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.