# National Standards To Prevent, Detect, and Respond to Prison Rape

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-12427

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 20, 2012
- **Citation:** 77 FR 37106

## Text

DEPARTMENT OF JUSTICE
28 CFR Part 115
[Docket No. OAG-131; AG Order No. 3331-2012]
RIN 1105-AB34
National Standards To Prevent, Detect, and Respond to Prison Rape

AGENCY:

Department of Justice.

ACTION:

Final rule; request for comment on specific issue.

SUMMARY:

The Department of Justice (Department) is issuing a final rule adopting national standards to prevent, detect, and respond to prison rape, as required by the Prison Rape Elimination Act of 2003 (PREA). In addition, the Department is requesting comment on one issue relating to staffing in juvenile facilities. Further discussion of the final rule is found in the Executive Summary.

DATES:

This rule is effective August 20, 2012. Comments on the juvenile staffing ratios set forth in § 115.313 must be submitted electronically or postmarked no later than 11:59 p.m. on August 20, 2012.

ADDRESSES:

To ensure proper handling of solicited additional comments, please reference “Docket No. OAG-131” on all written and electronic correspondence. Written comments being sent through regular or express mail should be sent to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, Washington, DC 20530. Comments may also be sent electronically through
http://www.regulations.gov
using the electronic comment form provided on that site. An electronic copy of this document is also available at the
http://www.regulations.gov
Web site. The Department will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. The Department will not accept any file formats other than those specifically listed here.

Please note that the Department is requesting that electronic comments be submitted before midnight Eastern Time on the day the comment period closes because
http://www.regulations.gov
terminates the public's ability to submit comments at midnight Eastern Time on the day the comment period closes. Commenters in time zones other than Eastern Time may want to consider this so that their electronic comments are received. All comments sent through regular or express mail will be considered timely if postmarked on or before the day the comment period closes.

Posting of Solicited Additional Public Comments:
Please note that all comments received are considered part of the public record and made available for public inspection online at
http://www.regulations.gov
and in the Department's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you still want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.

Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Department's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
FOR FURTHER INFORMATION
paragraph.

FOR FURTHER INFORMATION CONTACT:

Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Overview

The goal of this rulemaking is to prevent, detect, and respond to sexual abuse in confinement facilities, pursuant to the Prison Rape Elimination Act of 2003. For too long, incidents of sexual abuse against incarcerated persons have not been taken as seriously as sexual abuse outside prison walls. In popular culture, prison rape is often the subject of jokes; in public discourse, it has been at times dismissed by some as an inevitable—or even deserved—consequence of criminality.

But sexual abuse is never a laughing matter, nor is it punishment for a crime. Rather, it
is
a crime, and it is no more tolerable when its victims have committed crimes of their own. Prison rape can have severe consequences for victims, for the security of correctional facilities, and for the safety and well-being of the communities to which nearly all incarcerated persons will eventually return.

In passing PREA, Congress noted that the nation was “largely unaware of the epidemic character of prison rape and the day-to-day horror experienced by victimized inmates.” 42 U.S.C. 15601(12). The legislation established a National Prison Rape Elimination Commission (NPREC) to “carry out a comprehensive legal and factual study of the penalogical [
sic
], physical, mental, medical, social, and economic impacts of prison rape in the United States” and to recommend to the Attorney General “national standards for enhancing the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C. 15606(d)(1), (e)(1). The statute defines “prison” as “any confinement facility,” including jails, police lockups, and juvenile facilities, and defines “rape” to include a broad range of unwanted sexual activity. 42 U.S.C. 15609(7) & (9). After over four years of work, the NPREC released its recommended national standards in June 2009 and subsequently disbanded, pursuant to the statute.

The statute directs the Attorney General to publish a final rule adopting “national standards for the detection, prevention, reduction, and punishment of prison rape * * * based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission * * * and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.” 42 U.S.C. 15607(a)(1)-(2). However, the standards may not “impose substantial additional costs

compared to the costs presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3).

The standards are to be immediately binding on the Federal Bureau of Prisons. 42 U.S.C. 15607(b). A State whose Governor does not certify full compliance with the standards is subject to the loss of five percent of any Department of Justice grant funds that it would otherwise receive for prison purposes, unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years. 42 U.S.C. 15607(c). The final rule specifies that the Governor's certification applies to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch.

In addition, any correctional accreditation organization that seeks Federal grants must adopt accreditation standards regarding sexual abuse that are consistent with the national standards in this final rule. 42 U.S.C. 15608.

In drafting the final rule, the Department balanced a number of competing considerations. In the current fiscal climate, governments at all levels face budgetary constraints. The Department has aimed to craft standards that will yield the maximum desired effect while minimizing the financial impact on jurisdictions. In addition, recognizing the unique characteristics of individual facilities, agencies, and inmate populations, the Department has endeavored to afford discretion and flexibility to agencies to the extent feasible.

The success of the PREA standards in combating sexual abuse in confinement facilities will depend on effective agency and facility leadership, and the development of an agency culture that prioritizes efforts to combat sexual abuse. Effective leadership and culture cannot, of course, be directly mandated by rule. Yet implementation of the standards will help foster a change in culture by institutionalizing policies and practices that bring these concerns to the fore.

Notably, the standards are generally not outcome-based, but rather focus on policies and procedures. While performance-based standards generally give regulated parties the flexibility to achieve regulatory objectives in the most cost-effective way, it is difficult to employ such standards effectively to combat sexual abuse in confinement facilities, where significant barriers exist to the reporting and investigating of such incidents. An increase in incidents reported to facility administrators might reflect increased abuse, or it might just reflect inmates' increased willingness to
report
abuse, due to the facility's success at assuring inmates that reporting will yield positive outcomes and not result in retaliation. Likewise, an increase in substantiated incidents could mean either that a facility is failing to protect inmates, or else simply that it has improved its effectiveness at investigating allegations. For these reasons, the standards generally aim to inculcate policies and procedures that will reduce and ameliorate bad outcomes, recognizing that one possible consequence of improved performance is that evidence of more incidents will come to light.

The standards are not intended to define the contours of constitutionally required conditions of confinement. Accordingly, compliance with the standards does not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse. Furthermore, while the standards aim to include a variety of best practices, they do not incorporate every promising avenue of combating sexual abuse, due to the need to adopt national standards applicable to a wide range of facilities, while taking costs into consideration. The standards consist of policies and practices that are attainable by all affected agencies, recognizing that agencies can, and some currently do, exceed the standards in a variety of ways. The Department applauds such efforts, encourages agencies to adopt or continue best practices that exceed the standards, and intends to support further the identification and adoption of innovative methods to protect inmates from harm. As described in the Background section, the Department is continuing its efforts to fund training, technical assistance, and other support for agencies, including through a National Resource Center for the Elimination of Prison Rape.

Because the purposes and operations of various types of confinement facilities differ significantly, there are four distinct sets of standards, each corresponding to a different type of facility: Adult prisons and jails (§§ 115.11-115.93); lockups (§§ 115.111-115.193); community confinement facilities (§§ 115.211-115.293); and juvenile facilities (§§ 115.311-115.393). The standards also include unified sections on definitions (§§ 115.5-115.6) and on audits and State compliance (§§ 115.401-115.405, 115.501).
1

1
The standards themselves refer to persons confined in prisons and jails as “inmates,” persons confined in lockups as “detainees,” and persons confined in juvenile facilities or community confinement facilities as “residents.” For simplicity, however, the discussion and explanation of the standards refer collectively to all such persons as “inmates” except where specifically discussing lockups, juvenile facilities, or community confinement facilities.

The standards contained in this final rule apply to facilities operated by, or on behalf of, State and local governments and the Department of Justice. However, in contrast to the proposed rule, the final rule concludes that PREA encompasses all Federal confinement facilities. Given their statutory authorities to regulate conditions of detention, other Federal departments with confinement facilities (including but not limited to the Department of Homeland Security) will work with the Attorney General to issue rules or procedures that will satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).

B. Summary of Major Provisions

This summary of the major provisions of the standards does not include every single aspect of the standards, nor does it capture all distinctions drawn in the standards on the basis of facility type or size. Agencies that are covered by each set of standards should read them in full rather than rely exclusively on this summary.

General Prevention Planning.
To ensure that preventing sexual abuse receives appropriate attention, the standards require that each agency and facility designate a PREA point person with sufficient time and authority to coordinate compliance efforts. Facilities may not hire or promote persons who have committed sexual abuse in an institutional setting or who have been adjudicated to have done so in the community, and must perform background checks on prospective and current employees, unless a system is in place to capture such information for current employees. A public agency that contracts for the confinement of its inmates with outside entities must include in any new contracts or contract renewals the entity's obligation to adopt and comply with the PREA standards.

Supervision and Monitoring.
The standards require each facility to develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. The staffing standard further requires all agencies to annually

assess, determine, and document whether adjustments are needed to the staffing levels or deployment of monitoring technologies.

Due to the great variation across facilities in terms of size, physical layout, and composition of the inmate population, it would be impractical to require a specified level of staffing. Likewise, mandating a subjective standard such as “adequate staffing” would be extremely difficult to measure. Instead, the final standard requires that prisons and jails use their best efforts to comply with the staffing plan on a regular basis and document and justify any deviations. Given that staffing increases often depend on budget approval from an external legislative or other governmental entity, this revision is designed to support proper staffing without discouraging agencies from attempting to comply with the PREA standards due to financial concerns.

The “best efforts” language encourages agencies to compose the most appropriate staffing plan for each facility without incentivizing agencies to set the bar artificially low in order to avoid non-compliance. But if the facility's plan is plainly deficient on its face, the facility is not in compliance with this standard even if it adheres to its plan.

In addition, the standards contained in the final rule require that supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment.

Staffing of Juvenile Facilities.
The standards set minimum staffing levels for certain juvenile facilities. As discussed in greater detail in the appropriate section below, the Department seeks additional comment on this aspect of the standards, and may make changes if warranted in light of public comments received. Specifically, the standards require secure juvenile facilities—
i.e.,
those that do not allow residents access to the community—to maintain minimum security staff ratios of 1:8 during resident waking hours, and 1:16 during resident sleeping hours, except during limited and discrete exigent circumstances; deviations from the staffing plan in such circumstances must be documented. Because increasing staffing levels takes time and money, this requirement does not go into effect until October 2017 except for facilities that are already obligated by law, regulation, or judicial consent decree to maintain at least 1:8 and 1:16 ratios.

