JDI IN THE NEWS - 2002

Keith L. Martin, Reviewing the "Prison Rape Reduction Act", Corrections.com, November 18, 2002.

The "Prison Rape Reduction Act of 2002," currently before Congress, seeks to reduce acts of prison rape nationwide through steps that include analyzing data and providing funds to correctional agencies for prevention measures. While this legislation is being discussed in Washington D.C., the debate continues over how prevalent the problem this is in our nation's prisons and jails.

"I think overall, the field [of corrections] is doing a poor job in terms of prevention and dealing with the issue once a sexual assault is reported," says Lara Stemple, Executive Director of Stop Prisoner Rape (SRP). "Rape and sexual assault is a crime in all 50 states - there are some relevant laws everywhere. The problem is the failure both on the part of the correctional officer to take these issues seriously and the law enforcement officers to prosecute crimes against people in prison."

She adds that recent reports indicate that among men, one in 10 have been raped in prison and one in five have been sexually assaulted, and the numbers are growing. With female inmates, while they are more likely to be assaulted by correctional officers than inmates, she says, the numbers vary greatly by facility. Stemple says estimates range from one in four women abused in a facility to none - proof that with the right prevention measures, changes can be made.

"It is clear that every professional in the business [of corrections] feels [the importance of this issue] and takes a professional responsibility to protect inmates - everybody gets that," says Martin Horn, Commissioner of the New York City Department of Probation and former Secretary of the Pennsylvania Department of Corrections.

Horn also says that any thoughtful analysis of most correctional policies would indicate that agencies have procedures and training in place that address prisoner rape. Therefore, corrections has the issue well under control without the need for national legislation to dictate actions, he said.

While Stemple says that there are some correctional agencies that do have effective prevention mechanisms in place, often they are ignored if it is staff who are the ones conducting these acts. With this in mind, outside intervention is needed.

"In the same way we hear about police departments having a 'wall of silence,' there is a culture of officers [in corrections] protecting their own when one of their own is accused," she says. "We've heard from prisoners that literally hear cries and screams in the night for help, but officers will do nothing. There is, in many parts of the country, a culture of ignoring [this] serious human rights abuse. It has risen to the level where something else has to be done." 

Making a Nationwide Statement

In June, the "Prison Rape Reduction Act" was introduced by Senators Edward Kennedy (D-Mass.) and Jeff Sessions (R-Ala.) and by Congressmen Bobby Scott (D-Va.) and Frank R. Wolf (R-Va.). The bipartisan bill calls for a number of measures, including yearly analysis to be conducted by the Bureau of Justice Statistics (BJS) to gather information from correctional agencies nationwide on the prevalence of prison rape. To assist in this analysis, a three-member "Review Panel on Prison Rape" would be established to hold public hearings on the matter.

In addition, the legislation establishes the "National Prison Rape Reduction Commission," a nine-member panel of individuals chosen by the President and members of Congress. The commission's goals are to also thoroughly gather information on the problem of prison rape, analyze this data and then produce national standards for every prison and jail to follow.

"We think this is a step in the right direction which takes strong measures to remedy the problem," says Stemple. "Sexual assault occurs everywhere around the world and probably will continue to, but the key is to make it as unlikely as possible and when it does occur, [take it seriously]."

While Horn agrees that more analysis needs to be done to get a pulse on the problem of prison rape, the responsibility to act should be on the field of corrections, not legislators. The solution to this issue, he says, will ultimately rest and will require correctional administrators, managers and all corrections professionals to address prison rape on a state and county level.

The "Prison Rape Reduction Act," he adds, is a reaction to an environment that simply does not exist.

"You could call this the 'Oz Bill' [after the television show]," says Horn. "It portrays prisons in a totally unreal way and that program defines the public's perception of [prison] and that's unfortunate. The bill is a reaction to that, feeds on it and [is a] sad basis to make public policy."

He adds that the legislation also excludes two key correctional organizations - the National Institute of Justice (NIJ) and the National Institute of Corrections (NIC).

"It leaves them out and presupposes an outcome without research," he says. "It fails to take advantage of the expertise that [these agencies] come to bear in respect to the problem. It's interesting that they don't provide funds to the NIJ to examine the frequency [of prison rape] or funds to the NIC to train or provide best practices. [Legislators] could do [this] if they were serious."

