Potential civil liability for failing to comply with Prison Rape Elimination Act

Check out written testimony to the Texas House County Affairs Committee from Texas Criminal Justice Coalition policy attorney Elizabeth Henneke on implementation of the Prison Rape Elimination Act (PREA), particularly at the county level.

One interesting note: Texas received more grant funding for implementing PREA than any other state - about $3.6 million out of $54.4 million in grant expenditures nationally. That includes "Dallas County Juvenile Department ($88,942), Travis County Juvenile Probation Department ($100,000), Atascosa County Juvenile Probation Department ($300,000), Harris County, Texas ($237,693), and Webb County, Texas ($250,000)." 

Her testimony also included an interesting discussion of potential civil liability for facilities that choose not to comply with PREA:

Potential Liability for Failing to Comply With PREA

“PREA does not require State and local facilities to comply with the Department [of Justice]’s standards, nor does it enact a mechanism for the Department to enforce such compliance; instead the statute provides certain incentives for such confinement facilities to implement the standards.”  These incentives include grants to help local facilities come into compliance.  Several Texas counties have already received PREA-related grants:  Dallas County Juvenile Department ($88,942), Travis County Juvenile Probation Department ($100,000), Atascosa County Juvenile Probation Department ($300,000), Harris County, Texas ($237,693), and Webb County, Texas ($250,000).

While the Department of Justice maintains that “[t]he standards are not intended to define the contours of constitutionally required conditions of confinement,” it is highly likely that the PREA standards will inform future civil litigation surrounding prison conditions.  In Farmer v. Brennan, the United State Supreme Court set forth the standard for determining if prison conditions violated the 8^th Amendment. The two-part test adopted by the Supreme Court required the plaintiff to prove (1) that the conditions were cruel and (2) that the government was deliberately indifferent to the conditions facing the inmate.  Prior to PREA, this second prong—deliberate indifference—narrowed the class of claims that litigants were able to bring, because it is extremely difficult for them to prove that a government entity was deliberately indifferent to the conditions facing inmates.  PREA has the potential, however, to change the way this litigation proceeds in the future by providing national standards—supported by extensive evidence-based research, correctional administrator input, public commentary, and other documentation—that suggest what governments must do to provide safe environments for inmates.  Thus, failure to follow these PREA standards could be seen as prima facie evidence of deliberate indifference and may result in plaintiffs succeeding past the initial stages of litigation, substantially increasing litigation costs to facilities that fail to comply with PREA.

Although there is no reliable data available specifically setting forth the costs of litigating these cases in Texas, the National Center for State Courts (NCSC) has developed a model to estimate the costs of civil litigation that resolve at different stages of litigation.

Costs Estimates Per Side of Litigation for Typical Automobile Tort Case

Litigation Stage	Amount expended on attorney’s fees alone for lowest 25%	Amount expended on attorney’s fees alone for highest 75%
Case Initiation	$1000	$7,350
Between Discovery through Formal Negotiations or ADR	$5,000	$36,000
Trial	$18,000	$109,000

This cost model suggests that litigation costs alone may substantially increase for facilities that fail to comply with PREA. It is too early to predict what the costs might be if a plaintiff is successful.  One ex-inmate of Travis County has sued alleging that county and sheriff’s officials displayed deliberate indifference to his safety by failing to comply with PREA; he is seeking $2 million in damages as compensation for the rape he sustained while in the Travis County jail.

Henneke also suggested that raising the age at which youth are incarcerated as adults from 17 to 18 would resolve many of the potential problems and expense of separating out 17-year olds, as PREA requires, as well as raising the age at which juveniles can be incarcerated in juvenile detention facilities from 10 to 12. And she suggested that the Texas Commission on Jail Standards and the Juvenile Justice Department's independent ombudsman should be empowered to perform audits of local detention facilities instead of requiring them to hire their own, outside consultants to perform them.

See related Grits posts:

• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act