It’s been over a decade since the creation of the Prison Rape Elimination Act (PREA), which was passed with bipartisan support in 2003 to address a crisis of sexual violence that affects as many as 200,000 men, women, and children each year in the nation’s prisons, jails, and juvenile facilities.
Finalized PREA standards were released in 2012 after research and development led by the Prison Rape Elimination Commission, which was established under the act. The standards, which seek to address and prevent sexual violence against inmates across the country, stem from recommendations drafted by the commission after extensive interviews with corrections officers, advocates, experts, and survivors of sexual abuse.
Under PREA, states must enact certain preventive measures in their detention facilities, such as limitations on cross-gender pat downs, separation of inmates under 18 from adults, methods for safely reporting abuse, and education and training for both staff and inmates. Although the regulations have been in effect since 2012, the hard deadline for implementation is not until May 15 of this year, at which point states are expected to demonstrate compliance with PREA to the federal government. Those who aren’t yet in full compliance have the option to provide an “assurance” that they are making progress—those states must devote 5 percent of their federal prison funding toward enacting the standards. States that don’t at least provide an assurance would lose 5 percent of that funding as a penalty.
Although PREA has been bipartisan and non-controversial since its creation in 2003, one governor has unexpectedly taken a stand against the new rules. In a letter written late last month, Texas Gov. Rick Perry informed the Department of Justice that he will not be complying with the new regulations, calling the intent of PREA “commendable” but arguing that it will be “impossible” for Texas to implement the expected changes. Given the state’s record for detention facilities with high rates of sexual abuse, Perry’s rejection of PREA is especially troubling to those advocating for the safety of inmates.
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“Texas, year after year, is shown to have extremely high rates of sexual abuse in a number of their facilities,” said Chris Daley, deputy executive director at Just Detention International, a human rights organization that works to end sexual violence in all forms of detention. “For that state to not say they’ll do everything they can to eliminate that abuse, but also to turn away federal funding that can be used, it’s an abdication of their responsibility.”
Daley noted that the May 15 deadline was chosen specifically with states like Texas in mind, allowing the option of an “assurance” in addition to full compliance, which would give large and complex systems more time to implement the changes in all their facilities.
Part of the foundational work of PREA has been a comprehensive collection of data on sexual violence in detention facilities. The Bureau of Justice Statistics (BJS) surveyed inmates in facilities around the country, documenting rates of staff abuse of inmates, violence amongst inmates, types of abuse, as well as background on abuse survivors, such as their age, gender, and sexual orientation. Of 11 men’s prisons identified as having the highest rates of inmate-on-inmate abuse in a 2013 BJS survey, three of them were in Texas—with an incident rate of between 6 percent and 9 percent of the inmate population. Of eight men’s facilities with the worst rates of staff-on-inmate abuse, two of them were in Texas. One Texas facility, the Clements Unit, had the highest percentage of inmates who reported that staff had used physical force or the threat of force—at 8.1 percent, that’s about eight times the average reported rate.
Pervasive sexual violence in prison affects hundreds of thousands of people across the country, but is most likely to affect already marginalized populations. Nationwide, 4 percent of inmates in prisons and 3.2 percent in jails reported experiencing some form of sexual victimization in the past year. Those rates are much higher for queer populations (12.2 percent of non-heterosexual prison inmates, and 8.5 percent in jails), and those with mental health issues (over 6 percent of inmates with psychological distress). Those at the intersections—inmates who are both non-heterosexual and also psychologically distressed—suffered at the highest rates, with over 20 percent of prisoners reporting victimization. While there is a lack of government data on transgender and gender nonconforming inmates, a study in California found that almost 60 percent of trans women housed in men’s prisons had experienced sexual violence.
People under 18 are also at risk, in both the juvenile system—where one in ten children report abuse—and adult facilities. The Prison Rape Elimination Commission found that “youth incarcerated in adult prisons and jails are probably at the highest risk of all,” citing data from 2005 showing that, although youth were only 1 percent of the jail population, they comprised over 20 percent of substantiated incidents of violence. Although the Juvenile Justice and Delinquency Prevention Act provides protections to young people who are detained, those who are charged as adults may be housed in adult facilities with limited protection. While most states now have raised the age of criminal responsibility to 17 or 18 (New York and North Carolina are the last two states to still charge 16-year-olds as adults), that still puts many young people in close proximity to adults.
In Texas, the age of criminal responsibility is 17, meaning that 17-year-olds are prosecuted and incarcerated as adults. Gov. Perry cited this as an obstacle to complying with the PREA standards, which increase staff ratios in juvenile facilities and implement “sight and sound separation” for youths under 18 who are housed with adults. Perry wrote that such separation would come at “substantial cost with no discernible benefit to the state or its inmates.” He also wrote that staffing ratios should be “left to each state,” and that the Texas Juvenile Justice Department has already taken steps to reduce sexual abuse “without waiting for a federal mandate.” The letter contains a number of other jabs at the federal government, concluding that Washington has “created a counterproductive and unnecessarily cumbersome and costly regulatory mess for the states.”
Daley said that Perry’s criticisms have little to do with the reality of the PREA standards. “Here is a governor who says that the regulations were created ‘in a vacuum’ despite a hearing being held in his own city,” said Daley. That hearing, held in Austin in 2007, featured testimony from several Texas Department of Criminal Justice officials. The DOJ also held two public comment periods during which they received comments and feedback from both advocates and corrections departments.
Furthermore, Perry’s letter cites concerns that PREA’s same-gender pat-down requirements could constitute employment discrimination, even though his administration approached neither the federal government nor his own state’s non-discrimination board prior to writing his letter. The gender requirements are meant to address the frequency of cross-gender abuse by staff, and were found by the DOJ not to impinge on employees’ Title VII rights. “The reasons he’s proffered are obviously baseless,” Daley summarized. “There’s never an excuse for not trying to prevent sexual abuse.”
Daley acknowledged that Texas has a clear commitment to reducing sexual violence in prisons, having already implemented a number of safety policies, but argued that that doesn’t explain or justify Perry’s actions regarding PREA. “The thing to keep in mind is that this isn’t the mindset in Texas,” said Daley. Based on the actions taken by the Texas Department of Criminal Justice, Daley believes that Texans have shown a clear commitment to addressing sexual violence in prisons and jails.
“This isn’t a situation where the governor is speaking for Texas,” he said. “He’s alone amongst the states, and alone within the state.”