Putting Federal Funding at Stake

Among the opposition from corrections professionals such as Horn are provisions in the legislation that punish an agency's non-compliance by reducing federal funds.

For example, the Review Panel on Prison Rape can request the public testimony of federal, state and/or local officials for their public hearings. If a request is made for a correctional employee to testify and that individual fails to do so, that agency's federal funding through the bill will be reduced by 20 percent and reallocated to another jurisdiction.

Federal funds are also subject to reduction if an agency fails to adopt the national standards set forth by the National Prison Rape Reduction Commission. Another 20 percent will be lost if the states do not adhere to these guidelines.

"The intent of the bill is to create incentive by threatening funding - that really is a bludgeon," says Horn. "It's really a very gross response to a far more subtle problem."

For Stemple, it is important for legislation like this "to have teeth," because the proposed standards aren't effective unless they are enforced. Also, she adds, states can opt out of the national standards - and in turn lose federal funding - but in the long run, the states must take on the issue of prison rape.

"We hope states are too embarrassed to opt out [of the standards] and address the problem - they can't be silent," she says.

Joe Wheedon, Legislative Liaison for the American Correctional Association (ACA), says the organization is watching the bill's progress closely and while they are not actively supporting the bill, they do support the concept behind it. Part of this stance comes from the organization's opposition to provisions in the bill that withhold federal funding from agencies.

"If one [corrections professional] refuses to speak to the committee, the state entity could lose funds and there is some concern that local correctional entities do not have the authority to compel an employee to testify," says Wheedon. "That would mean the state or system would not receive funding, but could do nothing to mandate that employee testifies - there is a loophole in the language [of the bill]."

The bill does have its supporters, however, including Human Rights Watch, the National Association for the Advancement of Colored People and Prison Ministries Fellowship.

Pat Nolan, President of Justice Fellowship - the public policy arm of Prison Fellowship Ministries - says that this legislation is "the most thoroughly reasonable proposal to a serious problem like prison rape." In his opinion, if the panel calls forward corrections professionals, it will be for a reason.

"The only agencies invited to testify are those [that are] performing at a substantially lower degree to address the problem versus other states," says Nolan. "They are not being held to any higher standards. If they are performing poorly, it is important that legislators hear why - it's only appropriate."

Horn counters that if the ability to identify these agencies exists, then why not have the Attorney General simply take action against them.

"If we could demonstrate [that rape is occurring] and it is widespread and frequent in a particular jurisdiction, that is grounds for the Attorney General to take action on his own [in the form of the] Civil Rights of Institutionalized Persons Act or Section 1983 [civil action for deprivation of rights]," he says. 

Public Hearings or Public Attacks on Corrections?

Wheedon adds that another provision the ACA is leery about are the public hearings held by the Review Panel on Prison Rape. The concern is that these sessions to ferret information on the issue of prison rape will be forums for attacks on correctional systems in general.

As a former legislator in the California State Assembly for 15 years, Nolan says that these occurrences would not serve the purpose of proponents of the bill and in fact, would distract from the legislation's main goals.

"If [you are a] legislator, you want to call attention to the problem," he says. "If it turns into a 'legislative circus,' your story does not get out and that would not be an effective way to handle [an issue like this]."

Furthermore, says Nolan, suing corrections is not an effective avenue either. In fact, the American Civil Liberties Union does not support the bill because they wanted to involve lawsuits, he says. Prison Ministries Fellowship and other organizations consulted about the bill rejected involving litigation, thus costing them the support of the ACLU.

"We worked hard in our coalition to not make this a 'bash corrections' or 'let's sue corrections' [bill]," he says. "[Prison rape] won't be stopped by lawsuits, but by working with corrections to take solid steps to [stop these actions]."

Nolan adds that by taking steps such as aiding the victims and prosecuting the predators, corrections can be more effective in reducing incidents of sexual assault behind bars. The "Prison Rape Reduction Act" sheds light on the subject so agencies can recognize the problem and take action, he said.

"Once attention is called to this, systems will quickly address it," he says. "I've had high-[ranking] correctional officials say 'thank you, our system wants to deal with [prison rape], but can't [in part because] the public takes the attitude of this as part of doing time.'"