No one disputes PREA's good intentions, but the standards as currently written do not adequately allow for differences among states' juvenile laws, impose substantial financial burdens on communities and set unrealistic compliance dates, Texas has shared our successes and challenges with your office and has sought assistance in our efforts to seek compliance. Unfortunately, our legitimate concerns regarding the unfeasible standards on cross-gender viewing, youthful offenders and staffing ratios have not been properly addressed by DOJ.Some of this still strikes me as odd because correspondence between TDCJ and a consultant hired to advise the state on PREA compliance did not include any concern that the agency "would be forced to deny female officers job assignments and promotion opportunities," as the letter suggests. Hard to tell where that's coming from. I don't think it's true.
A more legitimate concern stems from the conflict created by Texas' outlier status of classifying 17 year olds as adult offenders under criminal law (we're one of only 10 states that does so). Perry's letter acknowledges that the simplest solution may be to change the age of adult criminal culpability, but notes that the earliest that could happen is next year:
In addition, PREA defines youthful offenders as those under the age of 18 and maintains that offenders be separated from the adult inmate population, The federal Juvenile Justice and Delinquency Prevention Act (JJDP Act) also requires that juvenile inmates be separated from adult inmates, but defines adult inmates as those who have reached the age of full criminal responsibility under applicable state law, which in Texas is 17. This creates a conflict that would require Texas to either violate the JJDP Act by placing adult 17-year-old offenders in juvenile facilities or violate PREA by keeping 17-year-old adult offenders with other adult offenders aged 18 or older. This could require the construction of new correctional facilities or the extensive modification of existing facilities in order to house only offenders who are 17 years old, An alternative solution would be changing Texas law to change the definition of full age of responsibility to 18. But since our legislature meets only in odd numbered years, the soonest Texas could possibly meet this requirement would be in 2015 and only then if the Texas Legislature changes the law.Of course, that's not entirely accurate since the Texas governor has authority to call the Legislature into a special session whenever he wants to address any specific issue he chooses. But as a practical matter, he's probably right that the best solution would be for the Lege in 2015 to raise the age of responsibility to 18 to match federal law. That would resolve quite a few situations where that conflict causes problems, not just regarding PREA compliance. The Speaker of the House issued an "interim charge" to the House Criminal Jurisprudence Committee to study that proposal, and this is another strong argument for making the switch.
Perry also lamented that, "the cost to implement the mandated staffing ratios within juvenile facilities would be unsustainable for many counties with limited operating budgets. Appropriate staffing ratios should be determined by each state based on recommendations from professionals with operational knowledge." But this, too, strikes me as a strange complaint. For starters, the juvenile staffing ratios under PREA that Perry's concerned about (requiring one JCO per 8 youth instead of 12) don't go into effect until 2017. More to the point, local juvenile detention facilities in Texas are not "under executive control" and Perry is not required to certify their compliance. While local facilities may be subject to Sec. 1983 civil rights litigation if they do not comply, that's true whether Perry certifies the state's PREA compliance or not.
Bottom line: Texas will lose some grant money because of Perry's recalcitrance, though his gubernatorial successor will be the one affected, not him. And in the medium to long run, non-compliant state and local facilities may find themselves dealing with these issues in federal civil rights litigation. At that point, the costs of obeying PREA on the front end may, in retrospect, look like a bargain.
See related Grits posts:
- More on Texas' PREA compliance
- Potential civil liability for failing to comply with Prison Rape Elimination Act
- 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