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 is meant by the term “objective screening instrument” in PREA Standard 115.41?
PREA Standard 115.41 requires facilities to assess all inmates “for their risk of being sexually abused by other inmates or sexually abusive toward other inmates” and such assessments shall be conducted using an objective screening instrument.” (emphasis added).
The Department made clear in the PREA Notice of Final Rule that the “standard provides that the agency shall attempt to ascertain specific information about the [resident, inmate, or detainee] and that the agency develop an objective, rather than subjective, process for using that information…” See 77 Fed. Reg. 37106, 37154 (June 20, 2012) (emphasis added). Objective screening instruments have been used in corrections and other disciplines for decades in order to create uniformity, accuracy, and transparency in internal decision-making processes.1 Such instruments lead to a presumptive determination of risk, and are “point-additive,” “decision-tree,” or “software-based algorithm.”
While a PREA-compliant objective screening instrument must consider various enumerated factors, the Department of Justice made clear that the standards do not “mandate the weight to be assigned to any of the enumerated factors in making placement and classification decisions.” See 77 Fed. Reg. 37106, 37154 (June 20, 2012). The standards require the following factors to be included in the objective risk-screening determinations for risk of victimization: (1) Whether the inmate has a mental, physical, or developmental disability; (2) The age of the inmate; (3) The physical build of the inmate; (4) Whether the inmate has previously been incarcerated; (5) Whether the inmate’s criminal history is exclusively nonviolent; (6) Whether the inmate has prior convictions for sex offenses against an adult or child; (7) Whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming; (8) Whether the inmate has previously experienced sexual victimization; (9) The inmate’s own perception of vulnerability; and (10) Whether the inmate is detained solely for civil immigration purposes. See 28 C.F.R. § 115.41(d).
In addition, an objective screening instrument must consider: “prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the agency, in assessing inmates for risk of being sexually abusive.” See 28 C.F.R. § 115.41(e).
Additional Considerations for PREA-Compliant Objective Screening Instruments
Objective screening instruments are “rules-based” and include the following essential features:
- Developing and implementing a uniform list of risk factors and assigning reasonable weights for each risk factor based on available evidence and reasonably informed assumptions.2
- Assigning objective outcome thresholds based on the totality of weighted risk factors (weighted inputs lead to presumptive outcome determinations).
- Using a uniform process to obtain information on the applicability of each risk factor to individual inmates.
- Making an objective risk determination based on the aggregate of the inmate’s individual weighted risk factors.3
Agencies may include additional relevant factors in their screening instrument(s) based on the availability of additional known risk factors as they become available. For example, additional risk factors may be identified based on agency- and facility-specific sexual abuse incident data. The Bureau of Justice Statistics also publishes data on individual-level characteristics associated with a heightened risk of victimization that an agency may use to identify additional risk factors or inform the weight to be assigned to individual risk factors. Agencies may use one screening instrument to assess both risk of sexual abusiveness and victimization or use separate instruments. It is important to know that an inmate may be both at heightened risk of victimization and abusiveness.
While objective screening instruments are designed to arrive at an objectively presumptive outcome, an agency may override the presumptive outcome based on unusual or unanticipated circumstances. However, override determinations are often subjective and should be limited. Overrides greater than 15-20 percent may transform an objective system into a largely subjective system. In cases where agencies override a large percentage of objective determinations, the agency should consider reassessing their screening instrument and individual factor weightings to accommodate the reasons many determinations are being overturned.
Agencies should attempt to tailor their objective screening instruments to the unique characteristics (e.g., specialized populations, inmate demographics, program type) of their various facility types. For example, the factor weighting appropriate for a minimum-security prison may create considerable over-screening in a sex-offender treatment facility. Similarly, agencies should also periodically reassess their screening instrument over time, as the nature of their facility populations may shift. The goal of an objective classification system is to, in an any given confined population, identify the most vulnerable and most predatory inmates, and keep those inmates separate. See 28 C.F.R. § 115.42(a). If an objective screening instrument identifies 100 percent or zero percent of a population as vulnerable; or conversely predatory; the system may not accomplish this goal.
1 See, e.g., James Austin, Ph.D., Objective Jail Classification Systems, National Institute of Corrections (Feb. 1998) https://www.michigan.gov/documents/corrections/Objective_Jail_Classification_Systems_-_A_Guide_for_Jail_Administrators_294757_7.pdf; Jack Alexander Ph.D., Handbook for Evaluating Objective Prison Classification Systems, National Institute of Corrections (June 1992) https://www.ncjrs.gov/pdffiles1/Digitization/139891NCJRS.pdf; David Steinhart, Juvenile Detention Alternatives Initiative, Annie E. Casey Foundation (2006); https://www.aecf.org/m/resourcedoc/aecf-juveniledetentionriskassessment1-2006.pdf#page=4; Keith Cooprider, Pretrial Risk Assessment and Case Classification: A Case Study Control, Federal probation Journal (Vol. 73, No. 1) https://www.uscourts.gov/sites/default/files/73_1_2_0.pdf (“the practice of objective risk assessment is a basic principle of the Evidence-Based Practice (EBP) initiative…”).
