I have been getting many questions lately about the applicability and impact of the federal Prison Rape Elimination Act, or PREA. Specifically, people want to know the extent to which the law and its accompanying regulatory standards apply to local jails. This post provides some background on PREA and then discusses its applicability and enforceability.
PREA was passed in 2003. Pub. L. No. 108-79, 117 Stat. 972 (2003). Congressional findings included in the law conservatively estimated that 13 percent of the 2.1 million persons incarcerated in America’s prisons and jails have been sexually assaulted. Congress found that, among other things, sexual assaults against inmates traumatize victims, endanger public safety, increase recidivism, spread disease, and, ultimately, violate inmates’ Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. 42 U.S.C. § 15601. The law created a commission to study the issue, and then directed the Attorney General to issue national standards for the detection, prevention, reduction, and punishment of prison rape. Those standards call for a zero-tolerance policy toward prison rape—though by law they are not to impose substantial additional costs on federal, state, or local authorities. 42 U.S.C. § 15607.
After a decade of study, research, and public comment, the Attorney General issued the final PREA standards on June 20, 2012, which made them effective August 20, 2012. 28 C.F.R. pt. 115. The standards applied to Federal Bureau of Prisons facilities immediately upon their adoption. State compliance, by contrast, is to be enforced indirectly through a grant incentive. Namely, a state will lose five percent of federal grant money it would otherwise receive for prison purposes unless its governor can certify each year that the State has adopted and is in full compliance with PREA standards. 42 U.S.C. § 15607(c). Even if not compliant, a state may avoid losing that cut of its grant money by certifying that it will be used to bring the state into compliance in future years. The audit cycle for state certification begins August 20, 2013, with the first gubernatorial certification reports due August 20, 2014. (A couple of the substantive standards have a delayed effective date, as I will discuss in my next post.)
Does PREA apply to local jails? Yes. The federal statute defines “prison” to include “any confinement facility of a Federal, State, or local government.” 42 U.S.C. § 15609(7). Correspondingly, the PREA standards impose requirements on “agencies,” which are defined as “the unit of a State, local, corporate, or nonprofit authority . . . with direct responsibility for the operation of any facility that confines inmates, detainees, or residents.” 28 C.F.R. § 115.5. With those definitions in place, PREA and its standards apply to all local jails.
But applicability is not the same as enforceability. As discussed above PREA is enforced on the states through the threat of grant reductions, and those grant reductions are triggered by the governor’s certification. The standards explicitly say that the governor’s certification applies only to “facilities under the operational control of the State’s executive branch.” 28 C.F.R. § 115.501(b). The certification must include “facilities operated by private entities on behalf of the State’s executive branch,” id., but it does not include local government entities that house state inmates. The Attorney General’s overview of the standards notes that omission, saying that the governor’s “certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.” 77 Fed. Reg. 37106, 37115. So, North Carolina’s locally-administered jails will not be directly included within the governor’s annual PREA certification.
Does that mean jails are off the hook when it comes to PREA? No.
First of all, it is possible that the General Assembly might require jails to comply with PREA as a matter of state law. Pending legislation, H 585, would direct the state prison system and all juvenile facilities to comply with PREA, plain and simple. Some prior versions of the bill have also required jails to comply, and some versions have not. The most recent version of the bill takes what appears to be a middle ground, proclaiming it to be the policy of the General Assembly that local jails “should comply” with PREA.
Regardless of how H 585 plays out, PREA may impact jails in several other ways.
Federal prisoners. Some North Carolina jails house federal inmates for the Federal Bureau of Prisons, the U.S. Marshals Service, or Immigration and Customs Enforcement. Those inmates are housed pursuant to contracts between the county and the United States. G.S. 162-34. PREA standards require that any agency “that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, shall in include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards.” 28 C.F.R. § 115.12 (emphasis added). The contract must provide for “monitoring to ensure that the contractor is complying with the PREA standards.” Id. I have already heard from a couple of sheriffs that BOP has discussed including a PREA-compliance clause in its contracts with the counties. PREA compliance may be worthwhile for jails that make a lot of money housing federal inmates.
Statewide Misdemeanant Confinement Program (SMCP). The SMCP, discussed in detail here, is a program through which counties may volunteer to house certain misdemeanor inmates. Counties contract with the Department of Public Safety to house SMCP inmates under G.S. 148-32.1. Like the contracts with the federal government described above, SMCP contracts are contracts for the confinement of an agency’s inmates, and thus appear to be required under § 115.12 to include a PREA-compliance clause in any new or renewed contract. Today, 50 of North Carolina’s 100 counties participate in the SMCP.
Accreditation. Some North Carolina jails are accredited by national organizations like the American Correctional Association. PREA says that no accrediting agency may receive federal grant funds unless it adopts accreditation standards consistent with the PREA standards. 42 U.S.C. § 15608. As a result, any jail that has or is seeking accreditation may wind up effectively having to comply with PREA as a part of the accreditation process.
Civil liability. Even if there is no direct financial penalty for a local jail that fails to comply with PREA, there is some concern that the federal standards may evolve into a standard of care in civil actions related to inmate sexual abuse. That is a legitimate concern, but jails should also bear in mind that compliance with the standards does not establish a safe harbor from any civil claim related to sexual abuse.
To conclude, even if there is no direct financial penalty to anyone for a jail’s failure to adopt the PREA standards, compliance may eventually be required (a) under potential state law, (b) as a matter of contract, (c) as part of the accreditation process, or (d) to minimize the risk of civil liability. Another possibility—not to be lost in all this technical discussion of federal regulations—is that a sheriff might decide to adopt the standards because he or she believes it is the right thing to do to protect the inmates and staff for whom he or she is responsible.
I’ve gone on for over 1,200 words on the applicability and enforcement of PREA without saying anything about the substance of the standards themselves. I’ll do that in my next post.
I appreciate you addressing PREA in your post. There is a big difference between PREA the Act and PREA the DOJ standards. One is law, albeit produces no new cause for action – the duty to protect has been out well before the Act passed in 2003) and one is the opinion of the DOJ based on best practices, many of which, as you correctly wrote, are not constitutional safe harbors nor will they protect a sheriff or jail against liability. There is so much confusion out on PREA because the differentiation between the Act and the Standards is never mentioned. In addition to what you wrote, I would also suggest an exploration of how the DOJ PREA standards if adhered to, eliminate the grievance system benefits offered under the Prison Litigation Reform Act. This is scary for all jail administrators and sheriffs, especially given the litigious nature of operating jails.