State Resistence to Elimination of Prison Rape

States Resist Efforts to Implement Prison Rape Elimination Act Standards Protecting Youth in Adult Jails and Prisons

By  Cindy Soohoo

Many of the most pressing human rights issues in the United States involve rights violations that occur at the state and local level.  Despite the federal government’s responsibility to address all human rights violations in the United States (and in some case outside of the United States), as a practical matter, politics and federalism make it difficult for federal authorities to force states to change laws and practices that violate human rights but fall short of constitutional violations. 

Although Congress can pass laws to encourage states to end practices that violate human rights, these efforts will be ineffective unless the laws include meaningful incentives for compliance and the federal government is vigilant about enforcement.   The U.S.’s efforts to address the incarceration of youth in adult jails in prisons is a case in point.

During the U.N. Human Rights Committee’s (HRC) review of U.S. compliance with the International Covenant on Civil and Political Rights (ICCPR) in March 2014, the U.S. was strongly criticized for state laws that permit, and in some cases, require that youth (defined as individuals under 18) be tried and criminally punished as adults.   Human rights standards recognize that youth are different than adults and should not be subjected to adult criminal justice systems that fail to take their age and the goal of rehabilitation into consideration.  ICCPR Article 10 also explicitly prohibits incarceration of youth with adults. 

At the review, U.S. representatives did not meaningfully respond to the HRC’s criticism of state laws that push youth into the adult criminal justice system.   A Department of Justice representative, however, repeatedly asserted that regulations implementing the federal Prison Rape Elimination Act (PREA) would address the issue of incarceration of youth with adults.

Some background on PREA is in order here.  PREA was passed in 2003 to stop prison rape and prevent custodial sexual violence.   A key provision of PREA is the creation of national standards, set forth in federal regulations, to detect and prevent sexual violence.  In promulgating the regulations, the Department of Justice recognized that youth incarcerated in adult prisons are at grave risk of sexual violence -- citing statistics indicating that from 2005-2008, youth under 18 were eight times as likely to have a substantiated incident of sexual abuse.  As a result PREA standards require “sight and sound” separation between “Youthful Inmates” and adult inmates.

PREA’s Youthful Inmate separation requirement was a substantial achievement in efforts to protect youth incarcerated in adult facilities.  However, the federal government faces significant challenges in using the standards to actually achieve separation of youth and adults in prisons.  Youth in adult prisons are a state, not a federal, problem.  (The Federal Bureau of Prisons contracts with juvenile facilities to house the few inmates under 18 in its custody).  And PREA does not require state compliance.

The only penalty states face if they fail to comply with PREA standards is the potential to lose 5% of federal funding for prison purposes from the Department of Justice and to have their names appear on a list of states that are not in compliance.  Pro Publica recently reported that Texas governor Rick Perry has indicated that he’d rather lose federal funds than comply with the PREA standards.  Indiana governor Mike Pence has also opted out indicating that it is cheaper for the state to lose federal funding than to comply.

While other states haven’t gone as far as Texas and Indiana, they don’t have to.  PREA permits states that have not complied with PREA standards to avoid the loss of funding if they provide an assurance letter stating that they will use the 5% to bring facilities into compliance.   Currently there is no limitation on how long states can submit assurance letters before being forced to either comply or lose funds.  The Department of Justice has indicated that states can rely on assurance letters for at least three years and do not have to conduct facility audits that are required by the standards during that time period.

It’s important to note that some state and local authorities are taking steps to comply with PREA.  New York’s Department of Corrections recently requested a budget allocation to comply with the PREA standards’ sight and sound separation requirements.  However, whether or not youth are afforded PREA’s protections and separated from adult inmates as required under international human rights law should not turn on the state in which they live.

Youth justice activists are waiting to see how many states outright refuse to comply with the PREA standards and whether the DOJ will get serious about enforcing the funding penalty and audit requirements, but the U.N. will have another opportunity to consider U.S. claims that PREA standards will result in improved state compliance with human rights standards soon. The U.S. has held up the PREA standards as an example of how the U.S. reviews and modifies state and local laws to comply with the Convention on the Elimination of All Forms of Racial Discrimination (CERD).  The U.N. review of U.S. compliance with CERD takes place this August.