The Prison Rape Elimination
Act (PREA) and Strategies for
Keeping Youth Safe in
Juvenile Justice Facilities
Dana Shoenberg
Senior Staff Attorney
Center for Children’s Law and Policy
1
Plans for This Session
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Explain the Prison Rape Elimination Act
(PREA) and current status of the PREA
standards
Discuss dynamics of juvenile facility sexual
misconduct and common themes in facilities
with these problems
Examine aspects of facility operations
through a sexual misconduct prevention lens
Exercises and Discussion
2
The Prison Rape Elimination Act of 2003
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Provides for “analysis of the incidence and
effects of prison rape in Federal, State, and
local institutions” and “information,
resources, recommendations and funding to
protect individuals from prison rape.”
3
Congress’ Purposes in Enacting PREA
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Establish a zero tolerance standard for
incidence of prison rape in the U.S.
Make prevention a top priority
Develop and implement national standards
for the detection, prevention, reduction and
punishment of prison rape
Increase available data and information
Standardize the definitions used for collecting
data
4
PREA Purposes, cont.
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Increase accountability of prison officials who
fail to detect, prevent, reduce and punish
prison rape
Protect Eighth Amendment rights of Federal,
State and local prisoners
Establish grant programs
Reduce costs of prison rape for facilities,
public health and public safety
5
So what does PREA have to do with
Juvenile Facilities?
It’s all in the definitions:
“The term ‘prison’ means any confinement facility of a
Federal, State, or local government, whether
administered by such government or by a private
organization on behalf of such government, and
includes:
(A) any local jail or police lockup; and
(B) any juvenile facility used for the custody or care
of juvenile inmates.”
“Inmate” includes anyone incarcerated or detained for
violating the law or probation, parole, etc.
6
Major PREA Provisions: National
Statistics, Data and Research
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Bureau of Justice Statistics (BJS) annual
comprehensive statistical review and analysis of
incidence and effects of prison rape
Federal, State or local officials or facility administrators
must participate in the national survey and provide
access to inmates under their legal custody if asked to
participate
Review Panel on Prison Rape conducts annual hearings
concerning the operation of the prisons with the
highest and lowest incidence of prison rape to identify
patterns – issued reports in 2008, more coming
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Major PREA Provisions: NIC
Clearinghouse
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Provision of information and assistance to
Federal, State and local authorities
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Training and education programs
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Annual report of activities to Congress
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Video trainings, policy considerations guides
and other materials available
Go to http://www.nicic.org/prea
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Major PREA Provisions: Grants
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Grants made between 2004 and 2006
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For:
1.
2.
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protecting inmates (prevention, investigation and
prosecution); and
safeguarding communities
Maryland received a grant to develop data
capacity
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National Prison Rape Elimination
Commission (NPREC)
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Mandate to conduct a legal and factual study
of effects of prison rape in the U.S.
Report due within 2 years of initial meeting –
it took 5 years
Hearings around the country
Required to recommend national standards
that do not create substantial increased costs
to agencies
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NPREC Recommended Standards
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Report and recommended standards issued June
2009 (following drafts and public comment)
Separate standards for juvenile facilities, adult
prisons and jails, community corrections and
lockups
U.S. Department of Justice has one year to review
the recommendations and issue standards - will be
mandatory for federal agencies and recipients of
federal funds
Accreditation organizations must have standards
consistent with PREA
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Testimony from NPREC Hearings
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“I experienced the most damaging and emotionally
devastating treatment of my life thus far when I was
in a youth correctional facility….I survived threats of
violence, unwanted sexual touching and verbal abuse
that were severe beyond belief.”
“[A] female staff person forced herself on my son and
performed oral sex on him. My son did not report this
incident at the time because he thought no one would
believe him. Another youth who walked in as it was
happening did not report it, and no one else was
around when it happened. Not long after this first
incident, my son was raped by another inmate….To
this day, nearly four years later, he still has rectal
bleeding….”
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Testimony from Hearings, cont.
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“I immediately noticed that the male corrections
officers seemed too nice to the girls, and were
overly familiar with them – putting their arms
around them, or touching them on their face,
shoulders or waist, and letting the girls touch them.
I saw these same corrections officers give these
girls candy or extra food, and let them out of their
cells when they were supposed to be on
lockdown….In my one month at [facility], three
different girls told me they were raped by boys who
corrections officers allowed to go into their cells.”
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Testimony from Hearings, cont.
