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.

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

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
Dec 18, 2015
Q:

What constitutes “sufficient time and authority” for the purpose of meeting this requirement with regard to both PREA Coordinators and PREA Compliance Managers pursuant to standard 115.11?

A:

Correctional work is complex, and the nature of the correctional environment includes an element of unpredictability. Furthermore, “sufficient time” may vary considerably from agency to agency, based on a variety of factors, such as the size of the facility and the agency, and the nature of the population housed. Therefore, a minimum number of hours cannot be set which meets the needs of every agency and facility.

Instead, PREA Coordinators and PREA Compliance Managers must have some amount of time allotted specifically for the completion of their PREA responsibilities, even if this involves the formal transfer of non-PREA duties to other staff. Additionally, the opportunity must be available to have requests for additional PREA-related time considered by the agency’s most senior leader or chief executive officer (in the case of agency-level PREA Coordinators) or the facility’s most senior leader or chief executive officer (in the case of facility-level PREA Compliance Managers). For PREA Coordinators, PREA responsibilities required by the standards include developing, implementing, and overseeing agency efforts to comply with the PREA standards in all of its facilities. See standard 115.11(b). For PREA Compliance Managers, PREA responsibilities required by the standards include coordinating the facility’s efforts to comply with the PREA standards. See standard 115.11(b).

In terms of authority, some differences exist between PREA Coordinators at the agency level and PREA Compliance Managers at the facility level. At the agency level, PREA Coordinators must, at a minimum, have:

  • Direct access to the agency’s most senior leader or chief executive officer (e.g., Director, Secretary, Commissioner, Administrator, etc.); 
  • Direct access to the agency’s executive or senior leadership team; and 
  • The influence necessary to create and implement agency-wide policies, procedures, and practices, without any interference from other levels of bureaucracy or supervision, and in accordance with the PREA standards and interpretative guidance issued by DOJ.

To maximize the effectiveness and influence of agency-level PREA Coordinators, some agencies have made PREA Coordinators deputies to the agency’s most senior leader or chief executive officer, and members of the agency’s executive or senior leadership team.

In regards to sufficient authority for PREA Compliance Managers at the facility level, these individuals must, at a minimum, have:

  • Direct access to the facility’s most senior leader or chief executive officer (e.g., Director, Warden, Superintendent, etc.); 
  • Direct access to the facility’s executive or senior leadership team; 
  • Direct access to the agency’s PREA Coordinator; 
  • Comprehensive knowledge of the overall operations of the facility, and the various departments/divisions within the facility; 
  • Full access to all relevant information related to the facility’s compliance with the PREA standards (e.g., PREA policies and procedures, data collected regarding the incidence and prevalence of sexual abuse and sexual harassment in the facility, sexual abuse and sexual harassment investigative files, relevant portions of training and personnel files, etc.); and 
  • The influence necessary to lead, coordinate, guide, and monitor successful ongoing implementation of policies and procedures that comply with the PREA standards across all departments/divisions within the facility, with support from other levels of facility bureaucracy or supervision, and in accordance with the PREA standards and interpretative guidance issued by DOJ.

To maximize the effectiveness and influence of facility-level PREA Compliance Managers, some adult facilities have designated Assistant Wardens (or their equivalents) as their PREA Compliance Managers, or designed a full-time PREA Compliance Manager position at the Assistant Warden (or equivalent) level. Similarly, some juvenile confinement facilities have designated Assistant Directors or Assistant Administrators (or their equivalents) as their PREA Compliance Managers, or designated a full-time PREA Compliance Manager position at the Assistant Director or Assistant Administrator (or equivalent) level.

Standard Numbers: 115.11
Categories: Compliance, Definitions
Dec 16, 2015
Q:

Within what timeframe must an agency post a copy of the final report of an audit of one of its facilities on its website, if it has one, or otherwise make the report available, to be compliant with standard 115.403(f)?

A:

90 days after the auditor issues the final audit report, the agency must publish the final report on its website if it has one, or otherwise must make it readily available to the public. This requirement applies regardless of whether the agency is appealing the results of the final audit report.

Appeals must be lodged within 90 days of the auditor’s final determination. See standard 115.405(a). In cases where the agency is appealing the results of a final report, when the agency publishes the final report on its website if it has one or otherwise makes it readily available to the public, the agency may note that it is being contested and under appeal.

Standard Numbers: 115.403
Categories: Auditing, Audit Process
Nov 18, 2015
Q:

What are the agency’s reporting obligations under standard 115.361(e) in cases where a juvenile is an emancipated youth?

A:

Agencies should follow their local and/or state laws related to emancipated youths when determining to whom notifications of allegations of sexual abuse or sexual harassment must be made in instances where alleged victims are such youths. For example, if a guardian ad litem has been appointed to represent an emancipated youth and that individual is still active in that youth’s case when an allegation of sexual abuse or sexual harassment is made, it may be necessary for a report to be made to the guardian ad litem.