Juveniles in Adult Facilities.
The final rule, unlike the proposed rule and the NPREC's recommended standards, contains a standard that governs the placement of juveniles in adult facilities. The standard applies only to persons under the age of 18 who are under adult court supervision and incarcerated or detained in a prison, jail, or lockup. Such persons are, for the purposes of this standard, referred to as “youthful inmates” (or, in lockups, “youthful detainees”). By contrast, youth in the juvenile justice system are already protected by the Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. 5601
et seq.,
which provides formula grants to States conditioned on (subject to minimal exceptions) separating juveniles from adults in secure facilities and removing juveniles from adult jails and lockups.

This standard imposes three requirements upon the placement of youthful inmates in prisons or jails. First, no inmate under 18 may be placed in a housing unit where contact will occur with adult inmates in a common space, shower area, or sleeping quarters. Second, outside of housing units, agencies must either maintain “sight and sound separation”—
i.e.,
preventing adult inmates from seeing or communicating with youth—or provide direct staff supervision when the two are together. Third, agencies must make their best efforts to avoid placing youthful inmates in isolation to comply with this provision and, absent exigent circumstances, must afford them daily large-muscle exercise and any legally required special education services, and must provide them access to other programs and work opportunities to the extent possible. With regards to lockups, the standard requires that juveniles and youthful detainees be held separately from adult inmates.

While some commenters asserted that, in addition to increasing risk of victimization, confining youth in adult facilities impedes access to age-appropriate programming and services and may actually increase recidivism, the Department is cognizant that its mandate in promulgating these standards extends only to preventing, detecting, and responding to sexual abuse in confinement facilities. In addition, imposing a general prohibition on the placement of youth in adult facilities, or disallowing such placements unless a court finds that the youth has been violent or disruptive in a juvenile facility, would necessarily require a fundamental restructuring of existing State laws that permit or require such placement. Given the current state of knowledge regarding youth in adult facilities, and the availability of more narrowly tailored approaches to protecting youth, the Department has decided not to impose a complete ban at this time through the PREA standards. The Department has supported, however, congressional efforts to amend the JJDPA to extend its jail removal requirements to apply to youth under adult criminal court jurisdiction awaiting trial, unless a court specifically finds that it is in the interest of justice to incarcerate the youth in an adult facility.

Cross-Gender Searches and Viewing.
In a change from the proposed standards, the final standards include a phased-in ban on cross-gender pat-down searches of female inmates in adult prisons, jails, and community confinement facilities absent exigent circumstances—which is currently the policy in most State prison systems. However, female inmates' access to programming and out-of-cell opportunities must not be restricted to comply with this provision.

For juvenile facilities, however, the final standards, like the proposed standards, prohibit cross-gender pat-down searches of both female and male residents. And for all facilities, the standards prohibit cross-gender strip searches and visual body cavity searches except in exigent circumstances or when performed by medical practitioners, in which case the searches must be documented.

The standards also require facilities to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. In addition, facilities must require staff of the opposite gender to announce their presence when entering an inmate housing unit.

Training and Education.
Proper training is essential to combating sexual abuse in correctional facilities. The standards require staff training on key topics related to preventing, detecting, and responding to sexual abuse. Investigators and medical practitioners will receive training tailored to their specific roles.

Inmates, too, must understand a facility's policies and procedures in order to know that they will be kept safe and that the facility will not tolerate their committing sexual abuse. The standards require that facilities explain their zero-tolerance policy regarding sexual abuse and sexual harassment educate inmates on how to report any such incidents.

Screening.
The standards require that inmates be screened for risk of being sexually abused or sexually abusive and

that screening information be used to inform housing, bed, work, education, and program assignments. The goal is to keep inmates at high risk of victimization away from those at high risk of committing abuse. However, facilities may not simply place victims in segregated housing against their will unless a determination has been made that there is no available alternative means of separation, and even then only under specified conditions and with periodic reassessment.

Reporting.
The standards require that agencies provide at least two internal reporting avenues, and at least one way to report abuse to a public or private entity or office that is not part of the agency and that can allow inmates to remain anonymous upon request. An agency must also provide a way for third parties to report such abuse on behalf of an inmate.

In addition, agencies are required to provide inmates with access to outside victim advocates for emotional support services related to sexual abuse, by giving inmates contact information for local, State, or national victim advocacy or rape crisis organizations and by enabling reasonable communication between inmates and these organizations, with as much confidentiality as possible.

Responsive Planning.
The standards require facilities to prepare a written plan to coordinate actions taken among staff first responders, medical and mental health practitioners, investigators, and facility leadership in response to an incident of sexual abuse. Upon learning of an allegation of abuse, staff must separate the alleged victim and abuser and take steps to preserve evidence.

The standards also require agencies to develop policies to prevent and detect any retaliation against persons who report sexual abuse or who cooperate with investigations. Allegations must be investigated properly, thoroughly, and objectively, and documented correspondingly, and must be deemed substantiated if supported by a preponderance of the evidence. No agency may require an inmate to submit to a polygraph examination as a condition for proceeding with an investigation. Nor may an agency enter into or renew any agreement that limits its ability to remove alleged staff abusers from contact with inmates pending an investigation or disciplinary determination.

Investigations.
Investigations are required to follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. The agency must offer victims no-cost access to forensic medical examinations where evidentiarily or medically appropriate. In addition, the agency must attempt to make available a victim advocate from a rape crisis center. If that option is not available, the agency must provide such services through either (1) qualified staff from other community-based organizations or (2) a qualified agency staff member.

Discipline.
The standards require that staff be subject to discipline for violating agency policies regarding sexual abuse, with termination the presumptive discipline for actually engaging in sexual abuse. Terminations or resignations linked to violating such policies are to be reported to law enforcement (unless the conduct was clearly not criminal) and to relevant licensing bodies.

Inmates also will be subject to disciplinary action for committing sexual abuse. Where an inmate is found to have engaged in sexual contact with a staff member, the inmate may be disciplined only where the staff member did not consent. Where two inmates have engaged in sexual contact, the agency may (as the final rule clarifies) impose discipline for violating any agency policy against such contact, but may deem such activity to constitute sexual abuse only if it determines that the activity was not consensual. In other words, upon encountering two inmates engaging in sexual activity, the agency cannot simply assume that both have committed sexual abuse.

Medical and Mental Health Care.
The standards require that facilities provide timely, unimpeded access to emergency medical treatment and crisis intervention services, whose nature and scope are determined by practitioners according to their professional judgment. Inmate victims of sexual abuse while incarcerated must be offered timely information about, and timely access to, emergency contraception and sexually transmitted infections prophylaxis, where medically appropriate. Where relevant, inmate victims must also receive comprehensive information about, and timely access to, all lawful pregnancy-related medical services. In addition, facilities are required to offer a follow-up meeting if the initial screening at intake indicates that the inmate has experienced or perpetrated sexual abuse.

Grievances.
If an agency has a grievance process for inmates who allege sexual abuse, the agency may not impose a time limit on when an inmate may submit a grievance regarding such allegations. To be sure, a grievance system cannot be the only method—and should not be the primary method—for inmates to report abuse. As noted above, agencies must provide multiple internal ways to report abuse, as well as access to an external reporting channel.

This standard exists only because the Prison Litigation Reform Act, 42 U.S.C. 1997e, requires that inmates exhaust any available administrative remedies as a prerequisite to filing suit under Federal law with respect to the conditions of their confinement. The final standard contains a variety of other provisions aimed at ensuring that grievance procedures that cover sexual abuse provide inmates with a full and fair opportunity to preserve their ability to seek judicial review, without imposing undue burdens on agencies or facilities. However, agencies that exempt sexual abuse allegations from their remedial schemes are exempt from this standard, because their inmates may proceed directly to court.

Audits.
The final rule resolves an issue left undecided in the proposed rule by including standards that require that agencies ensure that each of their facilities is audited once every three years. Audits must be conducted by: (1) A member of a correctional monitoring body that is not part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant State or local government); (2) a member of an auditing entity such as an inspector general's or ombudsperson's office that is external to the agency; or (3) other outside individuals with relevant experience. Thus, the final standards differ from the proposed standards in that audits may not be conducted by an internal inspector general or ombudsperson who reports directly to the agency head or to the agency's governing board.

The Department will develop and issue an audit instrument that will provide guidance on the conduct of and contents of the audit. All auditors must be certified by the Department, pursuant to procedures, including training requirements, to be issued subsequently.

Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) and Gender Nonconforming Inmates.
The standards account in various ways for the particular vulnerabilities of inmates who are LGBTI or whose appearance or manner does not conform to traditional gender expectations. The standards require training in effective and professional communication with LGBTI and gender nonconforming inmates and require the screening process to consider whether the inmate is, or is perceived to be, LGBTI or

gender nonconforming. The standards also require that post-incident reviews consider whether the incident was motivated by LGBTI identification, status, or perceived status.

In addition, in a change from the proposed rule, the final standards do not allow placement of LGBTI inmates in dedicated facilities, units, or wings in adult prisons, jails, or community confinement facilities solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. As in the proposed standards, such placement is not allowed at all in juvenile facilities.

The standards impose a complete ban on searching or physically examining a transgender or intersex inmate for the sole purpose of determining the inmate's genital status. Agencies must train security staff in conducting professional and respectful cross-gender pat-down searches and searches of transgender and intersex inmates.

In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, an agency may not simply assign the inmate to a facility based on genital status. Rather, the agency must consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems, giving serious consideration to the inmate's own views regarding his or her own safety. In addition, transgender and intersex inmates must be given the opportunity to shower separately from other inmates.

Inmates with Disabilities and Limited English Proficient (LEP) Inmates.
The standards require agencies to develop methods to ensure effective communication with inmates who are deaf or hard of hearing, those who are blind or have low vision, and those who have intellectual, psychiatric, or speech disabilities. Agencies also must take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment to inmates who are LEP. Agencies may not rely on inmate interpreters or readers except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate's safety, the performance of first-response duties, or an investigation.