2 The Bureau of Justice Statistics periodically publishes PREA-related data collection reports, among other things, identifying victim-characteristic correlation to victimization: https://www.bjs.gov/index.cfm?ty=tp&tid=20
3 “Validation” is another positive, yet costly, feature of an objective system. The Department chose not to include a validation requirement in its standards. See e.g., 77 Fed. Reg. 37106, 37151 (June 20, 2012); https://www.prearesourcecenter.org/node/3246.
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?
The standard requires 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 days from 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 (including the inmate) to determine whether any previously unknown triggering event or information has become available and to document such review. In short, as opposed to the “passive” requirements under standards 115.41(g), standard 115.41(f) requires screening staff to affirmatively “look and inquire.”
Some risk factors are subject to change within the first 30-days after intake and may only be determined by making affirmative inquiry of the inmate. For example, the “inmate’s own perception of vulnerability” can only be known by the inmate. See standard 115.41(d)(9). In addition, the inmate may have experienced unreported sexual victimization during this time period. See standard 115.41(d)(8). Accordingly, all 30-day reassessment requires consultation with the inmate.
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.
Revised August 2, 2019. Original posting date June 20, 2014.
If prior objective risk screenings under PREA Standard 115.41 (or other information known to an agency) indicate that an inmate has previously experienced sexual victimization, how should screening staff approach the issue during subsequent screenings and reassessments, so as to be sensitive to the potential for retraumatizing the inmate?
PREA Standard 115.41 requires facilities to screen inmates for risk of sexual victimization or sexual predation during intake at a facility and upon transfer to another facility. Risk screening reassessments are required within “a set time period, not to exceed 30 days from the inmate’s arrival at the facility,” and when warranted due to certain events listed in the Standard. One of the factors that must be taken into consideration during risk determinations is “[w]hether the inmate has previously experienced sexual victimization.” See PREA Standard 115.41(d)(8).
While facilities are required to consider prior sexual victimization during each risk screening, the Standards do not specify any particular manner in which to make such an inquiry, nor do they require that the question be posed in the same manner every time. If an inmate has already reported a history of prior sexual victimization during a previous risk screening by the agency or facility, screening staff could ask during subsequent screenings if the inmate has “previously experienced sexual victimization” that he or she has not already reported to the confining agency or facility. Screening staff must include sexual victimization reported during prior risk screenings, as well as any previously undisclosed sexual victimization, in the risk screening tool.
This process avoids requiring an inmate to repeatedly report the details of a traumatic event, while: (1) providing the inmate an opportunity to disclose an incident of victimization that occurred after the prior risk screening; and (2) providing the inmate an opportunity to disclose an incident that the inmate did not feel comfortable reporting during prior risk screenings.
Does standard § 115.41 (§ 115.241, § 115.341) require facilities to affirmatively inquire of the inmates/residents about their lesbian, gay, bisexual, transgender, or intersex (LGBTI) status, in addition to making a subjective determination about perceived status?
Yes. In adult facilities, Standards 115.41 and § 115.241 require that “[a]ll inmates/residents shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates/residents or sexually abusive toward other inmates/residents.” The inmate/resident screening shall consider, at a minimum, and among several other factors “[w]hether the inmate/resident is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” See 28 C.F.R. § 115.41(d)(7) and § 115.241(d)(7).
Similarly, in juvenile facilities, Standard 115.341 requires that the agency shall conduct a risk screening that “attempt[s] to ascertain information about… [among other factors,] any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse.” See 28 C.F.R. § 115.341(c)(2).
For both adult and juvenile facilities, the enumerated factors require both an objective (is) and a subjective (is perceived to be) determination. The objective determination requires that an inmate/resident be affirmatively afforded an opportunity to self-identify as LGBTI, if the inmate/resident chooses to do so. In addition, staff should consider any other relevant knowledge or information regarding inmates’/residents’ LGBTI status. The subjective component—whether an inmate/resident appears gender nonconforming—necessarily requires a determination based on the perception of the screening staff.
Perception is important because if the screener perceives that an inmate/resident might be considered LGBTI and/or gender nonconforming, then other inmates/residents (and staff) may have the same perception. Specifically, gender nonconformity is usually something that can be determined by staff, though that perception is not to be substituted for an inmate’s/resident’s own self-identification. Please note: an affirmative response does not require any specific course of action based on this one factor. It is one piece of information that should be evaluated in conjunction with the other factors listed in the PREA standards concerning the overall assessment of the inmate/resident. Inmates/residents may feel reluctant to provide screening staff with information regarding their identification as LGBTI due to, among other possible reasons, a fear that disclosure of such information may make the inmate/resident more vulnerable to sexual or physical abuse, or harassment. Accordingly, the standards require the agency to implement appropriate controls on the dissemination of screening information within the facility and to protect sensitive information. See 28 C.F.R. § 115.41(i), § 115.241(i), and § 115.341(e).While agencies are required to ask the inmate/resident if he or she chooses to identify as gay, lesbian, bisexual, transgender, and/or intersex, it is clear that the agency may not compel the inmate/resident to answer. Specifically, the adult facility standards provide that inmates may not be disciplined for refusing to answer (or for not disclosing) certain enumerated factors, including whether they identify as LGBTI. See 28 C.F.R. § 115.41(h) and § 115.241(h). While there is no specific corollary in the juvenile facility standards, it would be counterproductive and harmful to punish young residents for refusing to provide this sensitive information.
