Maryland Attorney General Opinion 99OAG003

CORRECTIONS

APPLICABILITY OF THE FEDERAL PRISON RAPE ELIMINATION

ACT TO LOCAL JAILS—WHETHER LOCAL JAILS ARE

UNDER THE “OPERATIONAL CONTROL” OF THE STATE’S

EXECUTIVE BRANCH

January 28, 2014

Robert L. Green

Chairman, Maryland Commission

on Correctional Standards

In 2003, Congress enacted the Prison Rape Elimination Act,

42 U.S.C. §§ 15601-15609 (“PREA” or “the Act”), to address the

problem of sexual assault in the nation’s prisons. Broadly stated,

the Act creates a mechanism for the adoption of national

standards for the housing and care of inmates, and, as relevant

here, conditions a state’s eligibility for five percent of its federal

prison-related funding on the state’s ability to certify that the

correctional facilities “under the operational control of the state’s

executive branch” have adopted, and are in full compliance with,

those standards. 42 U.S.C. § 15607(e)(2)(A) (requiring certifi-

cation); 28 C.F.R. § 115.501(b) (describing extent of certification

obligation).

You have asked us whether compliance with PREA

standards is mandatory for locally operated correctional facilities.

Specifically, you ask whether local facilities are “under the

operational control of the state’s executive branch” such that they

must comply with PREA standards for the State to maintain full

federal funding.

As a threshold matter, we conclude that PREA and its

standards apply to State and locally operated facilities but are not

mandatory in the sense that the failure to comply with PREA

constitutes a violation of federal law. However, State and local

facilities face certain adverse consequences if they choose not

to comply. For the State, the most immediate consequence is

expressly provided as part of the statutory scheme: the State will

lose five per cent of its federal prison-related funding. For local

facilities, the consequences of non-compliance flow implicitly

from that scheme and include a potential increase in exposure to

tort liability, ineligibility for contracts for the housing of federal

inmates, and a potential loss of accreditation.

3

4 [99 Op. Att’y

The more significant question is whether local correctional

facilities fall “under the operational control of the state’s

executive branch” such that the Governor must certify their

compliance with PREA standards for the State to maintain full

federal funding. As to that issue, we conclude that the Governor

could reasonably determine that local facilities are generally not

controlled by the State. Maryland’s is not a “unified” correctional

system in which local facilities are directly controlled by the

State; rather, Maryland law recognizes two sets of correctional

facilities, State and local. Although some local facilities are at

least partly operated by county sheriffs, who have been described

for some purposes as State officials “in the executive branch,” we

conclude that the local correctional facilities that sheriffs oversee

are not under the “operational control” of the executive branch.

We also conclude that, although the State correctional standards

impose general requirements on the operation of local facilities,

the State’s development of such regulatory standards does not

constitute “operational control” for purposes of PREA. However,

the applicability of the PREA certification requirement to a

particular local correctional facility should be determined in light

of any agreements between the State and the local jurisdiction,

which might provide the State with the necessary “operational

control.”

I

Background

A. The Prison Rape Elimination Act

PREA was passed unanimously by both houses of Congress

and signed into law on September 4, 2003. The Act was intended

to address the endemic problem of sexual assaults against

inmates1 and the failure of institutions at all levels of government

to prevent and respond to the occurrence of such assaults. As a

first step, the Act was “to provide for the analysis of the incidence

and effects of prison rape in Federal, State, and local institutions

1

The national standards developed under PREA use the term

“inmate” for someone confined in a prison or jail, “detainee” for

someone held in a lockup, and “resident” for someone housed in a

juvenile facility or community confinement facility. 77 Fed. Reg.

37106, 37107 n.1 (June 20, 2012) (discussing regulations to be codified

at 28 C.F.R. pt. 115). Although PREA covers all three categories, for

simplicity, we will use the term “inmates” to refer collectively to all

such individuals in confinement.

Gen. 3] 5

and to provide information, resources, recommendations, and

funding to protect individuals from prison rape.” 108 Pub. L. 79,

117 Stat. 972 (Preamble). Ultimately, the Act’s purpose was to

“establish a zero-tolerance standard for the incidence of prison

rape” in the United States, 42 U.S.C. § 15602(1), and “make[s]

the prevention of prison rape a top priority in each prison

system,” id. § 15602(2).

The first section of the statute sets forth fifteen findings

related to the problem of prison rape, its impact on society, and

the need to address the problem through legislation. See id.

§ 15601. The Act then calls for the collection of data on the

incidence of sexual assaults in federal and state systems of

confinement and establishes the Review Panel on Prison Rape

within the Department of Justice to oversee the collection and

reporting of the data. Id. § 15603. The Act also creates what is

now known as the National Prison Rape Elimination Commission

and charges it with carrying out a “comprehensive legal and

factual study” of the impact of prison rape and recommending

national standards for reducing it. Id. § 15606.

The final operative provisions of the Act require the

Department of Justice to establish “national standards for the

detection, prevention, reduction, and punishment of prison rape,”

id. § 15607(a)(1), based in part on PREA-mandated studies, id.

§ 15607(a)(2), and makes 5% of federal grant funding for prisons

conditional on compliance with those standards. Id. § 15607(c)(2).

The standards must be designed to address conditions in all

“prisons,” which are defined to include “any confinement facility

of a Federal, State, or local government, whether administered by

such government or by a private organization on behalf of such

government, and includes . . . any local jail or police lockup . . .

[and] any juvenile facility used for the custody or care of juvenile

inmates.” Id. § 15609(7).

The standards, once promulgated, become mandatory for all

federal prisons, which must implement the standards immediately.

Id. § 15607(b). With respect to the states, the Act makes

compliance with the standards a condition of the receipt of federal

grants for prison purposes: Each state’s governor must certify

that the correctional facilities “under the operational control of the

state’s executive branch” comply with the standards, or else the

state loses five percent of the prison-related grant funds for which

it otherwise would be eligible. Id. § 15607(e)(2)(A); 28 C.F.R.

§ 115.501(b). Alternatively, a state that is unable to certify

6 [99 Op. Att’y

compliance may accept the full amount of federal grant money so

long as it devotes five percent of that money to adopting and

bringing its facilities into “full compliance” with the standards.

Id. § 15607(e)(2)(B). In addition, organizations that accredit

federal, state, and local correctional facilities must adopt

accreditation standards consistent with the national standards or

lose all federal grant funding. 42 U.S.C. § 15608.2

B. The National Standards

The Department of Justice issued the final National

Standards to Prevent, Detect, and Respond to Prison Rape on May

17, 2012. See 77 Fed. Reg. 37106-232 (June 20, 2012) (codified

at 28 C.F.R. pt. 115). The standards apply to four categories of

facilities—adult prisons and jails, lockups, community

confinement facilities, and juvenile facilities—and set forth a

series of planning, training, and operational requirements specific

to each type of facility. Those measures include such things as

designating a “PREA coordinator” to oversee compliance efforts,

28 C.F.R. § 115.11(b); screening inmates for risk of being

sexually abused and using that screening information to inform

housing, bed, work, education, and program assignments, id.

§§ 115.41, 115.42; and disciplining staff, contractors and

volunteers, and inmates who have engaged in the sexual abuse of

an inmate, id. §§ 115.76-115.78. See generally 77 Fed. Reg. at

37107-110.

The standards also require that, beginning on August 20,

2013, the agency with “direct responsibility for the operation” of

a facility must audit it every three years to assess compliance with

the standards. 28 C.F.R. § 115.401; see also id. § 115.5 (defining

“agency”).3 The agency must schedule audits such that at least

one third of each type of facility is audited in any one-year period.