C. Costs and Benefits

The anticipated costs of full nationwide compliance with the final rule, as well as the benefits of reducing the prevalence of prison rape, are discussed at length in the Regulatory Impact Assessment (RIA), which is available at
http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf
and is summarized below in section IV, entitled “Executive Orders 13563 and 12866—Regulatory Planning and Review.” As shown in Table 1, the Department estimates that the costs of these standards to all covered facilities, assuming full nationwide compliance, would be approximately $6.9 billion over the period 2012-2026, or $468.5 million per year when annualized at a 7 percent discount rate. The average annualized cost per facility of compliance with the standards is approximately $55,000 for prisons, $50,000 for jails, $24,000 for community confinement facilities, and $54,000 for juvenile facilities. For lockups, the average annualized cost per agency is estimated at $16,000.

Table 1—Estimated Cost of Full State and Local Compliance With the PREA Standards, in the Aggregate, by Year and by Facility Type, in Millions of Dollars

Year
Prisons
Jails
Lockups
CCF
Juveniles

Total all
facilities

2012
$87.2
$254.6
$180.1
$27.8
$196.0
$745.8

2013
55.2
161.0
122.0
16.8
93.3
448.5

2014
58.3
157.9
106.6
14.2
92.1
429.2

2015
59.2
154.6
93.7
12.1
94.9
414.5

2016
61.3
153.5
87.3
11.1
109.3
422.6

2017
61.5
152.4
83.6
10.6
151.9
460.1

2018
62.9
151.3
80.1
10.1
147.3
451.8

2019
63.1
150.7
77.5
9.8
144.7
445.8

2020
64.3
150.1
75.0
9.4
142.2
441.0

2021
65.7
149.9
73.2
9.2
140.4
438.3

2022
65.9
150.1
72.0
9.0
139.2
436.2

2023
67.1
150.1
70.8
8.9
138.0
434.9

2024
67.1
149.9
69.6
8.7
136.7
432.0

2025
67.9
149.5
68.4
8.5
135.5
429.8

2026
67.6
148.8
67.2
8.4
134.3
426.3

15-yr Total
974.2
2,384.6
1,327.3
174.8
1,995.8
6,856.7

Present Value
591.2
1,488.4
869.8
116.6
1,201.4
4,267.4

Annual
64.9
163.4
95.5
12.8
131.9
468.5

However, these figures are potentially misleading. 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 statute provides certain incentives for such confinement facilities to implement the standards. Fiscal realities faced by confinement facilities throughout the country make it virtually certain that the total actual outlays by those facilities will, in the aggregate, be less than the full nationwide compliance costs calculated in the RIA. Actual outlays incurred will depend on the specific choices that State and local correctional agencies make with regard to adoption of the standards, and correspondingly on the annual expenditures that those agencies are willing and able to make in choosing to implement the standards in their facilities. The Department has not endeavored in the RIA to project those actual outlays.

With respect to benefits, the RIA conducts what is known as a “break-even analysis,” by first estimating the monetary value of preventing various

types of prison sexual abuse (from incidents involving violence to inappropriate touching) and then, using those values, calculating the reduction in the annual number of victims that would need to occur for the benefits of the rule to equal the cost of full nationwide compliance.

This analysis begins by estimating the current levels of sexual abuse in covered facilities. The RIA concludes that in 2008 more than 209,400 persons were victims of sexual abuse in prisons, jails, and juvenile facilities, of which at least 78,500 prison and jail inmates and 4,300 youth in juvenile facilities were victims of the most serious forms of sexual abuse, including forcible rape and other nonconsensual sexual acts involving injury, force, or high incidence.

Next, the RIA estimates how much monetary benefit (to the victim and to society) accrues from reducing the annual number of victims of prison rape. This is, of course, an imperfect endeavor, given the inherent difficulty in assigning a dollar figure to the cost of such an event. Executive Order 13563 states that agencies “may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” Each of these values is relevant here, including human dignity, which is offended by acts of sexual violence. While recognizing the limits of monetary measures and the difficulty of translation into dollar equivalents, the RIA extrapolates from the existing economic and criminological literature regarding rape in the community. On the basis of such extrapolations, it finds that the monetizable benefit to an adult of avoiding the highest category of prison sexual misconduct (nonconsensual sexual acts involving injury or force, or no injury or force but high incidence) is worth $310,000 to $480,000 per victim; for juveniles, who typically experience significantly greater injury from sexual abuse than do adults, the corresponding category is assessed as worth $675,000 per victim. Lesser forms of sexual abuse have correspondingly lower avoidance benefit values. The RIA thus determines that the maximum monetizable cost to society of prison rape and sexual abuse (and correspondingly, the total maximum benefit of eliminating it) is about $46.6 billion annually for prisons and jails, and an additional $5.2 billion annually for juvenile facilities.

The RIA concludes that the break-even point would be reached if the standards reduced the annual number of victims of prison rape by 1,671 from the baseline levels, which is less than 1 percent of the total number of victims in prisons, jails, and juvenile facilities. The Department believes it reasonable to expect that the standards, if fully adopted and complied with, would achieve at least this level of reduction in the prevalence of sexual abuse, and thus the benefits of the rule justify the costs of full nationwide compliance.

As noted, this analysis inevitably excludes benefits that are not monetizable, but still must be included in a cost-benefit analysis. These include the values of equity, human dignity, and fairness. Such non-quantifiable benefits will be received by victims who receive proper treatment after an assault; such treatment will in turn enhance their ability to re-integrate into the community and maintain stable employment upon their release from prison. Furthermore, making prisons safer will increase the general well-being and morale of staff and inmates alike. Finally, non-quantifiable benefits will accrue to society at large, by ensuring that inmates re-entering the community are less traumatized and better equipped to support their community. Thus, the true break-even level would likely be lower and perhaps significantly lower than 1,671, if it were possible to account for these non-quantifiable benefits.

II. Background

The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601
et seq.,
requires the Attorney General to promulgate regulations that adopt national standards for the detection, prevention, reduction, and punishment of prison rape. PREA established the National Prison Rape Elimination Commission to carry out a comprehensive legal and factual study of the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States, and to recommend national standards to the Attorney General and to the Secretary of Health and Human Services. The NPREC released its recommended national standards in a report dated June 23, 2009, and subsequently disbanded, pursuant to the statute. The NPREC's report and recommended national standards are available at
http://www.ncjrs.gov/pdffiles1/226680.pdf.

The NPREC set forth four sets of recommended national standards for eliminating prison rape and other forms of sexual abuse. Each set applied to one of the following four confinement settings: (1) Adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities; and (4) lockups (
i.e.,
temporary holding facilities). The NPREC recommended that its standards apply to Federal, State, and local correctional and detention facilities, including immigration detention facilities operated by the Department of Homeland Security and the Department of Health and Human Services. In addition to the standards themselves, the NPREC prepared assessment checklists, designed as tools to provide agencies and facilities with examples of how to meet the standards' requirements; glossaries of key terms; and discussion sections providing explanations of the rationale for each standard and, in some cases, guidance for achieving compliance. These are available at
http://www.ncjrs.gov/pdffiles1/226682.pdf
(adult prisons and jails),
http://www.ncjrs.gov/pdffiles1/226684.pdf
(juvenile facilities),
http://www.ncjrs.gov/pdffiles1/226683.pdf
(community corrections), and
http://www.ncjrs.gov/pdffiles1/226685.pdf
(lockups).

Pursuant to PREA, the final rule adopting national standards “shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission * * * and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.” 42 U.S.C. 15607(a)(2). PREA expressly mandates that the Department not establish a national standard “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3). The Department “may, however, provide a list of improvements for consideration by correctional facilities.” 42 U.S.C. 15607(a)(3).

The Attorney General established a PREA Working Group, chaired by the Office of the Deputy Attorney General, to review each of the NPREC's proposed standards and to assist him in preparing rulemaking materials. The Working Group included representatives from a wide range of Department components, including the Access to Justice Initiative, the Bureau of Prisons (including the National Institute of Corrections), the Civil Rights Division, the Executive Office for United States Attorneys, the Office of Legal Policy, the Office of Legislative Affairs, the Office of Justice Programs (including the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime), the Office on Violence Against Women, and the United States Marshals Service.

The Working Group conducted an in-depth review of the standards proposed by the NPREC. As part of that process, the Working Group conducted a number of listening sessions in 2010, at which a wide variety of individuals and groups provided preliminary input prior to the start of the regulatory process. Participants included representatives of State and local prisons and jails, juvenile facilities, community corrections programs, lockups, State and local sexual abuse associations and service providers, national advocacy groups, survivors of prison rape, and members of the NPREC.

Because, as noted above, PREA prohibits the Department from establishing a national standard that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities, the Working Group carefully examined the potential cost implications of the standards proposed by the NPREC. As part of that process, the Department commissioned an independent contractor to perform a cost analysis of the NPREC's proposed standards.

On March 10, 2010 (75 FR 11077), while awaiting completion of the cost analysis, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input on the NPREC's proposed national standards. Approximately 650 comments were received on the ANPRM, including comments from current or formerly incarcerated individuals, county sheriffs, State correctional agencies, private citizens, professional organizations, social service providers, and advocacy organizations concerned with issues involving inmate safety and rights, sexual violence, discrimination, and juvenile justice.

In general, commenters supported the broad goals of PREA and the overall intent of the NPREC's recommendations. However, comments were sharply divided as to the merits of a number of standards. Some commenters, particularly those whose responsibilities involve the care and custody of inmates or juvenile residents, expressed concern that the NPREC's recommended national standards implementing PREA would impose unduly burdensome costs on already tight State and local government budgets. Other commenters, particularly advocacy groups concerned with protecting the health and safety of inmates and juvenile residents, expressed concern that the NPREC's standards did not go far enough, and, therefore, would not fully achieve PREA's goals.

After reviewing the comments on the NPREC's proposed standards, and after receiving and reviewing the cost analysis of those standards, the Department published a Notice of Proposed Rulemaking (NPRM) on February 3, 2011 (76 FR 6248). The scope and content of the Department's standards differed substantially from the NPREC's proposals in a variety of areas. The Department revised each of the NPREC's recommended standards, weighing the logistical and financial feasibility of each standard against its anticipated benefits. At the same time, the Department published an Initial Regulatory Impact Analysis (IRIA), which presented a comprehensive assessment of the benefits and costs of the Department's proposed standards in both quantitative and qualitative terms. The IRIA was summarized in the NPRM and was published in full on the Department's Web site at
http://www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.

