115.31. More comprehensive PREA training then could be provided at the next opportunity, but no later than the time required under § 115.31(c).

Last updated October 22, 2014.

 

16. Do the PREA Standards require that agencies conduct a criminal records background checks on public defenders, other attorneys, interns working with public defenders or other attorneys, or law students practicing as attorneys under a practice agreement, pursuant to legal representation, before they may enter a facility?

No. §§ 115.17, 115.117, 115.217, and 115.317 require generally that agencies perform a criminal background records check (and in the case of juvenile facilities, consult applicable child abuse registries) before enlisting the services of any contractor. Legal counsel are not contractors enlisted by the agency. Therefore, the listed standards do not apply to them.

Last updated October 22, 2014.

1. What information is forthcoming on the audit?

Click here for the latest information on audits.

Last updated March 14, 2013.


2. 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.

Last updated February 7, 2013.


3. 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?

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 is working with the PRC to define specific measures auditors will use to assess compliance. Additional information will be forthcoming soon. 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.

Last updated March 14, 2013.


4. 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 holds auditor trainings approximately every other month throughout calendar year 2014. For exact dates click here. A complete list of PREA-certified auditors is maintained publicly on the PRC website here.

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.

Last updated March 14, 2013. 

 

5. What constitutes “overnight” for purposes of PREA Standard 115.193, which states that “[a]udits need not be conducted of individual lockups that are not utilized to house detainees overnight?”

As a general matter, the term “overnight” is construed as a period of seven or more continuous hours between 8:00 p.m. and 8:00 a.m. In situations where the facility has only a remote chance of meeting the above time period threshold, or does so only in rare circumstances (less than one time per month on average), the facility will not be considered “overnight.”

Last updated March 26, 2014


6. How long must the documents that auditors relied on for making audit determinations be retained?

These documents must be retained for 12 months following the deadline for any agency audit appeal. Because audit appeals must be lodged within 90 days of the auditor’s final report, auditors must retain these documents for 15 months following the issuance of the final audit report. Longer document retention may be required in particular instances if so requested by the US Department of Justice.

Last updated March 26, 2014


7. Can PREA auditors engage support staff to assist with completing PREA audits? 

PREA auditors may employ staff to provide assistance, including conducting interviews, but the DOJ-certified auditor is ultimately responsible for the final audit. In addition, the certified auditor is required to be present for, and supervise, the entirety of the on-site portion of the audit; to be the counterparty in an agency’s contractual engagement for the conduct of the audit; and to sign and certify the interim and final audit reports.  Failure to adequately supervise such support staff could have consequences for the responsible auditor, up to and including decertification by the Department of Justice.  

Last updated December 5, 2013.


8. Do any of the conflict rules governing who can conduct an audit of a given agency’s facilities apply to the staff they hire to help them conduct that audit?

The same restrictions regarding auditor conflict of interest also apply to staff who auditors hire to help conduct the audit.  Consistent with PREA Standard 115.402: 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.

Last updated June 11, 2014


9. Is reciprocal auditing conducted by employees of two confinement agencies permissible?

An auditor who is employed by one correctional agency may not conduct an audit of another correctional agency if an auditor employed at the time by the latter agency has concluded an audit of the former agency within the prior twelve months.

Last updated July 9, 2013.


10. I understand that reciprocal auditing is not permitted, but what about “circular auditing?”

Circular auditing, in which a consortium of three or more States, or three or more local jurisdictions, agrees to perform audits at facilities in other consortium States, is permissible, with a few caveats. First, the circular auditing schedule must be developed so that no audits would be considered impermissible reciprocal audits (see FAQ #9 under Audits and Compliance section of FAQ).  Second, no audits can be allowed in cases in which the auditor’s agency contracts for space in the facility being audited.  

Last updated December 5, 2013.


11. Should an auditor’s final report reflect deficiencies that were found in the interim report and actions taken to correct them during the corrective action period? 

Auditors are required to submit a report to the audited agency within 30 days of completion of an on-site audit.  It is expected that if an auditor determines that a facility does not meet one or more of the standards, this report will be considered an “interim report,” triggering a 180-day corrective action period, and the auditor will include in the report recommendations for any required corrective action and shall jointly develop with the agency a corrective action plan to achieve compliance.  The auditor is required to “take necessary and appropriate steps to verify implementation of the corrective action, such as reviewing updated policies and procedures or re-inspecting portions of a facility.”  At the completion of the corrective action period, the auditor has 30 days to issue a “final report” with final determinations.  Section 155.404 (d) states that, “After the 180-day corrective action period ends, the auditor shall issue a final determination as to whether the facility has achieved compliance with those standards requiring corrective action.”  The final report, which is a public document that the agency is required to post on its web site or otherwise make publicly available, should include a summary of the actions taken during the corrective action period to achieve compliance.

Last updated April 23, 2014


12. 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(e). For more information on the certification process, click here to access the letter sent from the Department of Justice to all state governors.

Last updated March 14, 2013.


13. At what stage in the audit process is an audit considered complete for the purposes of meeting the requirement that one-third of an agency’s facilities be completed by the end of each year in the auditing cycle?

For the purpose of the PREA standards, the audit is considered complete upon issuance of the initial audit report or 30 days after the conclusion of the audit’s on-site visit to the facility, whichever one comes first.

Last updated June 20, 2014.


14. Can an auditor find a federal Bureau of Prisons, state, county, or other local or private facility compliant with the PREA standards if an entity external to the confining agency, which conducts criminal investigations of sexual abuse in the facility being audited, is not compliant with the external investigative entity’s obligations under § 115.21, § 115.22, § 115.34, and § 115.71?

Yes, provided that the confining agency and facility being audited has met its own specific obligations under these standards. For example, § 115.21(f) requires the confining agency to request that the relevant external investigating entity follow the PREA standards regarding a uniform evidence protocol and forensic medical evaluations.

The four PREA standards referenced above explicitly apply to DOJ and state entities that are responsible for investigating allegations of sexual abuse in adult prisons, jails, lockups, community corrections facilities, and juvenile facilities. See, §§ 115.21(g)(2), 115.22(e), 115.34(d), and 115.71(k)&(l).

Last updated April 23, 2014.


15. What happens to an agency’s three-year audit timeline if an agency fails to have the required minimum of one-third of its facilities audited by August 19, 2014? 

