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

Feb 07, 2013
Q:What is adequate staffing?
A:

The PREA standards do not mandate specific minimum staffing ratios for adult and non-secure juvenile settings. Instead, the PREA rule provides guidance on how agencies can determine adequate staffing levels to protect inmates, residents, and detainees from sexual abuse. For prisons, jails, and juvenile facilities, the standards require that agencies consider 1) generally accepted practices; 2) judicial findings of inadequacy; 3) findings of inadequacy from federal investigative agencies; 4) findings of inadequacy from internal or external oversight bodies; 5) all components of the facility’s physical plant (including “blind spots,” or areas where staff or residents may be isolated); 6) composition of the inmate/resident population; 7) number and placement of supervisory staff; 8) number and types of programs occurring on a particular shift; 9) applicable state or local laws, regulations, or standards; 10) prevalence of substantiated and unsubstantiated incidents of sexual abuse; and 11) any other relevant factors. 28 C.F.R. §§ 115.13(a) and 115.313(a). The lockup and community confinement standards provide a similar, albeit abbreviated, list of factors.

In secure juvenile facilities, DOJ defined minimum staffing ratios under PREA Standard 115.313 (c) as 1:8 during resident waking hours and 1:16 during resident sleeping hours. Agencies may depart from these minimum ratios during limited and discrete exigent circumstances, which are fully documented for audit purposes. Id. DOJ noted that many states and localities, as a matter of law or policy, already have minimum staffing ratios in juvenile settings; some state and local facilities exceed the minimum staffing ratios proscribed in the PREA standards and are strongly encouraged to maintain those ratios. In order to provide agencies with sufficient time to readjust staffing levels and, if necessary, request additional funding, the standard provides that any facility that is not already obligated by law, regulation, or judicial consent decree to maintain the required minimum staffing ratios has until October 1, 2017, to achieve compliance. Id.

Standard Numbers: 115.13
Categories: Staffing Ratio
Feb 07, 2013
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 Numbers: 115.13
Categories: Staffing Ratio
Feb 07, 2013
Q:

Do all inmates under the age of 18, regardless of court adjudication, need to be housed and managed in an area totally separate from adult inmates while residing in an adult jail or prison?

A:

PREA Standard 115.14 provides that youthful inmates, which the standards define as “any person under the age of 18 who is under adult court supervision and incarcerated or detained in a prison or jail,” must be housed separately from adult inmates in a jail or prison, but may be managed together outside of a housing unit if supervised directly by staff. Standard 115.114 provides analogous but abbreviated standard requirements for lockups.

The standard includes three requirements. First, no youthful inmate may be placed in a housing unit where he/she will have contact with any adult inmate through use of a shared day room or other common space, shower area, or sleeping quarters. Second, outside of housing units, agencies must either maintain “sight and sound separation” between youthful inmates and adult inmates—i.e., prevent adult inmates from seeing or communicating with youth—or provide direct staff supervision when youthful inmates and adult inmates are together. Third, agencies must make their best efforts to avoid placing youthful inmates in isolation to comply with this provision. Finally, absent exigent circumstances, agencies must comply with this standard in a manner that affords youthful inmates daily large-muscle exercise and any legally required special education services, and provides access to other programs and work opportunities to the extent possible.

Persons under 18 who are charged with status offenses and/or delinquent offenses are not covered by Standard 115.14, but they are covered by the Juvenile Justice and Delinquency Prevention Act (JJDPA) and regulations promulgated pursuant to the JJDPA. These requirements ensure that states do not securely detain status offenders in adult facilities and severely limit the time in which accused delinquent youth may spend in adult facilities; status offending and delinquent youth must always be sight and sound separated from adult inmates in prisons, jails, and lockups. More information about JJDPA requirements is available at www.ojjdp.gov/compliance.

In crafting this standard, DOJ was cognizant of agency concerns regarding cost, feasibility, and preservation of state law prerogatives related to youthful inmates. Accordingly, this standard affords facilities and agencies flexibility in devising an approach to separate youthful inmates. In particular, agencies can achieve compliance by 1) confining all youthful inmates to a separate housing unit; 2) transferring youthful inmates to a facility within the agency that enables them to be confined to a separate unit; 3) entering into a cooperative agreement with an outside jurisdiction to enable compliance; or 4) ceasing to confine youthful inmates in adult facilities as a matter of policy or law. Agencies may, of course, combine these approaches as they see fit.

