Federal prison rape law challenges state to do better

The federal Prison Rape Elimination Act standards are aimed at eradicating a national disgrace. Are they being met here at home?
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The federal Prison Rape Elimination Act standards are aimed at eradicating a national disgrace. Are they being met here at home?

Of the more than 2 million prisoners in America today (the highest number of any nation in the world, including China) the vast majority come from our most disadvantaged populations. Overwhelmingly, they are badly educated. Most grew up on the nation’s mean streets or in ramshackle rural circumstances, at the bottom of an economy marked by grotesque income inequality and little upward mobility. Sixty percent belong to minority racial groups treated with contempt for generations. In comparison with about 11 percent of the wider population, 30 to 40 percent exhibit symptoms of mental illness at intake.

The “less scrupulous class of lawbreaker” working in our financial industry and other wealthy sectors has the social capital and the caliber of legal representation that can soften the consequences of many misdeeds, wrote Michael Powell in The New York Times. But while rich people who ruin countless lives can escape the net of justice, poor people serve long sentences even for minor, nonviolent crimes.

During incarceration, appalling numbers of inmates are sexually assaulted. According to Sexual Victimization Reported by Adult Correctional Authorities, 2007-2008, published by the Department of Justice (DOJ) in 2011, one in ten former state prison inmates was sexually abused by staff or other inmates while serving a sentence. In 2012 the Justice Department's Review Panel on Prison Rape said that 13 percent of inmates in all types of confinement centers in America (prisons, jails, juvenile and community corrections facilities, police lockups) are sexually violated every year. More than 209,400 people experience sexual abuse within corrections facilities annually. Confined youth suffer, on average, the most violent, injurious assaults.

The Prison Rape Elimination Act (PREA) is aimed at changing this. Federal legislation to prevent and punish rape in prisons was propelled by a 2001 Human Rights Watch report, No Escape: Male Rape in U.S. Prisons (excerpt at right). The report showed that prison rape is a deeply rooted systemic problem not seriously addressed by prison authorities. Two years later, in 2003, both houses of Congress unanimously passed PREA, and President George W. Bush signed it into law. Under the law, sexual abuse in confinement facilities would be thoroughly studied, and national standards would be developed to solve problems revealed.

PREA standards for preventing, detecting, and responding to prison rape across the nation have existed in draft form for several years and were issued in May by the Obama administration. Standards include, among other things, establishing a zero tolerance policy for sexual abuse, improving staff training, using standardized screening tools to separate potentially predatory from potentially vulnerable prisoners, housing homosexual and transgender individuals more safely, minimizing opposite-sex staff searches of inmates, increasing video monitoring, facilitating inmate reports of abuse and assuring confidentiality, establishing evidence protocols for allegations, providing forensic medical exams, punishing retaliation against those who report abuse, and submitting to outside audits.

In other words, prison culture needs a makeover.

The cost of fully implementing PREA nationwide within a corrections system that devours $75 billion per year of public money is estimated by the DOJ to be $468 million per year over 15 years. Standards are somewhat flexible to allow for local budget stringencies so that funds for other important corrections programs won’t be squeezed, and some federal grants have been made available. At the end of the 15 years, with improvements in place, the cost of nationwide compliance would be offset by savings¸ according to a DOJ report and a PREA summary published in the Federal Register. Annual savings are expected to accrue from reducing in-house expenses such as covering post-assault medical care (estimated to swallow up hundreds of thousands of dollars per year) and from reductions in lawsuits costing millions.

As prison rape declines, PREA research by federal authorities also predicts that society outside the walls will be safer and public budgets will see significant economies. Fewer released prisoners will bring into their home communities serious threats to public health such as HIV, AIDS, and hepatitis B and C. The hundreds of thousands who arrive in prison with severe mental illnesses won't leave more seriously ill from the trauma of sexual violence. Fewer people will re-enter community life with the kinds of psychological injuries that virtually guarantee recidivism.

