OP-ED: Protect Kids From Rape in Adult Jails and Prisons, Don’t Delay PREA

Liz Ryan, Founder and of Campaign for Youth Justice.
Liz Ryan, Founder and of Campaign for Youth Justice.

In an attempt to put a positive spin on their efforts to implement the Prison Rape Elimination Act (PREA), federal Department of Justice officials held a news conference May 28 in which they indicated that a majority of states intended to comply with the law.

Deputy Attorney General David Cole and Mary Lou Leary, principal deputy assistant attorney general for the Office of Justice Programs, specifically named seven states — Arizona, Florida, Idaho, Indiana, Nebraska, Texas and Utah — that do not intend to comply with PREA.

The Justice Department's glowing report does not seem to square with a May 14 letter from the National Governors Association (NGA) asking Attorney General Eric Holder to delay the implementation time frame for PREA.

My experience with the NGA during my tenure in Delaware Gov. Tom Carper's office is that a letter doesn't go out from the NGA unless there is strong consensus among the governors on the issue. Given that, Holder should, at a minimum, make all the individual governors' letters available to the public so we can know for sure where individual states stand and if a majority really do intend to comply.

More importantly, Holder should not delay the law's implementation or let any governor off the hook for not complying with PREA for the following reasons.

First, the states have had years of standards, regulations and guidance to assist with compliance already.

The law passed more than a decade ago. The PREA law was unanimously approved by Congress and signed into law by President George W. Bush in 2003. The passage of this law was led by a bipartisan group of lawmakers, many of whom are still in Congress.

Standards and regulations have been issued over the past five years. National standards were issued in 2009 by the National Prison Rape Elimination Commission (NPREC), as required by Congress. Draft regulations were issued in 2011. And final regulations were issued two years ago in May 2012.

Guidance has been readily available to the states. The U.S. Department of Justice set up the PREA Resource Center, which has provided a website resource, numerous webinars and trainings all over the country. The NGA itself co-hosted a webinar with the PREA Resource Center in March 2014 for governors offices on PREA compliance.

How much more time and guidance do the governors really need on this?

Second, states and localities have received millions of dollars for PREA implementation.

Since 2003, the Department of Justice's Bureau of Justice Assistance (BJA) has issued more than $50 million in federal grants to state and local jurisdictions in more than half the states for PREA implementation.

The governors want a delay even though they've received millions in federal funds to implement PREA already?

It is even more appalling that nearly all of the states that Justice Department officials say won't comply have received millions in federal grants for PREA compliance: Arizona ($300,000), Florida ($1.26 million), Idaho ($1.4 million), Indiana ($1.9 million), Nebraska ($644,000) and Texas ($3.5 million).

Shouldn't there be some accountability for these funds from the Justice Department?

Third: 100,000 kids.

That's how many kids cycle through adult jails and prisons every year.

Under the PREA regulations, the Department of Justice states that: “As a matter of policy, the Department supports strong limitations on the confinement of adults with juveniles.” The regulations include the Youthful Inmate Standard, which bans the housing of young people in the general adult population, prohibits contact between youth and adults in common areas, and ensures youth are constantly supervised by staff. At the same time, the regulations require limitations on the use of isolation in complying with the standard.

This standard is consistent with the recent report issued by the U.S. Attorney General’s Task Force on Children Exposed to Violence, co-chaired by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) Administrator Bob Listenbee. The report concludes that, “We should stop treating juvenile offenders as if they were adults, prosecuting them in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore their capacity to grow.”

Best practices and the PREA Resource Center's guidance recommends that youth be removed from adult jails and prisons and be placed in juvenile detention and correctional facilities where they are more likely to receive developmentally appropriate services, educational programming and support by trained staff.

By allowing for a delay in implementing PREA or letting states off the hook, kids will continue to be exposed to the dangers of adult jails and prisons.

Holder should not cave to the NGA's request to delay PREA implementation. Further, he must take a more visible and aggressive stance in engaging the governors who intend to flout the law.

Holder's actions could ensure the safety of thousands of children who are now exposed to sexual violence in adult jails and prisons.

Liz Ryan is a campaign strategist, youth justice policy expert, and civil and human rights advocate. Follow Liz on Twitter @LizRyanYJ.

Most States ‘Intend’ to Comply with Prison Rape Elimination Act, DOJ Says

Department of Justice, Washington D.C.
Department of Justice, Washington D.C.

Some 85 percent of U.S. states and territories told the federal Department of Justice that “they intend to take steps to reduce sexual assaults in prisons” by coming into compliance with the 2003 federal Prison Rape Elimination Act (PREA), the Department of Justice (DOJ) announced Wednesday. This is the first year that states and territories are subject to the withholding of federal grants if they do not demonstrate an intention to comply with the law.

A total of 56 jurisdictions are subject to the federal law, including all states, five federal territories and the District of Columbia, according to Deputy Attorney General James Cole and Principal Deputy Assistant Attorney General Mary Lou Leary speaking at a news conference Wednesday. A DOJ news release reports that 48 of those jurisdictions indicate they are “in compliance or have submitted assurances to the [DOJ] committing to spending 5 percent of certain federal grant funds to come into compliance.”