The NPRM solicited comments on the Department's proposed standards, and posed 64 specific questions on the proposed standards and the IRIA. In response, the Department received over 1,300 comments, representing the same broad range of stakeholders as comments on the ANPRM. Commenters provided general assessments of the Department's efforts as well as specific and detailed recommendations regarding each standard. The Department also received a range of comments responding to the 64 questions posed in the NPRM and on the assumptions, calculations, and conclusions contained in the IRIA. As in the comments on the ANPRM, the changes recommended by commenters reflected a diverse array of views. Many commenters asserted that the proposed standards provided insufficient protection against sexual abuse, while others expressed the view that the proposed standards would be too onerous for correctional agencies.

Following the public comment period, the Department carefully reviewed each comment and deliberated internally on the revisions that the commenters proposed and on the critiques of the IRIA's benefit-cost analysis. In addition, the Department once again commissioned an independent contractor to assist the Department in assessing the costs of revisions to the standards.

The final standards reflect a considered analysis of the public comments and a rigorous assessment of the estimated benefits and costs of full nationwide compliance with the standards. The Department has revised the IRIA correspondingly; the final Regulatory Impact Analysis is available at
http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.

This is a final rule; however, the Department has identified one provision for which it is considering making changes to the final rule, if warranted by public comments received. The discrete provision open for additional comment does not affect the finality of the rule.

To assist agencies in their compliance efforts, the Department has funded the National Resource Center for the Elimination of Prison Rape to serve 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 combating sexual abuse in confinement. Focusing on areas such as prevention strategies, improved reporting and detection, investigation, prosecution, and victim-centered responses, the Resource Center will identify promising programs and practices that have been implemented around the country and demonstrate models for keeping inmates safe from sexual abuse. It will offer a full library, webinars, and other online resources on its Web site, and will provide direct assistance in the field through skilled and experienced training and technical assistance providers. The Department also funds the National Center for Youth in Custody, which will partner closely with the Resource Center to assist facilities in addressing sexual safety for youth.

The Department is also continuing its grantmaking, through its Bureau of Justice Assistance, to support State and local demonstration projects aimed at combating sexual abuse in confinement facilities. In addition, the Department's National Institute of Corrections, which has provided substantial PREA-related training and technical assistance since passage of the Act, will be developing electronic and web-based resource materials aimed at reaching a broad audience.

III. Overview of PREA National Standards

Scope of Standards: Application to Other Federal Confinement Facilities

The proposed rule interpreted the statute to bind only facilities operated by the Bureau of Prisons, and extended the standards to United States Marshals Service facilities under other authorities of the Attorney General. In light of comments on the proposed rule, the Department has re-examined whether

PREA extends to Federal facilities beyond those operated by the Department of Justice. The Department now concludes that PREA does, in fact, encompass
any
Federal confinement facility “whether administered by [the] government or by a private organization on behalf of such government,” 42 U.S.C. 15609(7).

With respect to Bureau of Prisons facilities, the Act explicitly provides that the national standards apply immediately. 42 U.S.C. 15607(b). However, the statute does not address how it will be implemented at other Federal confinement facilities. In general, each Federal agency is accountable for, and has statutory authority to regulate, the operations of its own facilities and, therefore, is best positioned to determine how to implement the Federal laws and rules that govern its own operations, the conduct of its own employees, and the safety of persons in its custody. For example, the Department of Homeland Security possesses great knowledge and experience regarding the specific characteristics of its immigration facilities, which differ in certain respects from Department of Justice, State, and local facilities with regard to the manner in which they are operated and the composition of their populations. Indeed, the NPREC expressly recognized these distinctions by including a supplemental set of 15 standards applicable only to facilities with immigration detainees. Similarly, the Department of the Interior's Bureau of Indian Affairs (BIA) possesses expertise regarding the various confinement facilities in Indian country, which are owned and operated pursuant to numerous different arrangements by BIA and the tribes, and which also differ in certain respects from Department of Justice, State, and local facilities.

Given their statutory authorities to regulate conditions of detention, other Federal departments with confinement facilities will work with the Attorney General to issue rules or procedures that will satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).

Scope of Standards: Pretrial Release, Probation, Parole, and Related Programs

In the proposed rule, the Department declined to adopt the NPREC's recommendation that the Department adopt a set of standards for community corrections, which the NPREC had recommended defining as follows: “Supervision of individuals, whether adults or juveniles, in a community setting as a condition of incarceration, pretrial release, probation, parole, or post-release supervision. These settings would include day and evening reporting centers.”
2

The Department determined that to the extent this definition included supervision of individuals in a non-residential setting, it exceeded the scope of PREA's definitions of jail and prison, which include only “confinement facilit[ies].” 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule did not reference community corrections, but instead proposed adopting a set of standards for “community confinement facilities,” defined as

2
NPREC,
Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Community Corrections, 5,
available at
http://www.ncjrs.gov/pdffiles1/226683.pdf.

a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community correctional facility (including residential re-entry centers) in which offenders or defendants reside as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision, while participating in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during nonresidential hours.

Several commenters criticized the proposed rule for excluding individuals who are not incarcerated but are subject to pretrial release, probation, parole, or post-release supervision. These commenters included advocacy groups, certain former members of the NPREC, and two trade organizations, the American Probation and Parole Association and the International Community Corrections Association. Commenters observed that parole and probation officers play a significant role in the lives of their charges, and that such power includes the potential for abuse. Some suggested that the Department should adopt all of the NPREC's recommendations with regard to pretrial release, probation, parole, or post-release supervision, while others proposed including only certain training requirements related to handling disclosures of sexual abuse and avoiding inappropriate relationships with probationers and parolees.

The final rule does not include these suggested changes and instead retains the definition quoted above. The Department recognizes, of course, that staff involved in pretrial release, probation, parole, or post-release supervision exert great authority. The same is true, however, of numerous other government officials, including police officers who operate in the community, law enforcement investigators, and certain categories of civil caseworkers. While any abuse by law enforcement officials or other government agents is reprehensible, PREA appropriately addresses the unique vulnerability of incarcerated persons, who literally cannot escape their abusers and who lack the ability to access community resources available to most victims of sexual abuse.

One commenter observed that PREA defines “prison rape” as including “the rape of an inmate in the actual or constructive control of prison officials,” 42 U.S.C. 15609(8), and suggested that a probationer or parolee should be considered to be under the constructive control of correctional officials. This suggestion, however, neglects the statute's definition of “inmate” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. 15609(2). An inmate by definition is “incarcerated or detained in [a] facility”; the inclusion of inmates who are “under the constructive control of correctional officials” presumably refers to inmates who are temporarily supervised by others, such as inmates on work details. Furthermore, the reference to parole, probation, and related programs in the definition of “inmate” indicates that only a person who “violate[s] * * * the terms and conditions” of such a program, rather than any person who is subject to such terms and conditions, qualifies as an inmate. Indeed, with the exception of an unrelated grant program to safeguard communities,
3

the statute makes no other reference to parole, probation, pretrial release, or diversionary programs.

3
The statute authorizes the Attorney General to make grants to States to “safeguard the communities to which inmates return” by, among other things, “preparing maps demonstrating the concentration, on a community-by-community basis, of inmates who have been released, to facilitate the efficient and effective * * * deployment of law enforcement resources (including probation and parole resources),” and “developing policies and programs that reduce spending on prisons by effectively reducing rates of parole and probation revocation without compromising public safety.” 42 U.S.C. 15605(b)(2)(C), (E).

The same commenter noted that PREA instructed the NPREC to recommend to the Attorney General national standards on, in addition to specifically enumerated topics, “such other matters as may reasonably be related to the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C. 15606(e)(2)(M). The

Department agrees with the commenter that this language, by extension, provides the Attorney General with a broad scope of authority to combat sexual abuse in confinement facilities. However, this language does not necessitate the adoption of standards to govern probation, parole, pretrial release, or diversionary programs. To be sure, former inmates may report to a parole officer sexual abuse that occurred while they were in a confinement facility. However, former inmates—unlike current inmates—generally possess ample ability to report abuse through the same channels as any other person living in the community.

Still, the Department encourages probation and parole departments to take active steps to ensure that any information they learn about sexual abuse in confinement facilities is transmitted to law enforcement authorities or correctional agencies, as appropriate. The Department recommends that such departments train their officers as needed to facilitate proper investigation of allegations.

Finally, one commenter suggested that probation departments should be included because some probation departments operate residential facilities, including juvenile detention facilities. No change is warranted, because the proposed rule already included any agency that operates residential facilities. For example, to the extent that a probation department operates a juvenile detention facility, it is covered by the Standards for Juvenile Facilities, § 115.311
et seq.

Scope of Standards: Categorization of Prisons and Jails

The Department received a significant number of comments from jails regarding the ways in which their operations differ from prisons. Jail commenters noted that prisons, unlike jails, generally receive individuals after sentencing. Thus, prison inmates have already been stabilized medically and been searched before being transported to the prison. Commenters noted that the prison intake unit or facility, unlike its jail counterpart, will often have received information from the sentencing court, and may have received records documenting medical and mental health conditions, criminal and institutional histories, and in some cases, program or treatment histories.

The American Jail Association (AJA), plus several sheriffs and jail administrators, recommended that the Department develop separate standards for jails and prisons, due to differences in facility size, mission, length of stay, and operational considerations.

The Department recognizes the various differences between jails and prisons, but concludes that these differences do not warrant a separate set of standards. Rather, the Department has endeavored to provide sufficient flexibility such that the standards can be adopted by both prisons and jails. Where appropriate, various standards impose different requirements upon prisons and jails, while others differentiate on the basis of facility size.

General Definitions (§ 115.5)

Community confinement facility.
Several commenters expressed uncertainty as to whether group homes that house juveniles would be governed by the standards for community confinement facilities, the standards for juvenile facilities, or both. For clarity, the final rule revises the definition of community confinement facility to expressly exclude juvenile facilities. All juvenile facilities, including group homes and halfway houses, are governed by the Standards for Juvenile Facilities, § 115.311
et seq.