Is Washington state making progress on meeting PREA standards? Yes, says Washington’s Department of Corrections (DOC). Beth Schubach, the department's PREA coordinator, noted that in 1999 the Washington Legislature passed a law making prison rape a crime (this happened after an officer at the Washington Women’s Correctional Center in Gig Harbor impregnated an inmate). Then, when PREA was signed in 2003, DOC was among the first to apply for initial federal grants, said Schubach. The funds supported efforts in 2005-6 to “revamp our policies, focus on training and investigation of allegations, improve tracking, improve coordinating, and establish a hotline. That was our initial push.”

The challenge, of course, is for practice to reflect policy. In 2007, four years after PREA was signed, a lawsuit was filed against DOC regarding the Washington Women's Correctional Center, where one reporter wrote about “a culture of sexual assault.” The suit cited numerous sexual attacks on inmates at the WWCC by different staff. In 2009 DOC agreed to pay five current and former women inmates $1 million in damages and to improve particular corrections policies and practices across the state. The lawsuit, according to Schubach, strengthened DOC's response to PREA and spurred progress in Washington toward “closing the gap between where we are and where we need to be.”

The gap is not small. An analysis of a representative sampling of 49 incarceration facilities across the nation published in 2010 reported that Washington DOC was only 51 percent compliant with PREA standards, and that Washington Community Corrections (WA CC), which is also governed by DOC and supervises about 18,000 offenders in communities and work release facilities, was only 47 percent compliant. These scores were well below an average compliance rate of 63 percent among the facilities studied.

By way of comparison, the analysis showed Seattle Police Department lockups, or holding cells, as having a PREA compliance rate of 82 percent, making SPD fifth highest among the 49 sites studied (top compliance scores were 85 percent for Massachusetts' DOC and 88 percent for its juvenile facilities). Deputy Chief Clark Kimerer said SPD was assessed on factors like “supervisory oversight, prisoner safety, our use of cameras for continual situation awareness, and the priority level of the safety of people in our custody, especially juveniles.” SPD scored high because the department started on improvements directly after the law was signed, years before SPD might be invited to participate in a comparative national audit in this area of police operations, said Kimerer. Evaluation results "gave us one of these moments we are proud of, that reflect our highest principles in terms of safety and what is humane.”

To close the PREA compliance gap in Washington’s prisons and community corrections facilities, DOC is continuing to revise department policies in accord with PREA standards, said Schubach. (A sign of progress may be that in 2011 two prison employees were convicted and sentenced for sexual misconduct with inmates.) And the number of sexual assault allegations made by Washington state’s prisoners has declined in recent years. Allegation summaries emailed to me by DOC for 2009 through May 2012, as well as the 2010 analysis discussed above, indicate a rate of sexual victimization in facilities governed by DOC as being lower than 4 percent of the total inmate population, compared to nationwide averages of 10 to 13 percent.

In any American prison, however, the actual number of assaults is probably far higher than the number of inmate allegations, say experts. Male inmates resist reporting that they’ve been raped by other men because they'll be labeled as homosexual or as weak enough to be targeted for further attacks. Inmates may refuse to make an accusation because they fear retaliation. Protecting accusers from retaliation generally means moving them into isolation cells, which bars them from work and educational opportunities for months and thus feels less like protecting than like punishing the victim.

Furthermore, prisoners are well aware that many inmate allegations never receive justice. Why risk the negative consequences of reporting inmate-on-inmate sexual abuse when the courts have created what Human Rights Watch, in No Escape, calls “perverse incentives for authorities to ignore the problem”?

Under the “deliberate indifference” standard that is applicable to legal challenges to prison officials’ failure to protect prisoners from inter-prisoner abuses such as rape,…it is not enough for the prisoner to prove that “the risk was obvious and a reasonable prison official would have noticed it.” …[I]f a prison official lacked knowledge of the risk — no matter how obvious it was to anyone else – he cannot be held liable. …[R]ather than trying to ascertain the true dimensions of the problem of prisoner-on-prisoner sexual abuse, prison officials have good reason to want to remain unaware of it. (from No Escape)

Still, said attorney Melissa Lee at Columbia Legal Services, though DOC “hasn’t solved the problem yet, PREA is changing administrators’ responses to [sexual abuse] and making inmates, especially women, aware of their rights and ways to respond.”

