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

Jun 11, 2014
Q:

Does the opposite-gender “announcement” requirement in 115.15(d) conflict with the requirement in 115.13(d) that supervisory staff conduct unannounced rounds to deter staff sexual abuse and sexual harassment?

A:

No.   Section 115.13(d) determines when rounds within an institution should occur; section 115.15(d) sets forth the requirements of how rounds should be conducted in housing units.

Section 115.13(d) requires both a policy and practice of having intermediate-level or higher level supervisors conducting and documenting unannounced rounds to identify and deter staff sexual abuse and sexual harassment.   Such policy and practice shall be implemented for night shifts as well as day shifts.  The term “unannounced” in this standard is intended to ensure that staff are not unnecessarily alerted to the periodic arrival on a housing unit of management personnel.  Accordingly, this section specifically prohibits staff from alerting other staff members that these rounds are occurring, unless such announcement is related to legitimate operational functions.  Supervisory staff performing rounds at unexpected, non-routine times helps deter incidents of sexual abuse and sexual harassment.

Section 115.15 (d), on the other hand, requires a facility 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.  Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an inmate housing unit.   The announcement in this standard is intended to put inmates on notice as to the presence of opposite-gender staff on the unit.  This regulation is meant to balance privacy concerns of the inmate population with the security and operational needs of the facility.

Accordingly, intermediate-level or higher level supervisors performing the unannounced supervisory rounds pursuant to 115.13(d) are not exempt from the cross-gender announcement required pursuant to 115.15(d). Click here for additional information regarding the cross-gender announcement requirement.

Standard Numbers: 115.15
Categories: Cross-Gender Supervision, Cover-Up Rule
May 16, 2014
Q:

May a governor submit an Assurance even if the state will not be conducting any PREA audits?

A:

During the initial three year audit cycle, which ends on August 19, 2016, a governor may submit an Assurance without conducting any PREA audits.  If necessary, additional guidance will be provided on whether the Department of Justice will continue to accept Assurances in the absence of PREA audits beyond the initial three year audit cycle.

Standard Numbers:
Categories: Auditing, Governor's Certification
Apr 23, 2014
Q:

What happens to an agency’s three-year audit timeline if an agency fails to have the required minimum of one-third of its facilities audited by August 19, 2014?

A:

The standards require generally that an agency must have “at least one-third” of its facilities audited during each one-year period, which began on August 20, 2013; and that all facilities must be audited by the conclusion of each three-year period, which began on the same date. See 28 C.F.R. § 115.401(a)&(b). Compliance with the audit timeline is evaluated both on a year-to-year basis and at the conclusion of the three-year audit cycle. Failure to comply with the audit timeline during the initial year of an audit cycle does not preclude compliance during years two and three of an audit cycle. Similarly, failure to comply with the audit timeline during the first two years of an audit cycle does not preclude compliance during the final year of each audit cycle. It is important to note that, for purposes of complying with standard 115.401(a) (requiring audits of each facility during the three-year audit cycle), agencies must ensure that each facility is audited at least once by August 19, 2016, and during every three-year anniversary thereafter.

a. By way of hypothetical, what happens if an agency has seven facilities but receives no audits by the conclusion of the first year of the first audit cycle (by August 19, 2014)?

The agency would not be fully compliant with the PREA standards as of August 20, 2014. However, the agency may still become fully PREA compliant during the second year and the third year of the audit cycle. For purposes of the audit cycle, compliance is determined during each specific audit cycle year. So if this agency obtains three facility audits (at least one-third) between August 20, 2014 and August 19, 2015, then the agency would be PREA compliant with the audit cycle during that year.

During the final year of the audit cycle (ending August 19, 2016), however, the agency would be required to have all four remaining facilities audited. This is because an agency has a separate obligation under the standards to ensure that “each facility” must be audited “at least once” during the three-year audit cycle (concluding on August 19, 2016). See 28 C.F.R. § 115.401(a).

b. As another hypothetical, what happens if an agency has only one facility but receives no audit by the conclusion of the first year of the first audit cycle (by August 19, 2014)?

