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.

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 "Reset" button to remove previous selections.

Search DOJ FAQ

Q:

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?

A:

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 standards 115.15 (a)-(c) and standards 115.315 (a)-(c).  Further, standards 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.

Standard: 115.15
Categories: Searches, LGBTI Inmates/Residents/Detainees/Staff
Q:

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”?

A:

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 34 U.S.C. § 30307(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 34 U.S.C. § 30307(e).

Standard:
Categories: Governor's Certification, Penalty
Q:

What facilities are covered under PREA and the PREA standards?

A:

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 34 U.S.C. § 30309(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.

Standard: 115.5
Categories: Act, Covered Facilities, Final Rule
Q:

What information is forthcoming on the audit?

A:

Click here for the latest information on audits.

Standard: 115.401
Categories: Auditing
Q:

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

A:

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.

Standard: 115.41
Categories: Screening
Q:

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?

A:

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 held auditor trainings approximately every other month throughout calendar year 2014, and three auditor trainings in 2015. For future 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.

Standard: 115.402
Categories: Auditing, Audit Process
Q:

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?

A:

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.

Standard: 115.501
Categories: Governor's Certification, Compliance
Q:

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

A:

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. 34 U.S.C. § 30307(e). For more information on the certification process, click here to access the letter sent from the Department of Justice to all state governors.

Standard: 115.501
Categories: Compliance, Governor's Certification
Q:

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

A:

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.

Standard: 115.15
Categories: Searches, Cross-Gender Supervision, Cover-Up Rule
Q:

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

A:

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).

Standard: 115.13
Categories: Staffing Ratio