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July 4, 2008

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National Prison Rape Elimination Commission
Attn: Public Comments on Standards
1440 New York Avenue NW, Suite 200
Washington, DC 20005-2111

RE: Comments on Proposed NPREC Standards for Adult Prisons and Jails
Dear Commissioners:
Prison Legal News hereby submits the following comments on the proposed NPREC Standards
for the Prevention, Detection, Response and Monitoring of Sexual Abuse in Adult Prisons and
Jails (“Standards”). Prison Legal News (PLN) is a monthly publication that reports on criminal
justice and corrections-related litigation and news. We have extensively covered topics related
to the rape and sexual abuse of prisoners, and PLN’s editor, Paul Wright, served on the advisory
board of Stop Prisoner Rape until May 2008, when the advisory board was dissolved.
Our comments are categorized by section of the proposed Standards, plus general comments:

Detection and Response
1. Mandatory reporting of staff sexual abuse to prosecuting authorities
Under proposed Standard DI-1 (p. 38), the Committee notes in the Discussion section that “the
agency should refer any substantiated allegations for criminal prosecution.” However, there is
no requirement that correctional agencies refer incidents of employee sexually abusive conduct
for prosecution. It would be a much stronger deterrent if staff knew that sexual misconduct of
a criminal nature would not only result in termination, but also would result in the mandatory
notification of prosecuting authorities. Allowing corrections officials discretion as to whether
substantiated cases of sexually abusive conduct are referred to law enforcement could result in

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disparate treatment based upon improper factors such as race, gender, sexual orientation or the
influence that certain staff members wield as a result of high-ranking positions or relations with
other prison staff. Making notification of prosecutorial authorities a requirement would ensure
equal treatment for all prison employees accused of engaging in sexually abusive conduct that
constitutes a criminal act. At the very least, mandatory referral to prosecuting authorities should
be required for staff accused of sexually abusive penetration. Similar reporting requirements are
currently in place for a number of professions – including teachers, medical professionals and
counselors – for suspected sexual abuse involving children; thus, mandatory reporting to law
enforcement authorities would be neither a new nor novel requirement.
2. Provisions of the Prison Litigation Reform Act
Under Section III (A) of Standard RE-1 (p. 33), the Committee suggests “Any report of sexual
abuse made at any time after the abuse, which names a perpetrator and is made in writing to the
agency, satisfies the exhaustion requirement of the Prison Litigation Reform Act [PLRA].”
Likewise, the Standard should specify that the PLRA’s current requirement that prisoners show
“physical injury” before bringing suit for mental or emotional damages (42 U.S.C. § 1997e(e))
does not apply to acts of sexually abusive conduct, or that prisoners who have been subjected to
sexually abusive conduct have satisfied the physical injury requirement of the PLRA. In at least
one case a court has held 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)). As noted in the Committee’s discussion of Standard IN-1 (p. 37), “Unlike
other forms of brutality or violence that may occur in correctional facilities, sexual abuse is less
likely to be witnessed, cause visible injury, or leave other physical evidence.” Prisoners who
have been subjected to sexual abuse may suffer mental or emotional injuries but have no overt
physical injuries. Allowing such victimized prisoners the ability to seek damages for emotional
or mental injuries would incentivize prison agencies to take measures to minimize sexual abuse
and would provide such prisoners some measure of justice and compensation.
Similarly, other provisions of the PLRA limit the ability of sexually abused prisoners to obtain
relief through the courts, including the PLRA’s exhaustion requirement (which, in some cases,
may result in grievances concerning sexual abuse being decided by prison employees who are
complicit in such abuse); the PLRA’s limitation on attorney fees, which makes attorneys less
willing to represent prisoners victimized by sexual abuse; and the PLRA’s time restrictions on
consent decrees and injunctions – including those designed to remedy prison conditions which
facilitate sexual abuse. In short, the PLRA operates to seriously hamper the ability of prisoners
who are sexual abuse victims to obtain relief through the courts. It is therefore suggested that
the PLRA not be applied to prisoners who raise claims of rape or sexual abuse.

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Monitoring
1. Public access to sexual abuse data from private prison companies
In the Committee’s discussion of standard DC-2 (p. 44), the Committee notes “...the public may
have a legitimate interest in the data collected by agencies because of the information it provides
about the safety of these public institutions,” and specifies that “All aggregate data ... should be
readily available to the public. Agencies should also establish a nonburdensome process to allow
researchers, academics, journalists, and others access to incident-based data.”
This is especially true for privately-run prisons, as the Freedom of Information Act (FOIA) and
state public record laws often do not apply to private prison firms. The Standards should specify
that private prison firms which are otherwise not required to comply with public records laws or
FOIA must provide public access to aggregate and incident-based data collected pursuant to the
NPREC Standards. This is necessary because most private prison companies are secretive about
their internal incident-reporting data. CCA, for example, routinely labels such data as attorneyclient privileged, or “proprietary” and not for distribution. CCA is presently lobbying to defeat
H.R. 1889, which would require private prison companies that contract with federal agencies to
comply with FOIA requests. Thus, this Standard should provide specific disclosure requirements
for private prison companies that otherwise are not obligated to disclose the data collected under
NPREC Standards to members of the public. Government agencies also are sometimes reluctant
to disclose data related to sexual assaults, and the Standards should include provisions for review
or oversight of an agency’s refusal or failure to publicly disclose such data.

General Comments and Concerns
1. Compliance with and enforceability of NPREC Standards
PLN has significant concerns regarding the enforceability of the NPREC Standards. When we
raised this issue during the NPREC’s May 5, 2008 media conference call, we were informed that
compliance with the Standards would be achieved through the following mechanisms, which we
address separately below:
A. States that fail to adopt and comply with the NPREC Standards would forfeit funds received
under certain federal grant programs.
The PREA states, “For each fiscal year, 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.

