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 standard 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.