Exigent circumstances.
The final rule adds a definition of this term, which is used in several standards. The term is defined to mean “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” Such circumstances include, for example, the unforeseen absence of a staff member whose presence is indispensible to carrying out a specific standard, or an outbreak of violence within the facility that requires immediate action.

Full compliance.
The final rule adds a definition of this statutory term. As discussed above in the Executive Summary and below in the section titled Executive Order 13132—Federalism, PREA provides that the Governor of each State must certify “full compliance” with the standards or else forfeit five percent of any Department of Justice grant funds that the State would otherwise receive for prison purposes, unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years. 42 U.S.C. 15607(c).

NPRM Question 34 solicited comments on how the final rule should define “full compliance.” Several commenters recommended that full compliance be measured by a percentage of each standard complied with. These recommendations were generally between 80 and 100 percent. One commenter suggested that each standard be designated as either mandatory or non-mandatory, with differential percentages for each category. A number of comments recommended that full compliance mean complete compliance, with exceptions for
de minimis
violations.

A number of commenters recommended that “full compliance” be fully or partially contingent on certain outcome measures. In other words, “full compliance” could only be achieved if a certain objective level of safety and security is achieved in a facility.

Other commenters suggested that, instead of relying on “full compliance,” the standards should be measured using a multi-tiered approach, such as “substantial compliance,” “partial compliance,” “non-compliance with progress,” and “non-compliance.” One commenter recommended that “full compliance” be regarded as achieved when the facility meets the spirit of the standard. Another suggested that “full compliance” be regarded as achieved when an agency adopts adequate policies and procedures, and has demonstrated its intention to comply with those policies.

Finally, a number of comments suggested that the standards be “fully” complied with, and two suggested that “full compliance” mean complete compliance with the critical elements of the standard.

The final rule defines “full compliance” as “compliance with all material requirements of each standard except for
de minimis
violations, or discrete and temporary violations during otherwise sustained periods of compliance.” The Department concludes that a requirement for specific outcome measures would be impractical to implement across a broad spectrum of facility types, and further notes that compliance with procedural mandates is usually more within the control of a facility than achieving specific outcome measures. Furthermore, a definition that allows for some standards to be non-mandatory, or that defines full compliance as a percentage or by reference to substantial compliance, is not compatible with the plain meaning of the statutory term “full compliance.” Accordingly, the Department lacks the discretion to adopt such a definition.

Below is a nonexhaustive set of examples of violations that would be consistent with full compliance:

• A temporary vacancy in the PREA coordinator's position that the agency is actively seeking to fill;

• A small number of instances in which an agency fails by a number of days to meet a 14-day deadline imposed by the rule;

• Occasional noncompliance with staffing ratios in juvenile facilities due to disturbances in other housing units or staff illnesses;

• A short-term telephone malfunction that prevents inmate access to a confidential reporting hotline, which the agency acts promptly to restore once the malfunction is brought to its attention.

Generally speaking, the intent of this definition is to make clear that a Governor may certify “full compliance” even if, in circumstances that are not reasonably foreseeable, certain of the State's facilities are at times unable to comply with the letter of certain standards for some short period of time, but then act promptly to remedy the violation. This definition is in keeping with Congress's view that States would be able—and should be encouraged—to achieve full compliance.

The final rule also provides, in § 115.501(b), that the Governor's certification applies to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch. The certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.

Gender nonconforming.
The final rule adds a definition of this term, which is used in several standards. The term is defined to mean “a person whose appearance or manner does not conform to traditional societal gender expectations.”

Intersex.
Various commenters, including both correctional agencies and advocates, requested a definition of this term, and several advocates suggested definitions. The final rule defines the term as “a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female.” The definition also notes that “[i]ntersex medical conditions are sometimes referred to as disorders of sex development.”

Juvenile.
Several commenters criticized the proposed rule's definition of juvenile as any person under the age of 18 unless otherwise defined by State law. One commenter noted that State law may be inconsistent, defining a person as a juvenile for some purposes and as an adult for others. For clarity, the final rule revises the definition by changing “unless otherwise defined by State law” to “unless under adult court supervision and confined or detained in a prison or jail.” For reasons explained at greater length below, the Department has rejected the suggestion by some commenters to define juvenile as any person under the age of 18.

Some commenters recommended that the definition of juvenile include persons over the age of 18 who are currently in the custody of the juvenile justice system, because some State juvenile justice systems hold persons beyond that age who were originally adjudicated as juvenile delinquents. The final rule does not make that change. The set of standards for juvenile facilities refers throughout to “residents.” A “resident” is defined as “any person confined or detained in a juvenile facility.” Thus, the standards already cover over-18 persons confined in a facility that is primarily used for the confinement of under-18 persons, and the commenters' proposed change is not needed. In the rare instance that an over-18 person in the custody of the juvenile justice system is confined in an adult facility, it is appropriate for that person to be treated the same as others of similar age.

Juvenile facility.
For clarifying purposes, the final rule adds language to make clear that a juvenile facility is one that is primarily used to confine juveniles “pursuant to the juvenile justice system or criminal justice system.” A facility that confines juveniles pursuant to a social services system, or for medical purposes, is beyond the scope of these regulations, regardless of whether it is administered or licensed by a Federal, State, or local government or a private organization on behalf of such government.

One commenter suggested amending the definition of juvenile facility to clarify that it includes all youth confined in juvenile facilities, not just those who are accused of, or have been adjudicated for committing, a delinquent act or criminal offense. The commenter noted that, as a result of shortages in residential mental health facilities, juvenile facilities may temporarily hold youth who are not accused of delinquent or criminal acts, while waiting for bed space to open up in residential mental health facilities. The Department has not made this change, because such youth are already covered to the extent that they are housed in a facility that primarily confines juveniles pursuant to the juvenile justice system or criminal justice system.

A State juvenile agency requested that the standards exempt community-based facilities that are not “physically restricting” and that serve juvenile delinquents as well as non-delinquent youth. The Department has not made this change. As stated above, the definition of juvenile facility includes any facility “primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” If a non-secure residential facility fits this definition, it will fall within the scope of the standards, even if it also holds some non-delinquent youth. Youth who are legally obligated to return to a facility in the evening are at risk of sexual abuse and therefore warrant protection under these standards. Furthermore, where a facility is primarily used to confine juvenile delinquents, it would be illogical to exempt from coverage those facilities that happen to confine some non-delinquent youth as well.

Transgender.
As with “intersex,” both agency and advocacy commenters requested that the final rule define this term. The definition adopted in the final rule—“a person whose gender identity (
i.e.,
internal sense of feeling male or female) is different from the person's assigned sex at birth”—reflects the suggestions of numerous advocacy commenters.

Other terms.
The Department has not adopted the suggestion of one commenter to define a variety of additional terms including jail booking, intake, initial screening, and risk assessment. These terms are in common usage in correctional settings and have meanings that are generally understood, even if facility practices may vary in certain respects. To define these terms would risk confusion by imposing a one-size-fits-all definition on facilities that employ these terms in slightly different ways.

Definitions Related to Sexual Abuse (§ 115.6)

The final rule makes various changes to terms related to sexual abuse that were defined in the proposed rule.

Sexual abuse.
Various commenters criticized the proposed definition for referencing the intent of the abuser. These commenters expressed the view that including an intent element would, in the words of one, “require agencies to engage in a complicated time- and labor-intensive inquiry into the intent of the perpetrator.” The final rule revises the definition to limit the relevance of intent.

With regard to sexual abuse by an inmate, the proposed rule had excluded “incidents in which the intent of the sexual contact is solely to harm or debilitate rather than to sexually exploit.” The purpose of that language was to exclude physical altercations that incidentally resulted in injuries to an inmate's genitalia. While correctional agencies should, of course, endeavor to protect inmates from physical harm of

all sorts, such incidental injury is beyond the scope of PREA. To eliminate the intent element while still preserving this exclusion, the final rule replaces the language quoted above with “contact incidental to a physical altercation.”

With regard to abuse by staff, the proposed rule included contact between the penis and the vulva or anus; contact between the mouth and the penis, vulva, or anus; penetration of the anal or genital opening; and “[a]ny other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of any person with the intent to abuse, arouse, or gratify sexual desire.” The final rule replaces the intent clause with the following language: “that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse or gratify sexual desire.” Thus, if the touching is unrelated to official duties, no finding as to intent is necessary. If the touching
is
related to official duties—such as a strip search—the touching qualifies as sexual abuse only if it is performed in a manner that evidences an intent to abuse, arouse, or gratify sexual desire.

One agency recommended replacing “sexual abuse” with “rape.” The Department has not made this change. PREA defines “rape” broadly, in a manner that is more consistent with the customary definition of sexual abuse. For example, PREA includes “sexual fondling” in its definition of rape,
see
42 U.S.C. 15609(9), (11), even though that term is typically associated with sexual abuse rather than with rape. The Department concludes that sexual abuse is a more accurate term to describe the behaviors that Congress aimed to eliminate.

An advocate for disability rights recommended that the Department define what it means for an inmate to be “unable to consent,” due to variations in State law on this issue. The Department has not done so, concluding that correctional agencies should use their judgment, taking into account any applicable State law.

One advocacy organization recommended that kissing be added to the definition of sexual abuse or sexual harassment, due to the possibility that kissing could be used as a “grooming” technique leading to other sexual activities. The Department concludes that it is appropriate to consider kissing to constitute sexual abuse in certain contexts where committed by a staff member. Accordingly, the final rule adds to the definition of sexual abuse by a staff member “[c]ontact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire.”

Finally, the Department has made various nonsubstantive changes to the definition of sexual abuse, including simplifying its structure. In addition, the final rule provides that sexual abuse is not limited to incidents where the staff member touches the inmate's genitalia, breasts, anus, groin, inner thigh, or buttocks, but also includes incidents where the staff member induces the inmate to touch the staff member in such a manner.

Sexual harassment.
Several correctional agencies recommended that the final rule remove sexual harassment from the scope of the standards. The Department has not done so. Although PREA does not reference sexual harassment, it authorized the NPREC to propose, and by extension authorized the Attorney General to adopt, standards relating to “such other matters as may reasonably be related to the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C. 15606(e)(2)(M). Certain standards reference sexual harassment in order to combat what may be a precursor to sexual abuse.