The standards require generally that an agency must have “at least one-third” of its facilities audited during each one-year period, which began on August 20, 2013; and that all facilities must be audited by the conclusion of each three-year period, which began on the same date.  See 28 C.F.R. § 115.401(a)&(b). Compliance with the audit timeline is evaluated both on a year-to-year basis and at the conclusion of the three-year audit cycle.  Failure to comply with the audit timeline during the initial year of an audit cycle does not preclude compliance during years two and three of an audit cycle.  Similarly, failure to comply with the audit timeline during the first two years of an audit cycle does not preclude compliance during the final year of each audit cycle.  It is important to note that, for purposes of complying with § 115.401(a) (requiring audits of each facility during the three-year audit cycle), agencies must ensure that each facility is audited at least once by August 19, 2016, and during every three-year anniversary thereafter. 

a. By way of hypothetical, what happens if an agency has seven facilities but receives no audits by the conclusion of the first year of the first audit cycle (by August 19, 2014)?

The agency would not be fully compliant with the PREA standards as of August 20, 2014. However, the agency may still become fully PREA compliant during the second year and the third year of the audit cycle. For purposes of the audit cycle, compliance is determined during each specific audit cycle year. So if this agency obtains three facility audits (at least one-third) between August 20, 2014 and August 19, 2015, then the agency would be PREA compliant with the audit cycle during that year.

During the final year of the audit cycle (ending August 19, 2016), however, the agency would be required to have all four remaining facilities audited. This is because an agency has a separate obligation under the standards to ensure that “each facility” must be audited “at least once” during the three-year audit cycle (concluding on August 19, 2016). See 28 C.F.R. § 115.401(a).

b.  As another hypothetical, what happens if an agency has only one facility but receives no audit by the conclusion of the first year of the first audit cycle (by August 19, 2014)?

Because the standards require that an agency have “at least” one-third of its facilities audited during each year of the three-year audit cycle, an agency with a single facility is required to receive an audit during the initial year of the audit cycle to be compliant as of August 19, 2014.  In other words, an agency with a single facility cannot be said to have had at least one third of its facilities audited by August 19, 2014, if it has had no facility audits.  However, a single-facility agency could become fully compliant at any point during the remainder of the three-year audit cycle (concluding on August 19, 2016) subject to a successful audit of that facility.  So for example, a single-facility agency that is not compliant as of the conclusion of the first year of the audit cycle because it had received no audits by August 19, 2014, could nevertheless become fully compliant with the audit standards if it receives an audit one month later (early in the second year of the audit cycle) and would remain compliant with this standard through the remainder of the first audit cycle.

Last updated April 23, 2014.


16. Is it ever appropriate for auditors to require the installation of cameras as part of a corrective action plan?

No, with respect to adult confinement facilities. Generally, no, with respect to juvenile facilities. In juvenile facilities that include specific camera coverage in their staffing plan, the absence of such camera coverage may appropriately provide the basis for an auditor to either insist on the camera requirements in their staffing plan or require that the staffing plan be amended. Note that there are different requirements regarding the deployment of video monitoring technology among the four sets of standards.

Prisons, Jails, Lockups, and Community Confinement Facilities

In adult facilities (adult prisons and jails; lockups; and community confinement facilities), the standards require facilities to develop and document staffing plans that provide for “adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse.” See 28 C.F.R. §§ 115.13(a), 113(a), and 213(a). These standards require that facilities consider several enumerated factors in the development of the staffing plan, including, among other things, the physical layout of the facility. See also 28 C.F.R. §§ 115.13(a)(5) (“including ‘blind spots’”). In adult facilities, agencies are required to make “best efforts” to comply with the staffing plan and/or to “document and justify” deviations from it.

The adult standards also require agencies to reassess the adequacy of the “facility’s deployment of video monitoring systems and other monitoring technologies…[w]henever necessary, but no less frequently than once each year…” See 28 C.F.R. §§ 115.13(c), 113(c), and 213(c).

Finally, the adult standards require agencies “[w]hen installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology…to consider how such technology may enhance the agency’s ability to protect inmates from sexual abuse.” See 28 C.F.R. §§ 115.18(b), 118(b), and 218(b).

Within this context, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. For example, in developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. Indeed, best practices suggest that video monitoring is not an adequate substitute for sufficient numbers of staff. In any event, so long as the above requirements are complied with (e.g., make best efforts to comply, document and justify deviations, and consider how technology may enhance protections), then the failure to incorporate or add video monitoring technology does not cause a facility to be out of compliance with the standards. Accordingly, it is not appropriate for an auditor to specifically require the addition of video cameras as a condition of finding compliance.

Juvenile Facilities

Unlike the adult facility standards, the juvenile facility standards require agencies to “implement…a staffing plan that provides…where applicable, video monitoring, to protect residents against sexual abuse.” See 28 C.F.R. § 115.313(a). The staffing plan must take into consideration, among other things, “the facility’s physical plant (including ‘blind spots’ or areas where staff or residents may be isolated)…” Further, the juvenile facility standards provide that the agency “shall comply with the staffing plan except during limited and discrete exigent circumstances, and shall fully document deviations from the plan during such circumstances.” See 28 C.F.R. § 115.313(b) (emphasis added).

By contrast, while adult facility standards require agencies to develop an adequate staffing plan, and to make best efforts and/or to document and justify deviations, the juvenile facility standards require agencies to comply with the staffing plan, absent exigent circumstances.

However, as discussed above with respect to the development of the staffing plan, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. In developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. For example, where an auditor or an agency identifies a “blind spot” that imposes considerable danger of the occurrence of sexual abuse, an agency may choose to reallocate existing staff or add staff to the area in question, rather than to install a new video camera in the area.

Accordingly, so long as the above requirements are met, the absence of a particular video monitoring system or camera would not preclude agency compliance with this standard, and it would be inappropriate for an auditor to specifically insist on the installation of a video camera (as opposed to other enhanced protective measures) in order to find compliance. However, if the staffing plan developed pursuant to this standard requires specific camera coverage, and that coverage is either not provided or inoperable, then it may be appropriate for the auditor to insist on agencies either complying with the staffing plan (absent exigent circumstances) or amending their staffing plan.

Please note the requirements for a periodic staffing plan reassessment and for consideration of the effect of video monitoring technology when installing or enhancing systems is substantively the same between adult and juvenile facilities. See 28 C.F.R. § 115.313(d) and 318(b).

