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.  Since then, DOJ, which was responsible for promulgating the final Standards, has provided interpretive guidance in the form of Frequently Asked Questions (FAQs) to address questions of first impression when they raise issues that are broadly relevant to the application and interpretation of the Standards. On this page, you will find all FAQs issued by DOJ to date. DOJ will continue to meet and resolve questions of first impression and the guidance it develops will be posted as it becomes available.

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.

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May 18, 2018
Q:

Do the PREA Standards require that the terminology and/or definitions that a correctional agency uses in policies, lesson plans, educational materials, and other documentation for terms defined by the PREA Standards, including “sexual abuse” and “sexual harassment,” match precisely the definitions in Standard 115.5 and Standard 115.6? 

A:

No. Agencies need not use the precise verbiage of the definitions specified in the PREA Standards when using those terms in policies, lesson plans, educational materials, or other documentation relevant to the PREA Standards. So long as, when referencing a term defined in Standard 115.5 and Standard 115.6, the agency documentation and definitions accurately and completely reflect all of the information contained in the PREA Standard definitions, the agency need not quote the definitions in Standard 115.5 and Standard 115.6 verbatim.

Agencies should be mindful to use respectful and appropriate language, and avoid terminology that could be viewed as offensive, outdated, or a slur. The importance of appropriate and professional language should be conveyed through PREA training and educational materials.

Finally, if agencies choose to deviate from the definitions of “sexual abuse” and “sexual harassment” laid out in PREA Standard 115.6, they should take care not to minimize the weight of these terms with lesser terms such as “sexual misconduct,” “undue familiarity,” or “official misconduct.” If state law uses such lesser terms in prohibiting conduct that is defined as “sexual abuse” or “sexual harassment” by the PREA Standards, the criminal code may be cited, specifically noting the underlying conduct constitutes a violation of the PREA Standards. For example: “The offense conduct for a criminal violation of ‘undue familiarity’ also constitutes ‘sexual abuse’ under the PREA Standards.”

Standard Numbers: 115.5, 115.6
Categories: Definitions
Apr 18, 2018
Q:

The PREA Standards provide many obligations that are “facility specific,” such as staffing plans, the auditing timeline, coordinated response plans and, in most cases, a facility-based PREA Compliance Manager. When institutions have multiple components or serve diverse populations, how does the term “facility” apply for purpose of compliance with the PREA Standards?

A:

The PREA Standards define “facility” as “a place, institution, building (or part thereof), set of buildings, structure, or area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.” See PREA Standard 115.5.

Because the definition of “facility” may include, on the one hand, a part of a building and, on the other hand, a set of buildings, the standards are not highly prescriptive on this determination.  Agencies have some discretion with respect to how they define “facility” for purposes of PREA.

In most cases, the determination about what constitutes a “facility” will be common sense and obvious. For example, a (fictional) single ten-story building known as the Sunshine County Jail that houses adult inmates who are pre-adjudication or serving short sentences, with housing units containing a variety of security levels acting under one set of policies and procedures, and that is overseen by a single warden will be considered one jail “facility.”

As institutions become more complex, the determination about what constitutes a “facility” also becomes more complex. For example, assume that the Sunshine County Jail also has one small Annex building for work-release inmates across the street from the main building, and a court-holding area on the second floor of the Sunshine County Courthouse three blocks away from the main building. In this case, some may assume that all three areas are part of the one “facility” known as the Sunshine County Jail, while others may believe that there are three facilities: a jail, a lockup, and a community confinement facility.

The PREA Standards do not dictate which determination is correct. Rather, the Department of Justice has identified a number of factors that agencies should consider when making such determinations. While not exhaustive, the factors below provide suggested guidance on whether to classify an institution as a single “facility” or multiple “facilities.”

Factors Indicating Single “Facility”

Factors Indicating Separate "Facilities"

Single Responsible Agency Multiple Responsible Agencies
Single Superintendent/Warden Multiple Superintendents/Wardens
Same Policies and Procedures Different Policies and Procedures
Same/Similar Inmate Populations Distinct/Different Inmate Populations
More Inmate Mingling Less Inmate Mingling
Many Staff Interchangeable Few Staff Interchangeable
Unified Mission Different Missions
Geographically Close Geographically Distant
Identical Inmate Reporting Mechanisms Different Inmate Reporting Mechanisms

First, regardless how a specific facility is defined, it should be defined consistently for all PREA purposes. For example, if the three Sunshine County Jail buildings are defined as one “facility” for purposes of having a single “facility-specific” staffing plan, then it should be defined the same way for purposes of determining the agency’s PREA audit schedule, during any given three-year PREA Audit Cycle.While agencies have some discretion in determining what constitutes a “facility,” there are a number of caveats necessary to remain consistent with the PREA Standards.