One commenter took issue with the categorization of “repeated verbal comments or gestures of a sexual nature * * * including demeaning references to gender, sexually suggestive or derogatory comments” as sexual harassment rather than sexual abuse. The commenter suggested that this categorization inappropriately downplayed the harm associated with such conduct, especially because many of the standards in the proposed rule referenced only sexual abuse and not sexual harassment. The Department has not made this change, largely because such activities fit the textbook definition of sexual harassment. To label comments and gestures as sexual harassment is not meant to belittle the harm that may ensue. (The question of whether specific standards should include sexual harassment as well as sexual abuse is a separate issue and is discussed below in reference to specific standards.) However, similar activity, when performed by a staff member,
does
constitute sexual abuse. This distinction recognizes that staff exert tremendous authority over every aspect of inmates' lives—far more authority than employers exert over employees in a workplace context. An attempt, threat, or request to engage in sexual contact, even if it does not result in actual sexual contact, may lead to grave consequences for an inmate, and deserves to be treated seriously. Indeed, in many States, such contact is considered to be a crime.
4

4

See
National Institute of Corrections/Washington College of Law Project on Addressing Prison Rape,
Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody,
available at
http://www.wcl.american.edu/endsilence/documents/50StateSurveyofSSMLawsFINAL2009Update.pdf.

The same commenter also recommended defining sexual harassment to include all comments of a sexual nature, not just repeated comments. One correctional agency made the same recommendation with regard to comments made by staff. The Department has not made this change. Various standards require remedial action in response to sexual harassment; while correctional agencies may take appropriate action in response to a single comment, a concern for efficient resource allocation suggests that it is best to mandate such action only where comments of a sexual nature are repeated.

Voyeurism.
Some correctional agencies recommended removing voyeurism from the scope of the standards, fearing that its inclusion would result in groundless accusations against staff members merely for performing their jobs. This change has not been made. The Department notes that voyeurism is limited to actions taken “for reasons unrelated to official duties”—which constitutes a significant limitation. A staff member who happens to witness an inmate in a state of undress while conducting rounds has not engaged in voyeurism. The risk of false accusations is an inevitable consequence of imposing limits upon staff members' actions, and is neither limited to, nor unusually problematic in, the context of voyeurism.

One correctional agency recommended that voyeurism be considered as a subset of sexual harassment and be limited to repeated actions, as with sexual harassment. The Department has not made this change. Voyeurism is appropriately considered to be a more serious offense than sexual harassment, and indeed is often a crime. The same commenter suggested that by placing voyeurism within the category of sexual abuse, “there is no differentiation between incidences of voyeurism and rape.” This is incorrect; sexual abuse appropriately encompasses a broad range of incidents of varying degrees of severity. The standards oblige correctional agencies to take certain actions in response to all incidents of sexual abuse, but the appropriate response will vary greatly depending upon the nature of the incident.

Some advocacy commenters, and one sheriff's office, criticized the proposed rule for providing that taking images of all or part of an inmate's naked body, or of an inmate performing bodily functions, constituted voyeurism only if the staff member also distributed or published them. The final rule removes that limitation. Under the revised definition, taking such images constitutes voyeurism regardless of what the staff member does with the images afterwards.

Zero Tolerance; PREA Coordinator (§§ 115.11, 115.111, 115.211, 115.311)

Summary of Proposed Rule

The standard contained in the proposed rule required that agencies establish a zero-tolerance policy toward sexual abuse and harassment that outlines the agency's approach to preventing, detecting, and responding to such conduct. The Department also proposed that agencies employ or designate an upper-level, agency-wide PREA coordinator to oversee efforts to comply with the standards. The proposed standard specified that the agency-wide PREA coordinator would be a full-time position in all agencies that operate facilities whose total rated capacity—
i.e.,
an objective determination of available bed space in a facility—exceeds 1,000 inmates, but could be a part-time position in other agencies. The proposed standard also required that agencies whose total capacity exceeds 1,000 inmates must designate an existing full-time or part-time employee at each facility to serve as that facility's PREA coordinator.

Changes in Final Rule

The final standard no longer requires that the agency-wide PREA coordinator be a full-time position for large agencies. Instead, the standard provides that the PREA coordinator must have “sufficient time and authority” to perform the required responsibilities, which have not been changed from the proposed standard.

The final standard also requires that any agency that operates more than one facility (regardless of agency size) designate a PREA compliance manager at each facility with sufficient time and authority to coordinate the facility's efforts to comply with the PREA standards.

Comments and Responses

Comment.
Numerous commenters criticized the proposed standard for requiring that the PREA coordinator be a full-time position. Such commenters indicated that establishing a full-time position would be cost-prohibitive and would inappropriately divert resources from other important efforts. Some recommended that agencies be given discretion in how to structure their PREA oversight and that coordinators be given flexibility to work on related tasks. One commenter suggested that the standard mandate that the PREA coordinator devote a specified minimum percentage of time to PREA-related work. Another commenter proposed that a full-time PREA coordinator be required only if a threshold level of verified sexual abuse incidents is reached.

Response.
Designating a specific staff person to be accountable for PREA development, implementation, and oversight will help ensure the success of such efforts. However, agencies should have discretion in how to manage their PREA initiatives. Therefore, the final standard does not require that the PREA coordinator be a full-time position. Similarly, mandating a minimum percentage of staff time to be spent on PREA would be too stringent, and would not provide sufficient flexibility. Rather, the final standard requires that the agency designate a PREA coordinator with sufficient time and authority to develop, implement, and oversee agency efforts to comply with the PREA standards.

As for the suggestion that a full-time coordinator be required only if verified incidents exceed a specified threshold, it is important to note that a low level of verified incidents does not necessarily mean that sexual abuse is not a concern. If an agency is not appropriately investigating allegations of sexual abuse, or if victims do not feel comfortable reporting such incidents, the level of verified incidents may not accurately reflect the agency's success at combating sexual abuse.

Comment.
Various agency commenters requested additional flexibility with respect to the requirement that agencies with aggregate rated capacities of over 1,000 inmates designate facility-level PREA coordinators. Some commenters suggested raising or lowering the population threshold for this requirement.

Response.
Where an agency operates multiple facilities, the final standard requires that all such facilities, regardless of size, designate a PREA compliance manager with sufficient time and authority to coordinate the facility's efforts to comply with the PREA standards. Having a “point person” at each facility will be beneficial regardless of the size of the agency or facility. (The PREA coordinator would serve as the “point person” at single-facility agencies.) The language in the final standard appropriately balances the need for accountability with the flexibility that sound correctional management requires.

Comment.
One commenter inquired as to whether separate smaller facilities could share one PREA coordinator, to accommodate workload and cost concerns.

Response.
With the additional flexibility provided in the final standard, such arrangements should not be necessary. Facilities are encouraged to collaborate on PREA efforts to the extent feasible, but ultimately each facility will need to ensure that effective practices and procedures are in place. For this reason, the final standard requires each facility in a multi-facility agency to have its own PREA compliance manager.

Comment.
One commenter requested clarification as to the requirement that the PREA coordinator be an “upper-level” staff member.

Response.
While it is not possible to define “upper-level” with precision, the PREA coordinator should have access to agency and facility leadership on a regular basis, and have the authority to work with other staff, managers, and supervisors to effectuate change if necessary. By contrast, the facility-specific PREA compliance manager need not be “upper-level,” but should have access to facility staff, managers, and supervisors in order to guide implementation.

Contracting With Other Entities for Confinement of Inmates (§§ 115.12, 115.112, 115.212, 115.312)

Summary of Proposed Rule

The standard contained in the proposed rule required that agencies that contract with outside entities include in any new contract or contract renewal the entity's obligation to comply with the PREA standards.

Changes in Final Rule

No substantive changes have been made to the proposed standard.

Comments and Responses

Comment.
Numerous advocates urged that the standard be revised to require government agencies to impose financial sanctions on private contractors that fail to comply with the standards. These commenters also argued that contract entities should be held to the same auditing standards as agency-run facilities.

Response.
As discussed below, the auditing standard (§ 115.401) requires

that every facility operated by an agency, or by a private organization on behalf of an agency, be audited for PREA compliance at least once in every three-year auditing cycle. The auditing requirements are the same, as are the effects of such audits: The Governor of each State is required to consider the audits of facilities within the operational control of the State's executive branch, including the audits of private facilities operated by a contract entity on behalf of such agencies, in determining whether to certify that the State is in full compliance with the PREA standards. However, the final standard does not require agencies to impose financial sanctions on non-compliant private contractors. The standard requires 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 sees no need to specify the manner in which an agency enforces such compliance.

Supervision and Monitoring (§§ 115.13, 115.113, 115.213, 115.313)

Summary of Proposed Rule

The standard in the proposed rule contained four requirements. First, it required the agency to make an assessment of adequate staffing levels, taking into account its use, if any, of video monitoring or other technology, and the physical layout and inmate population of the facility. Second, it required agencies to devise a plan for how to best protect inmates from sexual abuse should staffing levels fall below an adequate level. Third, it required agencies to reassess at least annually the identified adequate staffing levels, as well as the staffing levels that actually prevailed during the previous year, and the facility's use of video monitoring systems and other technologies. Fourth, it required prisons, juvenile facilities, and jails whose rated capacity exceeds 500 inmates to implement a policy of unannounced rounds by supervisors to identify and deter staff sexual abuse and sexual harassment.

Changes in Final Rule

The final standard requires each prison, jail, and juvenile facility to develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, facilities must consider several factors, including: (1) Generally accepted detention and correctional practices; (2) any judicial findings of inadequacy; (3) any findings of inadequacy from Federal investigative agencies; (4) any findings of inadequacy from internal or external oversight bodies; (5) all components of the facility's physical plant (including “blind spots” or areas where staff or inmates may be isolated); (6) the composition of the inmate population; (7) the number and placement of supervisory staff; (8) institution programs occurring on a particular shift; (9) any applicable State or local laws, regulations, or standards; (10) the prevalence of substantiated and unsubstantiated incidents of sexual abuse; and (11) any other relevant factors. Prisons and jails must use “best efforts to comply with the staffing plan on a regular basis” and are required to document and justify deviations from the staffing plan.