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“Although A.D. was never accused of or charged with a
sex offense, he was automatically placed in a sex
offender unit, simply because he is gay. Because A.D.
lived in the sex offender unit and was known to be gay,
other wards expected that he would service them
sexually. This was exacerbated by staff, who called him
homophobic names, made sexualized references toward
him in front of the other wards, and refused to take any
steps to protect him from sexual harassment and
assault. Wards regularly exposed themselves to him,
threatened him on the way to the showers, and
propositioned him for sex. One youth in his unit who
was a known gang member forced A.D. to give him oral
sex after threatening that he would get his gang to jump
him next time he left the unit.”
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Why wait?
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Final PREA standards may not have been issued
by DOJ, but facilities and systems remain
responsible for the safety of their residents.
They can examine themselves through a sexual
misconduct prevention lens and begin making
improvements.
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Common Themes in Facilities with
Sexual Misconduct Problems
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Cultures that don’t respect residents
Broken reporting, investigation and/or
grievance systems
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Lack of sufficient effective programming
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Insufficient mental health supports
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Mid-level supervision breakdowns
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Staffing challenges: not enough people, not
the right background and temperament, not
enough training, high turnover
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Key concepts to think about
Isolation
Vulnerability
Power
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Conditions Topics Can Be Divided
Into…
Classification and intake system
Health and mental health care
Access to counsel, the courts,
and family
Programming, education, and
recreation
Training and supervision of staff
Environmental issues
Restraints, isolation, due
process, and grievances
Safety for youth and staff
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Organization of NPREC Standards
NPREC Recommended Standards are divided
into:
1.
Planning
2.
Prevention
3.
Detection and Response
4.
Monitoring
Today’s presentation incorporates these concepts into
the CHAPTERS review framework.
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Assessing Conditions
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Observation
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Document Review
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Interviews
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Youth
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Staff at all levels
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Volunteers
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Parents
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Classification and Intake
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Youth with serious
medical or mental health
needs that can’t be met
by the facility should not
be sent there.
Is the facility
overcrowded? Overtaxed
facilities have a harder
time keeping youth safe.
Appropriate age
limitations
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Classification and Intake, cont.
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Youth’s immediate and long-term individual
needs are screened at intake so that the facility
can meet their needs:
 Disabilities
 Health and mental health issues
 Educational status and history
 Family information
Intake/detention interviews occur in private
Information sharing limited to need-to-know
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Classification and Intake, cont.
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For housing, programming and job assignments,
classification staff consider youth characteristics,
including:
 Age, suicide risk, history of prior victimization,
current charges and offense history, alleged
sex offenses, and when appropriate, gang
affiliation or other relevant information
 Size, level of emotional and cognitive
development, mental or physical disabilities,
intellectual or developmental disabilities
Even in facilities with only one or two housing
units, these factors can be considered in
staffing, showering, room assignments
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Classification and Intake, cont.
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No automatic policies based on race or sexual
orientation of youth
How will you keep LGBT youth safe without
penalizing them?
Facilities should have individualized plans as
needed for particular youths’ safety and wellbeing, and be prepared to keep especially
vulnerable populations safe without resort to
isolation
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Orientation
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Orientation for all youth should include:
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Institutional rights
Rules and discipline
Procedures
How to report if feel unsafe
Accessing health and mental health services
Grievance system
In youth’s primary language and with attention
to the youth’s age, disabilities and literacy needs
Prevention messaging in the facility – posters,
posted hotline numbers, etc.
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Orientation, cont.
NPREC Recommended Training Requirements:
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Resident’s right to be free from sexual
misconduct and from retaliation for reporting
abuse
Dynamics of sexual abuse in confinement
Common reactions of sexual abuse victims
Agency sexual abuse response policies and
procedures
How to present these concepts in a way youth will
hear? Peer education as a promising model
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Health and Mental Health Care
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Services provided with sensitivity to youths’
histories of physical and sexual victimization and
with informed consent
Mental health screening for all, with follow-up
assessment and treatment planning for youth with
positive screens
Opportunity to access mental health care later in
stay – staff and youth understand and have
access to the referral process
Staff not barriers to care – youth shouldn’t have
to tell line staff their problems in order to get care
(emergency exception)
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Health and Mental Health Care, cont.
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Youth with sexual victimization histories
receive mental health services from staff with
special expertise or have access to outside
practitioners
Victimized youth receive immediate specialized
services
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Health and Mental Health Care, cont.
