Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

April 4, 2011

SENT VIA MAIL AND ELECTRONICALLY

Robert Hinchman, Senior Counsel
Office of Legal Policy
Department of Justice
950 Pennsylvania Avenue, NW., Room 4252
Washington, DC 20530
RE: DOJ Proposed Rulemaking for PREA Standards, Docket No. OAG–131
Dear Mr. Hinchman:
The Human Rights Defense Center (HRDC) is a non-profit organization that advocates for the
human rights of people who are incarcerated. HRDC publishes Prison Legal News, a monthly
publication that has reported on criminal justice-related issues – including the problem of prison
rape – for over two decades. HRDC director Paul Wright previously served on the advisory
board of Stop Prison Rape (now Just Detention International).
HRDC hereby submits formal comments related to the DOJ’s proposed rulemaking for PREA
standards in Docket No. OAG-131. We previously submitted comments to the National Prison
Rape Elimination Commission in July 2008 when the Commission sought public input as to the
PREA standards, and we also submitted comments to your office in May 2010 relative to the
proposed standards.
Initially, we note that the DOJ’s proposed rules for the PREA standards are a hollow shell of
what was originally envisioned by prisoners’ rights advocates and others concerned about the
issue of prison rape and sexual assault. If the intent is to provide the greatest possible protections
for prisoners against being sexually assaulted and raped while in custody, then the watered-down
rules proposed by the DOJ fail to reach that laudable goal. Rather, the proposed rules constitute
weaker standards that are apparently designed to be more palatable to corrections officials, many
of whom expressed opposition to the standards as developed by the Commission.
We realize that the DOJ is constrained by the statutory language of PREA, but want to voice
our objection to the language in PREA that the standards not “impose substantial additional
costs” (42 U.S.C. 15607(a)(3)) – as if we as a civilized society can put a price tag on the trauma

P.O. Box 2420, West Brattleboro, VT 05303
Phone: 802-257-1342
Email: pwright@prisonlegalnews.org

of rape and sexual abuse experienced by prisoners. Thus, while we submit the following comments concerning the DOJ’s proposed rulemaking for the PREA standards, our comments should
not be construed as an endorsement of said proposed rules, which we believe lack the strongest
protections that need to be in place in order to adequately address the serious issue of prison rape
and sexual abuse. When Congress limited the PREA standards by specifying that measures to
prevent prison rape must not “impose substantial additional costs,” it placed cost considerations
above efforts to stop the sexual abuse and rape of prisoners. Consequently, the DOJ’s proposed
rules reflect the fact that we get only what we are willing to pay for.
With the above being said, HRDC submits the following formal comments in regard to the DOJ’s
proposed rulemaking concerning the PREA standards, in which we respond to selected proposed
rules and comment on related matters regarding the standards.

COMMENTS RE THE PROPOSED RULES
§ 115.6 (Definitions)
We note that sexual harassment, as defined for inmates/detainees/residents (“prisoners” in
these comments), includes “unwelcome sexual advances, requests for sexual favors, or verbal
comments, gestures, or actions of a derogatory or offensive sexual nature....” But the definition
of sexual harassment as applied to staff, contractors and volunteers only encompasses “verbal
comments or gestures.” We submit that the definition of sexual harassment applied to prisoners
and staff should be the same; staff should be held to the same definition of sexual harassment
applicable to prisoners, otherwise the definition creates a double standard.
Further, the definitions of “sexual abuse” and “sexual harassment” do not include unwanted,
forcible or coerced kissing (mouth to mouth contact). Prison employees who kiss prisoners,
which may involve coercion or force, are engaging in blatantly inappropriate conduct; further,
kissing may be used as a “grooming” technique that leads to further sexual abuse. There is no
conceivable legitimate reason why staff should kiss prisoners. Thus, the standards should include
kissing, with or without consent, under the definition of sexual abuse or sexual harassment.
§§ 115.12, 115.112, 115.212, 115.312 (Contracting with Other Entities)
Initially, it should be noted that private prison contractors differ in several material respects from
public-sector corrections agencies. Private prison companies, whether managing adult, juvenile
or immigration detention facilities, often operate under a combination of contractually-required
policies and rules as well as their own (corporate) policies and protocols – such as those related
to employee hiring and training, internal audits and internal incident reporting. Further, private
prison firms have a profit motivation to minimize reporting of incidents that may subject them to
contractual penalties, result in the cancellation or non-renewal of contracts, or have an adverse
impact on their stock performance.
For example, the State of Hawaii declined to renew its contract with CCA to house female
prisoners at the company’s Otter Creek Correctional Center in Kentucky in 2009 following a
scandal in which six CCA employees – including the prison’s chaplain – were charged with
sexually abusing or raping prisoners. The prisoners were returned to Hawaii while the State of
2