Like the proposed standard, the final standard requires all agencies to annually assess, determine, and document for each facility whether adjustments are needed to (1) The staffing levels established pursuant to this standard; (2) prevailing staffing patterns; and (3) the facility's deployment of video monitoring systems and other monitoring technologies. The final standard also adds a requirement that the annual assessment examine the resources the facility has available to commit to ensure adequate staffing levels.

The final standard requires, lockups and community confinement facilities to develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In circumstances where the staffing plan is not complied with, lockups and community confinement facilities must document and justify all deviations from the plan. The final standard, like the proposed standard, requires lockup and community confinement agencies to consider the facility's physical layout, the composition of its population, the prevalence of substantiated and unsubstantiated incidents of sexual abuse, and any other relevant factors. If vulnerable detainees are identified pursuant to the lockup screening process set forth in § 115.141, security staff must provide such detainees with heightened protection, including continuous direct sight and sound supervision, single-cell housing, or placement in a cell that is actively monitored, unless no such option is determined to be feasible.

The final standard sets specific minimum staffing levels for certain juvenile facilities.
As set forth below at the end of the discussion of the Supervision and Monitoring standard, the Department seeks additional comment on this aspect of the standard.
Specifically, the final standard requires secure juvenile facilities to maintain minimum security staff ratios of 1:8 during resident waking hours, and 1:16 during resident sleeping hours, except during limited and discrete exigent circumstances, and to fully document deviations from the minimum ratios during such circumstances. However, any secure juvenile facility that, as of the date of publication of the final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the required staffing ratios shall have until October 1, 2017, to achieve compliance. A secure facility is one that typically does not allow its residents to leave the facility without supervision.
5

Group homes and other facilities that allow residents access to the community to achieve treatment or correctional objectives, such as through educational or employment programs, typically will not be considered to be secure facilities. For juvenile facilities, the final standard omits the requirement to plan for staffing levels that do not meet the identified adequate levels.

5
The full definition is as follows: “
Secure juvenile facility
means a juvenile facility in which the movements and activities of individual residents may be restricted or subject to control through the use of physical barriers or intensive staff supervision. A facility that allows residents access to the community to achieve treatment or correctional objectives, such as through educational or employment programs, typically will not be considered to be a secure juvenile facility.” § 115.5.

The final standard also extends to all jails (rather than, as in the proposed standards, only those jails whose rated capacity exceeds 500 inmates) the requirement of unannounced supervisory rounds to identify and deter staff sexual abuse and sexual harassment. In order to address concerns that some staff members might prevent such rounds from being “unannounced” by providing surreptitious warnings, the final standard adds a requirement that agencies have a policy to prohibit staff members from alerting their colleagues that such supervisory rounds are occurring, unless such announcement is related to the legitimate operational functions of the facility.

Comments and Responses

The NPRM posed several questions regarding staffing. Below is a summary of all comments received regarding this standard, keyed to the question to which they correspond, and the Department's responses.

NPRM Question 4: Should the standard require that facilities actually provide a certain level of staffing, whether determined qualitatively, such as by reference to
“
adequacy,
”
or quantitatively, by setting forth more concrete requirements? If so, how?

Comment.
Commenters were nearly unanimous in opposing a quantitative staffing requirement for adult facilities. Numerous adult correctional agencies expressed a strong preference for deference to agency decisions on staffing issues, given the varied and intricate factors that affect staffing levels, such as facility type, layout, population, classification levels, and whether and how the facility uses video surveillance. Many agency commenters expressed support for the proposed standard as written; some noted that many facilities already employ mandatory and minimum post/staffing criteria, which they can tailor to meet specific needs, such as by increasing staffing levels in particular units that have experienced an increase in victimization. Other commenters noted that some facilities are already bound by State-mandated staffing ratios, and that additional or different PREA ratios could conflict with State law. Jail administrators suggested the absence of any national model or best practice that supports a specific staffing ratio in local jails, due to extreme differences in facility size, age, architectural design, and population. Agency commenters emphasized that facility leadership is best positioned to determine “adequate” staffing levels. In general, advocacy groups agreed that, due to these concerns, the final standard should not mandate staffing ratios in adult facilities.

In addition to feasibility, many correctional commenters stated that the costs of establishing a specific staffing requirement would be prohibitive. These commenters noted that the ability to increase staffing levels at a facility is often beyond the control of either the facility or the agency. Staffing increases require additional funding, which usually must be legislatively appropriated. The commenters also noted that budget increases are unlikely in the current fiscal climate and would require a significant amount of lead time for approval. Several correctional stakeholders, joined by some advocacy groups, commented that specific staffing ratios in adult facilities would constitute an “unfunded mandate,” which might compel some agencies to choose not to attempt compliance with the PREA standards in general. In addition, commenters observed that increased costs imposed by a staffing mandate could result in elimination of programming for inmates due to funding limitations.

On the other hand, one local correctional agency commented that, given current fiscal conditions, some agencies will have difficulties expanding staffing unless the final standard mandates minimum staffing levels. In addition, some advocates noted that courts have held that cost is not an excuse for failing to provide for the safety of persons in custody, and argued that if an agency cannot provide adequate staffing to ensure inmate safety, then it should reduce its inmate population.

Response.
The Department recognizes the many factors that affect adequate staffing and therefore does not promulgate a standard with concrete staffing requirements for adult facilities. The final standard enumerates a broader set of factors to be taken into consideration in calculating adequate staffing levels and determining the need for video monitoring: Generally accepted detention and correctional practices; any judicial findings of inadequacy; any findings of inadequacy from Federal investigative agencies; any findings of inadequacy from internal or external oversight bodies; all components of the facility's physical plant (including “blind-spots” or areas where staff or inmates may be isolated); the composition of the inmate population (such as gender, age, security level, and length of time inmates reside in the facility); the number and placement of supervisory staff; institution programs occurring on a particular shift; any applicable State or local laws, regulations, or standards; and the prevalence of substantiated and unsubstantiated incidents of sexual abuse. In addition, the final standard requires facilities to take into account “any other relevant factors.”

Given the intricacies involved in formulating an adequate staffing plan, the Department does not include specific staffing ratios for adult facilities in the final standard. The final determination as to adequate staffing levels remains in the discretion of the facility or agency administration. In addition, the facility is encouraged to reassess its staffing plan as often as necessary to account for changes in the facility's demographics or needs.

With regard to the cost of staffing, the Department notes that the Constitution requires that correctional facilities provide inmates with reasonable safety and security from violence,
see Farmer
v.
Brennan,
511 U.S. 825, 832 (1994), and sufficient staff supervision is essential to that requirement. However, the Department is sensitive to current fiscal conditions and the inability of correctional agencies to secure budget increases unilaterally. The Department is also cognizant of the fact that staffing is the largest expense for correctional agencies, and recognizes that the costs involved in increasing staffing could make compliance difficult for some facilities. While adequate staffing is essential to a safe facility, the Department wishes to avoid the unintended consequence of decreased programming and other opportunities for inmates as a result of budgetary limitations.

The final standard also requires the agency to reassess, determine, and document, at least annually, whether adjustments are needed to resources the facility has available to commit to ensure adherence to the staffing plan. This language accounts for the fact that resource availability will affect staffing levels and provides agencies an incentive to request additional staffing funds as needed. The Department considered including a requirement for the agency to request additional funds from the appropriate governing authority, if necessary, but determined that this decision best remained within the discretion of the agency.

The final standard requires agencies to use “best efforts to comply on a regular basis” with the staffing plan. Facilities must document and justify deviations from the staffing plan, but full compliance with the plan is not required to achieve compliance with the standard. The Department considered including in the standard a specific mandate to comply with the staffing plan, but determined that requiring “best efforts” is more appropriate, to avoid penalizing agencies that unsuccessfully seek to obtain additional funds. Lockups and community confinement facilities are exempt from the “best efforts” language, but must document deviations from the staffing plan. Juvenile facilities, however, must comply with their staffing plans except during limited and discrete exigent circumstances, and must fully document deviations from a plan during such circumstances.

The Department reiterates, however, that this standard, like all the standards, is not intended to serve as a constitutional safe harbor. A facility that makes its best efforts to comply with the staffing plan is not necessarily in compliance with constitutional requirements, even if the staffing shortfall is due to budgetary factors beyond its control.

Comment.
Numerous advocates expressed concern that the proposed

standard did not require the facilities to adhere to a specific staffing plan. These commenters noted that the proposed standard required agencies to develop a staffing plan but did not require that agencies safely staff the facilities. In addition, because the proposed standard required agencies to plan for what to do if they failed to comply with their staffing goals, commenters suggested that it could be read to permit or condone unsafe supervision levels. These advocates proposed requiring agencies to comply with their initial staffing goals and eliminating the requirement that agencies plan for suboptimal staffing. Former members of the NPREC, and an advocacy organization, recommended that the Department revise its proposed supervision standard to require agencies to annually review staffing and video monitoring to assess their effectiveness at keeping inmates safe in light of reported incidents of sexual abuse, identify the changes it considers necessary, and actually implement those changes.

Response.
The Department recognizes the tension in the proposed standard between requiring an agency to identify adequate staffing levels, but then implicitly allowing the facility to operate without requisite staffing in accordance with a “backup plan.” Therefore, the final standard requires each prison, jail, and juvenile facility to develop, implement, and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse, taking into account the relevant factors affecting staffing needs. In addition, the final standard requires that, at least annually, the agency must assess, determine, and document whether adjustments are needed to the staffing plan, but does not require implementation of such adjustments. Because the Department recognizes that staffing levels are often dependent on budget approval from an external legislative or other governmental entity, the final standard requires each adult prison and jail to use its “best efforts to comply on a regular basis” with its staffing plan. Given the costs involved and the lack of control correctional agencies may have with regard to budgetary issues, the final standard is designed to encourage adequate staffing without discouraging agencies from attempting to comply with the PREA standards due to financial concerns.

