The Prison Rape Elimination Act Overview and Update - PowerPoint PPT Presentation

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The Prison Rape Elimination Act Overview and Update

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  1. The Prison Rape Elimination Act Overview and Update Responding to Inmate on Inmate Sexual Violence

  2. The Prison Rape Elimination Act of 2003 Public Law 108-79 Makes important findings about the impact of prison rape on inmates, the economy and state and federal governments

  3. PREA Purposes • Increase accountability of prison officials who fail to detect, prevent, reduce and punish prison rape • Protect 8thamendment rights of federal, state and local prisoners • Establish grant programs • Reduce costs of prison rape on interstate commerce

  4. PREA Purposes • Establish zero tolerance for the conduct • Make prevention a top priority • Develop national standards for detection, prevention, reduction and punishment • Increase available data and information on incidence in order to improve management and administration • Standardize definitions used for collecting data on the incidence of rape

  5. Major Provisions • Section 4: Collection of prison rape statistics, data and research • Federal, state and local officials are required to participate • Review panel on prison rape with subpoena power • Public hearings for 3 highest incidence systems and 2 lowest • Report each year on 6/30

  6. BJS Update • Expert panel meetings • Administrative survey collections • Victim self reports • Adults • Youth-Began collection of self-reporting (March 2008) • Major tests of tools for evaluation of victimization rates for former inmates

  7. BJS Update • Collection of Lock-ups sample • Rankings • Prisons-December 2007 • Jails-June 2008 • Lock-ups-2008

  8. Major Provisions • Section 5: Prison Rape Prevention and Prosecution • Information and Assistance through clearinghouse • Training and education • Report due on 9/30 annually

  9. NIC Update • Completion of informational PREA videos • PREA videoconferences • Nationwide technical assistance and training on PREA • Correctional Officer Handbook

  10. NIC Update • Development of curricula • Addressing sexual violence against youth in custody • Responding to inmate-on-inmate sexual violence • Investigating sexual violence in correctional settings • Development of legal tool kits for states • Development of E-Learning tool

  11. Major Provisions • Section 6: Grants to Protect Inmates and Safeguard Communities • Protection of the community$ to address overcrowding • Risk assessment tools • Mapping of concentration of inmates in communities • Policy and program development • Collaboration between corrections and community on reentry

  12. Major Provisions • Section 6: Grants to Protect Inmates and Safeguard Communities • Protection of Inmates • Investigations • Prosecution • Prevention

  13. BJA Update • Convened meetings to discuss protecting inmates and community safety • 16 states were awarded grants in 2004 • 28 awards in 2006

  14. State Grant Awards • Training • Improve or create investigative structures • Develop data collection capacities • Enhance security by installing cameras or identifying institutional vulnerabilities • Develop classification and housing options for victims and perpetrators

  15. State Grant Awards • Enhance medical and mental health treatment for victims • Community reintegration and services for victims and perpetrators • Hiring staff to implement PREA

  16. BJA Update • Work with Prosecutors • Training Curriculum for Jails and Lockups • Community Corrections • Materials for Tribal/ Native American jurisdictions • Problems and responses to PREA

  17. NIJ Update • Policies and practices looking at male and female prison facilities • Assessment tools and Instruments and descriptive analysis of characteristics of perpetrators and victims • The culture of prison sexual violence • Looking at classification and risk assessment

  18. NIJ Update • Impact of victimization • Several awards were made on sexual violence in jail settings • 2008 Research Solicitation • Focus on Staff Sexual Misconduct • Cross Gender Supervision • Pat searches • Investigations and Prosecution • Best Practices and evaluation of current policies

  19. Major Provisions • Section 7: National Prison Rape Elimination Commission • 9 members authorized (8 sitting) • Conduct legal and factual study of the effects of prison rape in the US • Report due w/in 2 years of initial meeting

  20. Major Provisions • Section 7: National Prison Rape Elimination Commission • Recommend national standards • Consultation with accreditation organizations • Can’t impose something that would mandate substantial increased costs to agency • Hold hearings

  21. NPREC Update • Expert Panels begun in 2007 • training, medical and mental health, reporting and data collection, classification, investigations, evidence and crime scene collections, immigration, juveniles