2

The Act also makes available to the states information and

financial support to assist them in bringing their correctional facilities

into compliance with PREA. It authorized grants to the states, which

were distributed between 2004 and 2010, 42 U.S.C. § 15605, and

established a national clearinghouse within the National Institute for

Corrections for the purpose of providing information, assistance, and

training to federal, State, and local authorities to support their efforts to

prevent, investigate, and punish prison rape. Id. § 15604.

3

The one exception to this requirement is for “individual lockups

that are not utilized to house detainees overnight,” which are not

required to be audited. 28 C.F.R. § 115.193.

Gen. 3] 7

Id. § 115.401(b). The final rule containing the standards became

effective on August 20, 2012. See 77 Fed. Reg. at 37106.

C. Correctional Systems

Correctional systems vary widely by state. Although, in

every state, a state department of corrections has jurisdiction over

all state prisons, local jurisdictions typically operate local

facilities, such as jails, lock-ups, and other shorter-term detention

centers. Community corrections facilities and other corrections

functions such as probation and parole might be under state

jurisdiction, overseen by the courts, or coordinated at the county

level. See generally Barbara Krauth, National Institute of

Corrections, A Review of the Jail Function Within State Unified

Corrections Systems at 2 (Sept. 1997), available at http://

static.nicic.gov/Library/014024.pdf (last visited Jan. 23, 2014).

Juvenile detention facilities may also be operated by the state or

by local jurisdictions. See generally Howard N. Snyder &

Melissa Sickmund, U.S. Department of Justice, Office of Justice

Programs, Office of Juvenile Justice and Delinquency Prevention,

Juvenile Offenders and Victims: 2006 National Report (2006),

available at http://www.ojjdp.gov/ojstatbb/nr2006) (last visited

Jan. 23, 2014). In addition, most states are home to one or more

federal correctional facilities operated by the Bureau of Prisons.

See Federal Bureau of Prisons, “Maps of Facilities,” http://

www.bop.gov/locations/map.jsp (last visited Jan. 23, 2014).

Maryland State and Local Facilities

The Correctional Services Article recognizes two categories

of correctional facilities within Maryland: “local correctional

facilities” and “State correctional facilities.” See Md. Code Ann.,

Corr. Servs. (“CS”) § 1-101(j), (o) (2008 Repl. Vol. & 2013

Supp.). The Department of Public Safety and Correctional

Services (“DPSCS” or “the Department”) oversees the entire

State correctional, detention, and community supervision system

and the divisions that operate different aspects of that system: the

Division of Correction, the Patuxent Institution, the Division of

Pretrial Detention and Services, the Division of Parole and

Probation, and the Maryland Parole Commission. See, e.g., id.

§ 2-201 (listing units within the Department). Within this system,

the Commissioner of Correction is “in charge” of the operation of

State correctional facilities, id. § 3-203(a), and appoints the

wardens or administrators who oversee the operation of each such

facility. Id. § 3-210(a). At present, the Division of Correction

8 [99 Op. Att’y

operates 21 correctional facilities and houses additional inmates at

one privately-operated community confinement facility. See

Maryland Department of Public Safety and Correctional Services,

Correctional Facility Locator, http://www.dpscs.state.md.us/

locations/prisons.shtml (last visited Jan. 23, 2014).4

Local correctional facilities—traditionally referred to as

“jails”—are “operated . . . by one or more counties,” or by the

“municipal corporation” in which they are located.5 CS § 1-

101(j). Under the common law, the responsibility for the care and

control of prisoners within local jails rested with the sheriffs, and

the sheriffs retain that responsibility unless the Legislature has

divested them of it. Bowie v. Evening News Co., 151 Md. 285,

297 (1926); 85 Opinions of the Attorney General 338, 340 (2000).

The Legislature has provided two ways in which local

jurisdictions may assume direct control over the county jails.

First, counties that have adopted home rule may assume

responsibility for the operation of local jails through the Express

Powers Act. See Md. Code Ann., Local Gov’t § 10-304(c) (2013

Repl. Vol.) (authorizing charter and code counties to “establish

and maintain local correctional or detention facilities and juvenile

facilities” and to “regulate all individuals confined” therein); see

also generally 85 Opinions of the Attorney General at 341 n.3.

Second, counties that have adopted the charter form of home rule

under Article XI-A of the Maryland Constitution may additionally

provide, by resolution or law, for “the appointment of a qualified

individual as managing official of the local correctional

facility . . . .” CS § 11-201(b). A county that has assumed respon-

sibility for a local facility may contract with a private company to

operate the facility or house inmates in a private facility, so long

as the county retains the police power to “control[] the operation

of the jail.” 71 Opinions of the Attorney General 197, 203 (1986).

The State and local correctional systems include various

types of facilities that fall within PREA’s definition of “prison.”

Both systems include facilities for pretrial detention, prisoner

4

The DPSCS lists on its website several institutions that it

oversees, but which either are not operated by the Division of

Correction (e.g., the Patuxent Institution and the Correctional Mental

Health Center, which is part of Patuxent) or house no inmates (e.g., the

prerelease system administrative office).

5

The lone exception is in Baltimore City, where the Baltimore City

Detention Center and the centralized booking facility are operated by

the State. See CS § 1-101(o)(2) (defining “State correctional facility”).

Gen. 3] 9

intake, and longer-term incarceration, as well as “community

adult rehabilitation centers” that are designed to house inmates

who “can best be rehabilitated without substantial danger to the

community in a local community facility.” CS § 11-303(1);

see, e.g., DPSCS, “Correctional Facility Locator, http://

www.dpscs.state.md.us/locations/prisons.shtml (last visited Jan.

13, 2014) (listing State correctional facilities). The community

adult rehabilitation centers are intended to be “operated by the

counties,” consistent with statewide standards and with State

financial and technical support. Id. § 11-303(3). The State is

authorized to “locate, construct, and operate” such a facility only

if there is a “demonstrated need” for a center and the county fails

to provide for one after a reasonable time. Id. § 11-303(3), (4).

Local jurisdictions also operate shorter-term holding facilities that

are located within other facilities that are not otherwise within the

correctional system. One example is the “lockup,” which

typically is located in a county courthouse or a local police station

and allows for the temporary holding of prisoners pending

appearance in court or transfer to a jail or prison for longer

confinement. See, e.g., Szukiewicz v. Warden, Maryland

Penitentiary, 1 Md. App. 61, 65 (1967) (referring to holding room

in the courthouse as a “lock-up”).

Juvenile facilities, though part of Maryland’s correctional

system, are managed separately from other State and local

correctional facilities. Juvenile facilities are under the jurisdiction

of another State agency—the Maryland Department of Juvenile

Services—which oversees each stage of the juvenile justice

process in Maryland. See Md. Code Ann., Hum. Servs. (“HU”)

§ 9-216 (2007 Vol. & 2013 Supp.). That process includes

assessment of children who are brought to a juvenile intake

center; community supervision, programming, and treatment for

children in the agency’s care living in the community; operation

of the juvenile detention programs throughout Maryland; and

development of re-entry and aftercare plans for children returning

to the community. Id. § 9-216(a); see also id. §§ 9-226, 9-240.

Collaboration Between Correctional Facilities

Although State correctional facilities are operated separately

from local facilities, Maryland law allows for some interaction

between the two. For example, an inmate confined in a local jail

may be housed in a State correctional facility if he or she

“requires specific behavioral or medical treatment or maximum

security detention” that the local facility is unable to provide. CS

10 [99 Op. Att’y

§ 9-303. Conversely, the State, with the agreement of the county,

may transfer a minimum security inmate to a local correctional

facility “for participation in community-oriented correctional

programs.” Id. § 9-304. The State may also provide financial

assistance, including federal grant money, to counties that seek to

construct new correctional facilities or enlarge or rehabilitate

existing facilities. Id. §§ 11-104, 11-105. The State may also

contract with the local jurisdiction to house State inmates in the

new facilities. CS § 11-106(b).