Because the standards require that an agency have “at least” one-third of its facilities audited during each year of the three-year audit cycle, an agency with a single facility is required to receive an audit during the initial year of the audit cycle to be compliant as of August 19, 2014. In other words, an agency with a single facility cannot be said to have had at least one third of its facilities audited by August 19, 2014, if it has had no facility audits. However, a single-facility agency could become fully compliant at any point during the remainder of the three-year audit cycle (concluding on August 19, 2016) subject to a successful audit of that facility. So for example, a single-facility agency that is not compliant as of the conclusion of the first year of the audit cycle because it had received no audits by August 19, 2014, could nevertheless become fully compliant with the audit standards if it receives an audit one month later (early in the second year of the audit cycle) and would remain compliant with this standard through the remainder of the first audit cycle.

Standard Numbers: 115.401
Categories: Auditing, Audit Process, Compliance
Apr 23, 2014
Q:In adult prisons and jails, can inmates over the age of 17 provide inmate peer education to youthful inmates (age 17 and under)?
A:

Under certain defined parameters, yes.  In adult prisons and jails, youthful inmates are generally prohibited from having contact with inmates over the age of 17.  See 28 C.F.R. §115.14.  However, youthful inmates may have contact with inmates over the age of 17 outside of housing units if there is direct staff supervisionDirect staff supervision means that security staff are in the same room with, and within reasonable hearing distance of, the resident or inmate.  See 28 C.F.R. § 115.5.  Accordingly, the adult prison and jail standards do not prohibit inmate peer education by inmates over the age of 17 to younger inmates if the education occurs outside inmate housing units and there is direct staff supervision during the education process.

Standard Numbers: 115.14, 115.33, 115.5
Categories: Definitions, Inmate Education, Youthful Inmates
Apr 23, 2014
Q:

In adult prisons and jails, can adult inmates provide inmate peer education to juvenile inmates?

A:

No.  Under the Juvenile Justice and Delinquency Prevention Act (JJDPA), juveniles may not have sight or sound contact with adult inmates in any institution.  See 42 USC 5601 et seq.  Moreover, in any facility that houses juvenile residents, adult inmate trustees may not have sight or sound contact with residents in a juvenile facility. Thus, should an agency that oversees adult and juvenile commitments for a given state decide to utilize peer educators from its adult prison system, such peer educators could not educate juvenile residents, in either a juvenile facility or an adult facility.  Even where a state agency does not have jurisdiction over adult and juvenile corrections, a program whereby adult inmates are transported to a juvenile prison to provide face-to-face peer education on any topic would violate the JJDPA.

Standard Numbers: 115.14, 115.15, 115.33
Categories: Definitions, Inmate Education, Youthful Inmates
Apr 23, 2014
Q:

Can inmate peer educators be used to deliver the inmate information and education requirements of standard 115.33? If so, under what circumstances and are there any limitations?

A:

Peer education models have been successful in certain confinement settings because sensitive information may be more readily accepted when presented by someone that inmates can identify with, such as a fellow inmate. Sexual abuse is a difficult subject to talk about. It may be easier for inmates to learn about it from their peers, rather than from a staff member. Inmates may be more likely to trust in policies and practices conveyed through peer-led classes than those delivered by staff. Peer educators can make the education presentations more relatable and easier to understand for their peers. PREA standard 115.33 requires generally that inmates receive certain information regarding the agency’s sexual abuse- and sexual harassment-prevention policies and procedures during the intake process, and comprehensive inmate education regarding sexual abuse and harassment prevention and response mechanisms within 30 days of intake.

The PREA standards provide some limitations on an agency’s use of inmate assistants. Specifically, in the context of sexual abuse allegations, incident response, and investigations, the standards prohibit the reliance:

On inmate interpreters, inmate readers, or other types of inmate assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate’s safety, the performance of first-response duties under standard 115.64, or the investigation of the inmate’s allegations. See 28 C.F.R. § 115.16(c).

