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April 01, 2011

ABA Weighs in on DOJ Prison Rape Standards

The ABA is recommending that the Department of Justice (DOJ) reconsider portions of standards proposed in February that are intended to prevent, detect and respond to prison rape.

The proposed DOJ standards are required by the Prison Rape Elimination Act of 2003, which established the National Prison Rape Elimination Commission (NPREC) to conduct a comprehensive study of prison rape in the United States and recommend national standards. The attorney general weighed the commission’s recommendations, which were issued in 2009, and earlier comments from the ABA and other organizations to draft the proposed standards.

The ABA’s views on the proposal primarily are based on the association’s Criminal Justice Standards on the Treatment of Prisoners adopted by the ABA House of Delegates in February 2010. The ABA standards are the product of a five-year drafting process and reflect the expertise and viewpoints of all segments of the criminal justice system, according to an April 4 comment letter sent to the DOJ Office of Legal Policy by ABA Governmental Affairs Director Thomas M. Susman.

In his letter, Susman focused on four areas of the proposed standards that the association maintains should be modified.

Cross gender searches and supervision of prisoners. While the ABA and the NPRCE recommendations favor total elimination of non-emergency cross-gender pat-down searches, the DOJ proposal would exempt from such searches only those inmates who have suffered documented prior cross-gender sexual abuse while incarcerated.

The DOJ proposed standards also would require facilities to implement policies and procedures that enable inmates to shower, perform bodily functions and change clothing without non-medical staff viewing them, but includes exceptions in emergencies, by accident, or when such viewing is incidental to routine cell checks. The ABA urged the DOJ to incorporate language that would require facilities to use strategies and devices to protect prisoner privacy even during routine cell checks.

Placement of juveniles in adult facilities. The ABA believes that it is imperative that the standards include a provision prohibiting the housing of juveniles under the age of 18 in adult jails and prisons, regardless of the venue in which they are prosecuted and tried. The DOJ proposed standards do not address this issue.

Exhaustion of administrative remedies. According to the ABA, the DOJ proposed standards fail to address barriers created by the Prison Litigation Reform Act, which obstruct court access for survivors of custodial sexual abuse by requiring prisoners to exhaust administrative remedies in corrections facilities before seeking relief in the courts. The association recommends that DOJ adopts the NPREC standard providing that the administrative process will be deemed exhausted no longer than 90 days after a report of sexual abuse is filed, without regard to who files it. In emergency situations when prisoners are seeking immediate protection for imminent sexual abuse, the process would be deemed exhausted 48 hours after a report is filed.

Audit Requirements. In response to a request for guidance from DOJ about audits of facilities, the ABA maintains that audits should be both routine and “for cause” and that any audit should include interviews with prisoners.

The attorney general will be reviewing the most recent comments before issuing final standards.

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