Union: Texas could meet PREA standards if prisons were properly staffed

Lance Lowry, president of the union representing TDCJ prison guards, issued a press release today suggesting that Gov. Rick Perry's decision that Texas won't comply with the federal Prison Rape Elimination Act (see related Grits coverage) will result in a loss of federal funding and open the state up to potential civil liability. Find the text below the jump:

In a three page letter delivered Friday to the US Justice Department, Texas Governor Rick Perry informed the US Justice Department that Texas would not be complying with the Prison Rape Elimination Act (PREA).

The 2003 PREA law passed unanimously by Congress and signed into Federal law by then President George W Bush, set guidelines for the US Justice Department to implement standards and criteria to reduce sexual assault in prisons and jails.

In Perry's Letter he states: "No one argues against PREA's good intentions; however, DOJ recently adopted rules making it impossible for Texas - and, I suspect, other states - to comply with PREA. The rules appear to have been created in a vacuum with little regard for input from those who daily operate state prisons and local jails, They are inconsistent with other federal laws, such labor laws and the Juvenile Justiçe and Delinquency Prevention Act (JJDP Act), mandate staff ratios that impose substantial financial burden on communities and impose compliance dates impossible to meet."

Lance Lowry, President of the AFSCME Local 3807, Texas Correctional Employees, states “Although most staff do not agree with the PREA Act, Rick Perry's decision to not certify Texas prisons in compliance with PREA standards now means the Texas Department of Criminal Justice (TDCJ) may face a loss of Federal PREA funding. In addition to loss of Federal funding, this latest decision will open Texas up to Federal court litigation and increased liability for the state and correctional staff.”

Lowry further states, “Rick Perry's actions will open the Texas Department of Criminal Justice up to Federal EEOC discrimination claims due to male and female officers receiving differential treatment when it comes to gender cross viewing.” Lowry states, “male staff are greatly restricted from having to engage in cross gender viewing when it comes to female inmates, but the standard is not the same for women working in male prisons.”

Lowry states, “most of the PREA regulations could be easily adhered to if these male prisons were properly staffed. Texas prisons are currently over 3,000 officers short.

Warning Given to States

In a September 4, 2013 interview published in US News & World Report, Rep. Bobby Scott, D-Va, who help author the PREA legislation., suggested that "sometimes you can enforce it with lawsuits." Because of the 1994 Supreme Court decision in Farmer v. Brennan, he said, prison officials only need to display deliberate indifference to be liable. "Damages could reach billions in some states," he said. Judge Reggie Walton, a Federal Judge appointed under President George W Bush, who also heads the PREA Commission agreed. "You're going to see large money damages being awarded" against non-compliant prisons, he said. "They could be astronomical. ... If [a prisoner is raped] multiple times, it could be million-dollar verdicts."

Lame Duck

While Rick Perry may be seen as saving taxpayers billions of dollars during his term, this latest move may cost the state billions more in the future.  The state's budget appears to have been balanced on future taxpayers backs by continuing to pass the liability on to the next politician.

Lowry states, “Texas prison remains understaffed and continue to be even more dangerous since the Texas Department of Criminal Justice's Safe Prison Program began. Under staffing and inexperience plague the agency. This last session Texas politicians continued to ignore the staffing issues and only gave Correctional staff a 5% raise spread out over a 2 year period, while other state law enforcement enjoyed a 20% raise.”

10 Years to Get It Done

Lowry states, “while most correctional officials are over burdened by the new PREA standards, Governor Perry's letter is not the solution for implementing PREA standards. The PREA Commission is headed by a Federal Judge appointed by former President George W Bush. This law was passed and signed into law in 2003.  Governor Perry had over 10 years to send this letter prior to the standards being set.  Like many things in Texas Government, this demonstrates the reactive, instead of proactive leadership that has molded the Texas prison system into what it is today.”

It's probably true that understaffing at Texas prisons is the main barrier to implementing the new PREA standards. That's an excellent point.

I'm not sure, though, that predictions of a raft of new litigation will pan out. Prison Legal News recently published an extensive article on PREA which noted that "the standards do not provide a private cause of action for enforcement purposes; i.e., prisoners who are raped or sexually abused due to the failure of corrections agencies to adopt or enforce PREA standards can not file suit against the agency based solely upon that failure (although such claims can still be brought under the 8th or 14th Amendments)." So the new standards don't appear to create new grounds for civil litigation, as far as I can tell. And the 5th Circuit has typically not been fertile ground for Sec. 1983 civil rights lawsuits.

Still, it's possible the new standards may influence litigation over prison rape in the sense that non-compliance might be viewed by judges or juries as evidence of "deliberate indifference." The Governor's letter certainly confirms the decision is "deliberate."