Presentation Transcript

1. 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
2. Plans for This Session 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
3. The Prison Rape Elimination Act of 2003 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.”
4. Congress’ Purposes in Enacting PREA 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
5. PREA Purposes, cont. 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
6. 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.
7. Major PREA Provisions: National Statistics, Data and Research 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
8. Major PREA Provisions: NIC Clearinghouse Provision of information and assistance to Federal, State and local authorities Training and education programs Annual report of activities to Congress Video trainings, policy considerations guides and other materials available Go to http://www.nicic.org/prea
9. Major PREA Provisions: Grants Grants made between 2004 and 2006 For: protecting inmates (prevention, investigation and prosecution); and safeguarding communities Maryland received a grant to develop data capacity
10. National Prison Rape Elimination Commission (NPREC) 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
11. NPREC Recommended Standards 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
12. Testimony from NPREC Hearings “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….”
13. Testimony from Hearings, cont. “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.”
14. Testimony from Hearings, cont. “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.”
15. Why wait? 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.
16. Common Themes in Facilities with Sexual Misconduct Problems Cultures that don’t respect residents Broken reporting, investigation and/or grievance systems Lack of sufficient effective programming Insufficient mental health supports Mid-level supervision breakdowns Staffing challenges: not enough people, not the right background and temperament, not enough training, high turnover
17. Key concepts to think about Isolation Vulnerability Power
18. 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
19. Organization of NPREC Standards NPREC Recommended Standards are divided into: Planning Prevention Detection and Response Monitoring Today’s presentation incorporates these concepts into the CHAPTERS review framework.
20. Assessing Conditions Observation Document Review Interviews Youth Staff at all levels Volunteers Parents
21. Classification and Intake 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
22. Classification and Intake, cont. 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
23. Classification and Intake, cont. 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
24. Classification and Intake, cont. 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 well-being, and be prepared to keep especially vulnerable populations safe without resort to isolation
25. Orientation Orientation for all youth should include: 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.
26. Orientation, cont. NPREC Recommended Training Requirements: 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
27. Health and Mental Health Care 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)
28. Health and Mental Health Care, cont. 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
29. Health and Mental Health Care, cont. NPREC Recommended Training Topics for facility medical and mental health care practitioners: 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
30. Access: Telephone, Mail and Visitation Youth need to communicate with people they trust in order to reduce isolation and support return to their communities.
31. Telephone, Mail and Visitation, cont. Check for: 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?
32. Telephone, Mail and Visitation, cont. 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?
33. Access to Courts Check for: Youth access to legal assistance for needs beyond their delinquency matters Can youth make and complete freeand 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?
34. 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?
35. Programming, cont. 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?
36. 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 institution-wide 36
37. 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: 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. 37
38. Training and Supervision Staffing Pre-employment record checks and periodic re-screening 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 38
39. Training and Supervision, cont. 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? Storage rooms, closets Bedrooms Showers, bathrooms Work detail, kitchens Classrooms, Library Offices Recreation areas 39
40. 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 40
41. 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! 41
42. 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 42
43. 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? 43
44. 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 44
45. Environment 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 45
46. Environment 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
47. Restraints, Isolation, Due Process and Grievances 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? 47
48. Restraints, Isolation, Due Process and Grievances, cont. 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 48
49. Grievances Effective, reliable systems for youth to report abuses and other concerns are essential. 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
50. Safety: Policy and Coordination 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
51. Safety: Reporting 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-to-know 51
52. Safety: Protections from Retaliation Measures that could protect youth and staff from retaliation: 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
53. Safety: Youth-Youth 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 53
54. In Conclusion 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? 54
55. Contact Information Dana Shoenberg, Senior Staff Attorney Center for Children’s Law and Policy 202-637-0377 x107 dshoenberg@cclp.org