Kentucky replaced its female prisoners at Otter Creek with male prisoners. CCA reportedly
failed to report at least one of the incidents of sexual abuse.
Due to the inherent conflict that for-profit private prison companies have in reporting adverse
incidents that may negatively affect their lucrative contracts with government agencies, they
have an incentive to minimize or conceal such incidents. In 2008, for example, a former CCA
manager-turned-whistleblower revealed that CCA kept two sets of internal audit reports – a
detailed version with auditors’ notes that was for in-house use only, and another version without
the detailed notes that was provided to government contracting agencies. According to a March
13, 2008 article in TIME magazine, the latter audit reports were allegedly “‘doctored’ for public
consumption, to limit bad publicity, litigation or fines that could derail CCA’s multimilliondollar contracts with federal, state or local agencies.”
Therefore, it is recommended that the rule related to Sections 115.12, 115.112, 115.212 and
115.312 include specific guidance as to monitoring when public agencies contract with private
prison companies. Such monitoring should be independent of the private contractor to avoid the
conflicts of interest noted above. Monitoring should be conducted by the same public agency
staff responsible for reviewing PREA compliance at the agency’s publicly-operated facilities, if
applicable, or by staff retained specifically to ensure PREA compliance by the contractor.
Such monitoring staff should have no current or prior financial or employment relationship with
the private prison contractor. Further, such monitoring staff should not be the same staff that is
responsible for monitoring other aspects of contractual compliance involving the private prison
contractor; rather, the monitoring staff should be specifically trained in PREA standards so as
to focus on PREA compliance. The monitoring staff should not rely solely on reports or audits
provided by the private contractor; instead, monitoring should include not only a review of the
documentation provided by the contractor but also confidential interviews with and/or surveys
of both facility staff and inmates, to evaluate the contractor’s compliance with PREA.
§§ 115.16, 115.116, 115.216, 115.316 (Hiring and Promotion)
This standard provides that “The agency shall either conduct criminal background checks of
current employees at least every five years or have in place a system for otherwise capturing
such information for current employees.” We believe that criminal background checks every five
years is insufficient, particularly because absent background checks conducted through NCIC or
a similar nationwide source, it would be difficult to detect criminal conduct committed by staff
in other states/jurisdictions.
Given the sensitive security functions of correctional facilities, background checks conducted on
a more frequent basis, such as annually or every two years, would be more appropriate. Otherwise, if staff engages in criminal sexual misconduct after being hired, which is not brought to the
attention of the agency they work for, they could continue working in a correctional setting for
up to five years before the misconduct is discovered under the proposed rule. We believe this is
insufficient and a security risk.
Also, notably, the proposed rule regarding criminal background checks does not appear to apply
to contractors or volunteers, although such background checks equally should be required. As
contractors and volunteers are not typically “hired” or “promoted,” they do not fall under the
proposed rule as written; this needs to be corrected.
3