NPREC Recommended Training Topics for facility
medical and mental health care practitioners:
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How to detect and assess signs of sexual abuse
How to preserve physical evidence
How to respond effectively and professionally
to young victims of sexual abuse
How and to whom to report allegations or
suspicions of sexual abuse
Detecting, assessing and responding to sexual
abuse victims
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Access: Telephone, Mail and Visitation
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Youth need to communicate with people they
trust in order to reduce isolation and support
return to their communities.
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Telephone, Mail and Visitation, cont.
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Check for:
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Low limits on numbers of letters a youth may
write
Phone calls too short to complete collect calls
and have meaningful conversation
Prohibitive costs of telephone calls without
options for indigent families
Visitation times that are unrealistic for working
families
Are there opportunities for youth to visit with
their children and with important mentors?
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Telephone, Mail and Visitation, cont.
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Kids may not tell anyone but their families about
being victimized
How is the facility engaging families as partners?
Parent orientation?
Ongoing opportunity to ask questions and provide
feedback on what they hear from youth?
Easily accessible system for reporting problems?
Identified personnel to communicate with?
Will you notify parents of any alleged victimization
of their children? Do you have a timeline?
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Access to Courts
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Check for:
 Youth access to legal assistance
for needs beyond their delinquency matters
 Can youth make and complete free
and confidential calls to attorneys?
 Are private areas available for confidential
attorney visits at reasonable times?
 Is legal correspondence kept confidential?
 Can youth write and call victim advocacy
and rape crisis organizations and
communicate with them in private settings?
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Programming
Active schedules of education and other programming
keep youth engaged, busy and developing new
skills.
 Do youth on segregation status have more
education than just homework packets?
 How do limited English proficient youth get
information, education, participate in activities?
 Are youth with disabilities getting services they
need?
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Programming, cont.
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Does programming reflect the needs and interests
of youth?
Are girls receiving opportunities equivalent to the
boys?
Can youth practice their religions and have access
to appropriate clergy?
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Programming, cont.
Behavior management systems should be
implemented fairly and reward good
behavior.
 To the extent possible, institutional culture
emphasizes rewarding success in lieu of
focusing on or punishing failure
 Youth understand the graduated scale of
incentives for positive behavior
 Rewards and sanctions are
implemented fairly and consistently
 Behavior management system is institutionwide
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Programming, cont.
Findings from the Survey of Youth in Residential
Placement:
Risk of victimization is related to perceived
fairness and accessibility of staff.
Youth who:
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Were beaten up
Had property stolen
Were forced to engage in sexual activity
Were twice as likely to report that staff were not
accessible and did not treat residents fairly
than to report that staff were accessible and
fair.
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Training and Supervision
Staffing
 Pre-employment record checks and periodic rescreening
 No promotion of staff who have been involved in
sexual abuse
 Sufficient staff to ensure adequate and continuous
supervision of youth, visitation, transportation to
health appointments, and other scheduled
activities
 Staff do not sleep while on duty
 Same gender staff always on duty in living units
 Staff have sufficient language capability to serve
limited English proficient youth
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Training and Supervision, cont.
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Cameras are never a substitute for live
supervision
How are blind areas handled?
What are the limitations on youth being alone
with other youth or a staff person?
Where can people hide or avoid supervision in
your facility?
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Storage rooms, closets
Bedrooms
Showers, bathrooms
Work detail, kitchens
Classrooms, Library
Offices
Recreation areas
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Training and Supervision, cont.
Training includes:
 Clear messages about prevention, intervention
and response to sexual misconduct, including
need to report, consequences for failing to report
and how institutional security can be
compromised by sexual misconduct
 Understanding adolescent development and the
trauma histories of many youth in their care
 How to identify red flags and report them
 Strategies for working with youth with mental
health needs and identifying need for mental
health intervention
 How to handle sensitive disclosures by youth
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Training and Supervision, cont.
NPREC Recommended Training Requirements:
 Communicating effectively and professionally
with all residents
 Resident’s right to be free from sexual abuse
 The right of residents and employees to be
free from retaliation for reporting sexual
abuse
 The dynamics of sexual abuse in confinement
 The common reactions of sexual abuse
victims
 Don’t forget training for volunteers and
contractors!
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Training and Supervision, cont.
Strong supervisory presence on all shifts is essential
to ensure that:
 No inappropriate physical contact or
personal relationships between staff and youth
occur
 Facility management addresses alleged violations
of standards of conduct
 Staff do not allow youth to victimize one another
 Staff do not use profanity, threats, intimidation, or
humiliation with youth –
“Profanity is an expression of violence and
degradation.” – David Roush
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Training and Supervision, cont.