Last updated September 23, 2014.

1. What determines whether a facility is “primarily used for” a particular purpose under the PREA standards?

The simplest way to make this determination is to determine whether, over a period of one year, the facility holds more people for that purpose than for any other purpose. 

Last updated July 9, 2013.


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.

Last updated February 7, 2013.


3. 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.

Last updated February 7, 2013.


4. If a facility meets the definition of “lockup” but only holds juveniles, do the juvenile facility standards apply, or do the lockup standards apply?

The lockup standards apply.

Last updated July 9, 2013.


5. Does the agency and/or jurisdiction responsible for placing a resident in a community-based residential facility matter for the purpose of qualifying that facility as a “community confinement facility” under the standards?

No. The agency and/or jurisdiction responsible for placing residents is irrelevant for this purpose. The key factor in determining whether a facility qualifies as a “community confinement facility” under the standards is whether residents are placed there as a result of criminal justice contact. For example, if a community-based residential facility is primarily used for residents who are on probation—which, in some states, is a local function not overseen by the department of corrections—and who are required to be in that facility, the facility would qualify as a “community confinement facility” under the standards.

Last updated March 26, 2014

 

6. Are foster homes that contract with juvenile justice agencies (as opposed to institutional residential placements) covered by the PREA standards? 

Foster homes are not covered by the standards.

Last updated July 9, 2013.


7. 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.”

Last updated February 7, 2013.


8. 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. 

Last updated February 7, 2013. 


9. If a facility for youth is not primarily used for youth in the juvenile justice system but, rather, social services youth, may the facility be considered either a “juvenile facility” or “community confinement facility” under the standards?

No. A facility for juveniles that is not primarily used for the confinement of youth in the juvenile justice system is not covered by the PREA standards.

Last updated July 9, 2013.


10. 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 Standard 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.

Last updated February 7, 2013.


11. What is the threshold number of criminal justice residents in a community facility to implicate the community confinement standards? 

A community facility that is not primarily used for the confinement of residents in the adult criminal justice system is not covered by the community confinement facility standards.

Last updated July 9, 2013.


12. Do the PREA standards apply to adult psychiatric forensic mental health care facilities or hospitals operated by non-correctional agencies where individuals have been committed following a court finding of not guilty by reason of insanity or where they are held pending competency restoration? 

No. An adult hospital or mental health care facility that is not operated by a correctional agency (or under the authority of a correctional agency) is not covered under the PREA Standards. This is true even if the hospital or mental health care facility houses some portion of residents pursuant to the criminal justice system.  

Last updated July 9, 2013.


13. Are facilities that exclusively house civilly-committed sex offenders (who have been convicted, served their prison sentence, and are deemed to be too dangerous to release to the community) covered by the PREA standards?

No. Civilly-committed individuals are not considered inmates, residents, or detainees for purposes of determining whether a particular facility is covered under the standards.

Last updated July 9, 2013.


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, in conjunction with its partner, The Vera Institute for Justice, released a document providing guidance on how to objectively screen for risk of sexual victimization and abusiveness and use of the collected information. You can access this document here.

Last updated March 14, 2013.

 

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/resident 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).

Last updated February 7, 2013. 

 

3. What screening is required for detainees in lockups that are never placed in a holding cell with other detainees?

The determining factor in this situation is whether the detainee will be confined in a cell or room with another detainee. If a detainee is never placed in a holding cell with another detainee and is never placed in an area with other detainees absent continuous staff supervision, then no screening for risk of sexual abusiveness or victimization is required. This is so, regardless of whether the detainee is housed overnight or whether the facility is used to house detainees overnight.

Last updated August 4, 2014.


4. Standard 115.42, “Use of Screening Information,” requires that transgender inmates be allowed to shower separately.  What constitutes “separate” for the purposes of complying with this standard?

Section 115.42(f) states, “Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.”  This standard was adopted to provide additional protections for these inmates, given the unique risks these populations face while incarcerated.  The separation required by the regulation will be dependent on the layout of the facility, and may be accomplished either through physical separation (e.g., separate shower stalls) or by time-phasing or scheduling (e.g., allowing an inmate to shower before or after others).  In any event, facilities should adopt procedures that will afford transgender and intersex inmates the opportunity to disrobe, shower, and dress apart from other inmates.

Last updated April 23, 2014.


5. Does standard § 115.41 (§ 115.241, § 115.341) require facilities to affirmatively inquire of the inmates/residents about their lesbian, gay, bisexual, transgender, or intersex (LGBTI) status, in addition to making a subjective determination about perceived status?

Yes, in accordance with the following guidance.  Standards § 115.41, § 115.241, and § 115.341 require that “[a]ll inmates/residents shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates/residents or sexually abusive toward other inmates/residents.”  The inmate/resident screening shall consider, at a minimum, and among several other factors “[w]hether the inmate/resident is or is perceived to begay, lesbian, bisexual, transgender, intersex, or gender nonconforming.”  See 28 C.F.R. § 115.41(d)(7), § 115.241(d)(7), and § 114.341 (d)(7) (emphasis added).

These factors require both an objective (is) and a subjective (is perceived to be) determination.  The objective determination requires that an inmate/resident be affirmatively afforded an opportunity to self-identify as LGBTI, if he or she chooses to do so.  In addition, staff should consider any other relevant knowledge or information regarding inmates’/residents’ LGBTI status.  The subjective component—whether an inmate/resident appears gender nonconforming—necessarily requires a determination based on the perception of the screening staff. 

Please note: an affirmative response does not require any specific course of action based on this one factor.  It is one piece of information that should be evaluated in conjunction with the other factors listed in the regulation concerning the overall assessment of the inmate/resident.  Inmates/residents may feel reluctant to provide screening staff with information regarding their identification as LGBTI due to, among other possible reasons, a fear that disclosure of such information may make the inmate/resident more vulnerable to sexual or physical abuse, or harassment.  Accordingly, the standards require the agency to implement appropriate controls on the dissemination of screening information within the facility and to protect sensitive information.  See 28 C.F.R. § 115.41(i), § 115.241(i), and § 115.341(i). 

While agencies are required to ask the inmate/resident if he or she chooses to identify as gay, lesbian, bisexual, transgender, and/or intersex, it is clear that the agency may not compel the inmate/resident to answer.  Specifically, the standards provide that inmates/residents may not be disciplined for refusing to answer (or for not disclosing) certain enumerated factors, including whether they identify as LGBTI.  See 28 C.F.R. § 115.41(h), § 115.241(h), and § 115.341(h). 