State and local facilities may also agree to house federal

prisoners. For example, “[o]n terms and conditions that it

prescribes,” the Division of Correction may accept custody of any

individual sentenced to its jurisdiction by the U.S. District Court

for the District of Maryland. Id. § 9-307(a). For local facilities,

the sheriff “shall receive and keep safely in a local correctional

facility each individual committed to the custody of the sheriff

under authority of the United States until the individual is

discharged by due course of law.” CS § 11-201(a)(2)(i). The

United States, for its part, is authorized by statute to contract with

local authorities for the imprisonment, subsistence, care, and

proper employment of federal prisoners. 18 U.S.C. § 4002.

The Maryland Commission on Correctional Standards

Both State and local facilities are subject to the oversight of

the Maryland Commission on Correctional Standards (“MCCS”

or “the Commission”). The MCCS was established by the

Legislature to advise DPSCS about standards for State, local, and

privately-operated correctional facilities and to monitor the

facilities’ compliance with those standards. CS §§ 8-103, 8-106,

8-112. The Commission consists of the Attorney General, the

Secretary of General Services, the Secretary of Budget and

Management, and nine other members appointed by the Governor

with the advice and consent of the Senate. CS § 8-107(a).

In its advisory capacity, the Commission recommends two

sets of standards for adoption by DPSCS: “minimum mandatory”

and “approved.” “Minimum mandatory standards” apply to all

State and local correctional facilities and govern security and

inmate control, inmate safety, inmate housing and sanitation, and

certain other subjects. Id. § 8-103(a)(1). The “approved

standards” are mandatory for State facilities and optional for local

jurisdictions and relate to personnel, training, and other

management issues. Id. § 8-103(b). Both sets of standards must

be “consistent with federal and State law.” Id. § 8-103(c).

Gen. 3] 11

In addition to recommending standards to DPSCS for

adoption, the Commission audits State and local correctional

facilities to determine their compliance with the applicable

standards. Id. § 8-113(a)(1). The Commission must set deadlines

for “remedial action” whenever inspection reports indicate

noncompliance with applicable standards. Id. § 8-113(a)(2). If

the Commission determines that a facility is in violation of the

minimum mandatory standards, however, the Commission must

prepare a compliance plan identifying the standards that have

been violated and a schedule for compliance and re-inspection.

Id. § 8-114(a). If the facility fails to come into compliance with

the plan, the Commission must embark on a series of

progressively more serious enforcement measures, which may

culminate in petitioning the circuit court for an order to comply

with the audit findings, id. § 8-114(d)(1)(i), or issuing an order to

“cease operation of the correctional facility,” id. § 8-114(d)(1)(ii).

See also id. § 8-114(b), (c).

II

Analysis

A. The PREA Standards Are Not Mandatory for State and

Local Facilities.

The national standards promulgated under PREA are

mandatory for federal correctional facilities but not State and

local facilities. Although the statute expressly provides that the

national standards “shall apply to the Federal Bureau of Prisons

immediately” upon their adoption, 42 U.S.C. § 15607(b), it does

not similarly provide that the standards “shall apply” to the states

or local jurisdictions. Rather, with respect to the states, PREA

seeks to induce compliance by reducing federal grants “for prison

purposes” by five percent if a state fails to meet PREA’s

standards. Id. § 15607(e). With respect to local jurisdictions, the

statute provides no explicit mechanism for encouraging

compliance with the national standards.

The guidance materials published with the national standards

confirm that the standards are not mandatory for state or local

correctional facilities. According to the Department of Justice,

“PREA does not require State and local facilities to comply with

the Department’s standards, nor does it enact a mechanism for the

Department to direct or enforce such compliance; instead, the

12 [99 Op. Att’y

statute provides certain incentives for such confinement facilities

to implement the standards.” 77 Fed. Reg. at 37110.6 Thus,

“with respect to the thousands of State and local agencies, and

private companies, that own and operate confinement facilities

across the country, PREA provides the Department [of Justice]

with no direct authority to mandate binding standards for their

facilities. Instead, PREA depends upon State and local agencies

to make voluntary decisions to adopt and implement them.” Id. at

37196. By contrast, the standards apply directly “to any Federal

confinement facility . . . whether administered by the Federal

Government or by a private organization on behalf of the Federal

Government.” Id. at 37113.

Although the requirements of PREA are not mandatory for

states and local jurisdictions, the failure to comply with the

national standards has the potential for significant fiscal

consequences that the State and local jurisdictions may wish to

avoid. It is to these potential consequences that we now turn.

B. Although the PREA Standards Are Not Mandatory for

State and Local Facilities, the Failure to Comply With

Them May Expose Such Facilities to Potentially

Significant Fiscal Consequences.

The PREA national standards, while not mandatory for state

and local facilities, are applicable to all “prisons,” a term defined

to include all state and local confinement facilities, including “any

local jail or police lockup” and “any juvenile facility used for the

custody or care of juvenile inmates.” 42 U.S.C. § 15609(7)

(defining “prison”). By “applicable” we mean to say that State

and local correctional facilities must comply with the national

6

The incentive-based manner in which PREA is “applicable” to

state entities is typical of federal statutes enacted under the Spending

Clause of the U.S. Constitution. Although, under the Tenth

Amendment, Congress does not have “the authority to require the

States to regulate,” New York v. United States, 505 U.S. 144, 178

(1992), it “has broad power to set the terms on which it disburses

federal money to the States.” Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006). Congress thus may condition the

offer of funds on the state’s compliance with conditions that the federal

government could not otherwise impose directly on the states under its

enumerated powers. National Federation of Independent Business v.

Sebelius, 132 S. Ct. 2566, 2603 (2012). Such conditions are upheld if

the state has “legitimate choice” as to whether to accept the federal

conditions in exchange for the federal funds. Id., 132 S. Ct. at 2602.

Gen. 3] 13

standards or risk the sanctions provided for—either explicitly or

implicitly—under the Act and the national standards. The

sanctions that may be imposed on State facilities differ from those

that may be imposed on local facilities, and we treat them

separately below.

1. Sanctions For State Non-Compliance and the

Determination of Which Facilities Are Under the

“Operational Control” of the State

As discussed above, for State correctional facilities, the

sanction for non-compliance is the loss of five percent of the

State’s total prison-related federal grant funding. 42 U.S.C.

§ 15607(e)(2). To avoid the imposition of this sanction, the

Governor must submit to the U.S. Attorney General, for each

fiscal year, a certification that “the State has adopted, and is in full

compliance with, the national standards . . . .” Id. § 15607(e)(2)(A).

In the alternative, the Governor may submit “an assurance that not

less than 5 percent of [the federal grant funds] shall be used only

for the purpose of enabling the State to adopt, and achieve full

compliance with,” the standards. Id. § 15607(e)(2)(B). States

that are unable to submit the necessary certification or assurance

“shall” have their grant funds reduced, id. § 15607(e)(2); there is

no room for agency enforcement discretion.

The Governor’s certification is to be based primarily on the

results of audits. 77 Fed. Reg. at 37188 (audits are to be the

“primary factor in determining State-level ‘full compliance’”).

The agency with direct responsibility for the operation of

correctional facilities must ensure that each facility operated by

that agency, or by a private organization on behalf of that agency,

is audited at least once during a three-year period. 28 C.F.R.