  22. Major Provisions • Section 8: Adoption and Effect of National Standards • A year after National Prison Rape Elimination Commission issues report, AG publishes a final rule with standards • 90 days after publication --transmission to state departments of correction • FBOP is immediately covered by rule • Possible reduction of 5% each year for failure to meet the standard • Annual report on non-compliance

  23. Major Provisions • Section 9: Accreditation organizations must adopt standards or lose federal funds

  24. What does this mean? • Increased scrutiny at state, federal and local level on prison rape generally and staff sexual misconduct specifically as a subset • Broadened concern about offender on offender conduct • Data collection is important • Enhanced focus on investigations, prosecution and administrative sanctions • Set of national standards that establish minimum standards for treatment of prisoners domestically

  25. Legal Liability for Sexual Abuse of Persons in Custody: Civil and Administrative Responding to Inmate on Inmate Sexual Violence

  26. State Laws • Staff sexual misconduct* • Sexual assault • Statutory rape • Sodomy • Sex offender registration • Vulnerable Adult Statutes • Licensing • Official misconduct • Obstruction of Justice • Making false statements to a government official • Mandatory reporting

  27. State Custodial Sexual Abuse Laws • All 50 states, the Federal Government and DC have laws specifically covering the sexual abuse of persons in custody • 32 States cover Community Corrections agencies • 29 States cover juveniles explicitly– another 17 States implicitly.

  28. Punishing Consensual Sex of inmates • A State’s Sodomy laws constitutional as applied to sex in prisons. • Diminished expectation of Privacy. • US v. Brewer, 363 F. Supp. 606 (M.D. Pa. 1973) • People v. Frazier, 64 Cal.Rptr. 447 (Cal. Ct. App.1967) • People v.Coulter, 288 N.W.2d 448 (Mich. Ct. App. 1980)

  29. Civil Liability-Constitutional Claims • Most Common legal bases for challenges • 42 USC 1983 • 8th Amendment • 4th Amendment • 14th Amendment • State tort claims

  30. 42 U.S.C. §1983 • Causes a federal cause of action for the vindication of rights found elsewhere • Key elements • Deprived or a right secured by the constitution or law of US • Deprivation by a person acting under color of state law • Don’t forget volunteers and contractors

  31. Eighth Amendment • Prohibits cruel and unusual punishment • Legal standard is deliberate indifference • Established in a prison rape case Farmer v. Brennan • Two part test • The injury must be objectively serious and must have caused an objectively serious injury • The official must have a sufficiently culpable of mind and have acted with deliberate indifference or reckless disregard for the inmate’s constitutional rights

  32. What the Courts look for • Deliberate indifference to inmate vulnerability – safety or health • Official knew of and disregarded an excessive risk to an inmate’s safety or health • Official must be aware of facts from which an inference could be drawn that a substantial risk of harm exists and he must draw the inference

  33. Fourteenth Amendment—Substantive Due Process • Was the individual deprived of life,liberty or property without due process of law? • Lower legal Standard than 8th amendment • Depending on the situation—14th amendment may apply – pre-trial detainees and juveniles

  34. State Tort Law Claims • Assault • Battery • Intentional infliction of emotional distress • Negligent infliction of emotional distress • Negligent hiring, firing, supervision, staff training

  35. Major Issues • Inmate on Inmate Conduct • Rape • Sexual • Voluntary sexual interaction • Consensual sex

  36. Inmate on Inmate Conduct • Who raises the issue • Male • Female • Nature of the conduct • Forced • Coerced • Consensual

  37. Liability • Official • Individual • Personal

  38. Official Liability • Did it happen on your watch? • Were you responsible for promulgating and enforcing policy? • Did you fail to act or ignore information presented to you? • Was it a FAILURE TO TRAIN, SUPERVISE, ETC…

  39. Individual Liability • Officials sued in individual capacity may be protected from damages if the wrongful conduct was committed while they preformed a function protected by qualified immunity

  40. Personal Liability • Plaintiff must provide notice that the suit is against the official in his/her personal capacity • Direct participation not required • Actual or constructive notice of unconstitutional practices • Demonstrated gross negligence or deliberate indifference by failing to act

  41. Qualified Immunity • No violation of federal law– constitutional or otherwise • Rights and law not clearly established at time of the incident • Official’s action was objectively legally reasonable in light of clearly established legal rules at time of the action—deliberate indifference