Through a cooperative agreement between BJA and Impact Justice

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 this FAQ page.

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 all facilities covered under PREA, 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. The FAQ search functionality uses the standard numbering from the Adult Prisons and Jails, regardless of the specific setting. When a standard is selected, the search will identify all FAQs related to that standard across all standard settings.

When selecting filters below, you may select multiple categories or standard numbers by holding “Ctrl” (or “Command” for Macs) before making a selection. Press “Clear” to begin a new search.

The “Expand All” link will reveal all FAQ search results. To print the results, use the "Print Selection" button, which expands all of them automatically in the printed document. If you want to see all unfiltered results, use the "Clear" button to remove previous selections.

 

 

Search FAQs

Jan 30, 2017
Q:

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?

A:

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

Revised January 30, 2017 and April 19, 2016. Original posting date June 3, 2015.

Standard Numbers: 115.501
Categories: Governor's Certification, Penalty
Dec 02, 2016
Q:

What does “separate” mean in the context of the screening standards, which require that agencies shall use screening information to inform housing and programming decisions “with the goal of keeping separate those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive”?

A:

The PREA standards require agencies to obtain and assess information from and about inmates and residents in order to identify individuals who are at a heightened risk of being sexually victimized while in confinement, and those who are at a heightened risk of being sexually abusive while in confinement. The adult prison and jail standards and the community confinement standards specifically require that such screening information be used “with the goal of keeping separate” those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive.” See Standards 115.42(a) and 115.242(a). The meaning of the term “separate” is generally informed by the unique facts and circumstances of a facility, but the goal should be to keep those inmates as separate as reasonably possible

For example, facilities that are comprised of a single dormitory housing unit would be unable to house the two risk categories of inmates in separate housing units. In such a case, inmates at high risk of being abusive and abused should generally be bunked at opposite sides of the dormitory. Additionally, potentially vulnerable inmates should be bunked in areas more likely to receive additional staff supervision.

Similarly, in facilities with a single housing unit, but multi-person cells (two or more inmates per cell), vulnerable inmates should be kept in separate cells from potentially abusive inmates.

By contrast, facilities with multiple housing units provide far more options for keeping vulnerable and abusive inmates separate. In such cases, agencies should generally keep vulnerable inmates in separate housing units from inmates at risk for abusiveness. In cases where there are many housing units (e.g., more than ten), auditors will require compelling justification for any commingling within a housing unit.

In programming, education, and work areas, the goal should also be to keep such inmates separate. The Department of Justice recognizes that such separations may not always be feasible outside of housing units. In those cases, agencies should, at a minimum, prohibit unsupervised contact between vulnerable and potentially abusive inmates. Even supervised contact between these categories of inmates should be accompanied by heightened supervision and safeguards against sexual abuse and sexual harassment.

Standard Numbers: 115.42
Categories: Placement Decisions, Screening
Dec 02, 2016
Q:

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

A:

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. See Standards 115.15, 115.115, 115.215, and 115.315. Security staff must conduct these searches in a professional and respectful manner; in the least intrusive manner possible, and consistent with security needs. Id.

Operationally, four options are in current practice for searches of transgender or intersex inmates/residents/detainees: 1) searches conducted only by medical staff; 2) pat searches of adult inmates conducted by female staff only, especially given there is no prohibition on the pat searches female staff can perform (except in juvenile facilities); 3) asking inmates/residents/detainees to identify the gender of staff with whom they would feel most comfortable conducting the search, and 4) searches conducted in accordance with the inmate’s gender identity.

Revised December 2, 2016. Original posting date February 7, 2013

Standard Numbers: 115.15
Categories: LGBTI Inmates/Residents/Detainees/Staff, Searches
Oct 21, 2016
Q:

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?

A:

Yes. In adult facilities, Standards 115.41 and § 115.241 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 be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” See 28 C.F.R. § 115.41(d)(7) and § 115.241(d)(7).

Similarly, in juvenile facilities, Standard 115.341 requires that the agency shall conduct a risk screening that “attempt[s] to ascertain information about… [among other factors,] any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse.”  See 28 C.F.R. § 115.341(c)(2).

For both adult and juvenile facilities, the enumerated 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 the inmate/resident 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. 

Perception is important because if the screener perceives that an inmate/resident might be considered LGBTI and/or gender nonconforming, then other inmates/residents (and staff) may have the same perception. Specifically, gender nonconformity is usually something that can be determined by staff, though that perception is not to be substituted for an inmate’s/resident’s own self-identification. 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 PREA standards 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(e).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 adult facility standards provide that inmates 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) and § 115.241(h).  While there is no specific corollary in the juvenile facility standards, it would be counterproductive and harmful to punish young residents for refusing to provide this sensitive information.