§ 115.401(a). Furthermore, during each one-year period within

this three-year period, the agency must ensure that one third of

each facility type operated by that agency, or by a private

organization on behalf of that agency, is audited. Id. § 115.401(b).

Therefore, the State, in order to preserve its eligibility for

federal funding, must audit all correctional facilities “under the

operational control of the State’s executive branch, including

facilities operated by private entities on behalf of the State’s

executive branch.” Id. § 115.501(b) (emphasis added). The

certification, “by its terms, does not encompass facilities under

the operational control of counties, cities, or other municipalities.”

77 Fed. Reg. at 37115. The question arises, then, whether, and

under what circumstances, local correctional facilities are, or may

14 [99 Op. Att’y

be, subject to the “operational control” of the Executive Branch of

the State.

The term “operational control” is not defined by PREA or

the national standards, and no reported cases construe the

meaning of the term within PREA. However, the Justice

Department’s Bureau of Justice Assistance, together with the

National Council on Crime & Delinquency,7 has recently

published guidance identifying three “factors that may be taken

into consideration in determining whether a facility is under the

‘operational control’ of the executive branch”:

Does the executive branch have the

ability to mandate PREA compliance

without judicial intervention?

Is the State a unified correctional system?

Does the State agency contract with a

facility to confine inmates/residents on

behalf of the State agency, other than

inmates being temporarily held for

transfer to, or release from, a State

facility?

National PREA Resource Center, “Frequently Asked Questions,”

Audit and Compliance Question 4 (updated Nov. 27, 2013),

http://www.prearesourcecenter.org/faq (last visited Jan. 23, 2014)

(“PREA Guidance”). The guidance emphasizes, however, that

these factors are not mandatory and that “[t]he determination of

7

The Bureau of Justice Assistance provides “leadership and

services in grant administration and criminal justice policy

development to support local, state, and tribal justice strategies to

achieve safer communities.” BJA, “About the Bureau of Justice

Assistance,” https://www.bja.gov/About/index.html (last visited Jan.

23, 2014). The National Council on Crime & Delinquency describes

itself as a private, nonprofit organization that “promotes just and

equitable social systems for individuals, families, and communities

through research, public policy, and practice.” NCCD, “What We Do,”

http://www.nccdglobal.org/what-we-do (last visited Jan. 27, 2014).

The BJA and NCCD jointly administer the “PREA Resource Center,”

which serves as a “national source for online and direct support,

training, technical assistance, and research to assist adult and juvenile

corrections, detention, and law enforcement professionals in their

ongoing work to eliminate sexual assault in confinement.” NCCD,

“PREA Resource Center,” http://www.nccdglobal.org/what-we-do/

prea-resource-center (last visited Jan. 23, 2014).

Gen. 3] 15

whether a facility is under the operational control of the executive

branch is left to a governor’s discretion . . . .” Id.

Although the guidance anticipates that the factors it

identifies will “cover[] the majority of the situations that

Governors may face in determining whether a facility or

contractual arrangement is subject to the Governor’s

certification,” it acknowledges that the factors are not exhaustive.

Id. And yet, the guidance sheds little light on other considerations

that may bear on the notion of “operational control.” We note,

however, that in other statutory contexts where the term

“operational control” has significance, the term has been

construed to mean control over the day-to-day operations of a

facility. See, e.g., Donovan v. Agnew, 712 F.2d 1509, 1514 (1st

Cir. 1983) (liability of corporate officers under the Fair Labor

Standards Act depends in part upon whether the officer “had

operational control of significant aspects of the corporation’s day

to day functions”); Fruge v. Parker Drilling Co., 337 F.3d 558,

564 (5th Cir. 2003) (“Operational control exists only if the

principal has direct supervision over the step-by-step process of

accomplishing the work such that the contractor is not entirely

free to do the work in his own way.”), cert. denied, 540 U.S. 1161

(2004); U.S. v. Bestfoods, 524 U.S. 51, 66-67 (1998) (under the

Comprehensive Environmental Response, Compensation, and

Liability Act, an “operator” is someone who “directs the workings

of, manages, or conducts the affairs of a facility” that generates

pollution).

In addressing factors identified in the PREA Guidance, we

will re-order them and group them with other factors that, under

Maryland law, are also relevant to the determination of whether a

particular local facility falls under the “operational control” of the

executive branch. We first address the overall structure of the

Maryland correctional system and the fact that it is not a “unified”

system. We then discuss the extent to which the Maryland

correctional standards allow the State to control the day-to-day

operations of local facilities. And we finish with a discussion of

the ways in which the State may contract for operational control

over local facilities.

a. The “Unified Correctional System” Inquiry—

“Operational Control” as Reflected in the

Structure of Maryland’s Correctional System

We start with the Department of Justice’s second inquiry—

whether the State has a “unified correctional system”—because

16 [99 Op. Att’y

we believe it relates most closely to the structure of Maryland’s

correctional system and to whether the State controls the day-to-

day operations of local correctional facilities. In a “unified

correctional system,” the state maintains operational control over

all aspects of the system, including jails that would be considered

“local facilities” in other states. See Krauth at 2. Only a “small

number” of states operate unified correctional systems. 77 Fed.

Reg. at 37196 n.49; see also Krauth at 2 (identifying Alaska,

Connecticut, Delaware, Hawaii, Rhode Island, and Vermont as

the only states with unified systems). Maryland is not among

them; rather, it falls within the category of states in which “jails

are local operations, run at the local level by a sheriff’s office or a

county corrections agency or, in some places, under contract by a

private firm.” Krauth at 2. As discussed above, DPSCS oversees

“State correctional facilities,” while the individual counties, or the

sheriffs within them, oversee jails and other “local correctional

facilities.”8 See supra at 7-8. In the absence of a unified cor-

rection system, we next consider whether the Maryland’s

correctional system gives the State’s Executive Branch day-to-day

“operational control” over local jails through other means.

The operation of local correctional facilities, like so many

other questions of local governance, depends on the type of

county at issue. Home rule counties have the power to “assume[]

responsibility for operation of their jails.” 85 Opinions of the

Attorney General at 341. All home rule counties may do so under

the Express Powers Act, while charter home rule counties may do

so pursuant to CS § 11-201(b) as well. Either way, the local

correctional facilities within those jurisdictions will be under the

“operational control” of the county for purposes of PREA, unless

a particular facility has entered into a contract with the State that

gives the State such control. Absent such a contract, the State is

not obligated by PREA to audit, or certify as PREA-compliant,

8

Juvenile facilities are an exception. As discussed above, all

juvenile facilities are under the jurisdiction of the Maryland

Department of Juvenile Services, which oversees each stage of the

juvenile justice process in Maryland. See HU § 9-216. Because all

DJS-maintained juvenile facilities are under the “operational control”

of the executive branch, the Governor must certify their compliance

with PREA standards as a condition of full federal funding. We note,

however, that the housing of juveniles in local correctional facilities—

either when held there on a short-term basis prior to transfer to a DJS

facility, or when charged as an adult and incarcerated within a local

detention center—does not make those facilities subject to the State’s

operational control.

Gen. 3] 17

the correctional facilities in these 13 counties.9 In the remaining

counties, where the local correctional facilities are overseen by

the sheriffs, the issue is a closer call.

In Maryland, each sheriff has “some characteristics of a state

official and some characteristics of a local government official.”