The standards require that inmates/residents be assessed for these and other risk factors “during an intake screening and upon transfer to another facility,” within 72 hours of arrival at the facility, using an objective screening instrument.  See 28 C.F.R. §§ 115.41(a)-(c), §§ 115.241(a)-(c), and §§ 115.341(a)-(c).  The standards further require that the agency use the information from the intake risk screening to inform housing, bed, work, education, and program assignments.  See 28 C.F.R. § 115.42(a), § 115.242(a), and § 115.342(a).  However, the standards do not mandate exactly when, where, how, or who should conduct the intake screening.  If a particular facility determines that some or all sensitive screening inquiries should be asked by medical personnel or in an interview separate from the larger intake screening process, the facility administration may choose to structure the intake screening in an alternate manner that provides for appropriate privacy and candor.  So long as the intake screening is conducted using an objective screening instrument, includes all of the required information, is complete within 72 hours, and is used to inform the inmate’s/resident’s classification status, the facilities have the discretion regarding the most appropriate setting and screening personnel for asking inmates/residents sensitive screening questions.

The Department of Justice (DOJ) recognizes that some agencies may be hesitant (for any number of reasons) to affirmatively ask inmates/residents whether they identify as LGTBI.  However, as indicated in the PREA Notice of Final Rule, DOJ remains of the view that appropriately trained intake staff should be competent to ask inmates/residents sensitive questions in a professional and effective manner.  Although not specifically required by the regulation, certain screening techniques may assist agencies and/or inmates/residents in navigating these potentially sensitive inquiries.  Examples of these best practices include:

  • At the outset of the screening, inform the inmate/resident that you will be asking a series of questions, that you are required to ask all of the questions of every inmate/resident, and that the information provided will be protected from dissemination.
  • Rather than asking an inmate/resident whether or not he or she is gay, lesbian, or bisexual (for example), ask the inmate/resident if he or she wishes to identify his or her sexual orientation or gender identity. 

Last updated June 19, 2014.


6. Standards 115.41(f) and 115.241(f) require that the facility “reassess the inmate’s/resident’s risk of victimization or abusiveness based on any additional, relevant information received by the facility since the intake process” and that it do so no more than 30 days after intake.  The question is whether this standard subsection requires that EVERY inmate be reassessed within 30 days of arrival at the facility to determine whether any relevant new information exists; OR, alternatively, whether it requires that some process be in place to capture new information that arrives at the facility within 30 days and, when new information arrives, it prompts a reassessment?

Both.  First, there is a general and continuing obligation to conduct a screening reassessment whenever warranted upon receipt of additional relevant information.  Specifically, § 115.41(g) requires that “[a]n inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness.”  This continuing obligation extends through the duration of the inmate’s incarceration. 

By contrast, the standards also require an affirmative reassessment within a set time period, but no later than 30 days of intake.  Specifically, § 115.41(f) requires that “[w]ithin a set time period, not to exceed 30 daysfrom the inmate’s arrival at the facility, the facility willreassess the inmate’s risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening” (emphasis added).

While § 115.41(f) requires an affirmative reassessment within 30 days, the reassessment need not “start from scratch.”  For example, as noted in the PREA Notice of Final Rule, a facility may generally rely upon information previously gathered, so long as the reassessment “captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.” 

While a facility may (and should) have a system in place for capturing additional or new information from a variety of sources (e.g., mental health assessment, disciplinary history, or allegations of relevant threats or victimization), the 30-day affirmative reassessment requires, at a minimum, that screening staff consult available sources to determine whether any previously unknown triggering event or information has become available and to document such review.  If, after consulting all relevant sources, no new relevant information is present, then further reassessment under the standards may not be necessary.  In short, as opposed to the “passive” requirements under § 115.41(g), § 115.41(f) requires screening staff to affirmatively “look.”

As noted in the PREA Notice of Final Rule, “[t]he final standard requires that inmates who remain in custody undergo a more extensive classification process [within 30 days].”  This requirement recognizes that information relevant to the risk and classification needs will become available as staff interview, assess, and observe the inmate, and as the facility receives information from other agencies and sources.

Last updated June 20, 2014.

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, residents, and detainees 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. 28 C.F.R. §§ 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.

Last updated February 7, 2013.


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.” 28 C.F.R. 115.5 (definitions).

Last updated February 7, 2013. 


3. Who counts as “security staff” for purposes of the minimum staffing ratio Standard for secure juvenile facilities?

The Standards provide, inter alia, that [e]ach secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours, except during limited and discreet exigent circumstances…”  28 C.F.R. § 115.313(c). Only security staff shall be included in these ratios. Id.

The Standards define “security staff” as employees primarily responsible for the supervision and control of… residents in housing units, recreational areas, dining areas, and other program areas of the facility. 28 C.F.R. § 115.5. This definition is intended to approximate the manner in which the term “direct-care staff” is typically used by many juvenile facilities.

Typically, only direct-care staff will count in the minimum mandatory ratios. Direct-care staff supervisors may generally be counted within the minimum ratios to the extent they are presently assigned to primarily or exclusively supervise residents. 

Other persons whose duties involve supervision and control of residents for a portion of the day may count towards these ratios while they are actively supervising and controlling residents, assuming that they have received appropriate training. Appropriate training generally includes training on the supervision and control of delinquent youth including, among other things, verbal de-escalation techniques, age-appropriate defensive tactics, and crisis intervention.

For example, a teacher who has received appropriate training may be included in the ratio during the time in which he or she is leading a class, as opposed to preparing a lesson plan. Similarly, a warden or other facility management official will count toward the ratio during the periods of the day when he or she is supervising residents rather than engaging in administrative activities.

Social workers, case managers, clinical staff, and administrative support staff will generally not count toward the minimum staffing ratios, except in circumstances in which they are supervising or controlling a group of residents, and only then if they have received appropriate training. 

Contractors and volunteers (who have received a criminal records background check) may count to the extent that their responsibilities and training otherwise qualify.

Last updated July 9, 2013.


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.

Last updated February 7, 2013. 

1a. Does the standard that requires the facility to enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia apply equally to viewing that is done remotely via recorded or live video camera feed?

