ST. GEORGE – While 216,000 adult and juvenile inmates are sexually assaulted each year, according to federal statistics, Utah is among only three other states in the nation either ignoring or refusing to comply with federal guidelines intended to prevent sexual assault in prisons. According to the Prison Rape Elimination Act Regulatory Impact Assessment docket, Utah argues budgetary constraints make the required audit not feasible; Utah officials said they have implemented or are implementing recommendations of the Act that are good for and make sense for Utah.
Prison Rape Elimination Act
“No one should be subjected to sexual abuse while in the custody of our justice system,” Deputy Attorney General James Cole said in a 2014 press conference. “It serves as a violation of fundamental rights, an attack on human dignity and runs contrary to everything we stand for as a nation.”
With research showing that roughly 1 in 10 prisoners suffer at least one incident of sexual victimization by prison staff or other inmates behind bars, the Prison Rape Elimination Act passed in 2003 with unanimous support from both chambers of Congress, requiring the establishment of the national PREA standards for the detection, prevention, reduction and punishment of prison rape.
The standards took effect Aug. 20, 2012, and apply to federal, state and local confinement facilities, which include adult prisons and jails, juvenile facilities, lockups and community confinement facilities – halfway houses, rehab centers and the like.
The federal law requires: prison officials screen inmates for the potential of sexual victimization – using that information in assigning housing and work; background checks on employees; suspected assaults be thoroughly investigated; being fired listed as the presumptive punishment for staff members involved; and criminal charges be brought against perpetrators.
First and most importantly, the act clarifies, there is no such thing as consensual sex in confinement facilities especially between police and detainees. When there is a power differential, that is, where one person can arrest the other and control that person’s freedom and future, there is never consent.
The regulations also ban cross-gender pat downs of female inmates and juveniles, and require juvenile inmates to be kept away from adult inmates.
“More than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual abuse,” the Justice Department found, and that youth are 36 times more likely to commit suicide in an adult jail than in a juvenile detention facility.
Detention facilities must also allow anonymous and outside-of-prison reports of sexual victimization and require evidence preservation after a reported incident. Facilities must produce plans for adequate staffing and video monitoring.
States in compliance or moving toward compliance
In June, the U.S. Department of Justice released a list of states that are compliant with the Prison Rape Elimination Act, and all but four states – Alaska, Arkansas, Idaho and Utah – have either met or are working towards compliance with the federal rules.
According to the report, 10 states are fully compliant with the rules: Iowa, Maine, Mississippi, Missouri, New Hampshire, New Jersey, North Dakota, Oregon, Tennessee and Washington. Another 36 have given the federal government formal assurances that they are working toward full compliance.
“The very hard work of implementing new policies and practices, and transforming cultures in confinement agencies and facilities in ways that promote the sexual safety of inmates, residents and detainees, is well underway,” Assistant Attorney General Karol Mason of the Office of Justice Programs said, adding that the department is committed to increasing this momentum and working with the remaining states that did not respond.
The DOJ is threatening to withhold grant money from states if they don’t comply with federal standards intended to reduce prison rape.
After the DOJ faced criticism for taking nearly a decade to finalize the regulations, governors of all 50 states were given until May 15 to make their second progress reports. The reports were to either certify that the state is in compliance with federal standards, or confirm that at least 5 percent of the grant funds it receives will go towards bringing their state into regulatory compliance.
Governors unable to certify that the state is in full compliance with the national PREA standards, or who elect not to submit an assurance to the Justice Department, subject their state to the loss of 5 percent of certain grant funds that it would otherwise receive.
Last year, Utah lost nearly $142,000 in prison-related federal grant money as a penalty, according to a report by the Department of Justice.
To assist states and localities with implementation, the Bureau of Justice Assistance has funded the National PREA Resource Center to provide training and technical assistance for those in the field who are working to come into compliance with the standards.
States declining to comply or filing no report moving toward compliance
So why are these “renegade states,” as some inmate advocates called them, still refusing to comply?
Pursuant to standard, auditors may be a part of, or authorized by, a state or local government that is external to the correctional agency, as long as the auditor is not part of or under the authority of the corrections agency. To the extent state and local agencies are able to utilize public auditors of this nature rather than contracting for private auditors, the DOJ said, they could potentially mitigate their costs to some extent.
According to the Prison Rape Elimination Act Regulatory Impact Assessment docket:
Utah’s state corrections department, however, noted that this standard would disqualify the department’s internal audit bureau from conducting such audits, and that neither Utah’s auditor’s office nor its legislative auditor’s office has the staff or funding to carry out the audits required under this standard. Utah would therefore need a significant amount of funding to contract for these auditing services, and its budget is not sufficient to implement this standard.
The assessment went on to say, “While we sympathize with the fiscal plight facing this and many other state corrections departments, we believe the concerns expressed in the comment are overstated: by our calculation, Utah, which has only two state prison facilities, would require at most one prison audit per year, at an annual cost of just $3,552. The total annual auditing cost across all facility types in Utah is a mere $76,183.”
Ron Gordon, executive director of the Utah Commission on Criminal and Juvenile Justice, said the state of Utah supports the objectives of the Prison Rape Elimination Act and is committed to eliminating rape and sexual assault in its correctional facilities, adding that Utah has implemented a majority of the recommendations contained within the act, some even prior to 2003.
“We have carefully evaluated every line of PREA and the accompanying regulations,” Gordon told St. George News. “We have implemented, or are in the process of implementing, every recommendation that is good policy for Utah. Some of the PREA recommendations undermine our efforts to eliminate prison rape. We will not implement those policies in an effort to fully comply with a federal act that does not consider the unique nature of each state and the ability to address its specific circumstances. We continue to actively work toward the elimination of prison rape in Utah.”
In 2014, former Texas Gov. Rick Perry denounced the national rape standards as a “counterproductive and unnecessarily cumbersome and costly regulatory mess.” Perry also called the requirement that juveniles be separated “by sight and sound” from adult prisoners an infringement on his state’s right to consider 17 the age of criminal responsibility.
In June 2013, the American Civil Liberties Union of Utah wrote a letter to Gov. Gary Herbert expressing concern for juveniles in adult facilities.
“You have the opportunity and obligation to keep youth in the justice system safe by removing them from adult jails and prisons and by accessing federal support to support new reforms,” the letter said, adding that the stakes are too high for noncompliance.
As for Idaho and Arkansas, their officials said their states already have a zero-tolerance policy toward sexual abuse behind bars, and, while governors in both states say they support the ideas outlined in the Prison Rape Elimination Act, both states have stopped short of agreeing to comply with the federal standards.
Idaho corrections officials told the DOJ the state has created its own new rules that closely mirror, but don’t match, the federal guidelines.
- Prison Rape Elimination Act Regulatory Impact Assessment
- FY 2015 List of Certification and Assurance Submissions
- 20130621 Letter from ACLU of Utah to Gov. Gary Herbert re PREA
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