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

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: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
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
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
Mar 26, 2014
Q:What constitutes “overnight” for purposes of PREA Standard 115.193, which states that “[a]udits need not be conducted of individual lockups that are not utilized to house detainees overnight?”
A:

As a general matter, the term “overnight” is construed as a period of seven or more continuous hours between 8:00 p.m. and 8:00 a.m. In situations where the facility has only a remote chance of meeting the above time period threshold, or does so only in rare circumstances (less than one time per month on average), the facility will not be considered “overnight.”

Standard Numbers: 115.93
Categories: Auditing, Definitions
Mar 24, 2014
Q:How long must the documents that auditors relied on for making audit determinations be retained?
A:

These documents must be retained for 12 months following the deadline for any agency audit appeal. Because audit appeals must be lodged within 90 days of the auditor’s final report, auditors must retain these documents for 15 months following the issuance of the final audit report. Longer document retention may be required in particular instances if so requested by the US Department of Justice.

Standard Numbers: 115.401
Categories: Auditing, Audit Process, Information Sharing
Feb 24, 2014
Q:Which federal grant programs will the five percent penalty for non-compliance affect?
A:

As described in the February 11, 2014 letter to governors regarding implementation of the National PREA Standards, in Fiscal Year 2014, there are three DOJ grant programs (or portions thereof) subject to the five percent penalty for non-compliance. Two are administered by the Office of Justice Programs: (1) the Bureau of Justice Assistance’s Edward Byrne Memorial Justice Assistance Grant Formula Program, and (2) the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice and Delinquency Prevention Act Formula Grant Program. One is administered by the Office on Violence Against Women: the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program.

Please note that legal restrictions on the uses of OJJDP Formula Grant and STOP Grant funds may make them unavailable to States for addressing certain areas of non-compliance with the PREA Standards. If a State is in full compliance with the standards as they apply to the State’s juvenile facilities, and out of compliance only with regard to adult facilities, it could not lawfully spend OJJDP Formula Grant funds to come into compliance. Because it would be impossible to use this money to come into compliance, the State would not be subject to the five-percent reduction in OJJDP Formula Grant funding. Likewise, STOP Grant funds are limited in that they cannot be used for new construction, even if that is necessary to bring a State into full compliance with the PREA Standards. If a State is in full compliance except for a deficiency that requires new construction, it could not lawfully spend STOP Grant funding to come into compliance, and the State, therefore, would not be subject to the five percent reduction in STOP Grant Funds. The PREA Standards Assurance Form, attached to the February 11, 2014 letter to governors from Assistant Attorney General Karol V. Mason and Office on Violence Against Women Principal Deputy Director Bea Hanson, requires governors to indicate whether either or both of these circumstances apply to their States.

Standard Numbers:
Categories: Governor's Certification
Feb 19, 2014
Q:Many states are part of interstate compacts for the transfer of inmates between state confinement agencies. Do these interstate compacts constitute contracts for the confinement of inmates pursuant to 115.12 (115.212 and 115.312)?
A:

Interstate transfers of inmates between public confinement agencies pursuant to the Interstate Agreement on Detainers (18 U.S.C. App. 2) or pursuant to existing national or regional Interstate Compacts for Corrections (authorized by state statutes) are exempt from the requirements set forth in standards 115.12, 115.212, and 115.312 where: (1) compensation for day-to-day inmate expenses is achieved only through reciprocal transfers of inmates; and (2) the transfers are primarily initiated by the inmate or with the consent of the inmate.

Standard Numbers: 115.12
Categories: Contracting, Definitions
Feb 19, 2014
Q:

What is required by the cross-gender announcement in Standard 115.15(d) (adult prisons and jails; and 115.315(d) (juvenile facilities with discrete housing units)?

A:

In adult prisons and jails, and in juvenile facilities with discrete housing units, “staff of the opposite gender” are required to “announce their presence when entering an inmate housing unit.” This is sometimes referred to as the “cover-up rule” and is intended to put inmates on notice when opposite-gender staff may be viewing them. The announcement is required any time an opposite-gender staff enters a housing unit; however, the Department has determined that the purpose of the Standard may be fully realized by requiring the announcement only when an opposite-gender staff enters a housing unit where there is not already another cross-gender staff present. Accordingly, the Department has determined that compliance with the Standard will be achieved when an announcement is made, as follows:

When the status quo of the gender-supervision on a housing unit changes from exclusively same gender, to mixed- or cross-gender supervision, the opposite-gender staff is required to verbally announce their arrival on the unit. The announcement is required for both custody and non-custody staff, and may include, for example, a clinician or case worker who spends time on the unit, or senior staff making supervisory rounds.

Note, a distinct buzzer, bell, or other noisemaking device may be substituted for a verbal announcement, so long as: (1) the buzzer emits a distinctive sound that is noticeably different from other common noisemakers; (2) inmates are adequately educated on the meaning of the buzzer sound and understand its purpose; and (3) the buzzer is not also used for other events at the facility. If used, such buzzers should be used in the identical manner that verbal announcements as required by the above guidance (e.g., when opposite- gender staff enter a housing unit).

The Department has received a number of inquiries about whether the following activities would constitute compliance:

Posting a notice on the housing unit informing the inmates that they may be subject to cross-gender supervision at any time.

Making a single announcement at the beginning of each shift indicating that inmates may be subject to cross-gender supervision at any time.

Making a single announcement at the beginning of a shift indicating that an opposite-gender staff is assigned to the unit for that particular shift.

Toggling a certain color light or flickering the lights in the unit as a signal to the inmates that opposite-gender staff may be on the unit.

The Department has determined that, while these other practices may be helpful supplements to the required verbal announcement, none of them is sufficient to comply with the Standard and compliance measure, as articulated above.

The Department also notes that there is no precise verbal language required by the cross-gender announcement Standard; only that the language put inmates or residents on sufficient notice that an opposite-gender staff member is entering the housing unit. Hence, such language as “man on the unit” or “Officer Smith on the unit” may both meet this requirement.

Consistent with Standard 115.16 and 115.316, the agency shall take appropriate steps to ensure that inmates with disabilities have an equal opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Accordingly, additional systems may be needed to supplement the verbal cross-gender announcement in units with inmates who are deaf or hard of hearing.

[1] In lockups and community confinement facilities, and in juvenile facilities that do not have discrete housing units, opposite-gender staff are only required to “announce their presence when entering an area where” detainees and residents “are likely to be showering, performing bodily functions, or changing clothing.” 28 C.F.R. §§ 115.115(c), 115.215(d), and 115.315(d).

Standard Numbers: 115.15
Categories: Cross-Gender Supervision, Cover-Up Rule
Feb 19, 2014
Q:In some states inmates are confined in local facilities pursuant to state statute (with or without a per diem or other financial consideration) and without a formal written contract (or a contract providing only for the payment of the per diem). Do these arrangements constitute contracts for the confinement of inmates pursuant to Standard 115.12 (115.212 and 115.312)?
A:

When a state agency has no discretion regarding which local or private confinement facility a state inmate is placed in, then the arrangement does not constitute a confinement of inmates for the purposes of 115.12 (115.212 and 115.312), even if the state pays the local jurisdiction a per diem pursuant to state statute or informal agreement. By contrast, if the state statute provides a state agency discretion over which local confinement facility to place the inmate in, and the state provides financial compensation to the local facility or agency, then the arrangement would be considered a contract under the standards.

Standard Numbers: 115.12
Categories: Contracting, Definitions