§§ 115.52, 115.252, 115.352 (Exhaustion of Administrative Remedies)
We believe that prisoners who are victims of sexual abuse or sexual harassment should not be
required to file a formal grievance when reporting sexual abuse or harassment; rather, any report,
notification or statement by the prisoner that puts staff on notice of the alleged sexual abuse or
harassment should be sufficient in lieu of using the formal grievance process (e.g., a statement
made to internal affairs investigators, or a letter or “kite” sent to corrections staff).
Prisoners who report sexual abuse may not have timely access to the grievance process due to
placement in segregation or protective custody, removal to an outside medical facility, transfer to
another prison, or due to staff who withhold grievance forms or otherwise intentionally frustrate
the grievance process. Thus, for purposes of administration exhaustion under the PLRA, we do
not believe that victims of sexual abuse or harassment should have to file a formal grievance if
other types of reporting put staff on notice of the sexual abuse or harassment.
We believe the minimum 20 days (with optional 90-day extension) for victims of sexual abuse to
access the grievance process, as stated in the proposed rule, is insufficient given our concerns as
stated above. For example, the optional 90-day extension is only applicable when a prisoner can
“provide[] documentation, such as from a medical or mental health provider or counselor....” Yet
the medical or mental health providers or counselors will often be agency employees, thus the
proposed extension of time to pursue the grievance process will hinge on prisoners obtaining
documentation from agency staff, who may be reluctant to provide same.
The use of alternate means of reporting sexual abuse so as to meet the administrative exhaustion
requirement is in fact already mentioned in section (c)(1) of this proposed rule, which states,
“Whenever an agency is notified of an allegation that a resident has been sexually abused ... it
shall consider such notification as a grievance or request for informal resolution submitted on
behalf of the alleged resident victim for purposes of initiating the agency administrative remedy
process.” However, it is not clear whether that provision of the proposed rule applies to selfreports of sexual abuse by prisoners. We submit that agencies should be required to consider
notifications such as letters or statements by prisoners to be grievances for the purpose of initiating the administrative remedy process, without requiring the filing of a formal grievance. If
this is what the proposed rule already intends, it should be clarified.
Also, this rule does not address situations where prisoners have been sexually abused or harassed
by staff who monitor, oversee or control the grievance process. The rule should specify that staff
members accused of sexually abusing or harassing prisoners shall not oversee, monitor or control
the grievance process relative to grievances that allege such sexual abuse or harassment.
Further, despite the DOJ’s decision not to address the physical injury component of the PLRA,
we submit that the standards should specify that the PLRA’s requirement that prisoners show
“physical injury” before bringing suit for mental or emotional damages (42 U.S.C. § 1997e(e))
is inapplicable to acts of sexual abuse, or that prisoners who have been subjected to sexual abuse
have per se satisfied the physical injury requirement of the PLRA. This would not abrogate the
PLRA’s requirement, but rather would redefine “physical injury” within the context of sexual
abuse. This redefinition is necessary because at least one court has found that sodomy did not
meet the PLRA’s “physical injury” requirement. See: Hancock v. Payne, 2006 WL 21751 at
*1, 3 (S.D. Miss., Jan. 4, 2006) (holding plaintiffs’ allegations of abuse, including that a staff
member “sexually battered them by sodomy,” were barred by § 1997e(e)).
4

Additionally, we object to section 5 of this proposed rule, which states that “an agency may
discipline a resident for intentionally filing an emergency grievance where no emergency exists.”
Since staff would be the arbiters of whether an emergency exists, and staff may not be unbiased
when one of their own is accused of sexual abuse or sexual harassment, we do not believe that a
prisoner should be subject to discipline for filing an emergency grievance when the prisoner has
a good faith belief that an emergency grievance is necessary.
Finally, we note that this proposed rule does not apply to lockups (i.e., there is no comparable
rule 115.152). To the extent that lockups have grievance procedures or require exhaustion of
administrative remedies, though, a similar rule should be applicable to such lockups.
§§ 115.76, 115.176, 115.276, 115.376 (Disciplinary Sanctions for Staff)
This proposed rule apparently does not include sanctions – including dismissal and reporting to
law enforcement agencies – for contractors or volunteers who engage in sexual abuse or sexual
harassment. Contractors and volunteers should be subject to termination/dismissal and reporting
to law enforcement agencies to the same extent as sexually abusive staff members.
§§ 115.61, 115.161, 115.261, 115.361 (Staff and Agency Reporting Duties)
This proposed rule does not require agencies to discipline or sanction staff who do not report
knowledge, suspicion or information regarding an incident of sexual abuse. Requiring staff to
report such incidents, while failing to mandate any disciplinary measures for not making such
reports, is insufficient. Agencies should be required to impose disciplinary measures on staff
who do not report their knowledge, suspicion or information related to sexual abuse.
§§ 115.65, 115.165, 115.265, 115.365 (Agency Protection Against Retaliation)
Section (d) of this proposed rule states that an agency “shall not enter into or renew any
collective bargaining agreement or other agreement that limits the agency’s ability to remove
alleged staff abusers from contact with victims pending an investigation.” We suggest that a
similar requirement be applied to agencies that contract with private prison companies – e.g.,
“agencies shall not enter into or renew any contracts with private prison operators that limit the
agency’s ability to remove alleged private prison staff abusers from contact with victims pending
an investigation.” This rule should be expanded to encompass private prisons operators as over
120,000 prisoners nationwide are held in privately-operated facilities, according to the DOJ. If
the “other agreement” language in the proposed rule already contemplates extending the rule to
contracts with private prison operators, this should be clarified or made explicit.
§§ 115.93, 115.193, 115.293, 115.393 (Audits of Standards)
In regard to the length of time between audits, we do not believe an audit conducted once every
three years is sufficient; however, we recognize the cost and impact on staff resources resulting
from full audits for agencies with numerous correctional facilities. We therefore suggest that for
state prison systems, private prison operators, the federal Bureau of Prisons and the Department
of Homeland Security, audits of 1/3 of the agency’s facilities be conducted annually, with the
facilities being selected randomly so they do not have advance notice they will be audited. Thus,
over a three-year period, each of an agency’s facilities will be audited at least once. For smaller
agencies with fewer facilities (e.g. lockups, jails), we recommend annual audits.
5