Standard Numbers: 115.14
Categories: Definitions, Youthful Inmates
Feb 07, 2013
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 Numbers: 115.15
Categories: Searches, Cross-Gender Supervision, Cover-Up Rule
Feb 07, 2013
Q:

Do the standards apply to non-confinement community correctional settings such as probation and parole?

A:

No, the PREA standards do not apply to non-confinement community corrections functions such as probation and parole supervision. The PREA standards do apply to residential community confinement facilities such as halfway houses operated by community corrections agencies. The PREA standards apply to confinement facilities defined in Standard 115.5 General Definitions as “a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community correctional facility (including residential reentry centers), other than a juvenile facility, in which individuals reside as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision, while participating in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during nonresidential hours.” DOJ declined to adopt recommendations to adopt a set of standards that included pre-trial release, probation, and parole.

Standard Numbers:
Categories: Covered Facilities, Definitions
Feb 07, 2013
Q:Do community corrections standards apply to juvenile community confinement settings?
A:

No. Juvenile community confinement facilities are covered by the juvenile facility standards. See 28 C.F.R. § 115.5 (definition of community confinement facility). The community confinement facility standards do not apply to juvenile community confinement facilities.

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Feb 07, 2013
Q:Do the standards apply to facilities that hold youth in the custody of a juvenile justice agency if those youth are not the totality of the population held in that particular facility? For example, are contracted secure juvenile facilities; contracted halfway houses, group homes, and community correctional facilities; and state department of social services secure facilities that provide services to juveniles who are under juvenile court jurisdiction through a contract with the state juvenile justice agency all covered? If so, to what extent?
A:

The PREA standards make clear that a juvenile facility is one that is primarily used for the confinement of juveniles. If a majority of a facility’s residents are under the age of 18 (unless under adult court supervision and confined or detained in a prison or jail), it will fall within the scope of the juvenile facility standards, even if non-delinquent youth are part of the facility’s population. One example is a facility that houses 10 youth and only two of those youth are under the jurisdiction of juvenile justice agencies. According to the standard, because less than a majority of the youth in that facility are in the custody of the juvenile justice department, the facility does not need to comply with PREA juvenile facility standards. For example, if the facility is used to house individuals “as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision…” then the community confinement standards would apply. See 28 C.F.R. § 115.5 (definition of community confinement facility).

In addition, as in all custodial settings, agencies have state and federal legal obligations to protect those in custody, irrespective of obligations under PREA.

Finally, PREA Standard 115.312 provides that “a public agency that contracts for the confinement of its residents with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards and any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.”

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Feb 07, 2013
Q:On what basis can the governor make a certification decision? Is it the audit finding alone, or should the governor base certification on other items? If other items are applicable for a certification, what are some examples of these items?
A:

Pursuant to PREA Standard 115.501(a), governors shall make their certification of compliance taking into consideration the results of the most recent agency audit results. DOJ intends audits to be a primary, but not the only, factor in determining compliance. For example, audit results for a particular period may show the selected one third of audited facilities in compliance; however, the governor may have determined that other facilities under his/her control are, in fact, not in compliance with the standards.

Neither the PREA statute nor the PREA standards restrict the sources of information governors may use in deciding whether or how to certify compliance.

Standard Numbers: 115.501
Categories: Auditing, Governor's Certification
Feb 07, 2013
Q:Is PREA Standard 115.14 Youthful Inmates applicable to juvenile settings? Often juvenile settings can house youth committed to the department of juvenile justice until age 21. Do youth in juvenile custody need to be sight and sound separated if they are over 18?
A:

No. Individuals confined in juvenile facilities are defined as “residents” and may reside in juvenile facilities until the age allowable by state law, which in most states is 21, and in some as high as 25. The PREA standards do not provide for any sight and sound separation of residents in juvenile facilities either because of age or court of conviction. Neither the standard on youthful inmates (115.14) nor the standard for youthful detainees (115.114) is applicable in juvenile facilities. The Youthful Inmate standard requiring separation of those under age 18 from those over 18 is “setting specific,” applicable only in prisons, jails, and lockups. Even where state law provides for automatic prosecution in adult court of individuals at age 16 (e.g., NC, NY) and age 17 (e.g., GA, NH, IL, LA, MD, MA, MI, SC, TX, WI) when those persons are detained or confined in an adult prison, jail, or lockup, such individuals must be sight and sound separated from those over the age of 18. 

Standard Numbers: 115.14
Categories: Youthful Inmates