Second, an agency may not define “facilities” in order to defeat or avoid the requirements in the PREA Standards. For example, if the main building in the Sunshine County Jail contains two housing units on the second floor for youthful inmates (inmates under age 18), the agency may not define those two housing units as a separate “juvenile facility” in order to avoid the separation requirements of the “Youthful Inmate Standard.” This PREA Standard (115.14) is applicable in prisons, jails, and lockups, but not in juvenile facilities.

Third, agencies do not have discretion with respect to determining which set of facility standards applies to its defined facilities. The PREA Standards define each of the five facility types, and the determination of which set of standards apply to a defined “facility” is determined by the facility’s “primary use.” See PREA Standard 115.5. For example, the vast majority of individuals confined at the Sunshine County complex are considered to be “inmates” under the PREA Standards. Assuming that Sunshine County defines all three of its buildings as a single “facility,” then the Prison and Jail PREA Standards apply to the entire facility – and not the less onerous Lockup PREA Standards.

Fourth, agencies should be aware that the larger and more inclusive the agency’s use of the term “facility” is, the more difficult, complex, time-consuming (and hence, more costly) the audits of those facilities may be. Accordingly, agencies should avoid being over inclusive in their use of the term “facility.”  

Standard Numbers: 115.5
Categories: Definitions
Apr 18, 2018
Q:

It is sometimes necessary for local facilities to temporarily hold inmates who are transferred from other facilities or agencies, 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), in order to address a function of the judicial system or law enforcement agency, such as 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 PREA Standard 115.12 (Standard 115.212 and Standard 115.312)?

A:

When a local facility houses inmates transferred temporarily from another facility or agency for a function necessitated by the judicial system or law enforcement agency, such as adjudication of parole or probation violations or 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 Standard 115.12 (Standard 115.212 and Standard 115.312), even if the local jurisdiction is paid a per diem or otherwise compensated pursuant to state statute or informal agreement. The state/agency need not require PREA compliance by the local facilities to maintain arrangements with regard to temporary housing for the purpose of probation or parole violations or temporary transfers for court appearances or testimony.

Revised April 18, 2018. Original posting date February 19, 2014. 

Standard Numbers: 115.12
Categories: Contracting, Definitions
Oct 03, 2017
Q:

Is comparing the total number of security staff with the total number of residents in a secure juvenile facility an acceptable way to calculate whether the facility is complying with the minimum staffing ratios required by PREA Standard 115.313(c)?

A:

No. Standard 115.313(c) states: “Each 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 discrete exigent circumstances, which shall be fully documented. Only security staff shall be included in these ratios. Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.” For additional information regarding who may be counted as security staff, see this FAQ: www.prearesourcecenter.org/node/3254.  

Because the minimum staffing ratios enumerated in Standard 115.313(c) apply to the supervision of every juvenile resident in a facility, compliance will depend on the location of each resident, or group of residents, and the location of security staff at any given time. In order to calculate whether a facility is complying with the required staffing ratios, it is necessary to: 

  • Determine how juvenile residents are housed and programmed within the facility; 
  • Examine how security staff members are deployed throughout the facility; 
  • Review historical juvenile resident placement and staffing deployment; and 
  • Observe actual supervision practices in the facility.

The following hypothetical example, focused on juvenile facility “Alpha,” illustrates why comparing the total number of security staff with the total number of residents in a secure facility is not an acceptable way to calculate whether a facility is complying with the minimum staffing ratios required by PREA Standard 115.313(c), and demonstrates how compliance with the required ratios depends on the location of residents and security staff in a facility at any given time. 

Juvenile facility “Alpha” currently has 80 residents and 10 security staff on duty during non-sleeping hours. 

  • On Alpha facility’s housing unit A, there are currently 16 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 16 residents, creating a ratio of 1:8.
  • On Alpha facility’s housing unit B, there are currently 14 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 14 residents, creating a ratio of 1:7. 
  • On Alpha facility’s housing unit C, there are currently 18 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 18 residents, creating a ratio of 1:9. For 30 minutes during each 8-hour shift during non-sleeping hours, a roaming security staff member enters housing unit C and actively supervises the 18 juveniles, along with the two security staff members who are already posted there. This briefly creates a ratio of 1:6.  

Although juvenile facility Alpha has 80 residents and 10 security staff during non-sleeping hours, it is not in compliance with Standard 115.313(c) because of the staffing ratio on housing unit C during non-sleeping hours. Although the roaming security staff member briefly increases the ratio to 1:6 on unit C, this unit has a 1:9 ratio when the roaming staff is not present. 

