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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Oct 31, 2019
Q:

What does “confinement” mean in the context of PREA and juvenile facilities?

A:

The term “Juvenile facility” is defined in the PREA standards as “a facility primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” See PREA standard 115.5. Emphasis added. The term “confinement” is broad in scope. 

The Department of Justice (DOJ) interprets the term “confinement” in the PREA juvenile facilities context to include placement of a juvenile, either directly or as a condition of disposition or sentencing, in a residential (overnight) facility, pursuant to delinquency or criminal justice involvement, where the juvenile may face a juvenile justice or criminal justice consequence or sanction for unauthorized departure from the facility.[1] 

The PREA standards include explicit coverage for facilities providing rehabilitation and treatment services. For example, “community confinement facilities” include facilities that provide services such as a “community treatment center… [a] mental health facility, [an] alcohol or drug rehabilitation center, [facilities that provide] vocational training, treatment, and educational programs…” See PREA standard 115.5. When a facility meets the definition of both a “community confinement facility” and “juvenile facility,” the “juvenile facility” standards apply. See related FAQ.

The PREA standards also explicitly include coverage for facilities that are not “secure.” The juvenile facility standards apply to facilities falling under the broad definition of “juvenile facility.” By contrast, the term “secure juvenile facility” is a narrower subset of all “juvenile facilities,” and applies in both hardware-secure and staff-secure settings. See PREA standard 115.5. The standards place two additional requirements on “secure juvenile facilities,” including a minimum staffing ratio requirement, and a requirement for unannounced supervisory rounds. See PREA standards 115.313(c)&(e). The juvenile facility standards also include explicit references to traditionally non-secure facilities, such as “group homes,” if such homes otherwise qualify under the definition. See PREA standard 115.315(d).[2]

The PREA statute defines a “prison” to include, among other things, “any juvenile facility used for the custody or care of juvenile inmates.” See 34 U.S.C. s. 30309(7)(b). Emphasis added. The inclusion of the phrase “or care” suggests an acknowledgment that states identify a variety of purposes for confining juveniles within the spectrum of delinquency interventions, including rehabilitation and treatment.

Federal courts routinely find and uphold determinations that placements of youth pursuant to juvenile justice and criminal justice systems in treatment and rehabilitation facilities to fall within the meaning of “confinement,” for purposes of applying federal sentencing guidelines.[3]


[1]                By contrast, DOJ has explicitly exempted traditional foster care from coverage under the PREA standards, even when used exclusively to house justice-involved youth. See the related FAQ.

[2]                “In facilities (such as group homes) that do not contain discrete housing units, staff of the opposite gender shall be required to announce their presence when entering an area where residents are likely to be showering, performing bodily functions, or changing clothing.”

[3]           See U.S. v. Hanley, 906 F.2d 1116 (6th Cir., June 28, 1990) (delinquency related commitment to Michigan Department of Social Services, and placement in Shiloh Family Home considered prior “confinement”); U.S. v. Kirby, 893 F.2d 867 (6th Cir., Jan. 16, 1990) (custodial commitment to Kentucky Cabinet for Human Resources for seven months considered “imprisonment,” federal law applies to determination); U.S. v. McNeal, 175 Fed. Appx. 546 (3rd Cir. Apr. 11, 2006) (delinquency related commitment to Abraxas Leadership Development Program considered “confinement,” and a sentence to a juvenile detention institution, or to the custody of a state agency, where a juvenile is not free to leave for more than 60 days, was sentenced to “confinement”); U.S. v. Davis, 929 F.2d 930 (3rd Cir., Apr. 2, 1991) (indeterminate sentence to Glen Mills School “where he was not free to leave” was sentenced to “confinement”); U.S. v. Williams, 891 F.2d 212 (9th Cir., Dec. 6, 1989) (“juveniles who are sentenced to juvenile hall are not free to leave…although the purpose of juvenile sentencing is rehabilitative rather than strictly punitive, the effect is nonetheless to deprive the juvenile of liberty…[W]e find that commitment to juvenile hall is a form of confinement.”).

