Friday, March 28, 2014

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.


Lee said...

The sooner we are rid of Perry the better for us all.

Gadfly said...

We're all in favor of replacing Texas junk science in criminology with actual research, right? And, Perry's in violation of a federal requirement, right?

Well, sounds like we have an easy way to do a bit of research on the reality of prison rape.

Anonymous said...

Federal oversight here we come!!!!!! Texas will never learn from its past mistakes. Our prisons are dangerous because the taxpayers want to send people there, but don't want to pay for their costly operation. Texas cuts too many corners and is a national embarrassment. Some Texas prisons are only 50% staffed and the officers are poorly trained or inexperienced because they don't stay for the low wages. TDCJ recruits kids fresh out of high school with no experience or life skills to manage 45 year old convicts. Gangs run our prisons because their are few experienced officers running them now.

rodsmith said...

what is really sad and ignored is this!

"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."

it only took them a DECADE to decide RAPE is crime even in a fucking prison.

as for the asinine excuse it would remove women from men's prisons. SO WHAT. you don't let men work in women's dorms do you?

"Red" Merriweather Coast said...

A 17-year-old isn't an adult, though. 18 is the age of majority in Texas.

Seems pretty shitty to treat kids like adults when it comes to criminal culpability but to deny them all other rights that adulthood confers.

That's kind of beside the point. There's good reason to think that young prisoners are particularly vulnerable to sexual assault in prison and that keeping them away from older prisoners could prevent abuse. It may not work in practice, but it's worth trying.

Anonymous said...

To anon 4:34,

You are correct, TDCJ should follow PREA, but the Texas prison system due to their low wages now has a majority of their officers who are women. They can't comply with PREA because they can't recruit enough men to work inside the men's prisons.

The agency can not comply with the minor background check requirements either, because they hire just about anything now.

The Federal Judge who heads the PREA Commission warned states that PREA litigation might for some states exceed judgements in the BILLIONS.

Guess which state is going to be first???

Twitch said...

Many Muslim prisoners don't feel comfortable with cross-viewing by female staff while staging in the nude sometimes with no adequate partitions to block direct view by staff. But we know of the many true or distorted rumors of all nature of fun and games in the TDCJ system that can only sexually-charge a population of captive humans.
I thought it interesting the disparity between the Juvenile and Adult institutions stats on sexual attack - guess 10% (reduction) is about as much as one could expect in TDCJ.


Gritsforbreakfast said...

Red, you are incorrect. Youth are prosecuted as adults at age 17 in Texas. See here.

Anonymous said...

Texas county jails fall under PREA.

Holder has said to only enforce what states want to enforce. EOS.

Gritsforbreakfast said...

Technically they do, 1:48, but there's no enforcement mechanism for noncompliance and they're not among the facilities Perry is supposed to certify.

Anonymous said...

The issue we see is PREA is an unfunded mandate with their staffing and required monitoring requirements. In Texas the jail standards and the TJJD standards already include requirements that meet PREA guidelines but the PREA mandate requires encreased staffing ratios and requires a county jail or juvenile probation department to have to hire an approved auditor on a contractual basis to audit the facility every 3 years. This can cost anywherre from a few thousand to tens of thousands of dollars when the facilities already go through state audits.Texas was way ahead of the PREA requirements years before PREA became the law.

Captain Obvious said...

9:41 says, "Texas was way ahead of the PREA requirements years before PREA became the law."

If true, why does Perry say the state can't/won't comply with requirements about "cross-gender viewing"? We're not ahead of PREA on that. And won't Texas lose more money in block grants than it would cost to pay auditors?

They could solve the audit-cost issue by having jail standards commission inspectors certified as PREA auditors and start having TJJD inspect/audit local county facilities, which they really should be doing anyway.

Anonymous said...

Speaking on the juvenile side only TJJD does audit every year on safety, security and other standards, but not specific PREA requirements. It would not be hard to add a few more items to their monitoring visit. The staffing ratios will be what is the big ticket item for most facilities. If TJJD performed the monitoring where facilities didn't have to pay for that I believe staffing issues could eventually be resolved but not as quick at the 2017 deadline. Just for informational purposes Texas county operated juvenile facilities are required to maintain a 1 JSO to 12 juvenile ratio and PREA would require a 1-8 ratio essentially encreasing staffing cost by 25%. This is on the heals of the state cutting most of the county's budgets drastically in the last session.All the facilities I know have such a great camera system in place the additional staff would just get in each other's way.

Anonymous said...

Surely Grits has heard of 18 USC 1001, False Statements. I'd advise anyone making any sstatementof any kind o the federal government that they are doing so "under threat of criminal penalties."

Gritsforbreakfast said...

@2:20, the letter said "each state must certify, under threat of criminal penalties, that all facilities under the governor's control are compliant with PREA standards."

According to basic canons of grammar, in that sentence "under threat of criminal penalties" refers to penalties that go into effect if the governor does not certify as he "must" do. The Houston Chronicle construed the sentence the same way, reporting that "failure to comply with the federal law carries a possible criminal penalty," which btw is not true.

Anyway, the PREA rules specifically state that, as the program ramps up, the governor can make the certification "even if the agency has not pursued or completed audits." So even if the grammatical construction of the sentence allowed for it, the implication that he risks perjury charges by doing so is ridiculous.

Unknown said...

Honestly, Rick Perry is an absolute nightmare. PREA non-compliance is just one of the issues raised in this article ( on 13 points why Perry shouldn't be elected president. Or even selected by the GOP.

Anonymous said...

While I don't agree with Rick Perry, the one silver lining is that it brings attention to prison rape, the prea is a flawed piece of legislation, its too weak, and the government has not done much to improve rights of prisoners many who are non-violent, indeed non-violent prisoners are often abused because they don't have the willingness to be as violent.

The democrats held a hearing on the prison abuse remedies act, it never passed or got a vote, at least a hearing was held but it went nowhere, even though the house,senate 60 vote, and president were all democratic.

Anonymous said...

This is so true