The hypothetical example above also illustrates that juvenile facilities which comply with the required staffing ratios for short periods of time are not in compliance with Standard 115.313(c). Compliance with this standard must be “institutionalized” throughout the facility over a sustained period of time. For more information regarding what institutionalized means, see this FAQ: www.prearesourcecenter.org/node/3217.  

Security staff members supervising juvenile residents via remote video monitoring do not count in the minimum ratio requirements. Video monitoring and/or control room staff typically cannot hear residents, promptly respond to cries for help, are typically responsible for monitoring countless youth in multiple locations, and often have a myriad of other duties such as controlling movement and answering telephones. However, security staff members in security cages may count, if these staff are dedicated to supervising juvenile residents in a single unit, have a meaningful line of sight into the unit without the assistance of technology (e.g., video monitors), can hear the residents, and are able to respond immediately to any emergencies.

Relevant Definitions from the PREA Standards

Standard 115.5 defines “secure juvenile facility” as a 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. A facility that allows residents with access to the community to achieve treatment or correctional objectives, such as through educational or employment programs, typically will not be considered to be a secure juvenile facility.”

Standard 115.5 defines “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.”

PREA Standard 115.5 defines “exigent circumstances” as meaning “any set of temporary or unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.”

Standard Numbers: 115.13
Categories: Compliance, Definitions, Staffing Ratio
Aug 17, 2017
Q:

Is an agency compliant with Standard 115.42(g) or Standard 115.242(f) if it places Lesbian, Gay, Bisexual, Transgender, or Intersex (LGBTI) inmates or residents in a dedicated facility, housing unit, or wing solely on the basis of such identification or status, absent a consent decree, legal settlement, or legal judgment?

Standard 115.42(g) states: 
“The agency shall not place LGBTI inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.”

A:

No. Placement in a dedicated facility, housing unit, or wing that houses only LGBTI inmates or residents violates Standard 115.42(g) or Standard 115.242(f), unless it was established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. In practical terms, placement is based “solely” on LGBTI status when only LGBTI inmates or residents are eligible for such placement. This is true whether such placement is made pursuant to policy or in practice, and regardless of whether an inmate volunteers for—or requests to be placed in—such a facility, housing unit, or wing.

For example, because they are evidence of de facto placement based solely on status, absent a consent decree, legal settlement, or legal judgment, a facility, housing unit, and wing are prohibited under Standard 115.42(g) or Standard 115.242(f) if they: 

  • House only vulnerable LGBTI inmates or residents;
  • House only another subset of LGBTI inmates or residents; and/or
  • Otherwise exclude all non-LGBTI inmates or residents

Some agencies and facilities have had success establishing housing units or wings reserved for inmates or residents who are designated as potentially vulnerable through the screening process. In addition to LGBTI inmates, who are at an increased risk for sexual abuse and sexual harassment, these units or wings may, for example, house male inmates who are small in stature, inmates who have a gender non-conforming appearance, a disability, and a past history of being sexually abused. It is important to ensure that these units or wings for vulnerable inmates or residents do not include individuals who screen positively as likely perpetrators of abuse. For example, a convicted sex offender may be designated as vulnerable because of his charges or other factors, and may require protective custody, but he would not be an appropriate candidate for a vulnerable persons’ unit or wing, if screening information indicates that he may be sexually aggressive towards other inmates. A strong screening and classification system enables these units or wings to provide increased safety for vulnerable inmates without requiring restrictive measures, such as 22-hour in-cell confinement, that are often found in protective custody.

Standard Numbers: 115.42
Categories: LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions, Screening
Aug 17, 2017
Q:

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?

A:

Pursuant to the PREA amendment under the Justice for All Reauthorization Act (JFARA), signed into law on December 16, 2016 (Pub. L. No. 114-324), the assurance option will sunset six years following JFARA’s date of enactment. See 42 U.S.C. §15607(e)(2)(D)(ii). Therefore, the last year that governors will have the option to submit an assurance to DOJ will be for Audit Year 3 of Cycle 3, ending on August 19, 2022, which will impact FY2023 DOJ grant funds. 

The PREA amendment under JFARA also provides that for two years following the assurance sunset in December 2022, a governor who can certify that the state has audited at least 90% of facilities under the operational control of the executive branch may request that the Attorney General allow submission of an emergency assurance. See 42 U.S.C. §15607(e)(2)(D)(iii). Therefore, the last year that governors will have the option to request and submit an emergency assurance to DOJ will be for Audit Year 2 of Cycle 4, ending on August 19, 2024, which will impact FY2025 DOJ grant funds.

