Farmer v. Brennan and the Urgency of Ending Sexual Abuse in Detention

We recently recognized the 20-year mark since the U.S. Supreme Court's precedent-setting decision recognizing the right of Dee Farmer, and all survivors of sexual abuse in detention, to seek redress from government officials who failed to protect them. Ms. Farmer, a transgender woman, courageously sued the Bureau of Prisons after she was brutally beaten and raped while housed in the general population of a men's facility. Ms. Farmer's case became a legal cornerstone in subsequent suits by survivors.

Research from the federal government indicates that over the last 20 years millions of men, women, and children have been sexually abused in our nation's prisons, jails, and juvenile detention facilities. It is an incontrovertible fact that this abuse continues to plague U.S. detention facilities to this day. Individual survivors -- like Ms. Farmer, and the founders of Just Detention International -- have opened up a national dialogue about the urgent need to end the crisis of sexual abuse in detention once and for all.

Last month, we reached another landmark in that effort. On May 15, governors from across the United States (including its territories) were required to inform Attorney General Eric Holder of their progress in implementing the Prison Rape Elimination Act (PREA) standards. As JDI expected, the vast majority of governors met that requirement in one of the two ways laid out by Congress. Two governors, Maggie Hassan of New Hampshire and Chris Christie of New Jersey, did so by certifying that their state-run facilities had fully implemented the PREA standards. Another 46 governors met the requirement by offering an assurance that PREA implementation was underway and that their states would make certain investments over the next twelve months in working toward full implementation. Sadly, seven governors raised the white flag in the fight to end sexual abuse behind bars and simply abdicated responsibility for keeping inmates safe by opting out of PREA.

While rightfully condemning the seven governors who are putting detainees in their states at continued risk of rape, some advocates and journalists have also questioned the value of the assurances offered by a majority of states. They have wondered whether assurances provide governors with an easy way to slow-walk PREA implementation. This concern is understandable but unwarranted -- at least at this stage.

Let's be clear: We need to stop prisoner rape now. JDI feels this urgency every day. We know that inmates -- our relatives, neighbors, coworkers, and friends -- are exposed to unacceptable levels of sexual abuse, and that survivors of such abuse go without adequate treatment, support services, and justice. These conditions should rightfully make all of us impatient for action at every level of government.

However, meaningful PREA implementation takes time; frankly, more time than most agencies and advocates expected. Full implementation of the PREA standards will go a long way toward ending the crisis of sexual abuse in U.S. detention, but it will first require serious and sustained change in agency policies, practices, and culture.

For this reason, JDI supports the assurance process created by Congress as a prudent action for governors who may not yet have enough information to determine if their agencies have successfully implemented each of the dozens of required standards. JDI wants a certification of full implementation of PREA to be meaningful. We want a governor to certify when she or he is confident that their state is effectively combating sexual abuse in detention. In the early days of implementation, most governors will not have this information.

What the assurance process cannot be, though, is open-ended. A state must not be allowed to preserve its full federal funding simply by continuing to offer assurances year after year. The Justice Department recently signaled that it is considering imposing a three-year limit on assurances. In one of the many FAQs that it has released through the National PREA Resource Center, the Justice Department states that "[d]uring the initial three year audit cycle, DOJ is not imposing a specific date by which states ... must come into compliance with the National PREA Standards or face a reduction in DOJ grant funding. If necessary, additional guidance will be provided by DOJ as the end of the initial three year audit cycle approaches."

Some are concerned that this guidance from the Justice Department will allow agencies to press "pause" on PREA implementation for the next three years. JDI does not agree. This is the first time the Justice Department has indicated that the assurance process outlined by PREA itself must have a reasonable end date. Any agency that slows down its PREA implementation now will be putting its detainees at risk of life-shattering abuse, increasing its liability for civil rights suits, and setting itself up to fail forthcoming independent audits.

Three years has to be enough time for this country's prisons, jails, and youth facilities to complete full implementation of PREA and for governors to gather the data they need to provide a certification. In fact, JDI urges the Justice Department promptly to release clear guidance that no governor can continue to receive full federal funding after August 19, 2016, unless he or she certifies that her or his agencies have fully implemented the PREA standards. Such guidance conforms to the Congressional intent behind PREA and is an appropriate use of the Justice Department's interpretive power. Releasing this guidance sooner rather than later will provide clarity to states -- and much needed reassurance to advocates, inmates, and prisoner rape survivors that the Justice Department is genuinely commitment to ending sexual abuse in detention.