UNIVERSITY OF CALIFORNIA, LOS ANGELES
BERKELEY • DAVIS • IRVINE • LOS ANGELES • MERCED • RIVERSIDE • SAN DIEGO • SAN FRANCISCO

SHARON DOLOVICH
PROFESSOR OF LAW
PHONE: (310) 206-5568
FAX: (310) 206-7705
E-MAIL: DOLOVICH@LAW.UCLA.EDU

UCLA
SANTA BARBARA • SANTA CRUZ

SCHOOL OF LAW
BOX 951476
LOS ANGELES, CALIFORNIA 90095-1476
PHONE: (310) 825-4841

Re: Comments on National Standards to Prevent, Detect, and Respond to Prison Rape,
submitted pursuant to Notice of Proposed Rulemaking, January 24, 2011

March 30, 2010
Dear Attorney General Holder:
I write to comment on the proposed National Standards to Prevent, Detect, and Respond
to Prison Rape. I am a professor of law at UCLA, and have spent the past decade studying the
law and policy of incarceration in the United States. Recently, I conducted an empirical study of
a program in the L.A. County Jail designed to protect the most vulnerable prisoners from sexual
victimization.1 In the course of this research, I have closely examined the problem of prison
rape, its causes, and the means of its prevention.
I strongly commend DOJ for its care in formulating its proposed standards, and for taking
seriously the issues raised during the 2010 notice and comment period. I am confident that, once
adopted, these new national standards will do much to further PREA’s aims of preventing,
detecting and appropriately responding to the commission of prison rape.
Yet still more must be done if these important aims are to be achieved. Unfortunately,
the proposed standards contain a number of provisions that undermine PREA’s goals,
unnecessarily leaving innumerable men and women vulnerable to serious sexual violence. I
write to highlight several provisions that urgently need revising, and to urge DOJ to make these
revisions before finalizing the standards.
A number of serious concerns raised by the current standards may be succinctly stated:
 The final standards should forbid agencies from placing juveniles in adult
facilities. Juveniles in adult prisons are known to face a very high risk of sexual
assault, and the alternative to placing them in general population—protective
1

UCLA IRB #G07-01-106-04.

custody—is inappropriate for juveniles, depriving them of both community and
necessary programming and causing or exacerbating mental health issues.
 The final standards should prohibit non-emergency cross-gender pat searches
and non-emergency cross-gender viewing of inmates. These practices are
forbidden in most western countries, with good reason: they contribute to a
sexualized institutional atmosphere and encourage and facilitate sexual abuse. The
exception for cross-gender pat searches created by § 115.14(e) (exempting from
such treatment “those inmates who have suffered documented prior cross-gender
sexual abuse while incarcerated”) is insufficient. Anyone with a history of prior
sexual abuse, whether in prison or not, is liable to be traumatized by cross-gender
pat searches, and even those who have experienced such abuse while in detention
may have been too afraid to report it. This policy will thus in practice ensure that
prior victims of sexual abuse will be subject to this potentially traumatic
treatment. Furthermore, the exception for cross-gender viewing created by §
115.14(c) (for “viewing . . . incidental to routine cell checks”) is so broad as to
swallow the rule, leaving inmates vulnerable to such viewing at any time despite
the presence of easy alternatives (eg/ requiring opposite gender officers to
announce their arrival in cellblocks).
 The final standards should be extended to cover immigration detention
facilities. PREA was intended to apply to all people in detention, and when
PREA was first drafted, DHS did not exist and the INS—then part of DOJ—
administered immigration detention. Today, ICE’s own standards address sexual
assault, but though they are commendable, they are not enforceable. They also
leave many crucial issues unaddressed and lack the force of law. If DOJ does not
have the authority to promulgate rules to cover DHS, DOJ officials should
strongly recommend that Congress legislatively require this coverage.
Other serious concerns raised by the proposed final standards require somewhat longer
elaboration. In what follows, I highlight three issues as to which DOJ’s current stance calls out
for reconsideration. These issues concern:
(1) the use of protective custody (i.e., solitary confinement) to protect inmates at risk of
sexual victimization (§ 115.43 & §115.66);
(2) the use of segregated housing to protect lesbian, gay, bisexual, transgender, and
other intersex (LGBT) inmates from sexual victimization (§ 115.42); and

