Despite the prevalence of jokes about it in the media and society at large, prison rape is no laughing matter. As many as 4% of state and federal prison inmates, 3.2% of jail inmates, and 1.8% of juveniles ages 16 to 17 have reported sexual victimization by another inmate or facility staff in recent reports. From the assaults, the inmates have reported not only physical abuse but also mental abuse, often at the hands of prison guards who took advantage of their positions of power to engage in sexual activity with inmates. As a result, with millions currently incarcerated, hundreds of thousands of American citizens have entered the criminal justice system to serve their time, only to become victims themselves. Often a population that is overlooked, a large portion of the population believes that a prisoner is just a prisoner, and there is almost a tacit consent to sexual misconduct in prisons where people view prison rape as inherent to jail time. Fortunately, in the interest of preserving human rights, civil liberties, and a constitutional commitment to preventing cruel and unusual punishment, in 2003 the United States passed the Prison Rape Elimination Act (PREA) to address the rights of a population often overlooked. With this effort on behalf of the government, one question remains: is it enough?
In theory, PREA would promote a zero-tolerance standard for prison rape and lower the rate of rape in prison. With the establishment of the Act, commissions and departments within the government, including the National Prison Rape Elimination Commission (NPREC) and the U.S. Department of Justice, were mandated to do serious investigation to compile substantive data for the prevalence and frequency of prison rape. These entities were also charged with implementing standards specifically to reduce the incidents of sexual assault of inmates. The Act covers all detention facilities in the United States, which includes juvenile facilities and immigration detention centers. Within the Act are mandates for general prevention and planning, supervision and monitoring, staffing, training and education, screening, reporting, responsive planning and other provisions to protect vulnerable populations like women, children, and members of the LGBT community. PREA also carves out funding by means of grants to detention facilities to update facilities with training and equipment to make detention facilities PREA-compliant.
Although popular opinion of prison rape may be slow to change, the federal government’s swift approval and implementation of PREA demonstrates a commitment to upholding justice for these forgotten members of society. PREA’s final standards became effective on June 20 2012. In general, the consensus was that PREA had solid goals and that it would, if implemented, achieve the goal of reducing prison rape. However, the biggest hesitation was whether the implementation of PREA would create undue burden on already stretched budgets for the operation and maintenance of detention facilities in the United States. In response to these concerns, the federal government incorporated NPREC’s recommended standards, which would demonstrate the financial feasibility and benefits to making these changes in prisons. In black and white, NPREC demonstrated that PREA may not over tax many facilities and could reduce the amount of spending, as prison rape can cost upwards of $52 billion dollars a year.
Another hesitation was that some proponents felt that PREA, although a good start, did not go far enough. NPREC spent ten years developing PREA from when it was first signed into actual standards that could be applied. But some states like Texas refuse to comply with PREA. The provisions may eliminate medical and legal costs due to sexual assaults in prison, but it may also cause certain states to lose money, including 5% of federal funding. PREA relies heavily on corrections officers to remedy the problems in the facilities, although many assaults are done by the very people charged with putting PREA into practice. It is agreed that PREA is a step in the right direction, but the Act may require more work before it can actually see the societal changes this act was created to minimize.
This split over the implementation of PREA has implications for the lawyers who work with matters relating to the issue of prison rape. PREA provides a benchmark for judges to determine whether the assault within a correction facility that an inmate endured violated the inmate’s 8th Amendment rights to uphold “standards of decency that mark the progress of a maturing society.” PREA allows for courts to hold individuals liable for the deliberate indifference to the risk of sexual assault by staff. The Act also streamlines the efficiency of prosecuting perpetrators of sexual assault in prison by making a paper trail of evidence, rather than hearsay where the power of a prison guard may take precedence over the words of a convicted criminal. The Act also allows the inmates to file grievances using outside advocates and family members.
PREA may not be the legislation that will overhaul society’s view on the rights of prisoners, but it certainly is a step towards that goal. Even with the best intentions, PREA does indeed have holes which may burden the prison system and may cause facilities to reevaluate their budgetary needs. If a facility does not comply with PREA, an inmate may not have the resources to get their day of recourse from their assault, and so it is important that PREA is a policy that can be implemented and goes beyond just theory. However, case law has demonstrated that PREA, when implemented, at least makes jobs easier for lawyers and advocates to stand up for inmates. While detention centers are looking at the nickels and dimes of this policy reform, justice in the courts for inmates who had their human rights violated within the criminal justice system are getting the support they need. At this moment, PREA may not be enough to stop the “don’t drop the soap” jokes that permeate all through American society. But for the people who do not have the privilege of seeing prison rape as comedic, the people who have been made victims within the system designed to protect them, PREA is enough.
Staffer, Criminal Law Practitioner
Photo by Federal Bureau of Prisons via Wikimedia Commons.