Only two jurisdictions, New Hampshire and New Jersey, have certified full compliance, and 46 “provided assurances” that they would use funding to come into compliance. Of the eight jurisdictions that have not indicated a willingness to comply, Cole said they “will be held accountable, as we are required to do by law.” According to Leary the jurisdictions that did not submit a certificate of assurance will still receive assistance, but will “incur the 5 percent reduction this year.” The governors of Idaho, Texa, Indiana, Utah and Arizona “won’t try to meet the standards,” ABC News reports.

Cole said that PREA is a signal of the “unequivocal rejection of the outdated — and morally unconscionable — acceptance of rape,” as part of a prisoner’s sentence, and he highlighted the particular danger to juveniles. Some 9.5 percent of adjudicated children in custody reported sexual victimization in the last year.

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The Power Grab and Prison Sexual Abuse

It’s an optimistic headline: “Prison Rape: Obama’s Program to Stop It”. It leads into a comprehensive New York Review of Books article on three recently released Federal government publications.  Two of these documents examine sexual abuse in the nation’s detention centers while the other outlines the Department of Justice’s regulations for eliminating prison rape. All three aim to address the appalling number of people—young and old, female and male, citizen and those awaiting deportation— who  routinely suffer sexual violence while in lockup, an estimated 209,000 plus every year according to the Justice Department.

So where’s the optimism? The guidelines established by the Obama administration are—on paper, at least—good ones. As the reviewers David Kaiser and Lovisa Stannow (both staunch advocates for victims of prison sexual assault) note, the new recommendations address pivotal issues: how detention centers are staffed, how those staffs are trained in sexual abuse issues, and how inmates are supervised. Equally important is how offenders are evaluated for their potential as either sexual prey or predator. This provision is crucial in protecting young offenders, especially LGBT youth who are in greater danger of sexual harassment and abuse by peers and adult inmates. Once this information is obtained housing can be assigned based on vulnerability, which in the case of minors means not being housed with adults. There are also new standards on how prisoners can report sexual assault and on how that information is handled and investigated by staff. Kaiser and Stannow write that if these standards are successful—“and we believe they will be”—then the incidences of prison rape will be reduced dramatically.

But I can’t share their optimism. I wish I could. My skepticism stems from the way in which these regulations are to be enforced.  Enforcement will be the responsibility of the state departments of corrections and the correctional staff in charge of prisons and jails.

Anyone who has worked in a detention facility knows the power of frontline staff to sabotage whatever standards or procedures are put in place. In my ten years working as a high school teacher in a county prison I’ve watched this culture of obstruction play out as many correctional staff subvert—sometimes blatantly, most times covertly—everything from innovative grant-funded projects designed to reduce recidivism in young offenders to simple routines such as making sure all inmates daily attend their assigned programs, all measures that would provide true “safety and security” for staff as well as inmates and that would further the stated goal of incarceration: rehabilitation.

What’s behind this apparently illogical obstruction? It is the same dynamic that informs so much of what goes on in any detention system; it is certainly the dynamic that is behind all prison sexual violence: the power grab. All lockups whether they be for adults, minors or immigrants awaiting deportation are run on a hierarchy of power: Who’s got it, who wants it and what you’ll do to get it. Within this structure there is the inevitable scramble for power and position in an environment where everyone feels impotent.

People who are locked up live every day of their incarceration with this lack of control (and for so many of them, every day of their lives) and so understandably make the power grab. This is especially true for young offenders who are the most vulnerable in this predatory world. Ironically it is just as pronounced with correctional staff. Over my years in the prison system I’ve often heard officers openly complain that the work they do is just as dangerous, if not more so than other law enforcement officers, yet they feel they are underpaid and not respected as professionals by their peers and society in general. So what better way to “stick it” to the system, to “show” wardens, county executives, the Feds, civilians, and certainly inmates that COs are the ones who make or break things in prison than by subverting regulations, routines, and structures.

The Obama guidelines are strong in addressing the delicate and fraught issue of sexual violence. This is especially true when it comes to the victimization of young people and the sexually vulnerable. Is it wise then to leave their implementation in the hands of the people who are themselves part of the problem both in terms of upholding standards and in terms of actually being sexual assailants themselves? (Reports show that half of all sexual abuse is committed by correctional staff.)

Kaiser and Stannow are confident that enforcement of these regulations “will make American detention facilities better run, more humane, and safer places in general.” It is a hopeful vision. But if we want detention centers that are humane and safe we have to go beyond a fresh set of regulations. We need to make fundamental changes in the prison system: confront the perverted power structure—and struggle—that dominates these institutions and that leads to sexual violence and replace it with a form of justice that truly values rehabilitation and that restores dignity and respect to victim, inmate and correctional staff. Radical steps? Yes. Do we have a choice? The numbers say we don’t—because each incident of prison rape radically changes a person’s life forever.