 

Standard: 115.5
Categories: Definitions, Youthful Inmates
Aug 02, 2019
Q:

Does a juvenile facility’s receipt of, or eligibility to receive, Medicaid funding administered by the United States Department of Health and Human Services impact the determination of whether or not the facility is covered under the PREA standards?

A:

No. Applicability of the PREA standards is determined exclusively by whether a facility meets the definition of one of the five covered facility types defined in the standards: Prisons, Jails, Lockups, Juvenile Facilities, and Community Confinement Facilities.

The term “Juvenile facility” is defined in the PREA standards as “a facility primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” (See 28 C.F.R. § 115.5.)

Standard: 115.5
Categories: Youthful Inmates
Aug 02, 2019
Q:

What determines whether a facility is “primarily used for” a particular purpose under the PREA standards?

A:

The simplest way to make this determination is to determine whether, over a period of one year, the facility holds more people for that purpose than for any other purpose.

For facilities whose populations vary significantly from year to year, agencies may require some predictability for three-year PREA audit cycle planning and scheduling purposes.  In such cases, agencies may rely on the facility’s historical “primary use” calculation over the prior three-year period. Agencies may make this calculation based on: (1) the annual calculation for the prior three-year period (e.g., the primary use in two or more years of the prior three-year period), or (2) the aggregated average daily population use over the entirety of the prior three-year period.

For facilities that have been open fewer than three years, the agency may rely on the “primary use” of a facility since the facility opened.

Revised August 2, 2019. Original posting date July 9, 2013.

Standard: 115.5
Categories: Covered Facilities, Definitions
Jun 20, 2018
Q:

In secure juvenile facilities, must security staff be present during medical and mental health assessments and consultations for purposes of meeting the minimum staffing ratio requirements? Also, must security staff be present during clinical group therapy sessions?

A:

If the medical or mental health assessment, consultation, or group therapy session is conducted by a medical practitioner or mental health practitioner and such services require, pursuant to that practitioner’s license or certification, patient-practitioner confidentiality, then security staff need not be present during these services. The absence of security staff during the provision of these services will not be considered a violation of the minimum staffing ratio requirement in PREA Standard 115.313(c). However, the PREA Standards also do not prohibit the presence of security staff.

Who counts as a medical practitioner, a mental health practitioner, and security staff pursuant to the PREA Juvenile Facility Standards?

Medical Practitioner is defined as a “health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice.” See PREA Standard 115.5. Examples of such practitioners may include L.P.N., R.N., B.S.N., P.A., N.P., M.D., etc.

Mental Health Practitioner is defined as a mental health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice.” See PREA Standard 115.5. Examples of such practitioners may include L.C.S.W., LPC, Psy.D., etc.

Security Staff is defined as “employees primarily responsible for the supervision and control of… residents in housing units, recreational areas, dining areas, and other program areas of the facility.” See PREA Standard 115.5. In another FAQ, the Department of Justice explains that certain additional categories of staff not typically thought of as “security staff” may also be included in the minimum staffing ratios under certain conditions.

See https://www.prearesourcecenter.org/node/3254. For the Department of Justice’s FAQ on how auditors evaluate compliance with the minimum staffing ratios, see https://www.prearesourcecenter.org/node/5414.

Standard: 115.5, 115.13
Categories: Definitions, Staffing Ratio
May 18, 2018
Q:

Do the PREA Standards require that the terminology and/or definitions that a correctional agency uses in policies, lesson plans, educational materials, and other documentation for terms defined by the PREA Standards, including “sexual abuse” and “sexual harassment,” match precisely the definitions in Standard 115.5 and Standard 115.6? 