1b. Does this standard prohibit opposite-gender staff from viewing inmates in their beds either through direct viewing or remotely by video camera? 

1c. How do these prohibitions affect the cross-gender staffing of dormitory settings and the viewing of video cameras in dormitory settings?

(The following response answers all three questions.)

Yes. The intent of PREA Standards 115.15, 115.115, 115.215, and 115.315 (limits to cross-gender viewing and searches), subsection (d) is to provide inmates with the ability to shower, use the toilet, and change their clothes without being viewed by nonmedical staff of the opposite gender. The standard also functions to ensure that inmates have the information they need in order to cover up when opposite-gender staff members are working in their housing areas. The exception for viewing incidental to routine cell checks acknowledges that opposite-gender staff will work in housing areas and may see an inmate naked in his/her cell while conducting routine cell checks, but this is paired with the requirement that opposite-gender staff announce their presence to enable inmates to cover up during those periods if they do not wish to be viewed. Therefore, to the extent that cameras are focused on an area in which inmates are likely to be undressed or toileting, such as showers, bathrooms, and individual cells, the cameras should only be monitored by officers or nonmedical administrators of the same gender as the inmates viewed through the camera.

Practically, most cameras in correctional facilities are focused on common areas, including dayrooms, hallways, recreation areas, etc. In dormitory units, cameras may be in the common area that includes inmate beds. Cameras are rarely located within shower or toilet areas. It is acknowledged that there is a diminished expectation of privacy in the open area of a dormitory setting or other common areas of correctional facilities. In addition, most facilities have rules prohibiting inmates from disrobing or being unclothed in common areas. If this is the case and these rules are enforced, cameras focused on common areas, including dormitory sleeping units, may be monitored by either gender.

With the exception of close-observation or suicide watch cells, cameras generally are not located in single cells. It is reasonable to assume that inmates will change clothes or use the toilet within an individual cell. Attempts to provide privacy in instances of close observation or suicide watch, such as digitally obscuring the toilet area or providing a privacy screen for some portion of the cell, would likely negate the officer’s ability to properly monitor the individual via camera. Therefore, unless exigent circumstances prevent it, cameras focused within single cells should only be monitored by officers or nonmedical administrators of the same gender as the inmates viewed through the camera. While same-gender observation is preferable because of the importance of monitoring inmates identified as being at high risk for self-harm or who are actively suicidal, cross-gender camera viewing of inmates in suicide watch cells is permissible if operationally indicated.

Finally, in order to maintain the ability to conduct thorough and effective investigations and incident reviews involving sexual abuse, sexual harassment, and other misconduct, appropriately trained internal and external investigators and senior facility and agency administrators are not prohibited by this rule from viewing cross-gender recorded camera footage in conjunction with an investigation or incident review.

Last updated March 26, 2014


2. 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.

Last updated February 7, 2013.


3. 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/detainees for the sole purpose of determining their genital status. As noted in PREA Standards 115.15(d), 115.115(d), 115.215(d), and 115.315(d), if an inmate’s, resident's or detainee's genital status is unknown, an agency can determine it through conversations with the inmate/resident/detainee, 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/residents/detainees. 28 C.F.R §§ 115.15, 115.115, 115.215, 115.315. 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/detainees: 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/detainees to identify the gender of staff with whom they would feel most comfortable conducting the search. 

Last updated February 7, 2013. 

 

4. When a strip search or visual body cavity search is conducted by same-gender staff or medical staff of either gender, what restrictions are there on supervisors or other staff and personnel of the opposite gender observing the search?

Opposite-gender supervisors, staff, or other nonmedical personnel should generally not be permitted to observe the conduct of a same-gender strip search or visual body cavity search (absent exigent circumstances). In cases where supervisors who are opposite gender to the inmate being strip searched (either live or via video monitoring) are required to supervise or observe the strip search, a facility should use a privacy screen or other similar device to obstruct cross-gender viewing of an inmate’s breasts, buttocks, or genitalia. The privacy screen or other similar device need only be of sufficient height and position to obstruct viewing of the listed areas. In cases where other opposite-gender staff or personnel are in the vicinity of the strip search, similar precautions should also be used, unless the opposite-gender staff or personnel are of sufficient distance where the contours of the breasts, genitalia, or buttocks are not readily distinguishable. This interpretative guidance is not intended to require gender-specific staff posts.

Last updated October 22, 2014.

 

5.  Is it ever appropriate for a transgender or intersex inmate or resident to be searched by both a male officer and a female officer, the male officer searching the parts of the body that are anatomically male and the female officer searching parts of the body that are anatomically female?

No.  The gender of the staff member searching a transgender or intersex inmate or resident will depend on the specific needs of the individual inmate or resident and on the operational concerns of the facility.  Under most circumstances, this will be a case-by-case determination, which may change over the course of incarceration and should take into consideration the gender expression of the inmate or resident. 

Making accommodations, if necessary, to search individuals according to gender identity would not violate the prohibitions on cross-gender searches in §§ 115.15 (a)-(c) and §§ 115.315 (a)-(c).  Further, § 115.15(f) and § 115.315(f) state that the agency shall train security staff in how to conduct searches of transgender and intersex inmates or residents in a professional and respectful manner and in the least intrusive manner possible consistent with security needs.  Requiring two officers to search transgender inmates or residents would be more intrusive than necessary.

For more information on addressing the needs of transgender or intersex inmates, please see the National Institute of Corrections resource page at http://nicic.gov/lgbti.

Last updated July 3, 2014.

 

6. What gender should transgender staff be considered for the purposes of complying with cross-gender viewing and search prohibitions established in § 115.15? 

Facilities should verify whether there are any specific legal authorities, statutes, or personnel policies that may be relevant to this determination.  Absent any specific authorities, facilities should make an individualized determination based on the identified gender of the staff member, and not solely on the basis of the biological gender.  This decision should be made at the request of, and in conjunction with, the transgender staff member.  The determination may also change during the course of employment, as part of an on-going adjustment process, or as the staff member gains real-life experience living as a person of the identified gender.

Last updated April 23, 2014


7. What is required by the cross-gender announcement in Standard 115.15(d) (adult prisons and jails; and 115.315(d) (juvenile facilities with discrete housing units)?

