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

Sep 23, 2014
Q:

Is it ever appropriate for auditors to require the installation of cameras as part of a corrective action plan?

A:

No, with respect to adult confinement facilities. Generally, no, with respect to juvenile facilities. In juvenile facilities that include specific camera coverage in their staffing plan, the absence of such camera coverage may appropriately provide the basis for an auditor to either insist on the camera requirements in their staffing plan or require that the staffing plan be amended. Note that there are different requirements regarding the deployment of video monitoring technology among the four sets of standards.

Prisons, Jails, Lockups, and Community Confinement Facilities

In adult facilities (adult prisons and jails; lockups; and community confinement facilities), the standards require facilities to develop and document staffing plans that provide for “adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse.” See 28 C.F.R. §§ 115.13(a), 113(a), and 213(a). These standards require that facilities consider several enumerated factors in the development of the staffing plan, including, among other things, the physical layout of the facility. See also 28 C.F.R. §§ 115.13(a)(5) (“including ‘blind spots’”). In adult facilities, agencies are required to make “best efforts” to comply with the staffing plan and/or to “document and justify” deviations from it.

The adult standards also require agencies to reassess the adequacy of the “facility’s deployment of video monitoring systems and other monitoring technologies…[w]henever necessary, but no less frequently than once each year…” See 28 C.F.R. §§ 115.13(c), 113(c), and 213(c).

Finally, the adult standards require agencies “[w]hen installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology…to consider how such technology may enhance the agency’s ability to protect inmates from sexual abuse.” See 28 C.F.R. §§ 115.18(b), 118(b), and 218(b).

Within this context, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. For example, in developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. Indeed, best practices suggest that video monitoring is not an adequate substitute for sufficient numbers of staff. In any event, so long as the above requirements are complied with (e.g., make best efforts to comply, document and justify deviations, and consider how technology may enhance protections), then the failure to incorporate or add video monitoring technology does not cause a facility to be out of compliance with the standards. Accordingly, it is not appropriate for an auditor to specifically require the addition of video cameras as a condition of finding compliance.

Juvenile Facilities

Unlike the adult facility standards, the juvenile facility standards require agencies to “implement…a staffing plan that provides…where applicable, video monitoring, to protect residents against sexual abuse.” See 28 C.F.R. § 115.313(a). The staffing plan must take into consideration, among other things, “the facility’s physical plant (including ‘blind spots’ or areas where staff or residents may be isolated)…” Further, the juvenile facility standards provide that the agency “shall comply with the staffing plan except during limited and discrete exigent circumstances, and shall fully document deviations from the plan during such circumstances.” See 28 C.F.R. § 115.313(b) (emphasis added).

By contrast, while adult facility standards require agencies to develop an adequate staffing plan, and to make best efforts and/or to document and justify deviations, the juvenile facility standards require agencies to comply with the staffing plan, absent exigent circumstances.

However, as discussed above with respect to the development of the staffing plan, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. In developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. For example, where an auditor or an agency identifies a “blind spot” that imposes considerable danger of the occurrence of sexual abuse, an agency may choose to reallocate existing staff or add staff to the area in question, rather than to install a new video camera in the area.

Accordingly, so long as the above requirements are met, the absence of a particular video monitoring system or camera would not preclude agency compliance with this standard, and it would be inappropriate for an auditor to specifically insist on the installation of a video camera (as opposed to other enhanced protective measures) in order to find compliance. However, if the staffing plan developed pursuant to this standard requires specific camera coverage, and that coverage is either not provided or inoperable, then it may be appropriate for the auditor to insist on agencies either complying with the staffing plan (absent exigent circumstances) or amending their staffing plan.

Please note the requirements for a periodic staffing plan reassessment and for consideration of the effect of video monitoring technology when installing or enhancing systems is substantively the same between adult and juvenile facilities. See 28 C.F.R. § 115.313(d) and 318(b).

Standard Numbers: 115.13, 115.18
Categories: Auditing, Compliance
Sep 23, 2014
Q:

What is meant by “the use of physical barriers” and “intensive staff supervision” in the definition of a Secure Juvenile Facility in standard 115.5?

A:

Standard 115.5 defines, in part, secure juvenile facility to mean “a juvenile facility in which the movements and activities of individual residents may be restricted or subject to control through the use of physical barriers or intensive staff supervision.”

This definition generally includes both hardware-secure facilities and staff-secure facilities. A hardware-secure facility means a facility that relies primarily on the use of construction and hardware such as locks, bars, and fences to restrict freedom. A staff-secure facility means a facility with continuous staff or contractor presence, and (1) a facility operated or structured so as to ensure that entrances and exits from the facility are under the exclusive control of the staff of the facility, or (2) a facility where staff or contractor duties include physical intervention to prevent residents from the unauthorized exit from the facility.

Standard Numbers: 115.5
Categories: Covered Facilities, Definitions
Aug 27, 2014
Q:

What constitutes a “relevant licensing body” for the purposes of satisfying the required notifications in standards 115.76, 115.77, 115.176, 115.177, 115.276, 115.277, 115.376, and 115.377?

A:

A “relevant licensing body” is an entity (e.g., medical board, board of social work, board of mental health, bar association, etc.) that licenses an individual to conduct work in a specific profession.