Ritchie v. Donnelly, 324 Md. 344, 357 (1991). Under Maryland

law, a sheriff is a State official. Wolfe v. Anne Arundel County,

374 Md. 20, 33-34 (2003); 85 Opinions of the Attorney General at

340. The office of the sheriff is established by the Maryland

Constitution, see Md. Const., Art. IV, § 44, and the sheriff

exercises common law duties that may be altered only by the

General Assembly or, with respect to certain powers, by rule of

the Court of Appeals. Prince George’s County v. Aluisi, 354 Md.

422, 433 (1999); Soper v. Montgomery County, 294 Md. 331, 337

(1982); 85 Opinions of the Attorney General at 340; see also SG

§ 15-102(ll) (defining “State official” to include “a sheriff” for

purposes of the Maryland Public Ethics Law).

The sheriff’s general status as a State official, however,

“does not mean that, for some purposes and in some contexts, a

sheriff may not be treated as a local government employee.”

Rucker v. Harford County, 316 Md. 275, 289 (1989). The

counties provide funding for sheriffs’ offices and thus maintain “a

degree of local control” over their operation. Id. at 288; see Md.

Code Ann., Local Gov’t § 16-106(3) (providing that the “budget

and fiscal policies and purchasing laws of a county govern . . . the

sheriff’s office in the county”). Counties may also treat sheriffs

as local government employees for purposes of affording them

benefits, such as a county-established pension plan. Rucker, 316

Md. at 289-90. And within the context of legal representation,

tort claims involving the sheriffs’ operation of local correctional

9

It appears to us that 13 counties are currently authorized to

appoint an official other than the sheriff to oversee the operation of

local correctional facilities within their boundaries. See CS § 11-703

and § 2-1-504 Anne Arundel County Code; CS § 11-705 and § 3-2-

301 Baltimore County Code; § 23-1 Caroline County Code; CS § 11-

711 and § 75-1 Dorchester County Code; CS § 11-715 and § 7.501

Howard County Code; CS § 11-716 (Kent County); CS § 11-717

(Montgomery County); CS § 11-718 and § 18-108 Prince George’s

County Code; CS § 11-719 and § 4-12(g) Queen Anne’s County Code;

§ 12-101 Somerset County Code; § 42-1 Talbot County Code; CS § 11-

724 and § 20-1 Wicomico County Code; and § PS 5-101 Worcester

County Code.

18 [99 Op. Att’y

facilities are defended by the local jurisdiction and its insurance

carrier—the Local Government Insurance Trust—and not the

Attorney General’s Office. See Md. Code Ann., State Fin. &

Proc. § 9-108(a)(6) (2009 Repl. Vol. & 2013 Supp.) (authorizing

a county or Baltimore City to obtain insurance coverage for

claims arising out of a sheriff’s “activities relating to performing

. . . detention center functions”).

The dual nature of the sheriff’s office is reflected in federal

law as well. For purposes of claims under 42 U.S.C. § 1983, “a

sheriff may sometimes be treated as a state official and sometimes

as a local official, depending upon the particular function which

the sheriff was performing.” Ritchie, 324 Md. at 357; see also,

e.g., Dotson v. Chester, 937 F.2d 920, 926-27, 932 (4th Cir. 1991)

(when operating a local jail, sheriff is the county’s “final

policymaking authority” for purposes of § 1983 liability); but cf.

Paulone v. City of Frederick, 787 F. Supp. 2d 360, 377 (D. Md.

2011) (holding State, not county, was proper defendant where

sheriff was alleged to have operated jail in violation of Americans

with Disabilities Act); Kronk v. Carroll County, 2012 U.S. Dist.

LEXIS 8611, *22-23 (D. Md. 2012) (sheriff, when acting as

director of local detention center, is a State official immune from

liability under the Family Medical Leave Act).

This same duality affects the issue of whether the sheriffs

fall under the Executive Branch of State government for purposes

of PREA’s “operational control” standard. The Court of Special

Appeals has declared it “[b]eyond doubt” that the sheriff’s office,

at least when it is engaged in law enforcement, “is an agency of

the executive branch of government.” Miner v. Novotny, 60 Md.

App. 124, 129 (1984), aff’d, 304 Md. 164 (1985); see also SG

§ 15-102(m) (defining “executive unit” to include “the office of

the sheriff in each county” for purposes of the Maryland Public

Ethics Law). And sheriffs, when overseeing local jails, perform

much the same role performed by DPSCS officials, who

unquestionably operate within the executive branch.

At the same time, the office of the sheriff finds its origin

within Article IV of the Maryland Constitution, which describes

the “Judiciary Department,” and not within Article II, which

describes the Executive Branch. See also Maryland Manual,

“Local Government,” available at http://msa.maryland.gov/msa/

mdmanual/01glance/html/county.html (last visited Jan. 27, 2014)

(placing each county’s sheriff’s office within the judicial branch

of each county). The duties of the sheriff have always included a

variety of functions integral to the safety and orderly operation of

Gen. 3] 19

the courts. 57 Opinions of the Attorney General 614 (1972)

(describing historic functions of sheriffs in relation to courts).

Indeed, the sheriff’s oversight of local prisons appears to have

developed from this court function. See William L. Murfree, Sr.,

A Treatise on the Law of Sheriffs and Other Ministerial Officers,

at 21, § 40 (2d ed. 1890) (“For a thousand years” it has been the

function of the sheriff to “execute the mandates of courts, and to

keep securely in confinement, all such prisoners as may be

committed to his charge by civil or criminal process emanating

from courts of adequate jurisdiction. For this purpose he had, and

has, jurisdiction of the county prisons, and is in effect the jailor by

virtue of his office.”).

Ultimately, we need not fix the sheriffs’ formal position

within government to reach the conclusion that the local

correctional facilities they oversee do not fall under the

“operational control of the State’s executive branch” for purposes

of PREA. We have previously stated within the prison

construction context that the sheriff’s status as a State official

does not alter the local nature of county jails: “It is beyond

dispute that a county detention center is a county facility,

regardless of whether the local sheriff is responsible for its

operation.” 85 Opinions of the Attorney General at 344. Nor

does the fact that sheriffs sometimes exercise executive powers

mean that, when overseeing local jails, they act “under the

operational control of the state’s executive branch.” The sheriff

occupies a constitutional office that lies outside the executive

branch command structure; although the Governor fills a vacancy

in the office, Md. Const., Art. IV, § 44, the sheriff does not

answer to the Governor in the same way as the Secretary and

employees of DPSCS. And, unlike executive branch employees,

over whose duties the Governor maintains a significant measure

of control,10 the duties of the sheriff are controlled only “by State

10

See Md. Const., Art. II, § 24 (“The Governor may make changes

in the organization of the Executive Branch,” including “the

reallocation or reassignment of functions, powers, and duties among the

departments, offices, agencies, and instrumentalities of the Executive

Branch.”); Md. Code Ann., State Gov’t § 3-302 (recognizing Governor’s

power to “supervise and direct the officers and units in [the Executive]

Branch”); Md. Code Ann., State Pers. & Pens. § 3-302 (2009 Repl.

Vol. & 2013 Supp.) (the State, through its appropriate “officers and

employees” has the right to determine “the work projects, tours of duty,

methods, means, and personnel by which its operations are to be

conducted,” and to “direct, supervise, and assign employees,” so as to

20 [99 Op. Att’y

common law, by the General Assembly and by the Judiciary

. . . .” Rucker, 316 Md. at 287; see also 78 Opinions of the

Attorney General 103, 105 (1993). Given that the PREA

Guidance has “left to a governor’s discretion” the determination

whether a facility is under the operational control of the executive

branch, we think it unlikely that Congress or the Department of

Justice intended that a governor certify the compliance of

constitutional officers who do not answer to him or her.

