Cornyn’s PREA Penalty Amendment: What’s Five Percent of Zero?

Yesterday, Senate Judiciary Committee member John Cornyn (R-Texas) introduced an amendment to a bill to reauthorize the Second Chance Act. Which would be relatively unremarkable, except that the amendment deals a huge blow to a totally separate federal law.

Cornyn’s amendment related to the Prison Rape Elimination Act of 2003 (PREA), passed to establish federal standards to protect inmates from sexual violence. States are required to certify compliance with PREA, or face a five percent penalty on federal funding related to prisons.

Here is a list of the federal programs that the Department of Justice (DOJ) intends to penalize for noncompliant states:

  • Byrne Justice Assistance Grants (JAG), a big pot of money granted to states to dole out to law enforcement for lots of reasons.
  • Juvenile Justice and Delinquency Prevention Act (JJDPA), funds that go to states mostly for the purpose of keeping youths out of lockups.
  • Violence Against Women Act (VAWA), funds that support victims of domestic violence and their children.

If the bill passes, the amendment shields the following programs from being subject to those penalties for the next four years:

  • Byrne JAG
  • JJDPA
  • VAWA

Essentially, Cornyn’s amendment would mean that a noncompliant state would lose five percent of nothing. Not exactly the sort of penalty that brings governors to their knees.

“It basically negates the enforcement mechanism,” said Liz Ryan, a juvenile justice advocate and former CEO of the Campaign for Youth Justice. “DOJ and Congress are going to have to come up with alternative to assure compliance with PREA.”

The amendment originally left only JJDPA subject to the penalty, which would have been hard to calculate on the irony scale since it is mostly the juvenile offenders in adult system who are sexually victimized. Some late Wednesday negotiations between Cornyn and Judiciary Chair Patrick Leahy (D-V.t) resolved that.

Cornyn was a co-sponsor of the PREA bill in 2003. But he objects to what he sees as a misinterpretation of the law by the Justice Department.

“I want to protect PREA by making sure it’s not used to harm domestic violence programs and law enforcement officials,” he said. “I was a co-sponsor of PREA, but I also care about law enforcement having the resources they need.”

The problem is, the feds don’t seem to give much money to states for state prisons, meaning Justice is not likely to come up with replacements for the programs excluded in the amendment.

The true impact of Cornyn’s move, if it makes its way into law, is a two-year delay on enforcement. Justice was already going to let states get away with issuing an “assurance” that they were moving toward compliance to avoid the 5 percent penalty. So his amendment will extend the grace period another two years, unless another set of programs is subjected to the penalty.

There is still another incentive that advocates can lean on to push for PREA compliance: Not getting sued. Youth Services Insider has heard already from juvenile justice officials that this was always the main driver anyway, not the potential for a haircut in federal funds.

Michigan is dealing with a class-action lawsuit stemming from the alleging that staff in adult correctional facilities had repeatedly raped juveniles housed in the prison. The lawsuit specifically cites Michigan’s failure to comply with PREA standards.

Among the states moving toward compliance, Ryan said, “a number of them saw the litigation in Michigan and don’t want that. People believe PREA will become best practice.”

Youth Services Insider is mostly written by Editor-in-Chief John Kelly.

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