Prison Rape: Obama’s Program to Stop It

The United States has by far the largest prison system in the world. It is so large, in fact, so sprawling and dispersed, so administratively complex, that just how many people we keep locked up is uncertain. The most commonly cited statistic is that we have about 2.3 million inmates. This comes from the Bureau of Justice Statistics (BJS), a division of the Justice Department that surveys the national prison system and found that on June 30, 2009, the US had 203,233 federal prisoners, 1,326,547 state prisoners, and 767,620 detainees in local jails.

But then, in addition, more than 80,000 youth are held in juvenile detention facilities on any given day. Before being deported, about 400,000 people a year also pass through our immigration detention system, which is run mostly by the Department of Homeland Security. Hundreds of thousands more are held in halfway houses and police lockups; no one knows the exact number. The Bureau of Indian Affairs oversees jails in Indian Country, and the Department of Defense has its own network of more than sixty detention facilities all over the globe.

The people we imprison are overwhelmingly our most disadvantaged: the poor and the poorly educated, the black and the brown, the mentally ill. Typically, they’re given extraordinarily long sentences compared to prisoners in the European Union, often for infractions that would not warrant incarceration elsewhere. And while they’re imprisoned, appalling numbers of them are subjected to sexual abuse. A new BJS study released in May found that approximately one in ten former state prisoners were sexually abused while serving their most recent sentences. Overall (but accounting only for prisons, jails, and juvenile detention facilities), the Justice Department estimates that more than 209,400 people are sexually abused in US detention every year. This is a national disgrace—especially because prisoner rape is an eminently preventable problem.¹

In 2003, however, both chambers of Congress unanimously passed and President Bush signed the Prison Rape Elimination Act (PREA), which called both for extensive study of sexual abuse in detention and national standards to prevent, detect, and respond to it. The Obama administration has now issued those standards. If they are successful—and we believe they will be, to an extent many people may find surprising—not only will they reduce the incidence of prisoner rape dramatically, they will make American detention facilities better run, more humane, and safer places in general.

The standards have to do with how detention facilities are staffed, and how inmates are supervised and monitored; with how inmates are classified and housed within a facility; with the ways they can report sexual abuse, and how staff must investigate and respond to such reports. Among many other things, they will also affect the ways detention facilities must be monitored to ensure that they comply with these regulations.

Enforcement of the standards will rest in the first instance with corrections agencies themselves: the state departments of corrections and the county sheriffs’ offices that oversee most prisons and jails, respectively. The standards became legally binding for federal facilities run by the Bureau of Prisons on August 20. State prison systems have another year to achieve compliance; then, if they fail to do so, they risk losing important federal funds. Local jails that do not comply will not face such a well-defined penalty, but, as we will discuss below, jails, too, have good reasons to adopt the standards.

What conditions make prisoner rape likely in the first place? A great deal has been learned about this over the past few years. The PREA legislation, which charged the BJS with undertaking annual statistical analyses of the problem that have proved indispensable, also created a body called the Review Panel on Prison Rape. The review panel’s task is to summon staff from some of the best- and worst-performing facilities identified by the BJS every year to hearings, to learn what makes them good or bad. And it has thrown light into some very dark places.

The review panel’s most recent report describes the Fluvanna Correctional Center for Women, a maximum-security state prison in Troy, Virginia. About 1,200 women are confined there, and when the BJS surveyed them in 2009, 11.4 percent said they’d been sexually abused by other inmates in the preceding year alone; 6.0 percent said they’d been sexually abused by staff.²

The twelve months asked about in that survey came shortly after sexual misconduct by Fluvanna’s staff had already turned into scandal. Former inmate Melissa Andrews told the review panel about Patrick Owen Gee, who was chief of security at the prison—a man, she said, who seemed to hate women. When he started working at Fluvanna, he “went from wing to wing in each building and told us, ‘you bitches think you’ve been living in Kindercare…things are going to change.’” Andrews also testified that the warden to whom Gee reported, Barbara Wheeler, “said to officers many times, that if she took anything and everything from us including our humanity maybe we would not return to prison.” Gee was convicted of sexually abusing the inmates he was supposed to protect in 2008, and sentenced to five years in prison.³