Review, Tracking and Investigation:
 Administrator or designee reviews major incident
reports and all uses of physical force, restraints,
isolation, injuries to youth or staff, allegations of
sexual misconduct and incidents involving
contraband or major property damage
 Supervisors track patterns of staff uses of force,
discipline and youth complaints to guard against
retaliation and inform training plans
 Thorough investigation – does your investigator
have specialized skills in collecting evidence and
interviewing victims alleging sexual assault? What
specialized training and resources does your
investigator need?
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Training and Supervision, cont.
NPREC Recommended Investigation Training Topics:
 Conducting sexual abuse investigations in
confinement settings
 Techniques for interviewing young sexual
abuse victims
 Proper use of Miranda- and Garrity- type
warnings
 Sexual abuse evidence collection in
confinement settings
 Criteria and evidence required to substantiate a
case for administrative action or prosecution
referral
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Environment
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Human and physical environments respectful of
youth and not sexualized; no culture of secrecy
Youth have sufficient opportunity for personal
hygiene and all necessary products
Size-appropriate, clean and non-penal clothing
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Environment
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Search process within legal
bounds and adequate to
prevent weapons and
dangerous contraband from
entering the facility through
youth, staff and visitors
Rooms are not occupied by
more youth than the rated
capacity allows
Reasonable opportunity for
privacy when unclothed –
importance of bodily privacy for
adolescents – also creates
appropriate boundaries to avoid
sexualized atmosphere
46
Restraints, Isolation, Due Process and
Grievances
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Physical force, restraints, and isolation are used
only when truly needed to protect youth or
others, only as long as needed, and cease once
the youth is under control
Review circumstances of isolation and restraint
– how will you minimize opportunities for
abuse?
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Restraints, Isolation, Due Process and
Grievances, cont.
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Due process protections for major rule
violations should include:
 Notice of violation/charges
 Opportunity to present youth’s side of the
incident
 Right to decision before time served
 Neutral decision-maker
 Opportunity to appeal
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Grievances
Effective, reliable systems for youth to report
abuses and other concerns are essential.
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Youth know about and understand the grievance
process and have access to forms, writing implements
and other means of reporting
Grievances are confidential and without reprisal
All grievances are fully investigated
Written, legible, respectful responses to grievances
that address the issues raised
Appropriate action taken in response to valid
grievances
Reasonable policy on exhaustion of administrative
remedies
49
Safety: Policy and Coordination
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Any and all sexual harassment or sexual conduct
between staff and youth is prohibited; a prevention,
investigation and appropriate response plan is in place
 Who will coordinate sexual misconduct prevention,
etc. at the facility?
 How will you ensure that contractors are held to
the same standards as your facility personnel?
 Uniform evidence protocol for preservation of
evidence while meeting victims’ needs
 MOUs to establish criminal investigation and
prosecution responsibilities
 Standard for substantiating allegations –
preponderance of the evidence?
50
Safety: Reporting
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Multiple ways for residents and staff to report abuse;
retaliation by other residents or staff; and staff neglect
or violation of responsibilities that may have
contributed to an incident
At least one way to report sexual abuse to an outside
public entity or office that has agreed to receive
reports and forward them to the facility head.
Staff accept reports made verbally, in writing,
anonymously and by third parties
The facility makes reporting options public
Staff immediately put any verbal reports in writing
Notifications of abuse allegations to appropriate
individuals, information-sharing based on need-toknow
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Safety: Protections from Retaliation
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Measures that could protect youth and staff
from retaliation:
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Housing changes or transfers of individuals who
report
Removal of alleged staff or resident abusers from
contact with victims
Employee assistance services or other resources for
staff who may need psychological or emotional
support
Available services for residents who may need
psychological or emotional support
Monitor treatment of residents and staff including
discipline, housing, program or work changes
52
Safety: Youth-Youth
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Staff are trained to handle assaultive behavior
by youth in ways that minimize injury to
everyone involved, and backup support is
available if needed
Staff address the behavior of youth who
threaten or victimize others
Objects that can be used as weapons are
properly stored and secured
Youth are not transported to and from the
facility in the presence of adult inmates
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In Conclusion
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Leadership and vigilance are essential.
Not just a policy and a training – think
comprehensively.
In litigation, a central question is: What did the
facility do to prevent this tragedy?
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Contact Information
Dana Shoenberg, Senior Staff Attorney
Center for Children’s Law and Policy
202-637-0377 x107
dshoenberg@cclp.org
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