David Kaiser and Lovisa Stannow, Prison Rape and the Government, The New York Review of Books, February 16, 2011

The Prison Litigation Reform Act of 1996, which was written with the explicit purpose of limiting inmates’ access to judicial redress, insists that prisoners must successfully follow the grievance procedures of the facilities where they were abused before seeking help from a judge. Many prison systems have harsh requirements about how quickly after an assault complaints must be filed. Such deadlines often take no account of the likelihood that a victim will still be in shock or in the hospital when that time expires, or of many inmates’ very reasonable fear of retaliation if they do file a grievance within their facilities. Recognizing this, the commission tried to ensure that reasonable access to the courts would be restored to victims of prisoner rape. But the Justice Department’s draft requires facilities to adopt grievance policies like the one used by the federal Bureau of Prisons—which has even stricter deadlines than those currently used in eighteen states, giving inmates only twenty days to file complaints after an assault, and an additional ninety-day extension only if they are able to document trauma. In many places, therefore, this PREA standard might have the perverse effect of further limiting recourse for people raped in prison.

The department is also weakening one of the commission’s recommendations by allowing adult facilities to place victims or those at high risk in segregated, isolated housing for ninety days, even against their will, in order to prevent further assaults. But “solitary confinement” is more commonly used as punishment; it can have devastating psychological effects, especially to people already traumatized. Such segregation has been used with particular frequency against gay inmates in the past, again purportedly for their protection, but often against their will and when no abuse has taken place. Some inmates request segregated housing for their own protection, and they should have that right. No one should be subjected to it involuntarily, however, simply for reporting abuse. The risk of such isolation now contributes to many inmates’ reluctance to file grievances. When a victim and his assailant must be separated, it would be more appropriate to isolate the abuser.

The department has essentially eliminated the commission’s requirement that inmates be able to report abuse confidentially to people unaffiliated with their facilities. Like the commission, it gives victims access to an advocate during the investigation process; unlike the commission, though, it does not require these advocates to be outsiders, but would allow them to be “qualified” their facilities to outside scrutiny. But if the department is serious about wanting to prevent sexual abuse in detention, it must open prisons to outsiders. It cannot allow them to continue policing themselves.

Much more difficult problems emerge when the Justice Department considers supervision of inmates by officers of the opposite sex. Since this can lead to elevated rates of abuse, the commission recommended standards limiting staff’s ability to view inmates of the opposite sex while undressed or to touch them during searches, except in emergencies—recommendations that still came far below international norms. The department has weakened them even further. It bans officers from performing strip searches and visual body-cavity searches on inmates of the opposite sex, except in emergencies, but not from pat-searching them, or viewing them in the shower or on the toilet during cell checks.

The department is worried that a ban on cross-gender pat-searches might mean facilities would have to fire many of their female employees and hire more men, which would be very expensive and perhaps illegal. And it maintains (something we agree with) that it can be beneficial for inmates to have staff of the opposite sex in their facilities. The problem, though, is that a significant majority of staff-on-inmate sexual abuse is cross-gender—women abusing men, as well as men abusing women—and much of it starts during (but then is not limited to) pat-searches.

But it is possible to have both male and female employees available in a facility when nonemergency searches are required so that pat-searches could be conducted by members of the same sex. There are also simple ways to limit the incidental viewing of inmates on the toilet, by, for example, installing small privacy screens, or where that’s impractical, allowing inmates to hang a towel from the bars of their cells for a few minutes. In any case, the department should not give higher priority to the employment concerns of corrections staff than to an essential purpose of their jobs, which is ensuring the safety of inmates in their care.

To have any hope of keeping inmates safe, staff must know what is happening to them. The department’s standard on supervision, which addresses both staffing levels and video monitoring, is one of its most important. Yet neither the department nor, before it, the commission has defined what would be adequate supervision. (It does not, for example, point out where recording cameras are needed to detect rape in such places as closets or require extra monitoring for inmates with known histories of sexual assaults.) This is a terribly disappointing failure after seven years of work.