Standard Numbers: 115.76, 115.77
Categories: Definitions
Aug 27, 2014
Q:

Is an agency that holds inmates on behalf of another agency pursuant to a contract responsible for posting the data and reports described in standards 115.87, 115.88, and 115.89 on its own website, in addition to reporting that information to the agency with which it holds the contract?

A:

Yes. Standards 115.87, 115.88, and 115.89 require the agency to collect and post certain data and reports on its website or, if it does not have a website, to make the data available through other means.

“Agency” (standard 115.5) means the unit of a State, local, corporate, or nonprofit authority, or of the Department of Justice, with direct responsibility for the operation of any facility that confines inmates, detainees, or residents, including the implementation of policy as set by the governing, corporate, or nonprofit authority.

Therefore, a contracting agency is required to do the following with the data described in standards 115.87, 115.88, and 115.89:

Provide the data to the parent agency in the contractual relationship; and

Post the data on its website or, if it does not have a website, to make it available through other means.

The parent agency in the contractual relationship is also required to post the data from the contracting agency on its website or, if it does not have a website, to make it available through other means.

Standard Numbers: 115.12, 115.87, 115.88, 115.89
Categories: Contracting, Definitions
Aug 12, 2014
Q:

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?

A:

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.

Standard Numbers: 115.17
Categories: Non-Facility Staff, Background Checks
Aug 04, 2014
Q:What screening is required for detainees in lockups that are never placed in a holding cell with other detainees?
A:

The determining factor in this situation is whether the detainee will be confined in a cell or room with another detainee. If a detainee is never placed in a holding cell with another detainee and is never placed in an area with other detainees absent continuous staff supervision, then no screening for risk of sexual abusiveness or victimization is required. This is so, regardless of whether the detainee is housed overnight or whether the facility is used to house detainees overnight.

Standard Numbers: 115.41
Categories: Screening, Placement Decisions
Jun 20, 2014
Q:

Standards 115.41(f) and 115.241(f) require that the facility “reassess the inmate’s/resident’s risk of victimization or abusiveness based on any additional, relevant information received by the facility since the intake process” and that it do so no more than 30 days after intake. The question is whether this standard subsection requires that EVERY inmate be reassessed within 30 days of arrival at the facility to determine whether any relevant new information exists; OR, alternatively, whether it requires that some process be in place to capture new information that arrives at the facility within 30 days and, when new information arrives, it prompts a reassessment?

A:

Both. First, there is a general and continuing obligation to conduct a screening reassessment whenever warranted upon receipt of additional relevant information. Specifically, standard 115.41(g) requires that “[a]n inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness.” This continuing obligation extends through the duration of the inmate’s incarceration.

By contrast, the standards also require an affirmative reassessment within a set time period, but no later than 30 days of intake. Specifically, standard 115.41(f) requires that “[w]ithin a set time period, not to exceed 30 daysfrom the inmate’s arrival at the facility, the facility will reassess the inmate’s risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening” (emphasis added).

While standard 115.41(f) requires an affirmative reassessment within 30 days, the reassessment need not “start from scratch.” For example, as noted in the PREA Notice of Final Rule, a facility may generally rely upon information previously gathered, so long as the reassessment “captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.”

While a facility may (and should) have a system in place for capturing additional or new information from a variety of sources (e.g., mental health assessment, disciplinary history, or allegations of relevant threats or victimization), the 30-day affirmative reassessment requires, at a minimum, that screening staff consult available sources to determine whether any previously unknown triggering event or information has become available and to document such review. If, after consulting all relevant sources, no new relevant information is present, then further reassessment under the standards may not be necessary. In short, as opposed to the “passive” requirements under standards 115.41(g) and 115.41(f) requires screening staff to affirmatively “look.”

As noted in the PREA Notice of Final Rule, “[t]he final standard requires that inmates who remain in custody undergo a more extensive classification process [within 30 days].” This requirement recognizes that information relevant to the risk and classification needs will become available as staff interview, assess, and observe the inmate, and as the facility receives information from other agencies and sources.

Standard Numbers: 115.41
Categories: Screening
Jun 11, 2014
Q:Do any of the conflict rules governing who can conduct an audit of a given agency’s facilities apply to the staff they hire to help them conduct that audit?
A:

The same restrictions regarding auditor conflict of interest also apply to staff who auditors hire to help conduct the audit.  Consistent with PREA Standard 115.402: 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 Numbers: 115.402
Categories: Auditing, Audit Process
Jun 11, 2014
Q:

Can an answering service be used to satisfy the requirement in standard 115.51 (b) that the agency provide an outside reporting mechanism?

A:

No. Section 115.51 (b) states that, “The agency shall also provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing the inmate to remain anonymous upon request.” A number of state agencies have reported to DOJ and the PREA Resource Center (PRC) that they have had difficulty finding an outside agency willing to take reports of sexual abuse from its prisons and have, as a means of satisfying the requirement in standard 115.51 (b), sought to hire an answering service to take such calls with the understanding that the answering service would then relay the report back to the agency immediately. This does not satisfy the requirement of the standard because an answering service is not a “public or private entity or office that is not part of the agency.” The intent of the standard is to provide inmates with a means to report to an entity or office with some autonomy. It is anticipated that availability of such an entity or office will increase the likelihood that victims will report sexual abuse within confinement facilities. An answering service in this context is, essentially, no more than an agent of or a contractor to the agency.

Standard Numbers: 115.51
Categories: Definitions
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