In sum, in assessing whether the State exerts “operational

control” over local facilities, we assign less significance to the

formal status of the sheriffs, and greater significance to the fact

that, legally and practically speaking, local correctional facilities

are not under the institutional control of DPSCS, the Division of

Correction, or any other entity answerable to the Governor. In

counties where a correctional facility is maintained under

authority of the sheriff, it is the sheriff, and not a DPSCS

employee, who is responsible for “keep[ing] safely each

individual committed . . . to the custody of the sheriff until the

individual is discharged by due course of law.” CS § 11-201(a).

We therefore conclude that the structure of Maryland’s

correctional system does not place local correctional facilities

under the “operational control” of the State Executive Branch.

b. The “Ability to Mandate PREA Compliance”

Inquiry—“Operational Control” Under the

Maryland Correctional Standards as Applicable

to Local Jails

Under the PREA Guidance, the executive branch’s “ability

to mandate PREA compliance without judicial intervention” is a

factor to be considered in determining whether the State has

“operational control” over a particular local facility. As discussed

above, DPSCS, with the advice of the MCCS, must adopt

minimum standards for the “security,” “control,” “housing,” and

“sanitation” of inmates with which all State and local correctional

facilities must comply. CS § 8-103(a)(1). Because the standards

the Commission adopts must be “consistent with federal and State

law,” CS § 8-103(c), we see no reason why DPSCS could not

incorporate PREA requirements into the minimum correctional

standards applicable to local correctional facilities. The State’s

development of minimum mandatory standards applicable to local

“maintain and improve the efficiency and effectiveness of

governmental operations”).

Gen. 3] 21

correctional facilities thus constitutes a second way in which the

State might arguably be considered to wield “operational control”

over such facilities for purposes of PREA.

While DPSCS might have the authority to enact correctional

standards that require local correctional facilities to comply with

PREA, we do not believe that this type of quasi-legislative

regulatory authority gives DPSCS “operational control” over local

facilities any more than the Department of Justice has

“operational control” over the facilities to which its standards

apply. We see a fundamental difference between operational

control over the day-to-day functioning of a facility and

regulatory control to enforce compliance with a given set of rules.

See, e.g., In re Advisory Opinion to the Governor, 856 A.2d 320,

331-32 (R.I. 2004) (concluding that casino developer would have

“operational control of the proposed casino while the Lottery

Commission would have only regulatory control” when the casino

“would make day-to-day decisions having to do with the

functioning of the proposed casino while the Lottery Commission

merely would enforce the applicable regulations”).

Moreover, the correctional standards the State has adopted

are not sufficiently specific to afford the Department “operational

control” over local correctional facilities. The standards require

only that correctional facilities develop a written plan or policy

for a particular aspect of operations; they do not dictate the details

of what the plan or policy must include. For example, the

standards applicable to Adult Correctional Institutions require that

“[t]he managing official” of the facility develop “a written policy

which . . . [e]stablishes inmate protection from physical and

mental abuse, and harassment . . . .” COMAR 12.14.04.05A(2).

The standards do not, however, specify how the State or local

officials must operate the facilities under their control to achieve

the desired goal. See DPSCS, “Adult Correctional Institution

Standards Manual” at 49, ¶5B, http://www.dpscs.state.md.us/

publicinfo/publications/pdfs/MCCS/StandardsManual-ACI-

02-2012.pdf (last visited Jan. 27, 2014). Although the Com-

mission could endeavor to make its standards more specific, we

do not believe that such quasi-legislative standards could ever

give the State day-to-day “operational control” over local

facilities.

The manner in which the correctional standards are enforced

also suggests that the State typically cannot enforce PREA

compliance through the imposition of the correctional standards

22 [99 Op. Att’y

without judicial intervention. As discussed above, facilities that

do not comply with the correctional standards are subject to a

series of increasingly intrusive auditing measures designed to

encourage compliance. See CS § 8-114(a)-(c). The MCCS,

however, does not itself have the power to compel the facility to

come into compliance; for that the MCCS must “petition a circuit

court . . . for a court order requiring the correctional facility to

comply with the audit findings.” Id. § 8-114(d)(1)(i). While the

Commission may issue an order to “cease operation of the

correctional facility,” id. § 8-114(d)(1)(ii), the only mechanism

for enforcing any particular standard—including compliance with

PREA—is judicial intervention.

Although no reported Maryland case addresses the

correctional standards and what they say about the control of local

jails, the Fourth Circuit, in Dotson v. Chester, concluded that the

correctional standards established by the Commission “do[] not

transform the County Jail into a state facility.” 937 F.2d at 932.

The Fourth Circuit rejected the County Commissioners’ argument

that, “because of these [MCCS] standards, the State and the State

alone controls the Sheriff’s operation of the County Jail.” Id. at

931. The court noted that the “broad standards often require only

the establishment of written policies to cover situations, leaving

open room for interpretation and sheriff and county responsibility

for implementation.” Id. We too are unable to conclude that the

Commission’s power to establish correctional standards provides

the Executive Branch of the State with “operational control” of

local correctional facilities. Although the quasi-legislative

standards provide important direction for local correctional

facilities, they do not control the day-to-day operations of those

facilities.

c. The “State Contracts” Inquiry—“Operational

Control” Through Contracts for Housing State

Inmates

The PREA Guidance also indicates that states may, under

certain circumstances, gain “operational control” over local

correctional facilities by contracting to house state inmates in

such facilities. In Maryland, a State inmate typically is housed in

a local facility when the Division of Correction, with the county’s

agreement, transfers a State inmate to a local community

correctional facility in order to ease the inmate’s transition back

into his or her home jurisdiction. CS § 9-304. As the guidance

suggests, this type of limited involvement in the housing of State

inmates is not sufficient to constitute state “operational control.”

See PREA Guidance (whether a State agency contracts with local

Gen. 3] 23

facilities to house State inmates is a relevant factor unless the

inmates are only “being temporarily held for transfer to, or release

from, a State facility”). The fact that the number of inmates

transferred amounts to a small percentage of the overall

population of the local correctional facility further compels the

conclusion that such transfers do not place the State in operational

control of the local facility.

The Division’s authority to house State inmates in a local

facility on a more permanent basis does not change this result.

The Division may place State inmates in local facilities as a

condition of State funding for the construction of the facility, CS

§ 11-106(b), and may also arrange for the housing of State

inmates in local jails with the consent of the local jurisdiction.

See generally 62 Opinions of the Attorney General 829, 833

(1977). We have previously observed that, in these situations,

“[t]he State prisoners may be regarded in the constructive custody

of the Division of Correction even though not in its actual

custody.” Id. at 836.

But the fact that the State has constructive custody of an

inmate housed in a local correctional facility does not, by itself,

give the State control over the day-to-day operations of the local

facility. Cf. Logue v. United States, 412 U.S. 521 (1973) (federal

government not liable for actions of county jail officials with

whom it had contracted for the housing of federal inmates when

the statute and contract gave the federal government no power to

control the day-to-day operations of county jail). As was the case

with the inmates transferred by the federal government in Logue,

inmates transferred by the State to local correctional facilities, are,

by agreement, subject to the day-to-day control of the local

correctional facility, which typically is responsible for “hous[ing]

and maintain[ing]” them in accordance with applicable

correctional standards. See, e.g., Memorandum of Understanding

Between the Department of Public Safety and Correctional

Services and the Howard County Department of Corrections, ¶ 6E.