Standard Numbers: 115.61
Categories: Compliance, Definitions
Oct 26, 2015
Q:

In order to comply with standard 115.41(a) & (b), are there any circumstances when an inmate might be held at a facility for a short period of time, but longer than 72-hours, or transferred to another facility within the same agency after spending a short period of time at the first facility, and a PREA screening or re-screening would not be required?

A:

No. An initial PREA screening must be conducted during all intake screenings, which should ordinarily occur within 72 hours, and upon transfer to another facility. However, according to the preamble of the PREA standards Notice of Final Rule, a facility “is free to rely on information previously gathered with regard to a returning inmate” if the facility ensures “that its assessment captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.” See Vol. 77, Federal Register, No. 119, p. 37150.

Standard Numbers: 115.41
Categories: Screening
Oct 26, 2015
Q:

How must agencies “distribute publicly” information on how third-parties can report allegations of sexual abuse and sexual harassment, in accordance with standard 115.54?

A:

Standard 115.54 states, “The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of an inmate.” (emphasis added)

The preamble of the PREA standards Notice of Final Rule states, “[t]he agency may, in its discretion, make such information [about third-party reporting] readily available through a website, posting at the facility, printed pamphlets, and other appropriate means.” See Vol. 77, Federal Register, No. 119, p. 37163. Generally, agencies are posting information about the third-party reporting process on their websites.

Implicit in standard 115.54 is the requirement that the public can reasonably access the information on how to make a report of sexual abuse or sexual harassment on behalf of an inmate. It is not sufficient for an agency to be willing and able to receive such reports. Further, it is not sufficient for the public to have the general ability to utilize generalized agency contact information (such as a main contact number) to make such a report. Rather, the specific methods to make such reports must be readily available and reasonably conspicuous to the public.

Standard Numbers: 115.54
Categories: Compliance, Definitions
Sep 29, 2015
Q:

Does the provision in standard 115.17(f) that requires the agency to ask employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of the standard, “in any interview or written self-evaluation conducted as part of reviews of current employees,” still apply if the agency does not interview nor provide employees with an opportunity to self-evaluate as part of their review process?  And, if so, does an ongoing affirmative duty to report said misconduct as an employee of the agency satisfy this requirement?

A:

Standard 115.17(f) states, “The agency shall ask all applicants and employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.”

If the agency does not use written applications, written self-evaluations, or conduct interviews under the circumstances indicated in standard 115.17(f), it has no obligation under this standard to begin these practices. However, the agency does have the obligation to establish a continual affirmative duty to disclose misconduct. The agency must impose on employees the affirmative duty to report any misconduct described in standard 115.17(a) [i.e., paragraph (a) of the standard] at any time that it occurs.

Standard Numbers: 115.17
Categories: Compliance
Sep 29, 2015
Q:

Do the prohibitions in the PREA standards against cross-gender pat searches of female inmates, and male and female juvenile residents; cross-gender strip and visual body cavity searches; and cross-gender viewing of inmates’, residents’, and detainees’ breasts, buttocks, and genitalia extend to confinement facility staff who are supervising inmates, residents, or detainees (referred to inmates in the answer below) outside of confinement facilities?

A:

Yes. In general, confinement facility staff who supervise inmates outside of facilities are required to comply with the PREA standards, and the opposite gender prohibitions identified in this question apply to such staff.

However, nothing in the standards prohibits male staff members from supervising female inmates, or female staff from supervising male inmates. The standards only make clear that agencies, “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 pursuant to routine cell checks].” See 28 C.F.R. § 115.15(a) and (b).

The Department of Justice has received specific questions regarding prohibitions related to the supervision of female inmates who are pregnant and undergoing related medical procedures in external hospital settings. Male staff members may supervise such inmates. However, male staff are not permitted under the PREA standards to observe disrobed female inmates undergoing procedures during which they can view females’ breasts, buttocks, or genitalia. In such cases, accommodations could be made – through the use of privacy screens, curtains, or other, similar measures – that allow female inmates to receive medical care while male facility staff members remain in near proximity and carry out their supervisory responsibilities effectively, without viewing females’ breasts, buttocks, or genitalia.

In addition, absent exigent circumstances, male staff members are not permitted under the standards to conduct cross-gender pat searches,1 or cross-gender strip and visual body cavity searches outside of facilities. An exigent circumstance is defined in the standards as, “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” See 28 C.F.R. § 115.5.


1This cross-gender pat down prohibition for male staff members applies as of August 20, 2015, or August 20, 2017 for facilities whose rated capacity does not exceed 50 inmates.

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