Comment.
Advocates expressed concern that the proposed standards failed to provide sufficient guidance with respect to how staffing levels should be established. One advocate suggested that, in determining safe staffing ratios, facilities should start with any State requirements and standards promulgated by the American Correctional Association and the American Jail Association. Several comments suggested including as factors any blind spots within the facility, including spaces not designated for residents, such as closets, rooms, and hallways; high traffic areas within the facility; the ease with which individual staff members can be alone with individual residents in a given location; the potential value of establishing and retaining video and other evidence of sexual misconduct; the need to provide enhanced supervision of inmates who have abused or victimized other inmates; the need to ensure that vulnerable inmates receive additional protections without being subjected to extended isolation or deprived of programming; previous serious incidents and the staffing and other circumstances that existed during those incidents; the need for increased or improved staff training; the number of special needs or vulnerable inmates; the number and placement of supervisory staff; grievances from inmates, staff, visitors, family members, or others; compliance with any applicable laws and regulations related to staffing requirements; individual medical and mental health needs; availability of technology; custody level; management level; capacity; and peripheral duty requirements.

Response.
The Department considered each suggestion and adopted a final standard that requires facilities to consider the following factors: (1) Generally accepted detention and correctional practices; (2) any judicial findings of inadequacy; (3) any findings of inadequacy from Federal investigative agencies; (4) any findings of inadequacy from internal or external oversight bodies; (5) all components of the facility's physical plant (including “blind-spots” or areas where staff or inmates may be isolated); (6) the composition of the inmate population; (7) the number and placement of supervisory staff; (8) institution programs occurring on a particular shift; (9) any applicable State or local laws, regulations, or standards; (10) the prevalence of substantiated and unsubstantiated incidents of sexual abuse; and (11) any other relevant factors. The factors enumerated in the final standard are broadly applicable across different types of facilities, allow for comprehensive analysis without prescribing every single detail to be considered, and provide sufficient guidance as to how to plan for staffing levels that will provide adequate supervision to protect inmates from sexual abuse. The listed factors are not exclusive; facilities should consider additional issues that are common across correctional facilities and pertinent to the characteristics of each specific facility, and findings from reports and empirical studies relevant to sexual abuse issued by the Department, academia, or professional sources. As an example of one finding from a Department report that would be relevant to determining adequate staffing, as well as the need for increased video monitoring or the frequency of rounds, the Department encourages facilities to consider that inmate-on-inmate sexual abuse is most likely to occur in the evening, when inmates are awake but often confined to their cells and staffing levels are generally lower than during the day.
6

In addition, the National Resource Center for the Elimination of Prison Rape will develop guidance to help facilities compose an adequate staffing plan, and the Department's National Institute of Corrections is available to provide technical assistance on developing an adequate staffing plan.

6

See
Allen J. Beck and Paige M. Harrison, Bureau of Justice Statistics (“BJS”),
Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09,
at 22 (Table 16) (Aug. 2010).

Comment.
One correctional agency interpreted the proposed standard to require direct supervision of inmates, which it asserted would have major cost implications.

Response.
This comment is based on a misinterpretation of the proposed standard, which did not require direct supervision. Nor does the final standard.

Comment.
Some correctional agency commenters argued that it is not appropriate for the Federal government, or for State governments, to set staffing standards for a facility run by an independently elected constitutional officer at the local level.

Response.
The Department is sensitive to concerns regarding interference with local government. However, Congress mandated in PREA that the Attorney General adopt standards that would apply to local facilities as well as Federal and State facilities, as evidenced by the statute's definition of “prison” as “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.” 42 U.S.C. 15609.
7

The application of the staffing standard to local correctional agencies is consistent with Congress's mandate to the Department. Indeed, it is not uncommon for State staffing standards, especially for juvenile facilities, to apply to facilities that are under the purview of an independently elected county or municipal official. For these reasons, the Department does not view the imposition of this standard as inappropriately intruding upon the prerogatives of local elected officials.

7
In addition, the cost limitation language in the statute expressly references local institutions. See 42 U.S.C. 15607(a)(3) (“The Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.”).

Comment.
One correctional agency commented that hiring more staff does not necessarily eliminate sexual abuse.

Response.
The Department recognizes that adequate staffing levels alone are not sufficient to combat sexual abuse in a corrections setting. However, adequate staffing is essential to providing sufficient supervision to protect inmates from abuse.

NPRM Question 5: If a level such as
“
adequacy
”
were mandated, how would compliance be measured?

NPRM Question 11: If the Department does not mandate the provision of a certain level of staffing, are there other ways to supplement or replace the Department's proposed standard in order to foster appropriate staffing?

NPRM Question 14: Are there other ways not mentioned above in which the Department can improve the proposed standard?

Comment.
The Department received numerous suggestions from agency commenters on proposed methods for measuring adequacy. Some stakeholders expressed concern that a subjective “adequacy” standard would be difficult to audit. Many commenters requested a better definition of “adequacy.” Various advocacy and correctional groups commented that agencies would benefit from a more detailed description of what they must consider when conducting the staffing and technology analyses that PREA requires. Others suggested that “adequate,” while subjective, is the most appropriate term to use in this context.

Response.
The final standard does not include a specific definition for “adequate staffing” but does provide greater guidance as to the factors that should be considered in developing an adequate staffing plan. The Department intends to develop, in conjunction with the National Resource Center for the Elimination of Prison Rape, auditing tools that will guide PREA auditors regarding the various factors affecting the adequacy of staffing. The final standard contains additional documentation requirements, which will aid the auditor in reviewing the adequacy of the plan and the facility's efforts at complying with it. The auditor will review documentation showing that the agency or facility conducted a proper staffing analysis taking into account all enumerated and relevant factors included in the standard. In addition, the National Resource Center for the Elimination of Prison Rape will develop guidance to help facilities compose an adequate staffing plan. And, as noted above, the Department's National Institute of Corrections can provide technical assistance on developing an adequate staffing plan.

Comment.
Some correctional commenters, including the American Jail Association, requested best-practice tools for achieving “adequate” staffing. They suggested that the Federal government develop appropriate tools, model policies, and training materials that address the basic principles of PREA and focus on adequate supervision in order to provide facilities with “a greater chance of meaningful implementation of this standard.”

Response.
As discussed above, the National Resource Center for the Elimination of Prison Rape will develop guidance both for facilities in composing an adequate staffing plan and for auditors in evaluating adequacy of staffing during a PREA audit. These materials will be available to aid agencies in achieving compliance with the final standard.

Comment.
Some correctional agencies and advocacy groups recommended assessing the adequacy of staffing by reviewing any incidents related to sexual or physical abuse at a facility to determine if inadequate staffing played a role. One juvenile justice agency suggested that daily monitoring of PREA-related incidents could help identify staffing needs. Another agency commenter suggested reviewing incident reports of rule violations at particular posts.

Response.
Reviewing incidents of abuse and rule violations can provide information as to whether staffing is adequate in a particular facility or unit of a facility. However, incidents of abuse should not be the only factor. As discussed above, many factors affect adequacy of staffing. In addition, the reliability of the record of prior incidents may depend upon the facility's diligence at investigating allegations and its ability to create a culture in which inmate victims feel comfortable reporting incidents without fear of reprisal. Accordingly, it is not possible to define adequacy solely in these terms. Of course, if a review of incident reports indicates that insufficient staffing is a contributing factor in sexual abuse, such a finding is clearly relevant to the ultimate determination as to the adequacy of staffing.

Comment.
One State correctional agency suggested that adequacy could be defined by determining the minimum staffing levels at which a facility is able to operate within constitutional requirements and determining whether a facility is adhering to such staffing levels.

Response.
Adequate staffing is essential to providing constitutional conditions within a correctional facility. However, it is not feasible for the Department to determine, at every Federal, State, and local facility, the level of staffing required to comport with the Constitution, especially given that the level may change over time as the size and nature of the facility's population changes. The PREA audit with regard to this standard will focus on whether the facility has developed and utilized best efforts to comply on a regular basis with an adequate staffing plan to protect inmates from sexual abuse.

Comment.
Some correctional commenters suggested that “adequate” staffing levels be measured by the facility's ability to perform required functions, such as feeding inmates, conducting routine checks, holding outdoor recreation, and generally maintaining the facility schedule without requiring significant periods of lockdown.

Response.
A facility's inability to perform required functions and operate in accordance with the institutional schedule without significant periods of lockdown may have a direct bearing on the adequacy of staffing. However, deviations from the schedule and performance deficiencies may signal deeper problems unrelated to the number of staff. In addition, the ability to stay on schedule and perform routine functions does not necessarily indicate a safe or adequately staffed facility. While this information may be relevant to an auditor's review of the facility's staffing plan, it cannot be the sole determinant of staffing adequacy.

Comment.
Many commenters, including correctional agencies and advocacy groups, suggested that adequacy be measured by assessing whether a facility complies with its written staffing plan. One agency

suggested that compliance should be measured by determining whether the facility is complying with the plan rather than by reviewing the level or nature of incidents of abuse. Former NPREC members recommended that staffing level compliance be measured during the baseline audit, and that actual staffing patterns should be compared with the levels determined by the facility needs assessment. If the audit outcome reveals that current staffing levels are inadequate, facilities should be required to develop a corrective action plan, a timeline for implementation, and regularly scheduled assessments to monitor progress toward achieving safe staffing levels.

Response.
The final standard requires agencies to develop, document, and use “best efforts” to comply on a regular basis with a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse, taking into account the relevant, enumerated factors. A more stringent mandate would unfairly penalize agencies that do not have budgetary authority or funds to increase staffing. In addition, if faced with a specific mandate to comply with the staffing plan, agencies would have an incentive to formulate plans that undercount the number of staff needed in order to facilitate compliance with the plan. The final standard encourages agencies to compose the most appropriate staffing plan for each facility without concern that the agencies will be overly conservative in their staffing analysis in order to avoid non-compliance with the PREA standards. To be sure, if the facility's plan is plainly deficient on its face, the facility is not in compliance with this standard even if it adheres to the plan.

In addition, a failure to comply with identified adequate staffing levels may affect a facility's ability to comply with other standards. Pursuant to the auditing standards, facilities that receive a finding of “Does Not Meet Standard” with regard to any of the PREA standards will have a 180-day corrective action period in which the auditor and the agency shall jointly develop a corrective action plan to achieve compliance and the auditor will take necessary and appropriate steps to verify implementation of the corrective action plan before issuing a final determination as to whether the facility has achieved compliance.

Comment.
Some correctional stakeholders suggested that the Department require each facility to conduct incident mapping and set performance goals, and then measure adequacy based on the facility's ability to meet these goals.

Response.
The Department recognizes that incident mapping and performance goals are important quality improvement measures, and encourages all facilities to implement a system t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-12427. Public record. Not legal advice.