The State could also obtain “operational control” over a

local facility through other agreements relating to the

administration of such facilities. For example, two or more

counties may “enter into a written agreement . . . as to allocation

of responsibility, construction, operation, maintenance, and

appointment of personnel in connection with a local correctional

facility.” CS § 11-102(b)(1). Because the State may be a party to

such an agreement, id. at § 11-102(b)(2), there is at least the

24 [99 Op. Att’y

possibility that the State may gain some operational control as a

result of the agreement. We know of no such arrangements,

however, and, in their absence, it is the county-appointed

“managing official of a local correctional facility,” not the State

or the Department or the Division of Correction, who “is

responsible for the safekeeping and care of each inmate . . . detained

in or sentenced to the local correctional facility. . . .” Id. § 11-103(a);

see also id. § 11-201(b)(2) (in charter counties, managing official

of local correctional facility is responsible for the “safekeeping,

care, and feeding of inmates in the custody of . . . [the] facility”).

Nevertheless, whether the State asserts “operational control” over

a local facility will depend on the terms of the specific contract

that governs the housing of State inmates in that facility. In the

absence of contractual provisions allocating the responsibility of

day-to-day operations to the State, the local correctional facilities

that house State inmates remain under the “operational control” of

the local jurisdiction, not the Executive Branch.

That does not mean that the State has no PREA obligations

with respect to the local facilities with which it contracts. The

State must include in any new or renewed contract for the

confinement of its inmates a provision that requires the local

facility to adopt and comply with PREA standards. 28 C.F.R.

§ 115.12(a); see also id. §§ 115.112(a) (regarding law enforcement

agency contracts for confining lockup detainees); 115.212(a)

(community confinement facility residents); 115.312(a) (juvenile

facility residents). Any new or renewed contract that a state

enters into with a local facility must also “provide for [state]

agency contract monitoring to ensure that the contractor is

complying with the PREA standards.”11 Id. § 115.12(b). However,

the national standards require only that these provisions be

included within the contracts and monitored; “[b]eyond that, the

Department sees no need to specify the manner in which an

agency enforces . . . compliance” with such provisions. 77 Fed.

Reg. at 37118. Accordingly, the State, in order to certify

compliance with PREA, must include the necessary provisions

within its contracts with local facilities and monitor the facility’s

compliance with those provisions. The Governor need not,

however, certify that the local facility is in compliance with the

11

The rules allow an exception to this requirement for states that

contract with outside entities for the confinement of residents at

Community Confinement Facilities. In emergency situations, “the

public agency may enter into a contract with an entity that fails to

comply with these standards.” 28 C.F.R. § 115.212(c).

Gen. 3] 25

PREA standards unless the facility is otherwise under the

“operational control” of the State’s Executive Branch.

To summarize, in the absence of statutory and regulatory

provisions that define the term “operational control,” the PREA

Guidance ultimately leaves it to the “governor’s discretion” to

determine whether a local correctional facility is under executive

control for purposes of the State’s PREA certification. Although

the guidance suggests factors that “may be taken into

consideration,” none appears to be dispositive of the issue of

control. Nevertheless, after evaluating those factors, as well as

other factors that we believe bear on the issue, we conclude that,

except where facility-specific contracts provide otherwise, it

would be within the Governor’s discretion to determine that local

correctional facilities are not under the “operational control” of

the executive branch.

2. Consequences for Local Facilities that Fail to

Comply with PREA Standards.

Although PREA requires federal facilities to comply with

the national standards and encourages State facilities to do so

through the threatened loss of grant funds, it provides no

“corresponding sanctions” for local facilities that do not comply.

77 Fed. Reg. at 37196. The Department of Justice makes this

clear in the preamble to the national standards: “For county,

municipal, and privately run agencies that operate confinement

facilities, PREA lacks any corresponding sanctions for facilities

that do not adopt or comply with the standards.” Id. The

preamble goes on to note, however, that with regard to such local

facilities “other consequences may flow from the issuance of

national standards, which could provide incentives for voluntary

compliance.” Id. Those consequences flow from the way in

which the PREA standards affect the negligence standard

applicable in tort cases, the local facility’s eligibility for future

contracts with the federal government, and the availability of

accreditation of local correctional facilities. It is to these other

potential consequences that we now turn.

a. Standard of Care

Because PREA does not create a private right of action, see

Byrd v. S.C. Dep’t of Corr., 2013 U.S. Dist. LEXIS 134227, *26-

27 (D.S.C. 2013), a state or local facility’s non-compliance with

the national standards does not, by itself, expose the facility or its

employees to liability. A court may, however, consider a prison

26 [99 Op. Att’y

official’s non-compliance with the national standards in

determining whether he or she has acted negligently.

A negligence claim involves three principal elements: “(a) a

duty owed by the defendant to the plaintiff, (b) a breach of that

duty and (c) injury proximately resulting from that breach.”

Pendleton v. State, 398 Md. 447, 458 (2007) (quoting Scott v.

Jenkins, 345 Md. 21, 28 (1997)) (internal citations and quotation

marks omitted). Under certain circumstances, “the requirements

of a legislative enactment”—such as PREA—may serve as “the

standard of conduct” for purposes of negligence claims.

Restatement (Second) of Torts § 286 (2013 Supp.); see Rivers v.

Hagner Mgmt. Corp., 182 Md. App. 632, 653-54 (2008)

(violation of statute admissible as evidence of negligence where

the statutory scheme is designed to protect a class of persons

which includes the plaintiff), cert. denied, 407 Md. 276 (2009).

Although no published Maryland decision addresses the interplay

between PREA and the elements of a negligence action, courts in

other states have. See, e.g., Giraldo v. Department of Corrections

& Rehabilitation, 168 Cal. App. 4th 231, 250-51 (Cal. App. 1st

Dist. 2008) (inmate’s negligence claim should not have been

dismissed for lack of duty; as PREA shows, “[i]t is manifestly

foreseeable that an inmate may be at risk of harm”), petition for

review denied, 2009 Cal. LEXIS 1757 (2009). Accordingly, local

jurisdictions that elect not to adopt the PREA standards arguably

leave themselves open to increased possibility of liability.

The enactment of PREA may also bear on the facility’s

obligation under the Eighth Amendment of the U.S. Constitution

not to engage in “cruel and unusual punishment.” That obligation

requires prison officials to take reasonable steps to protect

inmates from physical abuse. Farmer v. Brennan, 511 U.S. 825,

832-33 (1994). To establish a violation of this duty, the prisoner

must establish that prison officials were “deliberately indifferent”

to a substantial risk of serious harm to the inmate’s safety. Id. at

834. The deliberate indifference standard requires, in part, that

the prison official “know[] of and disregard[] an excessive risk to

inmate health or safety.” Id. at 837; see also Inscoe v. Yates, 2009

U.S. Dist. LEXIS 108295, *6-7 (E.D. Cal. 2009).

The implementation of PREA will generate data on the

prevalence of prison rape in specific facilities, which inmate

plaintiffs likely will seek to use in an effort to establish that prison

officials were aware of, but “deliberately indifferent” to, the risk

of sexual assault. Lobozzo v. Colo. Dep’t of Corr., 429 Fed.

Appx. 707, 711 (10th Cir. 2011) (rejecting, as unsupported by

fact, plaintiff inmate’s argument that PREA data “gave officials

Gen. 3] 27

constructive notice of the danger” of prison rape); Myers v.