In adult prisons and jails, and in juvenile facilities with discrete housing units, “staff of the opposite gender” are required to “announce their presence when entering an inmate housing unit.” This is sometimes referred to as the “cover-up rule” and is intended to put inmates on notice when opposite-gender staff may be viewing them. The announcement is required any time an opposite-gender staff enters a housing unit; however, the Department has determined that the purpose of the Standard may be fully realized by requiring the announcement only when an opposite-gender staff enters a housing unit where there is not already another cross-gender staff present. Accordingly, the Department has determined that compliance with the Standard will be achieved when an announcement is made, as follows:

When the status quo of the gender-supervision on a housing unit changes from exclusively same gender, to mixed- or cross-gender supervision, the opposite-gender staff is required to verbally announce their arrival on the unit. The announcement is required for both custody and non-custody staff, and may include, for example, a clinician or case worker who spends time on the unit, or senior staff making supervisory rounds.

Note, a distinct buzzer, bell, or other noisemaking device may be substituted for a verbal announcement, so long as: (1) the buzzer emits a distinctive sound that is noticeably different from other common noisemakers; (2) inmates are adequately educated on the meaning of the buzzer sound and understand its purpose; and (3) the buzzer is not also used for other events at the facility. If used, such buzzers should be used in the identical manner that verbal announcements as required by the above guidance (e.g., when opposite- gender staff enter a housing unit).

The Department has received a number of inquiries about whether the following activities would constitute compliance:

Posting a notice on the housing unit informing the inmates that they may be subject to cross-gender supervision at any time.

Making a single announcement at the beginning of each shift indicating that inmates may be subject to cross-gender supervision at any time.

Making a single announcement at the beginning of a shift indicating that an opposite-gender staff is assigned to the unit for that particular shift.

Toggling a certain color light or flickering the lights in the unit as a signal to the inmates that opposite-gender staff may be on the unit.

The Department has determined that, while these other practices may be helpful supplements to the required verbal announcement, none of them is sufficient to comply with the Standard and compliance measure, as articulated above.

The Department also notes that there is no precise verbal language required by the cross-gender announcement Standard; only that the language put inmates or residents on sufficient notice that an opposite-gender staff member is entering the housing unit. Hence, such language as “man on the unit” or “Officer Smith on the unit” may both meet this requirement.

Consistent with Standard 115.16 and 115.316, the agency shall take appropriate steps to ensure that inmates with disabilities have an equal opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Accordingly, additional systems may be needed to supplement the verbal cross-gender announcement in units with inmates who are deaf or hard of hearing.


[1] In lockups and community confinement facilities, and in juvenile facilities that do not have discrete housing units, opposite-gender staff are only required to “announce their presence when entering an area where” detainees and residents “are likely to be showering, performing bodily functions, or changing clothing.” 28 C.F.R. §§ 115.115(c), 115.215(d), and 115.315(d).

Last updated February 19, 2014. 

 

8. Does the opposite-gender “announcement” requirement in 115.15(d) conflict with the requirement in 115.13(d) that supervisory staff conduct unannounced rounds to deter staff sexual abuse and sexual harassment?

No.   Section 115.13(d) determines when rounds within an institution should occur; section 115.15(d) sets forth the requirements of how rounds should be conducted in housing units.

Section 115.13(d) requires both a policy and practice of having intermediate-level or higher level supervisors conducting and documenting unannounced rounds to identify and deter staff sexual abuse and sexual harassment.   Such policy and practice shall be implemented for night shifts as well as day shifts.  The term “unannounced” in this standard is intended to ensure that staff are not unnecessarily alerted to the periodic arrival on a housing unit of management personnel.  Accordingly, this section specifically prohibits staff from alerting other staff members that these rounds are occurring, unless such announcement is related to legitimate operational functions.  Supervisory staff performing rounds at unexpected, non-routine times helps deter incidents of sexual abuse and sexual harassment.

Section 115.15 (d), on the other hand, requires a facility 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.  Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an inmate housing unit.   The announcement in this standard is intended to put inmates on notice as to the presence of opposite-gender staff on the unit.  This regulation is meant to balance privacy concerns of the inmate population with the security and operational needs of the facility.

Accordingly, intermediate-level or higher level supervisors performing the unannounced supervisory rounds pursuant to 115.13(d) are not exempt from the cross-gender announcement required pursuant to 115.15(d). For additional information regarding the cross-gender announcement requirement, see FAQ #5 above (in the Cross Gender Supervision section).

Last updated June 11, 2014.

1. Can inmate peer educators be used to deliver the inmate information and education requirements of § 115.33?  If so, under what circumstances and are there any limitations?

Peer education models have been successful in certain confinement settings because sensitive information may be more readily accepted when presented by someone that inmates can identify with, such as a fellow inmate. Sexual abuse is a difficult subject to talk about. It may be easier for inmates to learn about it from their peers, rather than from a staff member. Inmates may be more likely to trust in policies and practices conveyed through peer-led classes than those delivered by staff. Peer educators can make the education presentations more relatable and easier to understand for their peers. PREA standard 115.33 requires generally that inmates receive certain information regarding the agency’s sexual abuse- and sexual harassment-prevention policies and procedures during the intake process, and comprehensive inmate education regarding sexual abuse and harassment prevention and response mechanisms within 30 days of intake.

The PREA standards provide some limitations on an agency’s use of inmate assistants. Specifically, in the context of sexual abuse allegations, incident response, and investigations, the standards prohibit the reliance:

on inmate interpreters, inmate readers, or other types of inmate assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate’s safety, the performance of first-response duties under § 115.64, or the investigation of the inmate’s allegations. See 28 C.F.R. § 115.16(c).

However, DOJ has determined that a properly developed and executed inmate peer education program does not violate this provision for purposes of providing the inmate education required by § 115.33. Consistent with the theme of the PREA standards requiring staff, contractors, and volunteers who have contact with inmates to be screened, trained, and supervised, so too must any inmate peer educators. Inmate peer educators must be effectively screened for appropriateness, be effectively trained in the requirements of the standard, utilize an effective inmate education curriculum, and be effectively supervised by qualified staff.

When determining compliance with § 115.33 where an agency relies upon an inmate peer education program, DOJ-certified auditors will examine the effectiveness of the program by, among other things, interviewing inmate recipients of the peer education training program to ensure that the recipients received training consistent with the requirements of the standard.

Last updated April 23, 2014.

