Tuesday, April 01, 2014

MSM picks up on Perry's rebellious message to feds on prison rape rules

The MSM has begun to pick up the story, first broken on Grits last week, about Governor Rick Perry defiantly refusing to comply with the federal Prison Rape Elimination Act. The coverage so far has focused mostly on comments by Lance Lowry of the prison guards' union that the main reason the state can't comply with the new standards is understaffing at the Department of Criminal Justice (TDCJ).

TDCJ spokesman Jason Clark told the Texas Tribune that “We are compliant with most of PREA’s standards, except for the cross-gender supervision standard.” Even so, the Trib reported that "From 2009 to 2011, the number of prison sexual victimization allegations rose by more than 10 percent nationwide, according to the Bureau of Justice Statistics. Texas is among states with the highest levels of inmate-on-inmate sexual assault allegations, including four out of the top 21 facilities between 2011 and 2012." (See more background on Texas' record here.)

MSM accounts thus far failed to confront a couple of aspects of Perry's letter that to me don't add up, starting with his claim that governors face "criminal penalties" if they don't certify PREA compliance and the implication that he must certify compliance for county jails and local juvenile detention facilities. Though the Houston Chronicle repeated the claim ("failure to comply with the federal law carries a possible criminal penalty"), there are no criminal penalties in PREA for non-compliant governors. Further, the law says Perry must certify compliance only for units under state government's "operational control" - which doesn't include local agencies - so that's far fewer than the 297 facilities referenced in his letter. There's no formal mechanism for the federal government to enforce PREA standards on locally run facilities. Instead of "criminal penalties," the only enforcement mechanism for states is docking 5% of certain federal block grant funds (in Texas' case, around $1 million total according to this source). Those red herrings deflect the conversation from problems at TDCJ prisons and state jails where state government actually runs the show.

The $64 question is whether failure to follow PREA opens the state up to new litigation. Prison Legal News pointed out 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 only cause of action against non-compliant facilities would be the same sort of Sec.1983 civil rights lawsuits to which prisons and jails have already been subject for decades.

But it's possible that the existence of an explicit federal law - coupled with Gov. Perry's defiant refusal to comply - could make it easier to prove "deliberate indifference" and clear the path for litigation to move forward that might have been dismissed at earlier stages in the past. By the same token, compliance with PREA standards could immunize state and local facilities against such litigation, even when rape-related civil rights violations occur.

Perry's communiqué represents a marked volteface from TDCJ's past public positions. As recently as late last year TDCJ was saying the new PREA standards would "supplement and strengthen TDCJ's continued effort to prevent, detect and effectively respond to in-prison sex abuse." In 2007, Perry signed legislation requiring TDCJ to create an ombudsman to facilitate PREA compliance. (See the ombudsman's most recent annual report.)

For those reasons, I find Perry's decision to openly thumb his nose at new PREA standards especially curious, given that the agency has been implementing many of them for several years without complaint. Perhaps he just couldn't pass up a chance to take a shot at the Obama Administration (though PREA was actually a George W. Bush-era policy). But it would have been wiser to say nothing at all than to openly proclaim non-compliance and announce that he'd "encourage my fellow governors to follow suit." One wonders whether Attorney General Greg Abbott, who is likely to replace Perry as Governor next January, concurs with that contumacious stance?

Grits has asked under open records for details from a consultant who advised the state on PREA compliance, so perhaps that information will provide more background on why the state would take such a graceless approach on a highly nuanced topic.

RELATED: Raw Story posted an excerpt from a leaked TDCJ training video on the topic of prison rape.

SEE ALSO: A press release from Just Detention International reacting to Perry's announcement which noted that "In a 2013 report, the Bureau of Justice Statistics (BJS) singled out more detention facilities in Texas than in any other state for having high levels of inmate-on-inmate sexual abuse. That report, which was based on a nationwide survey of tens of thousands of inmates, was no aberration; two prior BJS inmate surveys, released in 2010 and 2007, also ranked Texas prisons as having some of the highest rates of sexual victimization in the country." The group's executive director concluded that “Perry’s letter doesn’t only confirm bad leadership, it also provides a sad indication that things probably won’t get better anytime soon in Texas."

MORE: From Texas Public Radio.


Anonymous said...

Oh, I see. Not complying with PREA is showing deliberate indifference. So again, the feds set the standards for excellence? Take a look at their own BOP and get back to me on that.

By the way, screw Lance Lowry.