A:

No. Agencies need not use the precise verbiage of the definitions specified in the PREA Standards when using those terms in policies, lesson plans, educational materials, or other documentation relevant to the PREA Standards. So long as, when referencing a term defined in Standard 115.5 and Standard 115.6, the agency documentation and definitions accurately and completely reflect all of the information contained in the PREA Standard definitions, the agency need not quote the definitions in Standard 115.5 and Standard 115.6 verbatim.

Agencies should be mindful to use respectful and appropriate language, and avoid terminology that could be viewed as offensive, outdated, or a slur. The importance of appropriate and professional language should be conveyed through PREA training and educational materials.

Finally, if agencies choose to deviate from the definitions of “sexual abuse” and “sexual harassment” laid out in PREA Standard 115.6, they should take care not to minimize the weight of these terms with lesser terms such as “sexual misconduct,” “undue familiarity,” or “official misconduct.” If state law uses such lesser terms in prohibiting conduct that is defined as “sexual abuse” or “sexual harassment” by the PREA Standards, the criminal code may be cited, specifically noting the underlying conduct constitutes a violation of the PREA Standards. For example: “The offense conduct for a criminal violation of ‘undue familiarity’ also constitutes ‘sexual abuse’ under the PREA Standards.”

Standard: 115.5, 115.6
Categories: Definitions
Apr 18, 2018
Q:

The PREA Standards provide many obligations that are “facility specific,” such as staffing plans, the auditing timeline, coordinated response plans and, in most cases, a facility-based PREA Compliance Manager. When institutions have multiple components or serve diverse populations, how does the term “facility” apply for purpose of compliance with the PREA Standards?

A:

The PREA Standards define “facility” as “a place, institution, building (or part thereof), set of buildings, structure, or area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.” See PREA Standard 115.5.

Because the definition of “facility” may include, on the one hand, a part of a building and, on the other hand, a set of buildings, the standards are not highly prescriptive on this determination.  Agencies have some discretion with respect to how they define “facility” for purposes of PREA.

In most cases, the determination about what constitutes a “facility” will be common sense and obvious. For example, a (fictional) single ten-story building known as the Sunshine County Jail that houses adult inmates who are pre-adjudication or serving short sentences, with housing units containing a variety of security levels acting under one set of policies and procedures, and that is overseen by a single warden will be considered one jail “facility.”

As institutions become more complex, the determination about what constitutes a “facility” also becomes more complex. For example, assume that the Sunshine County Jail also has one small Annex building for work-release inmates across the street from the main building, and a court-holding area on the second floor of the Sunshine County Courthouse three blocks away from the main building. In this case, some may assume that all three areas are part of the one “facility” known as the Sunshine County Jail, while others may believe that there are three facilities: a jail, a lockup, and a community confinement facility.

The PREA Standards do not dictate which determination is correct. Rather, the Department of Justice has identified a number of factors that agencies should consider when making such determinations. While not exhaustive, the factors below provide suggested guidance on whether to classify an institution as a single “facility” or multiple “facilities.”

Factors Indicating Single “Facility”

Factors Indicating Separate "Facilities"

Single Responsible Agency Multiple Responsible Agencies
Single Superintendent/Warden Multiple Superintendents/Wardens
Same Policies and Procedures Different Policies and Procedures
Same/Similar Inmate Populations Distinct/Different Inmate Populations
More Inmate Mingling Less Inmate Mingling
Many Staff Interchangeable Few Staff Interchangeable
Unified Mission Different Missions
Geographically Close Geographically Distant
Identical Inmate Reporting Mechanisms Different Inmate Reporting Mechanisms

First, regardless how a specific facility is defined, it should be defined consistently for all PREA purposes. For example, if the three Sunshine County Jail buildings are defined as one “facility” for purposes of having a single “facility-specific” staffing plan, then it should be defined the same way for purposes of determining the agency’s PREA audit schedule, during any given three-year PREA Audit Cycle.While agencies have some discretion in determining what constitutes a “facility,” there are a number of caveats necessary to remain consistent with the PREA Standards.