Wheeler was still Fluvanna’s warden during the period covered in the BJS survey, but she was gone when the panel started its investigation. Following Gee’s conviction, and after a subsequent Associated Press article claimed that Fluvanna segregated lesbian and masculine-looking inmates in a so-called “butch wing” where they were “humiliated and stigmatized,” she retired. When the panel visited Fluvanna in April 2011, however, it quickly recognized that conditions inside the prison were still fostering abuse.

Although the new warden, Wendy Hobbs, had made some improvements, she had also retained several of Wheeler’s worst policies. There are no toilets in Fluvanna’s cells, and for example, during shakedowns—searches for contraband that often last a week—only one inmate at a time was allowed out to use the bathroom. That sometimes meant waits of four hours, and some inmates, especially elderly women on diuretic medicine for diabetes and high blood pressure, would be forced to urinate on themselves. For this they were sent to administrative segregation, commonly known as “solitary confinement.” According to the Justice Department, the isolation experienced there “is known to be dangerous to mental health.”

Any woman reporting that she had been sexually abused was given the same treatment. “If you dial the PREA number,” one inmate told the panel, “it’s a ticket to SEG [segregation].” Wendy Hobbs explained that in such cases segregation was intended to protect the woman from other prisoners while an investigation was conducted, and not to be a punishment, but that this distinction was lost on the inmates. The review panel discovered that when women in segregation were moved within Fluvanna (to the showers, for example), they were not only shackled hand and foot, but sometimes restrained with what the women called a “dog collar” and “dog leash.” “The dog collar totally freaked me out,” said one member of the panel.

In an unpublished 2004 BJS study, 42 percent of female state prisoners reported having been sexually abused earlier in life, before their current sentences began.⁴ Fluvanna’s assistant director for mental health, Nathan Young, testified to the review panel that 80 percent of the women there meet the diagnostic criteria for post-traumatic stress disorder (PTSD) or have symptoms of it. These can range from extreme rage, persistent disconnectedness, or rapid mood swings to difficulty eating, bathing, and sleeping. “Basically,” Young told the panel, “the institution is a big trauma wing.”

Barbara Owen, an expert on women’s prisons, told the panel that even “standard policies and procedures in correctional settings—e.g., searches, restraints, and isolation—can have profound effects on women with histories of trauma and abuse, and they often act as triggers to re-traumatize women who have PTSD.” As past trauma is reactivated by, for example, unwanted touching during a pat search, or being locked in a tiny, isolated room and forced to wear a “dog collar,” the symptoms of PTSD typically become more pronounced.

For both women and men, having a history of prior sexual abuse is—along with being lesbian, gay, bisexual, transgender, intersex, or gender non-conforming (LGBTI)—one of the two factors that make it most likely she or he will be sexually abused in detention. Prisons tend to be places where the strong prey on those perceived as weak, and where failure to conform to that pattern is itself taken as weakness. Guards, as well as inmates, quickly recognize symptoms of vulnerability.⁵

The pointlessly cruel and degrading policies at Fluvanna exemplify an approach to prison management that one would expect to produce high rates of sexual abuse—as, indeed, the BJS found in 2008–2009. Further confirming this, the review panel, during its one-day visit to the prison last year, heard reports that yet another male officer was abusing inmates. It referred the allegations to Hobbs, and eventually a lieutenant was arrested on three charges “of carnal knowledge with a prisoner.”⁶ When a prison’s administration is so evidently hostile to its inmates, and when inmates know they will be punished for daring to complain about even the gravest violations, then widespread sexual abuse is almost inevitable. Summarizing its findings from all the prisons and jails it investigated last year, the review panel gave particular emphasis to “the significance of institutional culture in creating environments that either prevent or permit sexual victimization.”