Beyond the Horrible, the Reality of Sexual Assault in Youth Detention

 I was 18 years old when I was arrested and sent to jail. But the real hell of my life to come started on my 19th birthday, when the state shipped me off to a place called Alto, a notorious youth prison in north Georgia.

There was much to fear in this place, but nothing quite frightening as much as the likelihood of sexual assault.

I knew from talking to older guys in jail, before I was sent off to Alto, that rapes were common, but nothing they told me prepared me for the reality of what I witnessed. The place (it has since been shuttered) had been built in the 1930s as a hospital. Fifty years later, it was a dilapidated house of horrors. You see, it wasn’t designed to be a prison, so there were countless places where terrible and dangerous things could go on easily out of sight of any guard lounging in the comfort of a control booth or guard tower. In this environment we were expected to take care of and fend for ourselves, and some men couldn’t.

It was all a nightmare, but one incident especially continues to haunt me. A young man had recently been moved into our dorm. He was a small guy with a timid attitude. Immediately several predators began to test him. They would start by disrespecting him in some way, then, when he did not respond, they would increase the pressure. This went on a few days, until they threatened kill him if he didn’t give in to their demands.

If he did what they wanted, they promised him, they would protect him from the other rapists. In this way they “convinced” him, and he surrendered in order to save himself. So they set out to have their way. They hung a towel so that the guards couldn’t see into the area and ordered the boy to perform oral sex on them, one after another.

A line formed. Those that wanted the “service” waited their turn, while those that opposed what was happening did nothing. After an hour or so it was over. He walked into the bathroom and stood looking into the mirror. I saw him as he pulled out a blade removed from a safety razor and began to slash at his throat. He never stopped staring at his reflection. The guards ran in and took him away, never to be seen by us again

Sexual assaults happened at every prison I lived in over my nearly 25 years of incarceration. They were not always so blatant or extreme, but they were common. Victims seldom reported the incidents. If they did they risked being further endangered, not just by their attackers, but by staff as well. Often when incidents were reported the authorities did little to stop it. Sometimes the staff did not believe the allegation, or thought that the accuser had brought the attack on themselves somehow. Sometimes the staff simply resented the hassle of doing the paperwork, and they especially did not like accusations that they hadn’t done their jobs.

Also, the attackers were seldom punished to the full extent of the law. Institutions often form closed loops that resist outside evaluation, so the crimes were not always reported to the district attorneys. Even when they were, DAs were sometimes reluctant to prosecute. Crimes that occur in prison are less likely to be prosecuted, including rape. This means that attackers and victims often remain in close proximity.

Juvenile prisons do not seem to be any better, and may be even worse than adult prisons. I knew many men who had been in youth facilities, some within the past few years, and the horror stories they told about their days in youth detention centers reminded me of my own days as a teenager in prison. I was reminded of this while doing some research recently. Part of my reading included the 2010 Department of Justice National Survey of Youth in Custody. Much of it seemed familiar, though there were a few surprises as well.

This will be familiar reading to some people who know this issue and have worked to try to eliminate it. Me, well I’m still being educated about how academics and bureaucrats see from the outside a life I lived on the inside.

The report was compiled by the Bureau of Justice Statistics in compliance with the Prison Rape Elimination Act. However, the DOJ review panel on prison rape downplayed the results, saying that it “indicated that sexual assault in juvenile facilities was relatively rare and facility staff, for the most part, did not victimize juvenile offenders.”

This was their position, despite the fact that of the 26,550 youths involved in the survey, about 10 percent, reported being victimized by staff. Another 2.6 percent reported being assaulted by other inmates. Of the alleged assaults by staff 95 percent were female, with 92 percent of the victims being male. These events are often minimized by administrators and categorized as consensual relationships. Even though sexual relations between staff and juvenile inmates is illegal across the United States, the male inmates who have sex with female staff are not seen as victims.

This position is ridiculous. First, as juveniles, many of these victims are outside of the legal range for having consensual sex with adults. Being incarcerated does not remove them from the moral sphere, nor does it mean that they deserve less consideration from society. Second, the power dynamics of a prisoner and his or her keepers are hugely skewed. In terms of power, the prisoner is a slave and the staff member, the master. It is not possible that a relationship can happen between a prisoner and a staff member without coercion, either implicit or explicit. The very power that a staff member holds is a huge threat. With little effort the employee can cause the child tremendous problems.

Even if the child wants the relationship, we as a society do not condone it. In the world outside of prisons these relationships are illegal. They are unacceptable to say the least in a facility where the inmate is supposed to be protected and given an opportunity to be rehabilitated. Being the victim in a one-sided relationship meets neither of these goals.

Whatever form sexual assaults take in juvenile facilities, they should not be tolerated or downplayed. More oversight needs to be in place that is not a part of the facility itself. More staff screenings need to occur at opposite-gender facilities. Those who do commit these crimes need to be punished.

The laws are already in place. They only need to be enforced with the same vigilance that sent these kids to prison.