Grubb, 2012 U.S. Dist. LEXIS 142780 (D. Mont. 2012)

(rejecting, for lack of specificity, inmate-plaintiff’s claim that

prison official’s failure to establish PREA policies constituted

actionable “deliberate indifference”). As one commentator has

observed, “PREA’s standards for improved prison management

will entail more specific duties for prison supervisors to prevent

inmate-on-inmate rapes, and the data generated by studies under

the statute will help prisoners enforce those duties through

litigation.” David K. Ries, Note and Comment: “Duty-to-Protect

Claims By Inmates After the Prison Rape Elimination Act,” 13

J.L. & Pol’y 915, 976 (2005). Thus, while PREA is not

mandatory for either State or local facilities, its enactment may,

over time, affect the contours of the facilities’ tort liability.

b. Loss of Federal Contracts

Failure to comply with the national standards may also

threaten the loss of, or inability to obtain, contracts for the

housing of federal inmates in State and local facilities. The

United States is authorized by statute to contract with local

authorities for the imprisonment, subsistence, care, and proper

employment of federal prisoners. 18 U.S.C. § 4002; see also id.

§ 3621(b) (authorizing the federal Bureau of Prisons to designate,

as the place of the prisoner’s imprisonment, “any available penal

or correctional facility that meets minimum standards of health

and habitability established by the Bureau”). The Maryland

Division of Correction similarly is authorized to accept custody of

individuals who are sentenced to its jurisdiction by the U.S.

District Court for the District of Maryland, CS § 9-307, and may

also enter into agreements with the United States to house federal

prisoners under the Interstate Corrections Compact, CS §§ 8-601–

8-611. It is our understanding that, for many Maryland counties,

such contractual arrangements are a source of income for local

facilities.

PREA requires that all non-federal facilities that contract

with a federal agency for the housing of federal inmates be

contractually bound to comply with PREA. Specifically, “[t]he

standard requires that new contracts or contract renewals include

a provision that obligates the entity to adopt and comply with the

PREA standards.” 77 Fed. Reg. at 37118. Any new contract or

contract renewal must also “provide for [federal] agency contract

monitoring to ensure that the contractor is complying with the

28 [99 Op. Att’y

PREA standards.” See 28 U.S.C. §§ 115.12(b); 115.112(b);

115.212(b); 115.312(b).

The contract standard does not “require agencies to impose

financial sanctions on non-compliant private contractors,” id.,

and, presumably, State and local contractors as well. Instead, the

standard requires only that new contracts or contract renewals

“include a provision that obligates the entity to adopt and comply

with the PREA standards. Beyond that, the Department [of

Justice] sees no need to specify the manner in which an agency

enforces such compliance.” 77 Fed. Reg. at 37118. However,

although PREA does not mandate any particular means of

enforcing a local facilities’ contractual promise to be PREA-

compliant, the Bureau of Prisons may itself stipulate penalties in

the contract in the event that a local facility is found to be non-

compliant. It also seems likely that the Bureau of Prisons, at the

very least, would decline to contract with local facilities that have

not adopted and complied with the national standards.

c. Loss of Accreditation

The failure of a State or local facility to adopt and comply

with the PREA standards may also affect its ability to obtain, or

retain, accreditation. Under PREA, any organization responsible

for the accreditation of federal, State, local, or private prisons,

jails, or other penal facilities must by now have adopted

accreditation standards consistent with the national standards. 42

U.S.C. § 15608(b)(2) (requiring that such organizations have

adopted the national standards one year after their adoption,

which occurred on May 17, 2012). Accreditation organizations

that do not adopt the PREA standards will be ineligible for federal

grants. Id. § 15608(a).

A facility’s failure to comply with the national standards,

however, does not necessarily disqualify it for accreditation.

Neither PREA nor its national standards mandate the weight that

must be given to the violation of PREA standards in an

accreditation organization’s overall analysis of a facility, and

there are ways in which correctional facilities seeking

accreditation may “opt out” of certain non-mandatory standards.12

12

See Lynn S. Branham, Opening Up a Closed World: A

Sourcebook on Prison Oversight: Correctional Oversight in the United

States: Accrediting the Accreditors: A New Paradigm for Correctional

Oversight, 30 Pace L. Rev. 1656, 1661-62 (2010) (describing facilities’

ability to obtain a “waiver” of specific requirements that it is unable to

Gen. 3] 29

Nevertheless, the potential loss of accreditation is a further

adverse consequence that non-compliant State or local facilities

may suffer.13

d. Adverse Publicity

The failure of a State or local correctional facility to adopt

the PREA standards might also expose the facility to adverse

publicity. The Act requires the Justice Department to carry out an

annual “review and analysis of the incidence and effects of prison

rape,” 42 U.S.C. § 15603(a)(1), and publish a report including,

among other things, a “listing” of the surveyed correctional

facilities “ranked according to the incidence of prison rape in each

institution.” Id. § 15603(c)(2)(B)(ii). The survey process also

provides an opportunity for positive publicity: The report must

identify “those institutions that appear to have been successful in

deterring prison rape.” Id. § 15603(c)(2)(B)(iii). We expect that

correctional facilities will take such publicity—good or bad—into

consideration when deciding whether to comply with PREA and

the national standards.

III

Conclusion

PREA and its standards, although applicable to all

correctional facilities within the State, are not mandatory in the

sense that the failure to comply with PREA constitutes a violation

meet, and to opt out of standards that it “does not wish to comply

with”); see also ACA, Agency Manual of Accreditation Policy and

Procedure at 42-43 (March 2012), https://www.aca.org/standards/

pdfs/AccreditationPolicyProcedure.pdf (last visited Jan. 27, 2014)

(describing “discretionary compliance” option “in which agencies

choose not to comply with a particular standard”).

13

It is our understanding that, currently, the Western Correctional

Institution (Cumberland) and the Eastern Correctional Institution

(Westover) are the only two State facilities accredited by the ACA.

State law appears to have contributed to the limited accreditation rate.

Prior to July 1, 2013, State law had prohibited the use of State general

funds to “implement standards for State correctional facilities that are

adopted or proposed by ACA,” CS § 8-104; rather, funding for ACA

accreditation had to be expressly included in the budget. Legislation

enacted in 2013, however, removed that obstacle to ACA accreditation,

see 2013 Md. Laws, ch. 688 (repealing CS § 8-104), thus making it

easier for additional facilities to obtain accreditation.

30 [99 Op. Att’y

of federal law that would expose the facility to penalties or

injunctive relief under the Act. The decision by State-operated

correctional facilities not to adopt PREA standards, however, will

result in the loss of five percent of the State’s prison-related

federal funding. To maintain the State’s eligibility for full federal

funding, the Governor must certify that all facilities under the

“operational control” of the state’s executive branch comply with

PREA. In the absence of statutory and regulatory provisions that

define the term “operational control,” federal guidance ultimately

leaves it to the “governor’s discretion” to determine whether a

local correctional facility is under executive control for purposes

of the State’s PREA certification. We conclude that the

Governor, after considering the factors suggested in that

guidance, as well as other factors that we believe bear on the

issue, would have grounds on which to conclude that local

correctional facilities are not under the “operational control” of

the executive branch. The applicability of the PREA certification

requirement to a particular local correctional facility must be

determined in light of any agreements between the State and the

local jurisdiction, which might provide the State with the

necessary “operational control.”

Although we conclude that local correctional facilities

generally need not comply with PREA standards for the State to

certify its compliance with the same, we note that a local facility’s

decision not to implement the PREA standards may result in other

adverse consequences not reflected within PREA. Such

consequences include potential ineligibility for contracts to house

federal inmates at local facilities, loss of accreditation, and

increased potential for liability in tort stemming from the

application of a more rigorous standard of care.

Douglas F. Gansler

Attorney General

Adam D. Snyder

Chief Counsel,

Opinions & Advice

* Franklin Branch and Jeffrey Middleton, interns in the Opinions

and Advice Division, contributed substantially to the preparation

of this opinion.