The new BJS study shows that this conclusion holds true throughout the prison system. It found that a prison’s size, age, degree of crowding, and staff-to-inmate ratio have no clear bearing on its rate of sexual abuse. However, prisons that had recently experienced large-scale violence or were under a court order to address substandard living conditions did have significantly elevated rates of sexual abuse. Allen Beck, senior statistical adviser at the BJS and the study’s lead author, told us in an e-mail that “in the end, the data suggest that institutional culture and facility leadership may be key factors in determining the level of victimization.”

The BJS study is based on a national survey of former state prisoners currently on parole, 9.6 percent of whom said they were sexually abused during their last sentences.⁷ Prisoner rape simply could not take place at such a rate if bad prison officials weren’t common, and if inmates around the country weren’t afraid to report sexual abuse because they know that staff will likely respond with retaliation and punishment.

Approximately half of all sexual abuse in detention is committed by staff, not by inmates. And almost half the former prisoners who reported sexual abuse by staff said that more than one staff member had abused them; 85.8 percent said it happened more than once. Moreover, apart from abuse, one third of all former prisoners reported that staff had sexually harassed them, by, for example, deliberately brushing against their private parts or staring inappropriately while they showered when that had nothing to do with the officer’s job. As the Justice Department notes, such harassment, though a lesser offense, “is often a precursor to sexual abuse.”⁸

Nationwide, only 37.4 percent of those prisoners who reported having been victims of inmate-on-inmate sexual abuse and only 20.7 percent of inmates who claimed unwilling sexual contact with staff said they had dared to file a report at their prisons.⁹ When they did complain about other inmates, they were as likely to be written up for punishment themselves (which they were 28.5 percent of the time) as to speak with an investigator or see their assailants punished in any way. Inmates who complained of staff sexual misconduct were written up for punishment 46.3 percent of the time.

It took much too long to create the PREA standards. A commission charged with issuing recommendations didn’t do so until six years after the bill’s passage; then Attorney General Eric Holder missed by nearly two years the statutory deadline for promulgating them. But the standards that Holder’s Department of Justice finally did issue are very strong.

To prevent inmate-on-inmate sexual abuse, for example, they require that all inmates be screened for their risk of being either victimized or abusive, according to well-understood criteria. Those screenings must then guide housing and programming assignments. Inmates must now be given at least two different ways within their facilities to report sexual abuse, and one way to report to an external authority (anonymously, if they wish).¹⁰ And there are substantial new training requirements for staff.

Facilities must now prepare written plans for how they will respond whenever allegations of sexual abuse are made. Inmates who report abuse must be given quick medical treatment and counseling, and investigators must collect evidence in ways that maximize the possibility of successful criminal prosecutions of the abusers. Every corrections agency and facility must now have a formal zero-tolerance policy toward sexual abuse and must designate an employee with the time and authority to coordinate compliance with all of the PREA standards (too numerous to be discussed in their entirety here). Most importantly, the standards require every facility that holds detainees overnight to be audited for PREA compliance every three years; the standards insist that the auditors be qualified and fully independent.

With regulations like these, the devil tends to lie in the details, in camouflaged provisions and lawyerly phrasing—though he also makes frequent appearances when it comes to their funding, implementation, and enforcement. A close look at these standards, however, shows that the Justice Department was not trying to create legal loopholes or built-in excuses for failure. Instead, for the most part, the standards are conscientious and enlightened.

Recognizing the catastrophic levels of abuse suffered by gay, bisexual, and other particularly vulnerable inmates—according to the new BJS study, 3.5 percent of men who identified themselves as heterosexual had been sexually abused by another inmate, but 34 percent of bisexual men had, and 39 percent of gay men—the department has mandated strong measures for their protection. Facilities will no longer be allowed to segregate LGBTI inmates against their will unless ordered to by a court.¹¹ Decisions about whether transgender and intersex inmates are to be put in men’s or women’s facilities must be made by staff in each individual case, taking into account the inmate’s vulnerability and not just genitalia. Wherever such inmates are housed, they must be allowed to shower apart from other inmates.

