Prison Rape and the Government

As a point of comparison, it may be worth noting that the latest National Crime Victimization Survey (NCVS) by the BJS, which excludes “Armed Forces personnel living in military barracks and institutionalized persons, such as correctional facility inmates,” estimates that in 2009 there were 125,910 instances of rape and sexual assault in the US. However, several caveats are necessary here: first, that the definitions of these crimes used in this study are not the same as those used in the surveys of prisoner rape; second, that the 2009 number was down significantly from the 2008 NCVS finding of 203,830 rapes and sexual assaults in the free community; third, as the BJS says in the 2009 NCVS, “The measurement of rape and sexual assault represents one of the most serious challenges in the field of victimization research.” The 2009 National Crime Victimization Survey is available at bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf.  ↩

As the Justice Department acknowledges, “the power imbalance in correctional facilities is such that it is impossible to know if an incarcerated person truly ‘consented’ to sexual activity with staff.”  ↩

Of juvenile detainees reporting sexual abuse by other inmates, 81 percent said it happened more than once.  ↩

According to the National Prison Rape Elimination Commission report, suicide is considered by one third to one half of rape victims in “non-correctional settings”; 17 to 19 percent attempt it. And as the department says of rape, “Such acts are particularly damaging in the correctional environment, where the power dynamic is heavily skewed against victims and recourse is often limited.”  ↩

Two federal entities charged with implementing parts of PREA, the commission and the BJS, have both recognized immigration as clearly within their mandate; statements in the House Judiciary Committee’s report on the bill confirm that it was meant to cover civil as well as criminal detainees; and the late Senator Edward Kennedy, one of PREA’s sponsors and its main champion in Congress, publicly expressed his particular gratification that PREA would apply to immigration detention. PREA itself defines “prison” for the purposes of the law as “any confinement facility of a Federal, State, or local government.” And as a former adviser to the head of the Department of Homeland Security (DHS) acknowledged, immigration facilities (all of which are run by or contracted from the DHS) need new policies like the standards.

The department’s argument for not applying its standards to DHS immigration facilities, we presume, is that PREA didn’t stipulate that the standards should apply to DHS facilities. But when PREA was first drafted, in 2002, there was no Department of Homeland Security; the Immigration and Naturalization Service, which did exist then, was a division of the Department of Justice, so the department’s standards would have applied to its facilities automatically. While DHS had been established by the time PREA was passed, the scope of its responsibilities for housing immigration detainees was not yet clear. ↩

See Human Rights Watch, “Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention,” August 25, 2010.  ↩

By 2000, about as many people were being annually sent to prison in the US for parole violations as had been sent to prison for any reason in 1980. (Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010), p. 93.) According to the BJS, more than five million people were on probation or parole in 2009. The sorts of parole violations that can get someone sent back to prison include failing to maintain employment, failing a drug test, and missing an appointment with a parole officer—all of which, however, would be typical symptoms of the kind of trauma associated with prior sexual abuse. Thus, unless probation and parole officers can recognize and take into account such trauma, people who have been sexually abused in detention are at heightened risk of being sent back to prison after their release. There, because prior abuse dramatically increases the probability of future abuse, they will very likely face more sexual assaults.  ↩

About 17 percent of those raped in prison suffer serious additional injuries—knife wounds, broken bones, concussions—and they must often be hospitalized. Sexual abuse of any kind can also cause or exacerbate serious mental and emotional problems: 30 to 40 percent of inmates suffer from such disabilities even prior to any abuse—which, of course, also makes them particularly vulnerable to being abused. And as the department says, “Retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a real and serious threat in correctional facilities. Fear of retaliation, such as being subjected to harsh or hostile conditions, being attacked by other inmates, or suffering harassment from staff, prevents many inmates and staff from reporting sexual abuse, which in turn makes it difficult to keep facilities safe and secure.” An inmate who has been sexually abused typically feels a sense of panic, extreme isolation, and vulnerability; it is very difficult for such a person to trust any member of the facility’s staff when staff have already failed to protect him (or, indeed, when it was staff who abused him).  ↩

Deadlines are not the only problems inmates face in trying to comply with the grievance procedures of their facilities. Many corrections agencies across the country have taken advantage of the Prison Litigation Reform Act to avoid responsibility for abuses within their walls by creating deliberately confusing or even contradictory grievance requirements. Thus, for example, two recent court cases in Iowa and New York arose after female prisoners followed advice given in agency materials and complained about sexual abuse to officials whom they trusted; but neither the case manager turned to in Iowa nor the inspector general in New York had a role in the official grievance systems of those states, and therefore the courts decided that judicial review was procedurally barred in each case. Such procedural traps and labyrinths are particularly challenging for the country’s many illiterate and mentally ill inmates. The department should insist that all grievance procedures be simple, clear, and possible to follow.  ↩

Beyond failing to recognize the important reasons why this advocate should be an outsider, the department’s standard gives no binding criteria by which a staff member would be deemed qualified. Its discussion of what it believes might be required for such qualification suggests that it would accept much more limited training than community rape crisis centers typically demand. Moreover, the department has no requirement that staff members go through any screening in order to become qualified, raising the dangerous possibility that staff perpetrators of sexual abuse might serve as victim advocates.  ↩

Complicated though this question is, some elements of its solution are clear enough. To mention only a few points, recording cameras should be placed in a facility’s known blind spots, including places not designated for inmates but where an abusive staff member could take them, such as closets; similarly, places in a facility where sexual abuse has been known to occur should be monitored, either directly by staff or with cameras; there should be direct “sight and sound supervision” of inmates with a known history of sexual predation when they are in common areas, shared cells, or otherwise interacting with fellow inmates; and the extent to which individual staff members are able to spend time alone with inmates should be minimized. More such suggestions will be forthcoming in the public comment that Just Detention International intends to make in response to the department’s draft standards, and will be available on the organization’s website.  ↩

