The Prison Rape Elimination Act Overview and Update Responding to Inmate on Inmate Sexual Violence.
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Transcript of The Prison Rape Elimination Act Overview and Update Responding to Inmate on Inmate Sexual Violence.
The Prison Rape Elimination Act of 2003 Public Law 108-79
Makes important findings about the impact of prison rape on inmates, the economy and state and federal governments
PREA Purposes
Increase accountability of prison officials who fail to detect, prevent, reduce and punish prison rape
Protect 8thamendment rights of federal, state and local prisoners
Establish grant programs Reduce costs of prison rape on interstate
commerce
PREA Purposes
Establish zero tolerance for the conduct Make prevention a top priority Develop national standards for detection,
prevention, reduction and punishment Increase available data and information on
incidence in order to improve management and administration
Standardize definitions used for collecting data on the incidence of rape
Major Provisions
Section 4: Collection of prison rape statistics, data and research– Federal, state and local officials are required to
participate– Review panel on prison rape with subpoena
power– Public hearings for 3 highest incidence systems
and 2 lowest – Report each year on 6/30
BJS Update
Expert panel meetings Administrative survey collections Victim self reports
– Adults – Youth-Began collection of self-reporting (March
2008) Major tests of tools for evaluation of
victimization rates for former inmates
BJS Update
Collection of Lock-ups sample Rankings
– Prisons-December 2007– Jails-June 2008– Lock-ups-2008
Major Provisions
Section 5: Prison Rape Prevention and Prosecution – Information and Assistance through
clearinghouse – Training and education– Report due on 9/30 annually
NIC Update
Completion of informational PREA videos PREA videoconferences Nationwide technical assistance and training
on PREA Correctional Officer Handbook
NIC Update
Development of curricula – Addressing sexual violence against youth in
custody– Responding to inmate-on-inmate sexual violence– Investigating sexual violence in correctional
settings
Development of legal tool kits for states Development of E-Learning tool
Major Provisions
Section 6: Grants to Protect Inmates and Safeguard Communities
Protection of the community$ to address overcrowding
Risk assessment toolsMapping of concentration of inmates in
communitiesPolicy and program developmentCollaboration between corrections and
community on reentry
Major Provisions
Section 6: Grants to Protect Inmates and Safeguard Communities – Protection of Inmates
InvestigationsProsecution Prevention
BJA Update
Convened meetings to discuss protecting inmates and community safety
16 states were awarded grants in 2004 28 awards in 2006
State Grant Awards
Training Improve or create investigative structures Develop data collection capacities Enhance security by installing cameras or
identifying institutional vulnerabilities Develop classification and housing options
for victims and perpetrators
State Grant Awards
Enhance medical and mental health treatment for victims
Community reintegration and services for victims and perpetrators
Hiring staff to implement PREA
BJA Update
Work with Prosecutors Training Curriculum for Jails and Lockups Community Corrections Materials for Tribal/ Native American
jurisdictions Problems and responses to PREA
NIJ Update
Policies and practices looking at male and female prison facilities
Assessment tools and Instruments and descriptive analysis of characteristics of perpetrators and victims
The culture of prison sexual violence Looking at classification and risk assessment
NIJ Update
Impact of victimization Several awards were made on sexual
violence in jail settings 2008 Research Solicitation
– Focus on Staff Sexual Misconduct Cross Gender Supervision Pat searches Investigations and Prosecution Best Practices and evaluation of current policies
Major Provisions
Section 7: National Prison Rape Elimination Commission
– 9 members authorized (8 sitting)– Conduct legal and factual study of the effects of
prison rape in the US– Report due w/in 2 years of initial meeting
Major Provisions
Section 7: National Prison Rape Elimination Commission – Recommend national standards– Consultation with accreditation organizations– Can’t impose something that would mandate
substantial increased costs to agency– Hold hearings
NPREC Update www.nprec.us
Expert Panels begun in 2007– training, medical and mental health, reporting and
data collection, classification, investigations, evidence and crime scene collections, immigration, juveniles
Major Provisions
Section 8: Adoption and Effect of National Standards– A year after National Prison Rape Elimination
Commission issues report, AG publishes a final rule with standards
– 90 days after publication --transmission to state departments of correction
– FBOP is immediately covered by rule– Possible reduction of 5% each year for failure to
meet the standard– Annual report on non-compliance
What does this mean?
