Will Congress Gut Law to Eliminate Prison Rape?


December 3, 2014

More than a decade after the government promised “zero” tolerance of sexual violence in U.S. jails and prisons, the problem remains widespread, according to a new U.N. report. An estimated seven percent of inmates were victimized in 2011 — a number that has remained relatively consistent with previous reports.

Now, a federal law designed to curb the problem may be quietly gutted in Congress before it fully takes effect, according to a new report in The Marshall Project, a nonprofit dedicated to covering criminal justice news.

In 2003, Congress passed the Prison Rape Elimination Act (PREA), which required the Justice Department to establish standards to prevent and respond to sexual abuse in detention, which it issued in 2012. States were supposed to show by this past May that they were coming into compliance with those regulations — or lose five percent of federal funding for some programs.

Most are still behind. As of May 15, only two — New Hampshire and New Jersey — were in compliance. Another 46 states and U.S. territories have given assurances that they are working toward compliance. That allows them to keep their funding until August 2016 without undergoing an audit. Seven have refused to comply.

As the Marshall Project reported, Sen. John Cornyn, (R-Texas) proposed an amendment in September that would remove financial penalties for such states. It failed, but the report suggests he plans to try again when the next session of Congress opens in January.

During a hearing on the amendment, Cornyn said the funding states stand to lose supports programs for police and domestic violence victims, who shouldn’t be punished if states fail to meet their PREA requirements.

Cornyn’s own state is one of seven that have refused to adopt the new PREA standards. Texas Governor Rick Perry called the law “counterproductive and unnecessarily cumbersome” in a letter to the Attorney General Eric Holder earlier this year, saying the state was already taking its own steps to deal with the problem. Arizona, Florida, Idaho, Indiana, Nebraska and Utah also refused to comply, some of whom objected to some of the PREA requirements or said they had their own policies for dealing with sexual violence.

The National Prison Rape Elimination Commission, a bipartisan panel set up by PREA to investigate the problem of sexual abuse in U.S. facilities, wrote to the attorney general last month expressing “grave concern” that such an amendment would further dilute the law.

“There is every indication that certain senators will continue their efforts to attach to it or use some other vehicle to amend the penalty portions of PREA,” the group wrote. Without that financial incentive, it said, states would have no reason to comply. Efforts to eliminate prison rape “does not get much support or attention from politicians, public leaders or the public at large,” it said.

The law as it was passed isn’t perfect. It didn’t cover immigrant detention facilities, which are run by the Department of Homeland Security and faced major problems with sexual violence. President Barack Obama extended those rules to DHS facilities in May 2012; the department said it would put them in place by early 2013.

But PREA did mark for the first time a concerted effort to address sexual abuse in prisons in jails, most of which is believed to go unreported.

Pat Nolan, a member of the bipartisan panel, told the Marshall Project that the Justice Department’s willingness to delay state audits, along with earlier delays, only further puts off implementation of the law.

“It’s been a passive-aggressive behavior,” he said. “They haven’t publicly come out and said we hate this law and don’t want to enforce it, but all their actions show they want to drag this out as much as possible.”

Sarah Childress

Sarah Childress, Series Senior Editor, FRONTLINE



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