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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How do I find out more about the Department of Justice grant programs that will be impacted if my governor does not submit a certification of compliance or an assurance?
The DOJ offices operating these grant programs have each released FAQs regarding the impact of PREA on their programs. Click the links below to access the corresponding grant program FAQ:
Bureau of Justice Assistance Edward Byrne Memorial Justice Assistance Grants (JAG) FAQ
Office of Juvenile Justice and Delinquency Prevention's Title II Part B Formula Grants FAQ
Revised November 14, 2018, January 30, 2017, and April 19, 2016. Original posting date June 3, 2015.
Is there a limit to the number of years that a state can submit an assurance without a reduction in Department of Justice (DOJ) grant funding?
Pursuant to the PREA amendment under the Justice for All Reauthorization Act (JFARA), signed into law on December 16, 2016 (Pub. L. No. 114-324), the assurance option will sunset six years following JFARA’s date of enactment. See 34 U.S.C. §30307(e)(2)(D)(ii). Therefore, the last year that governors will have the option to submit an assurance to DOJ will be for Audit Year 3 of Cycle 3, ending on August 19, 2022, which will impact FY2023 DOJ grant funds.
The PREA amendment under JFARA also provides that for two years following the assurance sunset in December 2022, a governor who can certify that the state has audited at least 90% of facilities under the operational control of the executive branch may request that the Attorney General allow submission of an emergency assurance. See 34 U.S.C. §30307(e)(2)(D)(iii). Therefore, the last year that governors will have the option to request and submit an emergency assurance to DOJ will be for Audit Year 2 of Cycle 4, ending on August 19, 2024, which will impact FY2025 DOJ grant funds.
Revised August 17, 2017. Original posting date May 16, 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.
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.
What are the financial consequences to a state if it is not in compliance with the standards?
The PREA statute provides that a state whose governor does not certify full compliance with the standards is subject to the loss of five percent of any DOJ grant funds that it would otherwise receive for prison purposes, unless the governor submits an assurance that such five percent will be used only for the purpose of enabling the state to achieve and certify full compliance with the standards in future years. 34 U.S.C. § 30307(e). For more information on the certification process, click here to access the letter sent from the Department of Justice to all state governors.
Does PREA require the governor to submit a certification of compliance, and if so, when is the first certification of compliance due to the Department of Justice?
Pursuant to the PREA statute, the governor has three options: 1) submit a certification that the state is in full compliance; 2) submit an assurance that not less than five percent of its DOJ funding for prison purposes shall be used only for the purpose of enabling the state to adopt and achieve full compliance with the PREA standards; or 3) accept a five percent reduction in such grants. The first certification is due to the Office of Justice Programs by May 15, 2014. For more information on the certification process, click here to access the letter sent from the Department of Justice to all state governors.
On what basis can the governor make a certification decision? Is it the audit finding alone, or should the governor base certification on other items? If other items are applicable for a certification, what are some examples of these items?
Pursuant to PREA Standard 115.501(a), governors shall make their certification of compliance taking into consideration the results of the most recent agency audit results. DOJ intends audits to be a primary, but not the only, factor in determining compliance. For example, audit results for a particular period may show the selected one third of audited facilities in compliance; however, the governor may have determined that other facilities under his/her control are, in fact, not in compliance with the standards.
Neither the PREA statute nor the PREA standards restrict the sources of information governors may use in deciding whether or how to certify compliance.