Revised August 17, 2017. Original posting date May 16, 2014.

Standard Numbers: 115.501
Categories: Governor's Certification
May 09, 2017
Q:

Facility-to-facility notifications of an allegation of abuse that occurred at an inmate’s prior facility pursuant to Standard 115.63(a) must be made to “the head of the facility or appropriate office of the agency where the alleged abuse occurred.” What constitutes “an appropriate office at the agency?”

A:

Standard 115.63(a) does not define what an “appropriate office” would be in this context. The intent of the standard is to urge facility heads to send the notification to an individual or office that will ensure the prior facility takes immediate steps to investigate the allegation appropriately and promptly. While the Department declines to provide an exhaustive list of individuals and offices that may be appropriate recipients of the allegation, notifications made to the facility head, the facility’s PREA Compliance Manager, the agency’s PREA Coordinator, and the Office of the Agency Head would be presumptively valid recipients.

For more information about Standard 115.63(a) and who must make the notification of an incident of sexual abuse that took place at a prior facility, please click here.

Standard Numbers: 115.63
Categories: Information Sharing
May 09, 2017
Q:

Does Standard 115.63(a) require that notification of an incident of sexual abuse that took place at a prior facility be made directly from the head of the facility receiving the allegation, or can some other designated person make the notification?

A:

The notification must, at a minimum, be: (1) Made at the direction of the facility head, and (2) Appear to a third party to have originated with the facility head. For example, the facility head could instruct his or her administrative assistant to send the notification on the facility head’s letterhead and with the facility head’s signature, or to send the notification from the facility head’s email address. By contrast, the facility’s PREA Compliance Manager could not send the notification from his or her email address and merely copy the facility head.

The intent of the standard is to ensure that the person receiving the report of sexual abuse at the prior facility understands the seriousness and gravity of the allegation, and that the communication originated at the highest level of the reporting facility. For more information about Standard 115.63(a) and who should receive the report of sexual abuse at the prior facility, please click here.

Standard Numbers: 115.63
Categories: Information Sharing
May 09, 2017
Q:

What are the implications for a secure juvenile facility that gets audited and meets full compliance prior to October 1, 2017, but was not audited on Standard 115.313(c) and does not meet the staffing ratio requirement after October 1, 2017? What information does the governor need about compliance with Standard 115.313(c) to certify the state’s or territory’s compliance?

A:

As required under Standard 115.313(c), “…Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.” Thus, for many or most juvenile facilities, the juvenile staffing ratio requirement will not take effect until October 1, 2017, just over a month into Audit Year 2 of PREA Audit Cycle 2, which begins on August 20, 2017 and ends on August 19, 2018. Therefore, compliance with the juvenile staffing ratio will first impact each governor’s certification determination for Audit Year 2 of Audit Cycle 2, which will be due to the Department on

October 15, 2018. In order for a governor to submit a certification of full compliance with the PREA Standards for Audit Year 2 of Cycle 2, all facilities under the operational control of the executive branch, including facilities operated by private entities on behalf of the state’s or territory’s executive branch, must be in full compliance with all of the PREA Standards by August 19, 2018, which will include full compliance with Standard 115.313.

For example, in a given state or territory, some juvenile facilities may have been audited during Audit Year 1 of Audit Cycle 2 (August 20, 2016 – August 19, 2017), prior to the effective date of the juvenile staffing ratio requirement on October 1, 2017, and been found in full compliance. If these facilities have not yet implemented the juvenile staffing ratio requirement under Standard 115.313(c) by the end of Audit Year 2 of Audit Cycle 2 on August 19, 2018, these facilities would have met their auditing obligations under Standard 115.401. However, they would not be considered fully compliant with the PREA Standards because of their lack of compliance with the staffing ratio requirement in Standard 115.313(c).

For more information regarding the sources of information that governors should consider when making a PREA certification determination, please click here.

Standard Numbers: 115.13, 115.401
Categories: Compliance, Governor's Certification, Staffing Ratio
Apr 20, 2017
Q:

Do the PREA Standards require an agency to post final PREA audit reports on its website?

A:

Yes.

PREA Standard 115.403(f) states, “The agency shall ensure that the auditor’s final report is published on the agency’s Web site if it has one, or is otherwise made readily available to the public.” Therefore, if an agency website exists, all final audit reports must be published on it. Publishing final audit reports on an agency website does not preclude the agency from making the report available by other additional means if it chooses to do so. 

If an agency does not have a website, the PREA Standards require that the agency make all final PREA audit reports readily available to the public by other means (unless and until an agency website becomes operational).

Standard Numbers: 115.403
Categories: Auditing, Audit Process