Perry: Texas won't comply with federal Prison Rape Elimination Act

The federal Prison Rape Elimination Act was signed into law by President George W. Bush in 2003, but the rules governing its implementation were not completed until June 2012 and standards governing audits of state facilities weren't finalized until August 2013. Governor Rick Perry today sent a letter to US Attorney General Eric Holder, forwarded by a confidant to your correspondent, declaring Texas would not comply. Here's a notable excerpt:

Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this problem by removing security camersas and obstructing lines of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.

PREA also infringes on Texas' right to establish the state's own age of criminal responsibility. That age in Texas is 17. PREA, unlike the JJDP Act, which recognizes each state's age of full criminal responsibility, makes no allowances for differences among the states. PREA sight and sound separation standards would require Texas to separate 17-year old adult inmates from 18-year old adult inmates at substantial cost with no discernible benefit to the state or its inmates.

PREA standards also set specific staffing ratios for juvenile detention facilities different from the state's current rate. While this ratio may be ideal in some facilities, the decision of what constitutes appropriate staffing ratios should be left to each state and to those professionals with operational knowledge. One of Texas' 254 counties has said that compliance with this standard would require them to hire 30 more detention officers. That is an unacceptable cost for a small county with a limited budget. ...

PREA standards also mandate that by May 15, 2014, the governor of each state must certify, under threat of criminal penalties, that all facilities under the governor's control are compliant with PREA standards. Texas has approximately 297 facilities subject to PREA, including 164 lock-up facilities. PREA requires one-third of these facilities to be audited each year, yet no audit tool for lock-ups has even been developed. There is no way that I will certify compliance for facilities that have not even been audited. The compliance and certification deadline is further complicated by the fact that PREA requires states to conduct audits by PREA-certified auditors. There are only about 100 PREA-certified auditors nationwide, and the first of those were not certified until late 2013.

Even if the manifest problems with PREA standards I laid out above did not exist, I cannot and will not certify as true those things for which I do not have the facts.

Washington has taken an opportunity to help address a problem in our prisons and jails, but instead created a counterproductive and unnecessarily cumbersome and costly regulatory mess for the states.

I encourage the administration to change these standards and do so soon. Absent standards that acknowledge the operational realities in our prisons and jails, I will not sign your form and I will encourage my fellow governors to follow suit. In the meantime, Texas will continue the programs it has already implemented to reduce prison rapes.

Fascinating. Perry's letter portrayed this as an Obama Administration initiative but really it's his Texas gubernatorial predecessor-turned-president whose policy he's snubbing.

A quick Google search finds little media coverage or other significant detail on how PREA is being implemented in other states, but here's an FAQ from the feds on PREA implementation. It's not clear to me how Perry gets to 297 facilities under his "operational control" given that TDCJ only operates 109 facilities and there are five secure, state-run juvenile lockups. Here's the definition from the FAQ of what facilities are under the Governor's "operational control":

The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.”  28 C.F.R. § 115.501(b).   A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.”  Id. at § 115.5.  Some standards apply specifically at the facility level, while others apply at the agency level.

The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.

The term “operational control” is not defined in the National PREA Standards.  The determination of whether a facility is under the operational control of the executive branch is left to a governor’s discretion, subject to the following guidance.

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:

• Does the executive branch have the ability to mandate PREA compliance without judicial intervention? 
• Is the State a unified correctional system?
• Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?

The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification. 

By that definition, it doesn't sound to me like Perry must certify that county-run juvenile detention facilities or local jails comply with PREA standards. Texas doesn't have a "unified correctional system" under gubernatorial control that extends to those local facilities. Further, PREA standards specifically do not "apply to adult psychiatric forensic mental health care facilities or hospitals operated by non-correctional agencies," though they "do apply to residential community confinement facilities such as halfway houses operated by community corrections agencies." Even so, I'm still not sure how that gets you to 297.

According to the FAQ, the certification Perry is talking about would affirm that "not less than five percent of its DOJ funding for prison purposes shall be used only for the purpose of enabling the state to adopt and achieve full compliance with the PREA Standards." Perry, though, appears to be saying he will not make such a commitment even though, as the program ramps up, the rule specifically provides that the Governor can make the required assurances "even if the agency has not pursued or completed audits."

For the life of me, I can't tell to what the letter is referring when Perry says governors must submit certification under "threat of criminal penalties." Judging from the FAQ, the penalty for noncompliance appears to be a 5% cut in three federal grant funds administered by the Governor's office, specifically "(1) the Bureau of Justice Assistance’s Edward Byrne Memorial Justice Assistance Grant Formula Program, and (2) the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice and Delinquency Prevention Act Formula Grant Program." The third block grant to be cut is "administered by the Office on Violence Against Women: the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program."

Finally, the new PREA standards provide another argument for the state to increase the age of criminal responsibility from 17 to 18, as the House Criminal Jurisprudence Committee was discussing earlier this week. Again, from the FAQ:

The Youthful Inmate standard requiring separation of those under age 18 from those over 18 is “setting specific,” applicable only in prisons, jails, and lockups. Even where state law provides for automatic prosecution in adult court of individuals at age 16 (e.g., NC, NY) and age 17 (e.g., GA, NH, IL, LA, MD, MA, MI, SC, TX, WI) when those persons are detained or confined in an adult prison, jail, or lockup, such individuals must be sight and sound separated from those over the age of 18.

This is another example of how Texas' outlier status regarding the age of criminal culpability creates ongoing conflicts with federal law.

Notably, however, the "sight and sound" standards about which the governor complained do not apply to juvenile facilities: "The PREA standards do not provide for any sight and sound separation of residents in juvenile facilities either because of age or court of conviction. Neither the standard on youthful inmates (115.14) nor the standard for youthful detainees (115.114) is applicable in juvenile facilities."

It'll be interesting to see how all this plays out in the coming months. Since Perry is leaving office after the end of the year, he really has no dog in the fight when it comes to foregoing federal grant money since he won't be around anymore to preside over its distribution.

Grits has filed an open records request for any report and/or correspondence from the consultant referenced in the Governor's letter, so perhaps that will reveal more about the supposed barriers to Texas' compliance with the federal Prison Rape Elimination Act.

CLARIFICATION: The DOJ has issued standards for county jails and local juvenile lockups but governors are only required to issue certifications for facilities under "operational control" of the state's executive branch, which in Texas does not include either category. Language in the post was adjusted to make that clear. MORE: See a detailed analysis of PREA implementation, including the lack of meaningful enforcement mechanisms, from Prison Legal News.