 

2. In adult prisons and jails, can adult inmates provide inmate peer education to juvenile inmates?  

No.  Under the Juvenile Justice and Delinquency Prevention Act (JJDPA), juveniles may not have sight or sound contact with adult inmates in any institution.  See 42 USC 5601 et seq.  Moreover, in any facility that houses juvenile residents, adult inmate trustees may not have sight or sound contact with residents in a juvenile facility. Thus, should an agency that oversees adult and juvenile commitments for a given state decide to utilize peer educators from its adult prison system, such peer educators could not educate juvenile residents, in either a juvenile facility or an adult facility.  Even where a state agency does not have jurisdiction over adult and juvenile corrections, a program whereby adult inmates are transported to a juvenile prison to provide face-to-face peer education on any topic would violate the JJDPA.

Last updated April 23, 2014.

 

3. In adult prisons and jails, can inmates over the age of 17 provide inmate peer education to youthful inmates (age 17 and under)?

Under certain defined parameters, yes.  In adult prisons and jails, youthful inmates are generally prohibited from having contact with inmates over the age of 17.  See 28 C.F.R. §115.14.  However, youthful inmates may have contact with inmates over the age of 17 outside of housing units if there is direct staff supervisionDirect staff supervision means that security staff are in the same room with, and within reasonable hearing distance of, the resident or inmate.  See 28 C.F.R. § 115.5.  Accordingly, the adult prison and jail standards do not prohibit inmate peer education by inmates over the age of 17 to younger inmates if the education occurs outside inmate housing units and there is direct staff supervision during the education process.

Last updated April 23, 2014.


See also the General and Audit and Compliance sections for related FAQs.

1. In accordance with Standards 115.12, 115.112, 115.212, and 115.312, what level of contracting monitoring is actually required by the contracting agency?

In years when the contract facility is audited, review of the audit report will meet the monitoring requirements. In other years, monitoring may be done in the same manner the agency verifies compliance with other contract terms, which may vary (e.g. on-site agency staff, inspections, documentation, etc.).  Whatever monitoring method used should provide the agency assurances that the contractor is complying with the PREA standards.

Last updated July 9, 2013.


2. Is a public agency that contracts with another public or private agency for the confinement of inmates, detainees, or residents out of compliance with Standard 115.12/112/212/312 if the contracted facility is determined to be noncompliant with one or more provisions of the PREA Standards by either its required triennial audit, or by the contracting agency’s contract monitoring?

Not necessarily. Standards 115.12, 115.112, 115.212, and 115.312 require that new or renewed contracts for the placement of inmates include both a requirement to comply with PREA, and that the contracting agency conduct contract monitoring “to ensure that the contractor is complying with the PREA Standards.” The Standard does not require that the contracted facility be immediately and perfectly compliant with the Standards. Rather, the contracted facility must demonstrate a commitment to be PREA compliant and be actively and effectively working toward achieving compliance with all the Standards. The contracted agency should be able to demonstrate to the contracting agency substantive progress toward achieving such compliance, and the progress should be documented.

For a discussion regarding the contract monitoring obligations of a contracting agency, see FAQ #1 under Contracts.

Last updated February 19, 2014. 


3. Many states are part of interstate compacts for the transfer of inmates between state confinement agencies. Do these interstate compacts constitute contracts for the confinement of inmates pursuant to 115.12 (115.212 and 115.312)?

Interstate transfers of inmates between public confinement agencies pursuant to the Interstate Agreement on Detainers (18 U.S.C. App. 2) or pursuant to existing national or regional Interstate Compacts for Corrections (authorized by state statutes) are exempt from the requirements set forth in standards 115.12, 115.212, and 115.312 where: (1) compensation for day-to-day inmate expenses is achieved only through reciprocal transfers of inmates; and (2) the transfers are primarily initiated by the inmate or with the consent of the inmate.

Last updated February 19, 2014. 


4. In a large number of states, local facilities hold state inmates either pursuant to a state statute (with or without a per diem or other financial consideration) or through informal contracts (or a contract providing only for the payment of the per diem) for short periods of time, either for adjudication of parole or probation violations or if a state inmate is returned temporarily to the local facility for a court appearance or testimony. Do these arrangements constitute contracts for the confinement of inmates pursuant to 115.12 (115.212 and 115.312)?

When a local facility houses state inmates only for short periods of time for either adjudication of parole or probation violations or following a temporary transfer to the local facility for a court appearance or testimony, the arrangement does not, in and of itself, constitute a contract for the confinement of inmates for the purposes of 115.12 (115.212 and 115.312), even if the state pays the local jurisdiction a per diem pursuant to state statute or informal agreement. The state need not require PREA compliance by the local facilities to maintain arrangements with regard to only short-term housing for probation or parole violators or temporary transfers for court appearances or testimony.

Last updated February 19, 2014.


5. In some states inmates are confined in local facilities pursuant to state statute (with or without a per diem or other financial consideration) and without a formal written contract (or a contract providing only for the payment of the per diem). Do these arrangements constitute contracts for the confinement of inmates pursuant to Standard 115.12 (115.212 and 115.312)?

When a state agency has no discretion regarding which local or private confinement facility a state inmate is placed in, then the arrangement does not constitute a confinement of inmates for the purposes of 115.12 (115.212 and 115.312), even if the state pays the local jurisdiction a per diem pursuant to state statute or informal agreement. By contrast, if the state statute provides a state agency discretion over which local confinement facility to place the inmate in, and the state provides financial compensation to the local facility or agency, then the arrangement would be considered a contract under the standards.

Last updated February 19, 2014.


6. Is an agency that holds inmates on behalf of another agency pursuant to a contract responsible for posting the data and reports described in § 115.87, § 115.88, and § 115.89 on its own website, in addition to reporting that information to the agency with which it holds the contract?

Yes. § 115.87, § 115.88, and § 115.89 require the agency to collect and post certain data and reports on its website or, if it does not have a website, to make the data available through other means.

“Agency” (§ 115.5) means the unit of a State, local, corporate, or nonprofit authority, or of the Department of Justice, with direct responsibility for the operation of any facility that confines inmates, detainees, or residents, including the implementation of policy as set by the governing, corporate, or nonprofit authority.

Therefore, a contracting agency is required to do the following with the data described in § 115.87, § 115.88, and § 115.89:

  • Provide the data to the parent agency in the contractual relationship; and 
  • Post the data on its website or, if it does not have a website, to make it available through other means.

The parent agency in the contractual relationship is also required to post the data from the contracting agency on its website or, if it does not have a website, to make it available through other means.