The standards require that inmates/residents be assessed for these and other risk factors “during an intake screening within 72 hours1 of arrival at the facility, using an objective screening instrument.” See 28 C.F.R. §§ 115.41(a)-(c), §§ 115.241(a)-(c), and §§ 115.341(a)-(c). The standards further require that the agency use the information from the intake risk screening to inform housing, bed, work, education, and program assignments. See 28 C.F.R. § 115.42(a), § 115.242(a), and § 115.342(a). However, the standards do not mandate exactly when, where, how, or who should conduct the intake screening. If a particular facility determines that some or all sensitive screening inquiries should be asked by medical personnel or in an interview separate from the larger intake screening process, the facility administration may choose to structure the intake screening in an alternate manner that provides for appropriate privacy and candor. So long as the intake screening is conducted using an objective screening instrument, includes all of the required information, is completed within 72 hours, and is used to inform the inmate’s/resident’s risk status, facilities have the discretion regarding the most appropriate setting and screening personnel for asking inmates/residents sensitive screening questions.
The Department of Justice (DOJ) recognizes that some agencies may be hesitant (for any number of reasons) to affirmatively ask inmates/juvenile residents whether they identify as LGBTI. However, as indicated in the PREA Notice of Final Rule, DOJ remains of the view that appropriately trained intake staff should be competent to ask inmates/residents sensitive questions in a professional and effective manner. Both the adult facility and juvenile facility standards require agencies to train staff on “[h]ow to communicate effectively and professionally with inmates/residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates…” See 28 C.F.R. § 115.31(a)(9), § 115.231(a)(9), and § 115.331(a)(9). Effective and professional communication requires a basic understanding of sexual orientation, gender identity, gender expression, and how sex is assigned at birth. It also requires staff to be aware of their own gaps in knowledge and cultural beliefs, and how these factors may impact the ability to conduct effective interviews and assessments. An effective training will encourage open dialogue with staff, so that these issues can be addressed in a respectful and nonjudgmental manner, with a focus on encouraging behaviors that support staff members’ ability to meet their professional responsibilities. In addition, recognizing the sensitive nature of these issues with juvenile populations, the juvenile facility standards requires that “[s]uch training… be tailored to the unique needs and attributes of residents of juvenile facilities…” See 28 C.F.R. § 115.331(b).
The following webinars may be helpful:
Asking Adults and Juveniles About Their Sexual Orientation: Practical Considerations for the PREA Screening Standards
Understanding LGBTI Inmates and Residents
1 The adult prison and jail standards and the adult community confinement standards require such screening to take place “ordinarily” within 72 hours, while the juvenile facility standards require that the screening take place within 72 hours.
Revised October 21, 2016. Original posting date June 19, 2014.
In order to comply with standard 115.41(a) & (b), are there any circumstances when an inmate might be held at a facility for a short period of time, but longer than 72-hours, or transferred to another facility within the same agency after spending a short period of time at the first facility, and a PREA screening or re-screening would not be required?
No. An initial PREA screening must be conducted during all intake screenings, which should ordinarily occur within 72 hours, and upon transfer to another facility. However, according to the preamble of the PREA standards Notice of Final Rule, a facility “is free to rely on information previously gathered with regard to a returning inmate” if the facility ensures “that its assessment captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.” See Vol. 77, Federal Register, No. 119, p. 37150.
What screening is required for detainees in lockups that are never placed in a holding cell with other detainees?
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.
Is there a validated and objective screening instrument to assess risk of sexual victimization?
PRC has not identified a national validated PREA-specific risk assessment tool currently in operation. DOJ chose not to include a validation requirement for risk assessment tools in the final standards, recognizing that the cost of the validation process is often prohibitive for small agencies. Instead, DOJ decided that objectivity is the most important component of risk assessment tools in the final standards. Standards 115.41, 115.241, and 115.341 address the elements that must be a part of objective risk assessment tools. DOJ takes the position that all staff, with appropriate training, can complete the risk assessment for incoming inmates.
The National PREA Resource Center, in conjunction with its partner, The Vera Institute for Justice, released a document providing guidance on how to objectively screen for risk of sexual victimization and abusiveness and use of the collected information. You can access this document here.
What are appropriate ways to use PREA screening information? Should we base housing decisions on the PREA risk screening information?
PREA screening information should be used to inform agency or facility decisions regarding a particular inmate/resident’s housing unit, security level, and programming needs and interventions. For example, if, upon intake, an inmate/resident is a risk of committing predation, an agency would not place him/her in a two-person room with an inmate/resident who classified as at risk for victimization. Agencies should note, however, that DOJ, in its final standards, directed agencies to implement appropriate controls on the dissemination of information gathered during assessment so that the information is not used to the inmate/resident’s detriment. See, for example, Standard 115.41(i).