The department writes that auditors would probably not “be able to determine the appropriate staffing level in the limited amount of time available to conduct an audit.” Perhaps not, and perhaps asking auditors to create such plans would be too much, but they should certainly be allowed to decide when supervision is inadequate. They must be allowed to reject the plans that agencies have made for their own facilities, and to include failures to provide adequate supervision or to implement backup plans in their public reports.  ↩

In addition to being truly independent and adequately funded, auditors must have the power to visit every detention facility, unannounced and at any time; to examine and copy documents; to hold private, confidential conversations with all inmates and staff; and to have their findings on noncompliance and recommendations for improvement made publicly available. The standards should require regular document review of the policies and practices of every facility. Ideally, auditors would visit every facility at least every three years. If this isn’t possible due to the immense number of corrections facilities nationwide, the standards should require “for cause” audits of facilities where serious problems have been identified, and also the possibility of random audits for all facilities, so that all have proper incentives to comply with the standards, and so that problems can be identified and addressed before becoming serious. The department’s proposals guarantee none of these things.  ↩

The sentence reads, “The Department does not believe that these national standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services.”  ↩

However, as the department says, “Congress understood that such standards were likely to require Federal, State, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing the standards. Given the statute’s aspiration to eliminate prison rape in the United States, Congress expected that some level of compliance costs would be appropriate and necessary.”  ↩

Cost-benefit analysis, as the name suggests, is an effort to quantify both the price and the measurable savings or positive monetized gains associated with a proposed regulation. Ideally it is used to maximize the social good; at a minimum (and perhaps more commonly in practice) it is used to ensure that the achievements of any regulation aren’t outweighed by its expense. For a more complete discussion of cost-benefit analysis and its applicability to the department’s efforts to prevent sexual abuse in detention, see David Kaiser and Lovisa Stannow, “Prison Rape: Eric Holder’s Unfinished Business,” NYRblog, August 26, 2010, available at https://www.nybooks.com/blogs/nyrblog/2010/aug/26/prison-rape-holders-unfinished-business/. See also Institute for Policy Integrity, Letter to Robert Hinchman, dated May 10, 2010, available at http://policyintegrity.or/documents/IPI_PREA_Comments_-_FINAL.pdf, and Institute for Policy Integrity, Memo to DOJ PREA Working Group and Office of Information and Regulatory Affairs dated September 10, 2010, available at policyintegrity.org/documents/PREA_Memorandum_September_2010.pdf.  ↩

More precisely, the department says that “the proposed standards would have to yield approximately a 2.3–3.5 % reduction from the baseline in the average annual prevalence of prison rape for the ongoing costs and the monetized benefits to break even, without regard to the value of the nonmonetary benefits.” For the commission’s standards to “break even” with the department’s projection of their costs, the department estimates that they would have to reduce sexual abuse in detention by 22 percent.  ↩

For example, the department has assigned a value to saving an inmate from “nonconsensual sexual acts involving pressure” that is only one fifth the better-established benefit of preventing rape by force, suggesting a similar differential in the “cost” of these crimes. This seems especially low considering that mental trauma and loss of quality of life account for 85 percent of the department’s estimate of the “cost” of forcible rape; we believe that the psychological damage inflicted by the two kinds of abuse is similar. The value it assigns to preserving an adult from “abusive sexual contact” is only $375; for a juvenile, it is $500.

More generally, the department has not attempted to quantify all the measurable benefits of preventing sexual abuse in detention. For example, it writes that “sexual assault in prison often leads to long-term trauma, especially if victims are not treated properly in the immediate aftermath of their victimization. When victims return to their communities, this trauma frequently results in an inability to maintain stable employment. The standards will improve the reentry of offenders into society after their incarceration, reducing the likelihood that they will require public assistance (such as welfare, disability benefits, housing vouchers, food stamps) and other forms of governmental support upon their reentry.” Although the benefits mentioned in this passage are difficult ones to measure, they are the sorts of things normally thought susceptible to quantification in cost-benefit analysis.

The department also writes that “implementation of the standards will enhance public safety by reducing the likelihood that inmates released from prison and jail each year will commit crimes (especially violent crimes) after their release…. Reducing recidivism could potentially save society and government tens of millions of dollars per year by avoiding the economic and human costs of crime, the cost of investigating and prosecuting crimes, and the considerable expense of incarceration itself ($22,600 per prisoner per year, or $62 per day, as of 2001).” But it doesn’t attempt to include quantification of these benefits in its analysis, either.

Nationally, 4.4 percent of prison inmates are sexually abused every year, as are 3.1 percent of jail inmates. In the better half of all facilities, 2.069 percent of prisoners are abused, and 1.436 percent of jail inmates.  ↩

To reach this number, we took the rates of abuse from the better-performing 84 prisons in the BJS study and averaged them; we did the same for the better-performing 143 jails. (The figures we reached this way are not weighted averages: we did not try to account for the size of each different facility or the number of inmates who responded to the survey in each.) Then, for both prisons and jails, we divided the rate of abuse for the top half of facilities by the overall rate found by the BJS; we multiplied the numbers this produced by the department’s estimate of the numbers of victims in prisons and jails to reach our absolute numbers. We did not attempt to perform the same calculation for juvenile facilities out of concern that the more limited data we have there might not support such an exercise; however, we are confident that strong standards could make an enormous difference in juvenile facilities, just as they would in adult prisons and jails. ↩