DOJ 'Finally' Implementing Anti-Prison Rape Policies, 10 Years After Congressional Vote

'Astronomical' civil penalties are likely for non-compliant prisons.

Inmates sit in crowded conditions at California State Prison, Los Angeles.
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The Department of Justice is beginning to implement new prison rape regulations ten years after Congress approved the Prison Rape Elimination Act (PREA) in 2003. Prisons choosing not to implement the measures, officials said Wednesday, make themselves liable for sky-high civil judgments.

"We're poised now – finally – to take action," Deputy Assistant Attorney General Mary Lou Leary told attendees of an American Bar Association event in Washington, D.C.

The act ordered the collection of data on prison rape and established the nine-member National Prison Rape Reduction Commission, which submitted policy recommendations to the DOJ in 2009. The department adopted some of the recommendations in June 2012, but the Department of Homeland Security, which oversees immigration and other detention facilities, has not yet done so.

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The commission was chaired by Judge Reggie Walton of the U.S. District Court for the District of Columbia.

"There were some tremendous battles," he recalled, because the panel was made up of "individuals with very different views about the criminal justice system."

Walton also chairs the Foreign Intelligence Surveillance Court and he isn't squeamish about putting new inmates behind bars. "When I incarcerate people it's because I think it's an appropriate sentence," he said, "[but] unfortunately we do have people [running prisons] who are indifferent [to prison rape]."

In his opinion, "prison rape is not something that has to be inevitable."

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New policies require federal facilities and detention centers that receive federal money to separate inmates younger than 18 years old from adult prisoners and ban cross-gender pat-downs in juvenile and female prisons. Audits will ensure compliance and facilities must produce plans to eliminate rape. States and localities failing to comply will lose 5 percent of their federal funding for prisons.

"We want this to be embraced," Leary said, "so [prison officials] don't have to be shamed." She asked attendees of the Wednesday event, many of whom were lawyers and prison rights advocates, to consider applying to be an auditor.

"We need a lot" of auditors, she said. "We're putting our money where our mouth is and getting the job done."

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The first audit of a federal facility is currently underway in West Virginia.

Officials need to "find the sweet spot" to compel universal compliance with the law, according to Brenda Smith, a commission member who also represents prison rape victims.

Data produced as a result of PREA revealed "some unusual suspects," Smith noted, including female prison staff assaulting men and boys.

Some anti-prison rape advocates in attendance said the DOJ should go even further. Reporting requirements in PREA omit prisoner transport and interactions involving probation and parole officers, Smith pointed out.

T.J. Parsell, an activist who says he was gang raped as a 17-year-old prisoner in Michigan, called new regulations for young prisoners "woefully inadequate."

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The regulations "do nothing to protect 18- and 19-year-olds," he said. "Their skin is soft like a woman's, their appearance androgynous." Parsell encouraged listeners to inspect the difference in appearance between a college freshman and senior to see for themselves.

The non-adult inmates of an adult prison may end up living in conditions resembling solitary confinement, he said, as a result of the sight and sound barriers that must be in place.

Leary, the Justice Department official, said a future federal ban on housing youth in adult prisons "seems like the logical next question."

Although prison officials face no direct punishment for failing to comply, Rep. Bobby Scott, D-Va., suggested that "sometimes you can enforce it with lawsuits." Because of the 1994 Supreme Court decision in Farmer v. Brennan, he said, prison officials only need to display deliberate indifference to be liable.