Recognizing the vulnerability of juveniles held in adult prisons and jails, the standards severely restrict such placements.¹² Since women raped by their guards sometimes become pregnant—The New York Times reported two such cases in Alabama days after the standards were released—the standards require that inmates be given timely, free access to emergency contraception, as well as prophylaxis against sexually transmitted infections.¹³ And there are a number of standards intended to prevent sexual harassment by staff. Also, staff who supervise inmates of the opposite sex must now announce their presence when entering housing units. Such commonsense measures, already the norm in Canada and elsewhere, will go a long way toward making the atmosphere in our detention facilities more respectful, and so less dangerous.

We believe that the cumulative effect of all the standards will be to improve institutional culture throughout the prison system. Preventing sexual abuse and responding appropriately when it does occur will now be routine parts of every corrections officer’s job: an explicit institutional priority, a matter of daily professional obligation, and, if it matters enough to his or her supervisors, a factor in decisions about compensation and promotion. Audits will identify facility leaders who do well at preventing sexual abuse and those who do poorly, and corrections agencies will have to encourage effective compliance through their own decisions about compensation, promotion, and firing.

The Justice Department estimates that compliance with the new standards will cost about $55,000 a year per prison, and somewhat less for jails and other facilities. According to its cost-benefit analysis, this would be “justified” in financial terms if, nationally, 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.”¹⁴

During the first few years in which standards are implemented, the rate of sexual abuse as measured by the BJS may actually go up, since inmates may become less afraid to report it. Thereafter, though, the trend should reverse, and much more dramatically than the department has dared predict. Previously in these pages, we have argued that even by a conservative means of calculation, reasonably well-crafted standards should reduce the incidence of prisoner rape by more than half.¹⁵ These standards—always assuming, of course, that they are adequately funded, carried out, and enforced—are good enough to do markedly better than that.

Enforcement remains an issue, however. While there is no procedure for the enforcement of individual complaints under PREA, the attorney general is responsible for making sure that federal prisons comply with the new standards. States that fail to comply risk a significant loss of federal funding for their prisons, but the DOJ has not yet fully determined how compliance will be ascertained. Private organizations that assess prisons at any level, such as the American Correctional Association, would also not receive any federal grants unless they require compliance with the PREA standards as a condition of their giving accreditation to particular facilities. (Many facilities voluntarily undergo such accreditation in order to identify problems, protect themselves from litigation, and increase their credibility with lawmakers and the public.) But PREA did not establish any office or ombudsman within the DOJ responsible for enforcement, and further measures will clearly be needed as the standards are put into effect.

Other serious weaknesses in the standards will also need to be addressed. Although they ban pat searches of female inmates by male staff, for example, they do not prohibit female staff from pat searching male inmates, even though the BJS data indicate that most staff sexual abuse is committed by women against men.¹⁶ And although they say that termination should be the “presumptive sanction” for staff who sexually abuse inmates, they do not insist that staff abusers be fired. (Many, now, are not.)

The standards do not require prisons and other facilities to monitor possible retaliation against inmates who allege sexual abuse if investigations determine that those allegations were unfounded, and they allow staff to punish inmates deemed to have made false allegations “in bad faith.” The department’s intentions here are understandable, but in bad prisons they will mean opportunities for abuse. After all, where is the guarantee that a facility’s investigator will not make his determinations in bad faith? According to the latest report of the review panel, a gay man who had been raped by different inmates in Louisiana’s Orleans Parish Prison “so many times I lost count” filed six separate grievances with no response. When at last he begged an officer directly for help, the officer replied, “a faggot raped in prison—imagine that!”¹⁷ Administrators and staff acting in bad faith are, in fact, the main reason why prisoners are raped so often.