The standards require that inmates/residents be assessed for these and other risk factors “during an intake screening within 72 hours1 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 completed within 72 hours, and is used to inform the inmate’s/resident’s risk status, 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/juvenile residents whether they identify as LGBTI. 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. Both the adult facility and juvenile facility standards require agencies to train staff on “[h]ow to communicate effectively and professionally with inmates/residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates…” See 28 C.F.R. § 115.31(a)(9), § 115.231(a)(9), and § 115.331(a)(9).  Effective and professional communication requires a basic understanding of sexual orientation, gender identity, gender expression, and how sex is assigned at birth. It also requires staff to be aware of their own gaps in knowledge and cultural beliefs, and how these factors may impact the ability to conduct effective interviews and assessments. An effective training will encourage open dialogue with staff, so that these issues can be addressed in a respectful and nonjudgmental manner, with a focus on encouraging behaviors that support staff members’ ability to meet their professional responsibilities. In addition, recognizing the sensitive nature of these issues with juvenile populations, the juvenile facility standards requires that “[s]uch training… be tailored to the unique needs and attributes of residents of juvenile facilities…” See 28 C.F.R. § 115.331(b).

The following webinars may be helpful:

Asking Adults and Juveniles About Their Sexual Orientation: Practical Considerations for the PREA Screening Standards 

Understanding LGBTI Inmates and Residents 


The adult prison and jail standards and the adult community confinement standards require such screening to take place “ordinarily” within 72 hours, while the juvenile facility standards require that the screening take place within 72 hours.

 

Revised October 21, 2016. Original posting date June 19, 2014.

Standard Numbers: 115.41
Categories: LGBTI Inmates/Residents/Detainees/Staff, Screening
Sep 27, 2016
Q:

Does the case-by-case determination required by Standard 115.42(c) in making housing and programmatic placements for transgender and intersex inmates need to take place within a particular timeframe?

A:

Standard 115.42(c) does not have an explicit timeframe requirement by which to make an initial case-by-case determination. However, at a minimum, determinations should be made in accordance with the timeframes required for the initial screening for risk of victimization and abusiveness in Standard 115.41(b) (ordinarily within 72 hours of arrival), the screening reassessment in Standard 115.41(f) (reassessment within 30 days of arrival), and the ongoing reassessment in Standard 115.401(f) (when “triggering events” occur). Standard 11.42(a) requires all information obtained during screenings and reassessments to inform housing and programming decisions. In all stages of the risk screening process for transgender and intersex inmates, individualized housing and placement decisions must be made based on consideration of all information available at the points in time identified above.

In addition, Standard 115.42(d) requires placement decisions to be reassessed during the twice-yearly progress reviews for transgender and intersex inmates. More frequent reviews based upon the needs of individual inmates are encouraged as a best practice.

Standard Numbers: 115.42
Categories: LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions, Screening
Aug 15, 2016
Q:

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?

A:

Starting on August 20, 2016, which is the first day of the first year of the second three year audit cycle, auditors are required to submit a report to the audited agency within 45 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 115.404 (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.

Revised August 15, 2016. Original posting date April 23, 2014

Standard Numbers: 115.403, 115.404
Categories: Auditing, Audit Process, Information Sharing
Aug 15, 2016
Q:

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?

A:

Starting on August 20, 2016, which is the first day of the first year of the second three year audit cycle, for the purpose of the PREA standards, the audit is considered complete upon issuance of the initial audit report or 45 days after the conclusion of the audit’s on-site visit to the facility, whichever one comes first.

 Revised August 15, 2016. Original posting date June 20, 2014

Standard Numbers: 115.403, 115.404
Categories: Auditing, Audit Process
Mar 24, 2016
Q:

Does a policy that houses transgender or intersex inmates based exclusively on external genital anatomy violate Standard 115.42(c) & (e)?

A:

Yes.  Standard 115.42(c) states:

In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.

In addition, Standard 115.42(e) states:

A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.

Being transgender is a known risk factor for being sexually victimized in confinement settings.  The standard, therefore, requires that facility, housing, and programming assignments be made “on a case-by-case basis.”  Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on their external genital anatomy violates the standard.  A PREA-compliant policy must require an individualized assessment.  A policy must give “serious consideration” to transgender or intersex inmates’ own views with respect to safety.  The assessment, therefore, must consider the transgender or intersex inmate’s gender identity – that is, if the inmate self-identifies as either male or female.  A policy may also consider an inmate’s security threat level, criminal and disciplinary history, current gender expression, medical and mental health information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.  The policy will likely consider facility-specific factors as well, including inmate populations, staffing patterns, and physical layouts.  The policy must allow for housing by gender identity when appropriate.