For women, knowing such things helps them develop a sense of self that they can strengthen by participating in prison programs and then build on after release. A sense of self and personal dignity is rare among incarcerated women because in childhood most were sexually abused, or violated in other ways more often and more severely than were male prisoners, according to the PREA panel review. The review quotes an assistant director of mental health at a women’s prison in Virginia as saying that 80 percent of his inmates suffer from PTSD: “basically, the institution is a big trauma wing.” He said that the childhood relationships of most female inmates were virtually a “pathway to prison or jail.” Once inside, women can be vulnerable to staff because they arrive in prison with low self-esteem and a hunger for attention.

Staff at a Texas prison urge women to channel their need for personal relationships in specific ways. Instead of trying to gain the attention and affection they crave by unconsciously looking to prison personnel for nurturing warmth, or joining with other inmates to create surrogate families (vividly dramatized in a play performance at WWCC last May), they're taught to plan for leading as autonomous a life as possible when released. Prison programs that teach women conflict management, critical thinking, personal safety, and effective parenting help them take steps toward better lives outside the walls, says research, as do programs leading toward a GED or community college degree.

Unfortunately, deep cuts in Washington state corrections budgets mean, for both sexes, fewer programs that can defuse potentially violent behavior inside the walls before it happens, while also preparing inmates for re-entering the community after release.

What may be hardest of all to change is prison culture. Informing staff and inmates that there is zero tolerance for sexual victimization, installing confidential hot lines so inmates can report assaults, and checking off other requirements on a very long list are important. But according to the PREA panel report, institution-wide, authentic staff buy-in to a shared responsibility for detecting and reporting sexual misconduct is the crucial necessity. To this end, supervisors need to build personal relationships with guards in which the latter feel comfortable reporting problems. Every allegation of sexual abuse must be taken seriously, even from inmates who for some reason may lack credibility. Language is also important in creating a culture that discourages victimizing others: staff should never use degrading or violent terms when talking with inmates and each other.

Prison culture also can benefit from what Sandy Mullins, director of the state DOC’s Office of Executive Policy, called “infusions of humanity.” Washington prisons have gardens prisoners can work in. Some prisons take in kittens that have been abused and need care. “Dog-training programs, refurbishing bikes that go back into the community, raising frogs for the Sustainable Prisons Program — these activities change the feeling in prison, and turn some power dynamics on their ear,” Mullins said. “There’s a semblance of normalcy that connects [inmates] with the society where they hope to return, and sends them back to society better than we found them. If they’re lifers, they’re home, but it’s our job to keep them and the staff safe, and find ways to manage behavior without using brute force.”

Can PREA succeed? Systematically failing to prevent prison rape violates the prohibition on cruel and unusual punishments in the Eighth Amendment to the U.S. Constitution; but high-level prohibitions haven’t, in the past, delivered our nation from a plague of violence against the people our corrections officials are supposed to protect. Maybe it's because the culture of prisons and jails mirrors the culture of the larger society. Maybe the makeover also needed to eliminate rape in those places is an American mindset makeover.

That is, we express indignation about prison policy in China, but we take sexual violence for granted as a part of life behind bars in the U.S. Many of us, far from adopting a zero tolerance stance toward prison rape, consider it to be part of the punishment, and many laugh about it. Typical of American humor in this vein are jokes in a board game called “Don't Drop the Soap.”

Financial penalties for not meeting PREA standards are no joke. Prisons that fall short can lose 5 percent of their federal funding. Though no federal sanctions will apply to compliance failures in jails, community corrections and juvenile facilities, or police lockups, PREA standards are sure to influence what courts consider adequate standards of care as they determine punitive damages in sexual abuse lawsuits filed against an institution or its employees.

DOC’s efforts to eradicate sexual abuse in its prisons continue in earnest, said Mullins. “Our foundational mission is safety, whether public safety or safety for people under our jurisdiction. Next after safety is sending the offender back to society better than we found them. If someone is victimized we’ve failed.”


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