Contrary to the clear intent of Congress, which for the purposes of PREA defined “prison” as “any confinement facility of a Federal, State, or local government,” and despite the particular vulnerabilities of confined immigrants, the Justice Department’s standards will not apply to immigration detention facilities.¹⁸ However, on the same day that its standards were released, President Obama issued a memorandum stating that “PREA applies to all Federal confinement facilities, including those operated by executive departments and agencies…other than the Department of Justice.” This brave and badly needed affirmation means that the Department of Homeland Security must adopt its own “high standards” for all Immigration and Customs Enforcement and Border Patrol detention facilities. Secretary of Homeland Security Janet Napolitano has already confirmed that it will do so. Staff at the Bureau of Indian Affairs, too, have indicated their willingness to comply fully with Obama’s directive.

The Department of Defense has been less forthcoming. Staff there have told our organization, Just Detention International, that they know their confinement facilities for service members will have to comply with the presidential memo.¹⁹ However, the department has not yet indicated how strong its standards will be. Moreover, it seems to believe that its overseas facilities for “enemy combatants” (including the one at Guantánamo Bay) will be exempt from PREA.²⁰

Meanwhile, some staff within the Department of Health and Human Services, which has custody of immigrant children who are unaccompanied by adults when detained within the US, are considering whether they can avoid adopting PREA standards through a spurious argument that the shelters in which they hold these children are not confinement facilities.²¹ This is despite the facts that the shelters are locked, the children are not allowed to leave them, and those who escape are caught and brought back.

It will be up to Obama to enforce his authority over these various departments of the executive branch. Whatever the legal merits of the theory that the Defense Department’s overseas prisons are exempt from US law, the president can and should still demand that they adopt PREA standards. And he should insist that the “high standards” he called for from every federal department and agency be at least as strong and comprehensive as the Justice Department’s.

Obama could simply have required every department to adopt the Justice Department’s standards. He chose not to because, as the Justice Department explained, the other departments’ confinement facilities differ “with regard to the manner in which they are operated and the composition of their populations.” However, they should all use the Justice Department’s as a template, deviating from them only where they can show they have good reason to do so.

The standards’ greatest weakness comes not from any decision made by the Obama administration, but from the original PREA legislation. Because the state prisons and local jails that confine most inmates are governed by state law, the federal Congress chose not to impose the standards on them. State and local agencies and facilities that fail to comply with the standards, therefore, are not automatically acting illegally, and inmates who have been sexually abused cannot obtain relief in court under PREA. Instead, Congress passed PREA under its spending power, threatening to withhold 5 percent of the federal grants to a state’s prison system if the Justice Department finds that state out of compliance with the standards. Since nationally our entire prison system costs about $80 billion a year, this can mean a great deal of money. Still, it may not be enough to force all states to comply with the standards.

Because local jails are not as dependent on federal money as state prison systems, Congress could not threaten them with equivalent sanctions, and so it is even more questionable whether they will comply with the PREA standards. An association called the County Sheriffs of Colorado has already declared that it will not adopt the standards in its jails. But as Colorado’s sheriffs are likely to discover soon, jails also have good reasons to comply with the standards—even apart from concern for the people they confine.

In recent years, inmates have been increasingly successful at bringing lawsuits against the agencies and facilities in which they were sexually abused, winning damages of as much as $100 million. As more has been learned about the problem of prisoner rape, and especially now that the government has codified practices for preventing it, agencies and facilities that refuse to adopt these basic protections have become exceptionally vulnerable to such actions. The Justice Department’s Civil Rights Division also has the authority to investigate and file suit against any state or local agency suspected of violating inmates’ civil rights, and it will be able to use that power to encourage compliance with the standards.

More legislation will probably be needed to strengthen the incentives for compliance, both by Congress and by the individual states, which have broader powers to regulate local jails. For now, though, it’s worth taking a moment to appreciate what has just been accomplished. Prisoner rape, long thought to be an intractable horror, as much a part of life in confinement as barred cells and guards, appears to be something we can largely eradicate. And the powerful standards produced by Obama’s Department of Justice are the most important step yet in this effort.