A PREA auditor must examine a facility or agency’s actual practices in addition to reviewing official policy.  A PREA audit that reveals that all transgender or intersex inmates in a facility are, in practice, housed according to their external genital status raises the possibility of non-compliance.  The auditor should then closely examine the facility’s actual assessments to determine whether the facility is conducting truly individualized, case-by-case assessments for each transgender or intersex inmate.  The auditor will likely need to conduct a comprehensive review of the facility’s risk screening and classification processes, specific inmate records, and documentation regarding placement decisions.

The Department recognizes that the decision as to the most appropriate housing determination for a transgender or intersex inmate is complicated.  Facilities may consider several methods to make these assessments.  Best practices include informing decisions on appropriate housing through consultation by facility administration, classification and security staff, and medical and mental health professionals.  However, a facility should not make a determination about housing for a transgender or intersex inmate based primarily on the complaints of other inmates or staff when those complaints are based on gender identity.

Importantly, the facility shall not place transgender inmates in involuntary segregated housing without adhering to the safeguards in Standard 115.43.

Standard Numbers: 115.42, 115.43
Categories: Compliance, LGBTI Inmates/Residents/Detainees/Staff, Screening
Mar 17, 2016
Q:

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 apply to opposite-gender staff who may view inmates in their beds or cells either through direct viewing or remotely by video camera?

1c. If the cross-gender viewing prohibitions do apply to remote viewing and viewing inmates in their beds, please explain the effect, if any, on cross-gender staffing of dormitory settings and cross-gender viewing of video cameras in dormitory settings.

A:

(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.

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 any cross-gender recorded camera footage in conjunction with an investigation or incident review.  Other staff are not prohibited from viewing cross-gender recorded camera footage, as long as the footage does not depict inmates showering, performing bodily functions, changing clothes, or in a state of undress of partial undress.

Revised March 17, 2016. Original posting date March 26, 2014.

Standard Numbers: 115.15
Categories: Cross-Gender Supervision
Dec 18, 2015
Q:

How do the requirements of standard 115.15(d) apply to inmates who have been placed on suicide watch?  Is there a distinction between suicide watches being conducted via video and those under in-person observation?

A:

The definition of “suicide watch” varies across corrections agencies. Suicide watch generally refers to placing an actively suicidal inmate on a heightened level of monitoring due to high risk of imminent suicidal action.

Actively suicidal inmates should be subject to constant observation. Some agencies also consider suicide watch to include situations where constant monitoring may not be clinically indicated. For example, inmates may require frequent, periodic, and unpredictable observations not to exceed 5 or 15 minute intervals. While suicide watch should be conducted under the direction of a mental health staff member, suicide precautions are often initiated by correctional staff before a mental health evaluation can occur. Continual observation is essential to ensure inmate safety before a mental health professional can assess the situation.

Regardless of the definition of suicide watch, the PREA standards do not prohibit cross gender staff from being assigned to conduct a suicide watch. The relevant portion of standard 115.15(d) states, “The facility shall 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.”

Therefore, a cross gender staff can be assigned to suicide watch, including constant observation, so long as the facility has procedures in place that enable an inmate on suicide watch to avoid exposing himself or herself to nonmedical cross gender staff. This may be accomplished by substituting same gender correctional staff or medical staff to observe the periods of time when an inmate is showering, performing bodily functions, or changing clothes. It may also be accomplished by providing a shower with a partial curtain, other privacy shields, or, if the suicide watch is being conducted via live video monitoring, by digitally obscuring an appropriate portion of the cell. Any privacy accommodations must be implemented in a way that does not pose a safety risk for the individual on suicide watch. The privacy standards apply whether the viewing occurs in a cell or elsewhere.

The exceptions for cross gender viewing under exigent circumstances or, for inmates who are not on constant observation, when incidental to routine cell checks apply to suicide watch as well. Because safety is paramount when conducting a suicide watch, if an immediate safety concern or inmate conduct makes it impractical to provide same gender coverage during a period in which the inmate is undressed, such isolated instances of cross gender viewing do not constitute a violation of the standards. Any such incidents should be rare and must be documented.

Standard Numbers: 115.15
Categories: Cross-Gender Supervision, Definitions