Prisoner Rape Certification Deadline an Opportunity, Not a Threat

Well over a decade after the passage of the Prison Rape Elimination Act (PREA), the first significant benchmark for states to confirm that they are taking seriously the fight to end prisoner rape is finally here. The Justice Department is requiring governors from around the country to submit a certification by May 15, 2014, that they are in compliance with the national standards developed under PREA, or an assurance that the state is moving toward full compliance.

This may sound dull and technical, but it isn't. The process of holding state governments accountable for how their detainees are treated is essential. It's about ending a human rights crisis that has devastated the lives of countless men, women and children in U.S. prisons, jails and youth detention facilities for decades. It's about making sure that people are not raped while in the government's custody.

With the May 15 deadline approaching fast, many corrections agencies and advocates are eager to highlight the impressive progress they have made since the release of the PREA standards. Others, however, are anxious about this process, afraid that they might lose much-needed federal funding, or see federal funding redirected within the state. After all, PREA does spells out that states that are not in full compliance with the PREA standards will lose five percent of their federal funding for "prison purposes." Rape crisis advocates are especially concerned, as the federal funding at stake includes STOP Grants administered by the Office of Violence Against Women. These grants pay for local rape crisis advocates to provide vital services to survivors of sexual abuse.

Now the good news: The anxiety about the May 15 PREA certification process is misplaced.

A governor who is not able to certify that his or her state is in compliance with the PREA standards can instead offer an assurance that the state intends to reach full compliance but that implementation is still underway. No state that is working in good faith toward full implementation needs to be concerned about losing federal funding.

In fact, except in the cases of a few states that have small criminal justice systems or that have been preparing for PREA implementation since long before the release of the national standards, a letter of assurance is probably the most appropriate action at this stage. A governor may have as many as four types of facilities under her or his operational control (prisons, juvenile justice facilities, state police lock-ups and community corrections facilities). Each agency and facility, depending on their specific functions, must implement between 35 and 50 separate but related provisions. Corrections agencies have only just begun bringing in external auditors to confirm their progress. These PREA audits are generally believed to be the most helpful tool in measuring compliance in individual facilities. Given this, submitting a letter of assurance is not a sign of failure but rather a responsible act by a governor who simply does not have enough information -- at this point -- to certify full compliance.

Submitting an assurance raises one more anxiety, primarily for rape crisis service providers. As part of an assurance a governor must declare that "five percent of such amount shall be used only for the purpose of enabling the state to adopt, and achieve full compliance with," the PREA standards. The "such amount" refers to federal funding used for prison purposes. Many rape crisis providers fear that this clause requires a governor who is submitting an assurance to divert five percent of the funding that state receives through STOP grants away from victim services and into the state's corrections and juvenile justice agencies.

However, that reading of the requirement is too narrow. Because of the diverse ways federal funding is allocated within different states, the only reasonable reading of this requirement is "funds equal to five percent of federal funding used for prison purposes." In fact, the use of the phrase "such amount" instead of "federal funds" supports this reading. And state corrections and juvenile justice agencies across the country are already successfully working toward full compliance without taking money away from underfunded rape crisis advocates. The cost of implementing the PREA standards is being borne by an agency's existing budget. Providing an assurance should not change this.

Sadly, anxiety about the May 15 certification process hasn't been fueled only by misunderstandings. Texas Governor Rick Perry helped trigger unwarranted nervousness about PREA in a recent letter to Attorney General Eric Holder, in which he declared his aversion to the law and his intent to ignore the federal government's certification requirement. Perry's letter was rife with errors, political grandstanding and a lack of understanding both about PREA and his own state prisons. Perry also erroneously asserted that the Justice Department "mandate[d] that by May 15, 2014, the governor of each state must certify that all facilities under the governor's control are compliant with [the] PREA standards."

The positive outcome of Perry's bad faith maneuver is that it highlighted the need to clarify how this important PREA certification process works and the fact that it is not going to take money away from already underfunded rape crisis centers. Clearly, the Department of Justice must address any anxiety related to the May 15 deadline as a matter of urgency. Similarly, advocacy organizations like JDI and our partners will continue to ensure that governors understand that submitting a PREA assurance may well be the prudent thing to do.

Prisoner rape is devastating; It is also preventable. This crisis will only end if corrections agencies across the country take full responsibility for the safety of their detainees. The May 15 PREA certification process is an important moment for governors to declare their commitment to every person's basic right to dignity. It is also an opportunity for corrections officials, advocates, and prisoner rape survivors to celebrate how far we have come since the passage of this landmark law.