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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Aug 17, 2017
Q:

Is an agency compliant with Standard 115.42(g) or Standard 115.242(f) if it places Lesbian, Gay, Bisexual, Transgender, or Intersex (LGBTI) inmates or residents in a dedicated facility, housing unit, or wing solely on the basis of such identification or status, absent a consent decree, legal settlement, or legal judgment?

Standard 115.42(g) states: 
“The agency shall not place LGBTI inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.”

A:

No. Placement in a dedicated facility, housing unit, or wing that houses only LGBTI inmates or residents violates Standard 115.42(g) or Standard 115.242(f), unless it was established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. In practical terms, placement is based “solely” on LGBTI status when only LGBTI inmates or residents are eligible for such placement. This is true whether such placement is made pursuant to policy or in practice, and regardless of whether an inmate volunteers for—or requests to be placed in—such a facility, housing unit, or wing.

For example, because they are evidence of de facto placement based solely on status, absent a consent decree, legal settlement, or legal judgment, a facility, housing unit, and wing are prohibited under Standard 115.42(g) or Standard 115.242(f) if they: 

  • House only vulnerable LGBTI inmates or residents;
  • House only another subset of LGBTI inmates or residents; and/or
  • Otherwise exclude all non-LGBTI inmates or residents

Some agencies and facilities have had success establishing housing units or wings reserved for inmates or residents who are designated as potentially vulnerable through the screening process. In addition to LGBTI inmates, who are at an increased risk for sexual abuse and sexual harassment, these units or wings may, for example, house male inmates who are small in stature, inmates who have a gender non-conforming appearance, a disability, and a past history of being sexually abused. It is important to ensure that these units or wings for vulnerable inmates or residents do not include individuals who screen positively as likely perpetrators of abuse. For example, a convicted sex offender may be designated as vulnerable because of his charges or other factors, and may require protective custody, but he would not be an appropriate candidate for a vulnerable persons’ unit or wing, if screening information indicates that he may be sexually aggressive towards other inmates. A strong screening and classification system enables these units or wings to provide increased safety for vulnerable inmates without requiring restrictive measures, such as 22-hour in-cell confinement, that are often found in protective custody.

Standard: 115.42
Categories: LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions, Screening
Dec 02, 2016
Q:

What does “separate” mean in the context of the screening standards, which require that agencies shall use screening information to inform housing and programming decisions “with the goal of keeping separate those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive”?

A:

The PREA standards require agencies to obtain and assess information from and about inmates and residents in order to identify individuals who are at a heightened risk of being sexually victimized while in confinement, and those who are at a heightened risk of being sexually abusive while in confinement. The adult prison and jail standards and the community confinement standards specifically require that such screening information be used “with the goal of keeping separate” those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive.” See Standards 115.42(a) and 115.242(a). The meaning of the term “separate” is generally informed by the unique facts and circumstances of a facility, but the goal should be to keep those inmates as separate as reasonably possible

For example, facilities that are comprised of a single dormitory housing unit would be unable to house the two risk categories of inmates in separate housing units. In such a case, inmates at high risk of being abusive and abused should generally be bunked at opposite sides of the dormitory. Additionally, potentially vulnerable inmates should be bunked in areas more likely to receive additional staff supervision.

Similarly, in facilities with a single housing unit, but multi-person cells (two or more inmates per cell), vulnerable inmates should be kept in separate cells from potentially abusive inmates.

By contrast, facilities with multiple housing units provide far more options for keeping vulnerable and abusive inmates separate. In such cases, agencies should generally keep vulnerable inmates in separate housing units from inmates at risk for abusiveness. In cases where there are many housing units (e.g., more than ten), auditors will require compelling justification for any commingling within a housing unit.

In programming, education, and work areas, the goal should also be to keep such inmates separate. The Department of Justice recognizes that such separations may not always be feasible outside of housing units. In those cases, agencies should, at a minimum, prohibit unsupervised contact between vulnerable and potentially abusive inmates. Even supervised contact between these categories of inmates should be accompanied by heightened supervision and safeguards against sexual abuse and sexual harassment.

Standard: 115.42
Categories: Placement Decisions, Screening
Sep 27, 2016
Q:

Does the case-by-case determination required by Standard 115.42(c) in making housing and programmatic placements for transgender and intersex inmates need to take place within a particular timeframe?

A:

Standard 115.42(c) does not have an explicit timeframe requirement by which to make an initial case-by-case determination. However, at a minimum, determinations should be made in accordance with the timeframes required for the initial screening for risk of victimization and abusiveness in Standard 115.41(b) (ordinarily within 72 hours of arrival), the screening reassessment in Standard 115.41(f) (reassessment within 30 days of arrival), and the ongoing reassessment in Standard 115.401(f) (when “triggering events” occur). Standard 11.42(a) requires all information obtained during screenings and reassessments to inform housing and programming decisions. In all stages of the risk screening process for transgender and intersex inmates, individualized housing and placement decisions must be made based on consideration of all information available at the points in time identified above.

In addition, Standard 115.42(d) requires placement decisions to be reassessed during the twice-yearly progress reviews for transgender and intersex inmates. More frequent reviews based upon the needs of individual inmates are encouraged as a best practice.

Standard: 115.42
Categories: LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions, Screening
Mar 24, 2016
Q:

Does a policy that houses transgender or intersex inmates based exclusively on external genital anatomy violate Standard 115.42(c) & (e)?

A:

Yes.  Standard 115.42(c) states:

In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.

In addition, Standard 115.42(e) states:

A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.

Being transgender is a known risk factor for being sexually victimized in confinement settings.  The standard, therefore, requires that facility, housing, and programming assignments be made “on a case-by-case basis.”  Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on their external genital anatomy violates the standard.  A PREA-compliant policy must require an individualized assessment.  A policy must give “serious consideration” to transgender or intersex inmates’ own views with respect to safety.  The assessment, therefore, must consider the transgender or intersex inmate’s gender identity – that is, if the inmate self-identifies as either male or female.  A policy may also consider an inmate’s security threat level, criminal and disciplinary history, current gender expression, medical and mental health information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.  The policy will likely consider facility-specific factors as well, including inmate populations, staffing patterns, and physical layouts.  The policy must allow for housing by gender identity when appropriate.

A PREA auditor must examine a facility or agency’s actual practices in addition to reviewing official policy.  A PREA audit that reveals that all transgender or intersex inmates in a facility are, in practice, housed according to their external genital status raises the possibility of non-compliance.  The auditor should then closely examine the facility’s actual assessments to determine whether the facility is conducting truly individualized, case-by-case assessments for each transgender or intersex inmate.  The auditor will likely need to conduct a comprehensive review of the facility’s risk screening and classification processes, specific inmate records, and documentation regarding placement decisions.

The Department recognizes that the decision as to the most appropriate housing determination for a transgender or intersex inmate is complicated.  Facilities may consider several methods to make these assessments.  Best practices include informing decisions on appropriate housing through consultation by facility administration, classification and security staff, and medical and mental health professionals.  However, a facility should not make a determination about housing for a transgender or intersex inmate based primarily on the complaints of other inmates or staff when those complaints are based on gender identity.

Importantly, the facility shall not place transgender inmates in involuntary segregated housing without adhering to the safeguards in Standard 115.43.

Standard: 115.42, 115.43
Categories: Compliance, LGBTI Inmates/Residents/Detainees/Staff, Screening
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: 115.42
Categories: Definitions, LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions
Feb 07, 2013
Q:What are appropriate ways to use PREA screening information? Should we base housing decisions on the PREA risk screening information?
A:

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).

Standard: 115.41, 115.42
Categories: Screening, Placement Decisions