Even more troubling is the lack of any mechanism for holding facilities accountable when they do not give inmates the supervision that is needed. All the department proposes is that corrections agencies be responsible for writing annual supervision plans for each of their facilities; they must also devise backup plans in case the first plans cannot be met. But even after deciding for themselves what would be sufficient, agencies face no penalties, either for failing to provide adequate supervision or for failing to implement their backup plans.

None of the department’s standards, in fact, will be meaningful unless sufficient mechanisms exist to enforce them. Unfortunately, the department has not yet reached decisions on many important aspects of monitoring compliance—raising the possibility that it might ultimately issue weak auditing standards without even submitting them for public comment first. Indeed, the department has hinted at such a possibility, by proposing that the standards not require true independence from those who judge compliance: that instead, audits could be conducted by “an internal inspector general or ombudsperson who reports directly to the agency head or to the agency’s governing board” (emphasis added). Anyone answering directly to the agency, though, could easily be pressured to minimize or ignore certain conditions, or prevented from fully examining conditions should the agency not provide sufficient funding.

As is abundantly clear from the Justice Department’s draft, its primary consideration in weakening the standards was expense. The government must fulfill its human rights obligations: this is a constitutional and moral imperative to which budgetary considerations are secondary, especially when, as the department affirms here, the measures in question will not “have [a significant] effect on the national economy.” On the other hand, PREA stipulated that no standards should be issued “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities,” and the department was obligated to take that seriously.

Given the scope of the standards, it was not only appropriate but legally mandated that the department conduct a cost-benefit analysis of the standards’ projected financial impact, which it has done. It projected costs not only for its own standards but for their “most obvious alternative”—e.g., the commission’s recommendations—and found that its proposals would require about $544 million per year in ongoing costs, or, it believes, about a tenth of the commission’s. This last assertion is a dubious one, because the cost projections for the commission’s recommendations are deeply questionable, but it does at least suggest the extent to which the department has diluted the commission’s standards. Having also projected the financial benefits of preventing the various kinds of sexual abuse in detention, the department then determined that its proposed standards would be fiscally justified if they reduced the number of victims by only about 3 percent—something it is so confident they would achieve that the department simply asserts it. On that point, so far as it goes, we more than share the department’s confidence.

The assumptions and valuations the department has made in estimating the financial benefits of preventing prisoner rape are extremely conservative. By erring on the side of great caution in its projections of those benefits, and then showing that they would still outweigh costs even if the standards saved only 3 percent of all victims, the department has made it very difficult for anyone to complain about its proposals on the basis of extravagance. But cost-benefit analysis is not meant to be a tool with which bureaucrats and political appointees protect themselves from criticism; it is meant to help them maximize the public good achieved through their regulations. To have used it responsibly for that purpose, though, the department would have had to make some effort to estimate how many inmates would in fact be spared abuse by the standards. Its assertion that the standards could reduce sexual abuse in detention by 3 percent is not good enough. It is clear to anyone who has studied them that they could do that, and much more than that. The question is, how much more?

Since the standards are an effort to codify innovations and best practices of facilities that have already had some success in reducing their rates of sexual abuse, we propose looking more closely at the last BJS study of sexual abuse in adult facilities, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–09. This study from August 2010 was based on surveys administered at 167 prisons and 286 jails. If we take the average rates of abuse in the best half of those facilities, and then imagine that these rates could become the national averages, that would give us an estimate of possible gains that was both realistic and conservative, based on what has already been accomplished across the country. The top half of all facilities have made their achievements without explicitly stated standards; there is still plenty of room for them to improve, and every reason to expect that they will once the standards are in place, though probably not as dramatically as the bottom half of facilities. In our opinion, if the department issues strong standards, it wouldn’t be unrealistic to expect that the national rates of abuse could sink to those of the best quarter or even the best tenth of all facilities.

But even if the standards allowed all facilities to do only as well as half do now, they would be saving not 3 percent of the people sexually abused in detention, but over 53 percent. This means that had the standards been in place in 2008, instead of the 199,500 people who the department says were abused in adult prisons and jails, there would have been about 93,100. More than 100,000 adults (as well as many thousands of children) would have been saved an experience from which few recover emotionally.

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