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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Is a public agency that contracts with another public or private agency for the confinement of inmates, detainees, or residents out of compliance with Standard 115.12/112/212/312 if the contracted facility is determined to be noncompliant with one or more provisions of the PREA Standards by either its required triennial audit, or by the contracting agency’s contract monitoring?
PREA standards 115.12, 115.112, 115.212, and 115.312 require that new or renewed contracts for the placement of inmates include both a requirement to comply with PREA, and that the contracting agency conduct contract monitoring “to ensure that the contractor is complying with the PREA Standards.”
On February 19, 2014, during the first half of the first auditing year, the Department of Justice (DOJ) provided guidance that (at the time of issue) contracted facilities needed not “be immediately and perfectly compliant with the Standards,” in order for the contracting agency to be considered in full compliance. Rather, DOJ determined that it was sufficient for the contracted facility to “be actively and effectively working toward achieving compliance with all the Standards” and that the contracting agency fully document the progress toward full compliance. This guidance was not intended to provide an avenue for noncompliant contracted facilities to be utilized by agencies in perpetuity.
As such, as of August 20, 2022,[1] contracting agencies shall ensure that any facility that has been contractually required to comply with PREA for at least 36 months has achieved full compliance with the PREA standards, and will maintain compliance as a condition for continued use of such facility by the contracting agency.
For a discussion regarding the contract monitoring obligations of a contracting agency, click here.
Revised August 2, 2019. Original posting date February 19, 2014.
[1] By way of reference, the Justice for All Reauthorization Act of 2016 provides generally that as of 2022, state agencies will no longer be able to utilize the “assurance” option to avoid losing a portion of certain federal grant funds. See Public Law No: 114-324.
It is sometimes necessary for local facilities to temporarily hold inmates who are transferred from other facilities or agencies, either pursuant to a state statute (with or without a per diem or other financial consideration), or through informal contracts (or a contract providing only for the payment of the per diem), in order to address a function of the judicial system or law enforcement agency, such as adjudication of parole or probation violations or if a state inmate is returned temporarily to the local facility for a court appearance or testimony. Do these arrangements constitute contracts for the confinement of inmates pursuant to PREA Standard 115.12 (Standard 115.212 and Standard 115.312)?
When a local facility houses inmates transferred temporarily from another facility or agency for a function necessitated by the judicial system or law enforcement agency, such as adjudication of parole or probation violations or for a court appearance or testimony, the arrangement does not, in and of itself, constitute a contract for the confinement of inmates for the purposes of Standard 115.12 (Standard 115.212 and Standard 115.312), even if the local jurisdiction is paid a per diem or otherwise compensated pursuant to state statute or informal agreement. The state/agency need not require PREA compliance by the local facilities to maintain arrangements with regard to temporary housing for the purpose of probation or parole violations or temporary transfers for court appearances or testimony.
Revised April 18, 2018. Original posting date February 19, 2014.
What is the distinction between a facility that is under the operational control of the state’s executive branch via a contract, and therefore subject to the governor’s certification or assurance, and a facility with which the state contracts for beds, and is therefore subject to the requirements of standard 115.12 but not deemed to be under the governor’s operational control?
A facility operated by a private organization “on behalf of an agency” is generally controlled by the parent confining agency. Typically, such a facility has a dedicated (or primarily dedicated) inmate population in the legal custody of the parent agency. In addition, such facilities generally operate within the confines of the parent agency’s policies, procedures, and practices. Such facilities are usually owned by (or controlled by) the parent agency. The parent agency typically contracts with private correctional entities to operate the facilities for finite and/or renewable durations.
By contrast, a mere “contract for the confinement of inmates” between a public agency and a private (or another public) agency pursuant to standard 115.12 is generally an arrangement to confine inmates for a fixed or variable fee or on a per diem basis. This arrangement is typically considered a rental of bed space for holding inmates. Contracted facilities in this category will often rent bed space or confine inmates from multiple external public agencies. While the contract may impose a number of requirements or standards on the contracted agency, it is generally a much lower level of operational control than a facility “operated on behalf of” the contracting agency as described in the paragraph above.
It should be noted that, pursuant to standard 115.12, any new contract or contract renewal must include the contracted entity’s obligation to comply with PREA and to allow for appropriate contract monitoring.
See also related FAQs in the 115.12 and Contracting categories.
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?
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.
When a confining agency maintains relationships with one or more facilities that are operated by a private organization on behalf of the agency and with a private organization with whom it contracts for the confinement of inmates, what is the confining agency’s obligation under the auditing standards and the audit count calculation?
A facility “operated… by a private organization on behalf of an agency” is required to be audited in accordance with the agency’s audit schedule, and will count as an agency’s facility for purposes of determining the “one-third” annual audit calculation.
A mere “contract facility” pursuant to standard 115.12 does not count in the contracting agency’s audit requirements. However, the contracted agency is considered its own “agency” for purposes of PREA, and has its own independent obligations to comply with the PREA standards (including the auditing standards). This obligation becomes explicit when a contracting agency enters into, or renews its contract with a contracted facility pursuant to the standards.
If a public agency maintains relationships with both types of agencies, the agency should determine which facilities fall within each of the two categories, and include only the former category within its audit timelines and obligations.
See also related FAQs by clicking here or by searching for Categories Auditing, Compliance, and Contracting.
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.
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.
In accordance with Standards 115.12, 115.112, 115.212, and 115.312, what level of contracting monitoring is actually required by the contracting agency?
In years when the contract facility is audited, review of the audit report will meet the monitoring requirements. In other years, monitoring may be done in the same manner the agency verifies compliance with other contract terms, which may vary (e.g. on-site agency staff, inspections, documentation, etc.). Whatever monitoring method used should provide the agency assurances that the contractor is complying with the PREA standards.