Sarah Etter: Legal Roundup: PREA predictions, The Corrections Connection Network News, November 21, 2006.

From MRSA to the Prison Rape Elimination Act, legal issues in corrections are constantly changing policy and procedure for facilities of all sizes. Whether you work at a small jail or a large federal prison, these cases are setting standards across the country for an ever-changing field. This week we review some of the high profile issues that might soon impact your facility.

PREA predictions

Currently, the Prison Rape Elimination Committee is creating PREA standards. Although not yet mandatory, Kathy Hall-Martinez, co-executive director of the non-profit Stop Prisoner Rape, says the wheels are in motion for them to become common practice. She expects legislators to make the standards very comprehensive, which could lead to high tech rape prevention methods like GPS and inmate classification.

In the meantime, Pennsylvania and California are researching prison rape instances in their facilities. PADOC officials are using a WebTAS data system to track sexual assaults and violence (NTPAC focuses on PREA, 10/9/06), while California recently presented their findings at a PREA hearing.

“Training will be another big part of PREA,” Hall-Martinez explains. “The National Institute of Corrections has been mandated to offer training for officers. They've been training professionals throughout the country. We're continuing to see progress on that end.”

Bill Collins, a corrections attorney and co-editor of the Correctional Law Reporter, says he sees PREA quite differently from most lawyers.

“As I read the legislation, until the standards come out, it doesn't require anybody to really do anything except that federal agencies must offer training,” Collins says. “But I sense that PREA is having a positive effect in terms of raising awareness about the issue and motivating states to do their own research.”

He thinks once the standards are released, it will become confusing to see how each state receives PREA funding and what they actually do with it. He predicts an overlap in funding as well.

“The standards become enforceable after the receipt of federal money. State agencies will certify that the state is in compliance with PREA standards, but that includes jails and DOCs, so I don't know how they are going to distribute that money across the board.”

Although this has not yet been addressed, Collins does agree with Hall-Martinez that PREA policy will be for the best.

“Regardless of what the standards end up saying, 10 years from now people are going to look back at 2006 and say ‘Look how much of a better job we're doing with this than we did in the beginning of the century',” he says.

MRSA, savings, and strip searches

As we reported earlier this month, MRSA legislation can be costly as more corrections staff and inmates become exposed to the bacterium. (Legal diseases, 11/01/06) Collins says this issue is more prominent than most realize.

“These MRSA disputes show that it is really hard for staff to win these kinds of lawsuits,” says Collins. “Although some officers might have rights under state law or safety statues from organizations like the Occupational Safety and Health Administration, it's really hard to win those cases under the claim of constitutional violation.”

Another controversy involves mandatory inmate savings accounts. (Piggy bank blues, 11/15) Across the country, corrections departments seem to be split on this issue. Some have already incorporated rules that require inmates to save a percentage of their earnings, while others let offenders spend or save as they wish. Legislation is starting to roll out in some states about mandatory savings accounts, and it will be interesting to see how this affects procedures of DOCs nationwide.

Collins says strip searches continue to be a persistent issue as well.

“Nothing has changed in the legal policy regarding strip searches, but jails are just not getting it,” he explains. “Jails continue to conduct strip searches, not realizing that they are way out on thin legal ice. Case law has been very consistent since the 80s. You cannot just strip search everybody. You must have reasonable cause, and this is really a losing battle that is costing jails lots of money in court and settlement fees.”

Collins says the continued increase of taser-related deaths should be of concern too. He says countrywide it is still a growing problem and their continued use will cause corrections an abundance of legal issues.

“The legal risks associated with this are just too great to continue relying on them, even for cell extractions,” he says.