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First, PLN is unaware of any example where federal funds were withheld from a state corrections
agency due to its failure to comply with federal statutory mandates. Such financial penalties are
largely meaningless without strict and consistent enforcement.
More importantly, this incentive to comply with the Standards only applies to states; it does not
apply to county or municipal agencies (which also may receive federal funds either directly or
indirectly), to the federal Bureau of Prisons or other federal agencies that house prisoners (such
as ICE or the Department of Defense), or to private prison companies.
In order to ensure that non-state prison agencies comply with the Standards under this incentive
mechanism, the Standards should require state agencies to withhold 5% of any funds disbursed
to county or city corrections agencies that fail to comply with the Standards – e.g., 5% of funds
disbursed by the state through federal grants or block grant programs, or from direct payments to
county or municipal agencies for housing state prisoners in local facilities. Further, the Standards
should require federal, state and county/municipal corrections agencies to withhold 5% of funds
paid to private prison contractors if such contractors fail to comply with the NPREC Standards.
Alternatively, the Standards could require government agencies that contract with private prison
companies to specify, as part of their contract, that the company must comply with the NPREC
Standards or face a 5% reduction in its contractual payments.

B. Prison agencies that fail to comply with the Standards will be included in an annual report
issued by the Attorney General’s office, which will serve as a means of embarrassment and an
incentive for compliance with the Standards.
The PREA states, “Not later than September 30 of each year, the Attorney General shall publish
a report listing each grantee that is not in compliance with the national standards....” Presumably,
inclusion in such reports will prove embarrassing and agencies will endeavor to comply with the
Standards so as to avoid this “shaming” disincentive. However, states previously have engaged
in systemic sexual abuse of female prisoners (Michigan); segregating HIV-positive prisoners in
separate-and-unequal settings (Alabama); providing grossly deficient medical care resulting in
dozens of unnecessary deaths each year (California); depriving prisoners of food as punishment
(South Carolina), etc. Given the documented abuses that have been inflicted by prison agencies
upon prisoners, it is highly unlikely that including agencies that fail to comply with the NPREC
Standards on a list, for the purpose of shaming them into compliance, would be successful. Some
prison agencies have already demonstrated that they are perfectly willing to engage in shameless
conduct; others, through their reluctance to embrace reforms, have proven they have no shame.
Therefore, PLN does not believe this is an effective means of ensuring compliance.

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C. The NPREC Standards will become standards of care which can be used in civil litigation;
agencies that do not adopt or comply with the Standards therefore risk liability, which serves as
an incentive for compliance.
The problem with this incentive approach is that compliance with the NPREC Standards is not
statutorily required or legally enforceable. Like the prison and jail standards of the American
Correctional Association (ACA), they do not create enforceable rights and do not determine the
legality of an act or failure to act. See, for example: Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367 (1992) (“It is absurd to suggest that the federal courts should subvert their judgment
as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards”);
also see Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) (ACA standards “may be a relevant
consideration,” but compliance “is not per se evidence of constitutionality”).
Based upon the foregoing, PLN feels that absent the force of law to ensure compliance with and
enforcement of NPREC Standards, the incentives for voluntary compliance are inadequate. The
Standards notably do not provide for a private cause of action for enforcement purposes, which
in our view is a grave failing and weakness.

2. Use of one-piece garments for female prisoners
PLN is aware that some jails require female prisoners to wear one-piece garments; e.g., jumpsuits. When such prisoners use the toilet facilities they have to remove the jumpsuit to below
their waists, which exposes their breasts. As housing units are routinely monitored by prison
staff, including the toilet areas, staff are able to view the exposed breasts of female prisoners
when they use the toilet facilities. There is no legitimate penological reason as to why female
prisoners should have to expose their breasts when using the toilet, and this practice results in
unnecessary voyeurism by prison staff. Thus, the Standards should require prison agencies to
provide female prisoners with two-piece garments to alleviate this problem.

3. Inclusion of kissing in sexual abuse/harassment definitions
The Glossary of terms for the NPREC Standards for sexual abuse does not include any mention
of unwanted, forcible or unwelcome kissing (mouth to mouth contact). Certainly, however, staff
members who kiss prisoners are engaging in inappropriate conduct, and kissing can be used as a
“grooming” technique that leads to further inappropriate sexual acts. Thus, the Standards should
include or address kissing under the definition of sexual abuse and/or sexual harassment.

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4. Cross-gender supervision of prisoners
Under proposed Standard PP-3 (p. 19), agencies must restrict cross-gender supervision in nonemergency situations where inmates disrobe or perform bodily functions. To further reduce the
possibility of sexual abuse or harassment resulting from cross-gender supervision, we suggest
the Commission consider requiring agencies to adopt policies whereby same-gender supervision
is the rule in all nonemergency custodial situations rather than only those that involve disrobing
and bodily functions. Alternatively, staff positions can be prioritized to facilitate same-gender
supervision. For example, following systemic sexual abuse of female prisoners in the Michigan
prison system, the U.S. Sixth Circuit Court of Appeals upheld a Dept. of Corrections policy that
required same-gender staff positions in female housing units. See: Everson v. Michigan DOC,
391 F.3d 737 (6th Cir. 2004), petition for rehearing en banc denied, cert. denied.

Thank you for your consideration of our comments on the proposed NPREC Standards; please
contact us should you require any additional information or clarification of our comments.

Sincerely,

Paul Wright, Editor

Alex Friedmann, Assoc. Editor