Further, the proposed rule should include a provision for an immediate or emergency audit if it is
determined there are excessive reports of sexual abuse or sexual harassment at a given facility.

OTHER COMMENTS RE THE STANDARDS
Lack of Enforcement Mechanism for the Standards
We take issue with the fact that there is no viable enforcement mechanism for non-compliance
with or violation of the standards. PREA specifies that “any amount that a State would otherwise
receive for prison purposes for that fiscal year under a grant program covered by this subsection
shall be reduced by 5 percent, unless the chief executive of the State submits to the Attorney
General a statement that they have adopted and are in compliance with the NPREC Standards.”
However, we are unaware of any case in which a state has forfeited federal law enforcement or
criminal justice funding due to non-compliance with statutory requirements.
Also, the fact that a state only risks the loss of 5% of federal funding “for prison purposes” is an
indication of the low priority that Congress placed on preventing prisoner rape – as the loss of 10
percent, 20 percent or a higher percentage would have been a much more effective deterrent for
states that fail to comply with PREA.
Nor is there any apparent mechanism to challenge or require proof of a state’s assertion that is
has adopted and is in compliance with the standards. And, of course, the loss of federal funds as
provided in PREA is not applicable to county or city correctional agencies, the federal Bureau of
Prisons or other federal agencies that operate detention facilities, nor to private prison firms. In
short, if there is no remedy to enforce the standards then their value is greatly diminished.
To remedy some of these deficiencies related to enforcement of the standards, we recommend
that a final paragraph be added to §§ 115.12, 115.112, 115.212 and 115.312, as follows:
“Any such new contracts or contract renewals with private agencies or other entities shall
include enforcement provisions to ensure that the private agencies or other entities are in
compliance with the PREA standards. Such enforcement provisions shall include but not
be limited to monetary sanctions for non-compliance with the standards, including at a
minimum the forfeiture of 5% of funds to be paid to the private agencies or other entities
pursuant to an agency’s contract if the private agencies or other entities are not in compliance with the PREA standards.”
Finally, the standards do not provide for a private cause of action for enforcement purposes,
which in our view is a significant failing. This will likely require a remedy by Congress, and we
encourage the DOJ to lobby Congress to strengthen PREA by including a private cause of action
for victimized prisoners when agencies do not follow the standards.
Failure to Include Standards for Immigration Detention Facilities
We object to the DOJ’s decision not to include a set of standards designed for immigration
detention facilities. Immigration detainees constitute a specialized population that is much more
vulnerable to victimization due to language barriers, unfamiliarity with the U.S. legal system,
lack of citizenship, fear of adversely affecting deportation proceedings if abuse is reported, etc.
6

Therefore, we believe the proposed rules should include PREA standards specific to immigration
detention facilities. Further, the standards should apply to military facilities and tribal facilities if
such facilities do not already fall within the scope of the proposed rules.
Attorney General – Conflict of Interest
We reiterate our concerns, as expressed in our prior comments submitted to your office in May
2010, that the U.S. Attorney General’s office has an inherent conflict of interest in regard to
promulgating the PREA standards and with any monitoring of those standards. The Attorney
General is responsible for defending the Bureau of Prisons and federal prison staff in civil suits
filed by prisoners who have been sexually abused by federal prison employees. Thus, there is an
inherent conflict of interest in terms of the Attorney General promulgating standards that may
have an effect on civil cases in which the Attorney General’s office represents federal prison
staff accused of raping or sexually abusing prisoners.
Endorsement of Comments by Just Detention International
Lastly, to the extent that they do not conflict with our comments as stated above, we endorse and
adopt the comments submitted by Just Detention International relative to the proposed rules.

Thank you for your time and attention in considering our comments concerning this important
issue, and please feel free to contact us should you require any additional information.

Sincerely,

Paul Wright
Executive Director, HRDC

Alex Friedmann
Associate Editor, PLN

7