Anonymous said...

As a former CO, I can attest that most of PREA's compliances were fabricated...PREA's regulations have added to an already over-stressed administration, making successful PREA implementation impossible under the current budget constraints.

Gritsforbreakfast said...

@5:07, "under the current budget constraints" is the operative phrase in your comment. The state wants to do mass incarceration on the cheap, but it costs money to lock up and monitor 150,000 people. If it takes extra staff, that's the cost of doing business. Texas has the money.

And yes, 10:42, the feds set the standards under PREA. Congress unanimously signed off on the idea and George W. Bush signed it into law. Venting against Lance Lowry or the BOP (who also must adjust to meet the standards) doesn't change any of that.

Anonymous said...

Cross viewing causes problems, i was there when i got searched naked by a female sergeant, and patted us down by her.the problem arise when we take showers she can do checks on us and we cant disrespect her in any form or a tdcj case.,i knew of a guy who did disrespect a female guard he was in the shower and they locked him down.. the sexuality charged talk of these female guards by sexuality frustrated inmates . That doesn't happen to men guards. Double standards they treat us like shit the females and do searchs even when the men gaurds dont.

Anonymous said...

Perry's comments about PREA standards having been created in a vacuum is absurd! Input had been sought for from all concerned beginning over 10 years ago. So, Perry didn't know that this was happening? Doesn't he want to do the best to protect correctional officers and inmates? Oh, I forgot, he doesn't care at all~

Anonymous said...

NOTE: To Texas and those that live(d) here,

Rape victims (male/ female & inbetween) eventually get out of jail or prison. They might wait one minute, one day or 30 years to exact revenge. If I were to have been raped, I can assure you that the entire state would feel my pain.

Since I wasn't, you are safe to live your lives without fearing me, but you are not out of the woods due to there being rape victims hell bent on doing onto you what you allowed (knew about as you condoned Bubba's duties) to be done to them. When we allow Animal Control to put tiny dogs in cages with great big dogs, we know good and well which one gets the bone. Not enough cages, not enough staff, not enough money lame excuses won't save you.

See how rape works people, while but holes heal, the mind never forgets. You can be a party to a rape while in the comfort of your home or office and poof you are gone. Karma-this mofos.

Oh btw, Screw Perry and his clone at the poles. Lowery doesn't count due being a puppet reading a script.

Anonymous said...

"One wonders whether Attorney General Greg Abbott, who is likely to replace Perry as Governor next January, concurs with that contumacious stance?"

Good question Grits. Should we be wondering about Davis's stance as well? With a two gang system, you never know who will buy the office at any given time.

Anyone that takes time to find out where they stand is asked to consider forwarding the question and reply to this comment section.

"Red" Merriweather Coast said...

In defense of Rick Perry, not liking the PREA regulations isn't the same thing as being in favor of prison rape. He may believe that the regulations are useless and a waste of money. But I don't understand why he thinks he shouldn't have to comply with federal regulations even if he doesn't like them.

I wonder how someone currently incarcerated in Texas would take this. I'm sure many of them regard the laws they were convicted of breaking as unjust or illogical. Does that mean that they shouldn't have to follow them or face consequences when they don't?

More seriously, I thought that the ruling on overcrowded prisons in California set the precedent that if the state can't afford to meet minimum standards for its prisoners that it has to let them go under the 8th Amendment. I'm not sure that not complying with PREA would equal an 8th Amendment violation, but I do think being raped in prison is cruel and unusual punishment. Is there a possibility of the California situation happening in Texas? I'm sorry that I can't remember the name of the CA case.

"Red" Merriweather Coast said...

Since I wasn't, you are safe to live your lives without fearing me, but you are not out of the woods due to there being rape victims hell bent on doing onto you what you allowed (knew about as you condoned Bubba's duties) to be done to them.

I don't think there's any evidence to suggest that victims of sexual assault go on to become perpetrators (unless we're talking about child victims?).

I could see them as being more likely to have PTSD, depression, anxiety, certain STDS (like HIV or hep-C) and other similar problems. Released prisoners are already more likely to be poor or have trouble keeping a job, right? Since Texas didn't expand Medicaid, only those who are pregnant or with children can get it, so if they don't make enough money, they won't have access to healthcare to take care of these problems. Right? So they start self-medicating with drugs and alcohol, which leads to addiction and then crime supporting or incidental to the addiction. And since they have a record, they'll be sent back to prison for much longer sentences, which costs the state much more money.