Last updated August 27, 2014.

See also the General and Audit and Compliance sections for related FAQs.

1. 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 first certification is due to the Office of Justice Programs by May 15, 2014. For more information on the certification process, click here to access the letter sent from the Department of Justice to all state governors.

Last updated March 14, 2013.

 

2. In determining whether to certify that my State is in "full compliance" with the National PREA Standards, how do I determine which facilities are "under the operational control of the State's executive branch"?

The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.”  28 C.F.R. § 115.501(b).   A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.”  Id. at § 115.5.  Some standards apply specifically at the facility level, while others apply at the agency level.

The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.

The term “operational control” is not defined in the National PREA Standards.  The determination of whether a facility is under the operational control of the executive branch is left to a governor’s discretion, subject to the following guidance. 

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:

Does the executive branch have the ability to mandate PREA compliance without judicial intervention?

Is the State a unified correctional system?

Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?

The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification.

Please note that the standards require that any public agency that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, (1) include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards, and (2) provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.  28 C.F.R. §§ 115.12, 115.112, 115.212, 115.312.  A State confinement agency that fails to comply with these requirements is, by the terms of the standards, not PREA compliant.

Last updated November 27, 2013.

 

3. 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.

Last updated February 7, 2013.


4Does a Governor’s certification regarding full compliance with the National PREA Standards cover State investigative agencies?

Certain standards apply to any State agency that conducts investigations relating to sexual abuse or sexual harassment in a covered confinement facility.  See 28 C.F.R. §§ 115.21(g)(1), 115.121(f)(1), 115.221(g)(1), and 115.321(g)(1); 115.22(d), 115.122(c), 115.222(d), and 115.322(d); 115.34(d), 115.134(d), 115.234(d), and 115.334(d); and 115.71(k); 115.171(k); 115.271(k); and 115.371(l); and 115.178(c).  These standards cover investigatory policies, training, and procedures; evidence protocols; and forensic examinations.  To the extent that these state agencies investigate sexual abuse or sexual harassment in covered confinement facilities, compliance with the National PREA standards by these agencies also falls within the scope of the Governor’s certification.

Last updated December 5, 2013. 


5. May a governor submit an Assurance even if the state will not be conducting any PREA audits?

During the initial three year audit cycle, which ends on August 19, 2016, a governor may submit an Assurance without conducting any PREA audits.  If necessary, additional guidance will be provided on whether the Department of Justice will continue to accept Assurances in the absence of PREA audits beyond the initial three year audit cycle.

Last updated May 16, 2014.


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.

Last updated February 7, 2013.


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

As described in the February 11, 2014 letter to governors regarding implementation of the National PREA Standards, in Fiscal Year 2014, there are three DOJ grant programs (or portions thereof) subject to the five percent penalty for non-compliance.  Two are administered by the Office of Justice Programs: (1) the Bureau of Justice Assistance’s Edward Byrne Memorial Justice Assistance Grant Formula Program, and (2) the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice and Delinquency Prevention Act Formula Grant Program.  One is administered by the Office on Violence Against Women: the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program.  

Please note that legal restrictions on the uses of OJJDP Formula Grant and STOP Grant funds may make them unavailable to States for addressing certain areas of non-compliance with the PREA Standards.  If a State is in full compliance with the standards as they apply to the State’s juvenile facilities, and out of compliance only with regard to adult facilities, it could not lawfully spend OJJDP Formula Grant funds to come into compliance.  Because it would be impossible to use this money to come into compliance, the State would not be subject to the five-percent reduction in OJJDP Formula Grant funding.  Likewise, STOP Grant funds are limited in that they cannot be used for new construction, even if that is necessary to bring a State into full compliance with the PREA Standards.  If a State is in full compliance except for a deficiency that requires new construction, it could not lawfully spend STOP Grant funding to come into compliance, and the State, therefore, would not be subject to the five percent reduction in STOP Grant Funds.  The PREA Standards Assurance Form, attached to the February 11, 2014 letter to governors from Assistant Attorney General Karol V. Mason and Office on Violence Against Women Principal Deputy Director Bea Hanson, requires governors to indicate whether either or both of these circumstances apply to their States.

Last updated February 24, 2014.


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(e). In any event, it is important to note that “prison” is defined broadly by the statute to cover “any confinement facility” and includes the five covered facility types included in the four sets of standards. See 42 U.S.C. § 15607(e).

Last updated February 7, 2013.


9. Is there a limit to the number of years that a state can submit an Assurance without a reduction in Department of Justice (DOJ) grant funding?

During the initial three year audit cycle, which ends on August 19, 2016, DOJ is not imposing a specific date by which states that submit Assurances throughout that audit cycle must come into compliance with the National PREA Standards or face a reduction in DOJ grant funding.  If necessary, additional guidance will be provided by DOJ as the end of the initial three year audit cycle approaches.

Last updated May 16, 2014.


1. How do I find out more about the Department of Justice grant programs that will be impacted if my governor does not submit a certification of compliance or an assurance?

The DOJ offices operating these grant programs have each released FAQs regarding the impact of PREA on their programs. Click the links below to access the corresponding grant program FAQ:

Bureau of Justice Assistance Edward Byrne Memorial Justice Assistance Grants (JAG) FAQ

Office of the Violence Against Women STOP Formula Grants FAQ

Office of Juvenile Justice and Delinquency Prevention's Title II Part B Formula Grants FAQ

1. Can an answering service be used to satisfy the requirement in § 115.51 (b) that the agency provide an outside reporting mechanism?

No. Section 155.51 (b) states that, “The agency shall also provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing the inmate to remain anonymous upon request.”  A number of state agencies have reported to DOJ and the PREA Resource Center (PRC) that they have had difficulty finding an outside agency willing to take reports of sexual abuse from its prisons and have, as a means of satisfying the requirement in § 115.51 (b), sought to hire an answering service to take such calls with the understanding that the answering service would then relay the report back to the agency immediately.  This does not satisfy the requirement of the standard because an answering service is not a “public or private entity or office that is not part of the agency.”  The intent of the standard is to provide inmates with a means to report to an entity or office with some autonomy.  It is anticipated that availability of such an entity or office will increase the likelihood that victims will report sexual abuse within confinement facilities.  An answering service in this context is, essentially, no more than an agent of or a contractor to the agency. 

Last updated on June 11, 2014.

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