However, DOJ has determined that a properly developed and executed inmate peer education program does not violate this provision for purposes of providing the inmate education required by standard 115.33. Consistent with the theme of the PREA standards requiring staff, contractors, and volunteers who have contact with inmates to be screened, trained, and supervised, so too must any inmate peer educators. Inmate peer educators must be effectively screened for appropriateness, be effectively trained in the requirements of the standard, utilize an effective inmate education curriculum, and be effectively supervised by qualified staff.

When determining compliance with standard 115.33 where an agency relies upon an inmate peer education program, DOJ-certified auditors will examine the effectiveness of the program by, among other things, interviewing inmate recipients of the peer education training program to ensure that the recipients received training consistent with the requirements of the standard.

Standard Numbers: 115.16, 115.33, 115.64
Categories: Inmate Education
Apr 23, 2014
Q:

What gender should transgender staff be considered for the purposes of complying with cross-gender viewing and search prohibitions established in standard 115.15?

A:

Facilities should verify whether there are any specific legal authorities, statutes, or personnel policies that may be relevant to this determination. Absent any specific authorities, facilities should make an individualized determination based on the identified gender of the staff member, and not solely on the basis of the biological gender. This decision should be made at the request of, and in conjunction with, the transgender staff member. The determination may also change during the course of employment, as part of an on-going adjustment process, or as the staff member gains real-life experience living as a person of the identified gender.

Standard Numbers: 115.15
Categories: Searches, LGBTI Inmates/Residents/Detainees/Staff
Apr 23, 2014
Q:

Can an auditor find a federal Bureau of Prisons, state, county, or other local or private facility compliant with the PREA standards if an entity external to the confining agency, which conducts criminal investigations of sexual abuse in the facility being audited, is not compliant with the external investigative entity’s obligations under standards 115.21, 115.22, 115.34, and 115.71?

A:

Yes, provided that the confining agency and facility being audited has met its own specific obligations under these standards. For example, standard 115.21(f) requires the confining agency to request that the relevant external investigating entity follow the PREA standards regarding a uniform evidence protocol and forensic medical evaluations.

The four PREA standards referenced above explicitly apply to DOJ and state entities that are responsible for investigating allegations of sexual abuse in adult prisons, jails, lockups, community corrections facilities, and juvenile facilities. See, standards 115.21(g)(2), 115.22(e), 115.34(d), and 115.71(k)&(l).

Standard Numbers: 115.21, 115.22, 115.34, 115.71
Categories: Auditing, Audit Process, Compliance, Investigations
Apr 23, 2014
Q:Standard 115.42, “Use of Screening Information,” requires that transgender inmates be allowed to shower separately. What constitutes “separate” for the purposes of complying with this standard?
A:

Section 115.42(f) states, “Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.”  This standard was adopted to provide additional protections for these inmates, given the unique risks these populations face while incarcerated.  The separation required by the regulation will be dependent on the layout of the facility, and may be accomplished either through physical separation (e.g., separate shower stalls) or by time-phasing or scheduling (e.g., allowing an inmate to shower before or after others).  In any event, facilities should adopt procedures that will afford transgender and intersex inmates the opportunity to disrobe, shower, and dress apart from other inmates.

Standard Numbers: 115.42
Categories: Definitions, LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions
Mar 28, 2014
Q:Does the agency and/or jurisdiction responsible for placing a resident in a community-based residential facility matter for the purpose of qualifying that facility as a “community confinement facility” under the standards?
A:

No. The agency and/or jurisdiction responsible for placing residents is irrelevant for this purpose. The key factor in determining whether a facility qualifies as a “community confinement facility” under the standards is whether residents are placed there as a result of criminal justice contact. For example, if a community-based residential facility is primarily used for residents who are on probation—which, in some states, is a local function not overseen by the department of corrections—and who are required to be in that facility, the facility would qualify as a “community confinement facility” under the standards.

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions