Prison Rape Law’s Potential Impacts on Juvenile Justice…If States Comply

A couple weeks back, we discussed the looming deadline for juvenile justice facilities to start complying with the Prison Rape Elimination Act (PREA), which took about 10 years to go from “bill signed into law” to “law you have to comply with.”

Click here to read that piece, but the long and short of it is: There is confusion over the enforcement and penalties included in the law, and there is fear that the changes will be costly.

A few additional thoughts on PREA:

Backdoor Reforms

The preeminent numbers on sexual activity in juvenile facilities comes from a 2010 study published by the Department of Justice.

The press release for the study, which surveyed more than 3,000 juvenile facility wards around the country, led with a pretty shocking revelation: 12 percent of all juveniles are reported experiencing one or more incidents of sexual victimization by another youth or facility staff.

Here’s the thing: Almost all of the reported victimization pertained to male juvenile wards involved with female staff at facilities. That is certainly a major concern; the Review Panel on Prison Rape said as much in 2010. But inappropriate-albeit-consensual acts are not what PREA was created to prevent.

But the safeguards in PREA implicitly guarantee protections for incarcerated juveniles that advocates prioritize. Two key ones:

-Juveniles in jails and prisons need to be kept separate from adult inmates, and keeping them in isolation to accomplish this is not allowed. The hope is that this can be used to convince systems to keep juveniles convicted as adults in juvenile facilities until they turn 18. Some states, including California, already do this.

-Juvenile facilities must have a grievance system that allows complaints from inmates to travel directly outside of the facility, and facility staff must offer access to victim advocates. These are protections that extend beyond the scope of just sexual contact inside facilities.

Staffing Ratios: Why, and at What Cost?

The PREA standards require a 1:8 worker-to-juvenile ratio by day and a 1:16 ratio by night. For facilities in the 12 states that already require more stringent ratios than that, this won’t be a problem.

Elsewhere? It means more hires, or at the very least it means paying existing staff for more time. It is a curious standard when one considers the fact that the preponderant amount of sexual activity occurs with adults.

On a more systemic level, it means that more juvenile justice spending will be required in facilities. And in a zero-sum game – where states redirect instead of supplementing existing funds – that means more money for facilities and less money for anything else.

There is one way to achieve more stringent ratios without additional hires: lower the number of youths in the facilities.

The staffing ratio standards do not actually take effect until October of 2017.

Walsh Act Situation

The entire PREA compliance process appears, in some ways, similar to another set of standards patrolled by the Justice Department: The Sex Offender Registration and Notification Act (SORNA), the part of the 2006 Adam Walsh Act that sets the rules by which states must connect their sex offender list to a national registry.

States that don’t comply with SORNA face a 10 percent cut to their Justice Assistance Grants from the department. States that fail to comply with PREA face a five percent cut to “any Department of Justice grant funds that the State would otherwise receive for prison purposes,” according to the law.

Like PREA, the Walsh Act’s SORNA is a broader set of standards that includes youth-impacting rules. SORNA requires that states include juvenile sex offenders to some extent on the national registry, many of them for their entire lives.

If the expectation is that the penalty will be a main driver for PREA compliance, the state-federal experience with SORNA does not provide a hopeful precedent. Here is a timeline of how Walsh Act compliance has played out:

2009: With zero states compliant, Attorney General Eric Holder issued a blanket extension until July of 2010. A few months into 2010, Ohio became the first state to gain Walsh Act compliance.

2010: As the deadline for compliance approached, four states were compliant: Ohio, Delaware, Florida and South Dakota. So Holder allowed each state another year if they formally asked for an extension, and all of them did.

2011: As the new July deadline loomed, only three additional states (Mich., Nev., Wyo.) had become compliant. Holder could no longer hold off on penalizing the noncompliant states, but gave them a pseudo-extension; states could apply to have penalized funds reallocated to them to move along in the compliance process.

By July 28 of 2011, Justice had announced seven newly compliant states: Kan., La., Md., Ala., Miss., Mo., and S.C. That brought the compliant list to 14; rest would lose 10 percent of their JAG grants, or keep it to use toward Walsh Act compliance.

2013: As of today, a whopping TWO states have been added to the Walsh Act compliance list since 2011: Tennessee and Pennsylvania.

In 2012, 30 states had the penalty reallocated to work on compliance. Justice offered the penalty reprieve again this year, and 28 states were approved for it.

John Kelly is the editor-in-chief of The Chronicle of Social Change

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.