Increased scrutiny at state, federal and local level on prison rape generally and staff sexual misconduct specifically as a subset
Broadened concern about offender on offender conduct
Data collection is important Enhanced focus on investigations, prosecution and
administrative sanctions Set of national standards that establish minimum
standards for treatment of prisoners domestically
Legal Liability for Sexual Abuse of Persons in Custody: Civil and Administrative
Responding to Inmate on Inmate
Sexual Violence
State Laws
Staff sexual misconduct* Sexual assault Statutory rape Sodomy Sex offender registration Vulnerable Adult Statutes Licensing Official misconduct Obstruction of Justice Making false statements to a government official Mandatory reporting
State Custodial Sexual Abuse Laws
•All 50 states, the Federal Government and DC have laws specifically covering the sexual abuse of persons in custody
•32 States cover Community Corrections agencies•29 States cover juveniles explicitly– another 17 States implicitly.
Punishing Consensual Sex of inmates
A State’s Sodomy laws constitutional as applied to sex in prisons.
Diminished expectation of Privacy.– US v. Brewer, 363 F. Supp. 606 (M.D. Pa.
1973)– People v. Frazier, 64 Cal.Rptr. 447 (Cal. Ct.
App.1967)– People v.Coulter, 288 N.W.2d 448 (Mich. Ct.
App. 1980)
Civil Liability-Constitutional Claims
Most Common legal bases for challenges
42 USC 1983 8th Amendment 4th Amendment 14th Amendment State tort claims
42 U.S.C. §1983
Causes a federal cause of action for the vindication of rights found elsewhere
Key elements– Deprived or a right secured by the constitution or
law of US– Deprivation by a person acting under color of
state law– Don’t forget volunteers and contractors
Eighth Amendment
Prohibits cruel and unusual punishment Legal standard is deliberate indifference
– Established in a prison rape case Farmer v. Brennan
– Two part testThe injury must be objectively serious and must
have caused an objectively serious injuryThe official must have a sufficiently culpable of
mind and have acted with deliberate indifference or reckless disregard for the inmate’s constitutional rights
What the Courts look for
Deliberate indifference to inmate vulnerability – safety or health– Official knew of and disregarded an excessive
risk to an inmate’s safety or health– Official must be aware of facts from which an
inference could be drawn that a substantial risk of harm exists and he must draw the inference
Fourteenth Amendment—Substantive Due Process
Was the individual deprived of life,liberty or property without due process of law?
Lower legal Standard than 8th amendment Depending on the situation—14th amendment
may apply – pre-trial detainees and juveniles
State Tort Law Claims
Assault Battery Intentional infliction of emotional distress Negligent infliction of emotional distress Negligent hiring, firing, supervision, staff
training
Inmate on Inmate Conduct
Who raises the issue– Male– Female
Nature of the conduct– Forced– Coerced– Consensual
Official Liability
Did it happen on your watch? Were you responsible for promulgating and
enforcing policy? Did you fail to act or ignore information
presented to you? Was it a FAILURE TO TRAIN, SUPERVISE,
ETC…
Individual Liability
Officials sued in individual capacity may be protected from damages if the wrongful conduct was committed while they preformed a function protected by qualified immunity
Personal Liability
Plaintiff must provide notice that the suit is against the official in his/her personal capacity
Direct participation not required– Actual or constructive notice of unconstitutional
practices– Demonstrated gross negligence or deliberate
indifference by failing to act
Qualified Immunity
No violation of federal law– constitutional or otherwise
Rights and law not clearly established at time of the incident
Official’s action was objectively legally reasonable in light of clearly established legal rules at time of the action—deliberate indifference