So basically, it's bad for everyone! Yay!

Anonymous said...

ok so i got a question and a statement. One of the issues with PREA is that anything that makes the subject fee harrassed or humiliated sexually is to be reported. Now, that being said. Lets say your an inmate. A CO instructs you to remove your clothes one article at a time. Then, for a male, you now have to lift your penis and testicles for the CO to see, then turn, spread your cheeksn and squat for said officer to see. To the average person this would seem very humiliating, sexually humiliating. This is a standard practice in a.strip search. based on these prea standards, any inmate (all inmates) can claim a prea violation. Sounds like way more liability,co cost, and general disruption to facities not equipped or staffed to handle the case load this will generate.

Gritsforbreakfast said...

Anyone can "claim" anything, 1:18, but the PREA standards don't forbid strip searches in prison and there's zero chance that scenario would incur liability for the CO or the prison.

Anonymous said...

You are right. It doesnt forbid it. But prea opens a door for an inmate to make a claim regardless. Picture this. Any time an accusation is made, the officer is put on paid admin leave and the inmate is moved to a segregated housing facility until an investigationil is done. Bare in mind that you're not dealing with individuals of honesty and integrity. But, since the standard requires all reports are investigated, just when does it become inhibiting and cost effective. Laws already exist that establish it as.a.crime for a person to havensexual contact with inmates. Nearly every agency also has policies that prohibit sexually discriminating and harassing behavior to inmates. seems the biggest issue/topic with prea is consentual sex/transgendered housing arrangements. In case it never occurred to some folks, prea existing to limit sex (consenual or non) among inmates is rather meaningless sincenthey have a nack for breaking the law as it is. I can go on forever about the shortfalls and issues that prea will have. I can also tell you that there is little to zero gain versus the headache it will cause. Except to establish policy where policy already exists.

Gritsforbreakfast said...

@2:59, since now you agree your first hypothetical was BS, perhaps you'll forgive me for not responding the the rest, which suffer from the same issues of factual deficiency. PREA does not open any door to make a claim that's not already available to them.

Anyway, this is a federal law passed unanimously by Congress more than a decade ago. You (and Perry) may as well complain about the sun rising in the east.

Anonymous said...

So fed up with Rick Perry.I agree with the simple fact that all these inmates will eventually be released.You do not teach someone to obey rules and laws by breaking them yourself.

rodsmith said...

actually there is no way in hell I would allow a female guard to conduct a naked search of a male. At least not till male guards are allowed to do the same to naked female inmates. Sorry that's just wrong on so many lvl's. pity that state and federal law is too retarded to catch up.

Anonymous said...

Rhetoric... To think TDCJ or Correctional Officers can elimminate rape inside the razor wire is absurd. Yes, if semen samples are found the IAD will along with Classification recommend and place victim into PC. But ive known of offenders bumrushing "pretty_boys" in the shower and then threatening retaliation if caught. It happens in cells as well. Its impossible for Correctional Officers to stop prison rape totally. No semen found equals no disciplinary action and usually no PC. What complicates the matter worse are some inmates who falsely claim rape as a means to be assigned to PC so they can then meet some "pretty_boys" aka punks. Which makes it even harder for classificatiob etal to determine who is sincere and who is running game. Some inmates are forced by other inmates to flush remnants etc and the list goes on and on. Also, punks complicate matters more even when they claim rape being already homosexual. Enough said. GTR 637784.

Anonymous said...

Nothing wrong with an offender being strip searched by a male or female Correctional Officer. I dont see how PREA could even apply to stripsearches. Unless of course its become a new tool for inmates to exploit the system. What next, dont allow female CO's to do cell searches or head counts on male facilities? How does this even come up? Whats going on thesr days? Lol. GTR 637784.

Anonymous said...

i never agreed to anything. i simply said you are right in that prea doesnt forbid strip searches. Also, nothing i said is "hypothetical ". There have already been incidents at my agency where an inmate made a false claim of prea. If anything is bs, its you thinking that inmates haventhe honesty and integrity to use prea for what it is. Btw, prea is not a law as a whole. These other regulations that do not pertain to staff/inmate sexual incidents, do nothing more than provide one more thing for an inmate to abuse. Why? Because 1. They are inmates. 2. They have nothing better to do, and 3. They know it doesnt need to be true for it to effect staff.
Perhaps you should try a line of work in anprison to see the gems you seem to have all this faith n trust in.