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.
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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?”
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.”
How long must the documents that auditors relied on for making audit determinations be retained?
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.
Which federal grant programs will the five percent penalty for non-compliance affect?
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.
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)?
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.
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)?
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.
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)?
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).
Can PREA auditors engage support staff to assist with completing PREA audits?
PREA auditors may employ staff to provide assistance, including conducting interviews, but the DOJ-certified auditor is ultimately responsible for the final audit. In addition, the certified auditor is required to be present for, and supervise, the entirety of the on-site portion of the audit; to be the counterparty in an agency’s contractual engagement for the conduct of the audit; and to sign and certify the interim and final audit reports. Failure to adequately supervise such support staff could have consequences for the responsible auditor, up to and including decertification by the Department of Justice.
I understand that reciprocal auditing is not permitted, but what about “circular auditing?”
Circular auditing, in which a consortium of three or more States, or three or more local jurisdictions, agrees to perform audits at facilities in other consortium States, is permissible, with a few caveats. First, the circular auditing schedule must be developed so that no audits would be considered impermissible reciprocal audits (click here for more information on reciprocal audits). Second, no audits can be allowed in cases in which the auditor’s agency contracts for space in the facility being audited.
Does a Governor’s certification regarding full compliance with the National PREA Standards cover State investigative agencies?
Certain standards apply to any State agency that conducts investigations relating to sexual abuse or sexual harassment in a covered confinement facility. See 28 C.F.R. §§ 115.21(g)(1), 115.121(f)(1), 115.221(g)(1), and 115.321(g)(1); 115.22(d), 115.122(c), 115.222(d), and 115.322(d); 115.34(d), 115.134(d), 115.234(d), and 115.334(d); and 115.71(k); 115.171(k); 115.271(k); and 115.371(l); and 115.178(c). These standards cover investigatory policies, training, and procedures; evidence protocols; and forensic examinations. To the extent that these state agencies investigate sexual abuse or sexual harassment in covered confinement facilities, compliance with the National PREA standards by these agencies also falls within the scope of the Governor’s certification.
In determining whether to certify that my State is in "full compliance" with the National PREA Standards, how do I determine which facilities are "under the operational control of the State's executive branch"?
The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.” 28 C.F.R. § 115.501(b). A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.” Id. at standard 115.5. Some standards apply specifically at the facility level, while others apply at the agency level.
The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.
The term “operational control” is not defined in the National PREA Standards. The determination of whether a facility is under the operational control of the executive branch is left to a governor’s discretion, subject to the following guidance.
Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:
Does the executive branch have the ability to mandate PREA compliance without judicial intervention?
Is the State a unified correctional system?
Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?
The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification.
Please note that the standards require that any public agency that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, (1) include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards, and (2) provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards. 28 C.F.R. §§ 115.12, 115.112, 115.212, 115.312. A State confinement agency that fails to comply with these requirements is, by the terms of the standards, not PREA compliant.