Second, an agency may not define “facilities” in order to defeat or avoid the requirements in the PREA Standards. For example, if the main building in the Sunshine County Jail contains two housing units on the second floor for youthful inmates (inmates under age 18), the agency may not define those two housing units as a separate “juvenile facility” in order to avoid the separation requirements of the “Youthful Inmate Standard.” This PREA Standard (115.14) is applicable in prisons, jails, and lockups, but not in juvenile facilities.

Third, agencies do not have discretion with respect to determining which set of facility standards applies to its defined facilities. The PREA Standards define each of the five facility types, and the determination of which set of standards apply to a defined “facility” is determined by the facility’s “primary use.” See PREA Standard 115.5. For example, the vast majority of individuals confined at the Sunshine County complex are considered to be “inmates” under the PREA Standards. Assuming that Sunshine County defines all three of its buildings as a single “facility,” then the Prison and Jail PREA Standards apply to the entire facility – and not the less onerous Lockup PREA Standards.

Fourth, agencies should be aware that the larger and more inclusive the agency’s use of the term “facility” is, the more difficult, complex, time-consuming (and hence, more costly) the audits of those facilities may be. Accordingly, agencies should avoid being over inclusive in their use of the term “facility.”  

Standard: 115.5
Categories: Definitions
Sep 23, 2014
Q:

What is meant by “the use of physical barriers” and “intensive staff supervision” in the definition of a Secure Juvenile Facility in standard 115.5?

A:

Standard 115.5 defines, in part, secure juvenile facility to mean “a juvenile facility in which the movements and activities of individual residents may be restricted or subject to control through the use of physical barriers or intensive staff supervision.”

This definition generally includes both hardware-secure facilities and staff-secure facilities. A hardware-secure facility means a facility that relies primarily on the use of construction and hardware such as locks, bars, and fences to restrict freedom. A staff-secure facility means a facility with continuous staff or contractor presence, and (1) a facility operated or structured so as to ensure that entrances and exits from the facility are under the exclusive control of the staff of the facility, or (2) a facility where staff or contractor duties include physical intervention to prevent residents from the unauthorized exit from the facility.

Standard: 115.5
Categories: Covered Facilities, Definitions
Apr 23, 2014
Q:In adult prisons and jails, can inmates over the age of 17 provide inmate peer education to youthful inmates (age 17 and under)?
A:

Under certain defined parameters, yes.  In adult prisons and jails, youthful inmates are generally prohibited from having contact with inmates over the age of 17.  See 28 C.F.R. §115.14.  However, youthful inmates may have contact with inmates over the age of 17 outside of housing units if there is direct staff supervisionDirect staff supervision means that security staff are in the same room with, and within reasonable hearing distance of, the resident or inmate.  See 28 C.F.R. § 115.5.  Accordingly, the adult prison and jail standards do not prohibit inmate peer education by inmates over the age of 17 to younger inmates if the education occurs outside inmate housing units and there is direct staff supervision during the education process.

Standard: 115.14, 115.33, 115.5
Categories: Definitions, Inmate Education, Youthful Inmates
Mar 28, 2014
Q:Does the agency and/or jurisdiction responsible for placing a resident in a community-based residential facility matter for the purpose of qualifying that facility as a “community confinement facility” under the standards?
A:

No. The agency and/or jurisdiction responsible for placing residents is irrelevant for this purpose. The key factor in determining whether a facility qualifies as a “community confinement facility” under the standards is whether residents are placed there as a result of criminal justice contact. For example, if a community-based residential facility is primarily used for residents who are on probation—which, in some states, is a local function not overseen by the department of corrections—and who are required to be in that facility, the facility would qualify as a “community confinement facility” under the standards.

Standard: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Jul 09, 2013
Q:If a facility meets the definition of “lockup” but only holds juveniles, do the juvenile facility standards apply, or do the lockup standards apply?
A:

The lockup standards apply.

Standard: 115.5
Categories: Covered Facilities, Final Rule, Definitions