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(3) the filing of grievances by victims of prison rape (§ 115.52/252/352).
I especially draw your attention to my comments on the second issue (at Part 2 below),
relating to restrictions on the use of segregated housing to protect LGBT inmates. The Notice of
Proposed Rulemaking (NPR) issued by DOJ on January 24, 2011 explicitly references my
previous comments on this issue,2 and I believe the revisions DOJ made in response to those
comments went too far, thereby creating an unnecessary and substantial risk of serious harm. I
strongly commend DOJ for taking steps to ensure the survival of the important LA County Jail
program that I described in my previous comments. Unfortunately, the fix opted for seems to
have thrown out the baby with the bathwater. Specifically, despite the real possibility that
segregating LGBT inmates on the basis of sexual orientation and gender identity can in some
cases increase the victimization and abuse of LGBT inmates, the standards have now entirely
eliminated any and all restrictions on housing LGBT inmates in segregated units. Yet, as I
describe below, a much more modest change would have protected facilities like the LA County
Jail (which has successfully deployed a segregationist strategy to protect gay and transgender
inmates from sexual victimization), while continuing to protect LGBT inmates in the way the
Commission originally sought to do.
I. The Final Standards Should Tighten Restrictions on the Involuntary Placement in
Protective Custody (ie Solitary Confinement) of Inmates at High Risk of Sexual Assault
or Who Have Been Sexually Victimized
The Commission’s recommended standard SC-2 stipulated that inmates at high risk of
sexual assault may be placed in involuntary protective custody or other forms of isolation or
solitary confinement “only as a last resort and then only until an alternative means of separation
from likely abusers can be arranged.”3 This recommendation was wise. In practice, “protective
custody” amounts to extended isolation. People in protective custody are typically locked in
small cells for 23 or more hours a day with little or no human contact. The conditions of
confinement are virtually identical to those in which prisoners are placed as punishment for
disciplinary infractions. The Commission’s recommended standard recognized that people who
are at high risk of sexual victimization have done nothing wrong, and that protective custody
should not be used except under extraordinary circumstances and then for as short a time as
possible.

2

U.S. DEPARTMENT OF JUSTICE, PREA NOTICE OF PROPOSED RULEMAKING 37 (January 24, 2011) (hereinafter DOJ
PREA NPR).
3
See NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT 217 (June 2009) (hereinafter NPREC REPORT)
(SC-2); see also id. at 8 (expressing concern with the possibility that correctional facilities may excessively rely on
“protective custody and other forms of segregation (isolation or solitary confinement) as a default form of
protection”).

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Unfortunately, the proposed standards effectively reinstate involuntary protective custody as
an available housing placement for at-risk individuals. True, as written, § 115.43 (a) appears to
disfavor this strategy.4 However, two problematic features of § 115.43 mean that in practice,
there will be minimal limits on the use of protective custody as housing for vulnerable inmates.
First, § 115.43 (a) places no substantive restrictions on an agency’s use of protective custody.
Whereas the Commission stipulated that protective custody may be used “only as a last resort,”
the proposed standard simply requires that an agency make “an assessment of all available
alternatives.” This exclusively procedural requirement opens the way as a practical matter for a
placement in protective custody even where alternatives could be made available.
True, § 115.43 (a) does say that available alternatives may be used “only until an alternative
means of separation from likely abusers can be arranged.” But any bite this limitation may have
is wholly undercut by the second problematic feature of § 115.43: § 115.43 (c), which allows
agencies to house someone in protective custody involuntarily for up to 90 days. Intentionally or
not, § 115.43 (c) establishes a 90-day norm for the use of involuntary solitary confinement in the
PREA context, thereby strongly signaling that placing inmates at high risk of sexual
victimization in protective custody for 3 months at a time raises no PREA issues. Even worse, §
115.43 does not even set 90 days as the absolute outer limit, but instead allows for 90-day
extensions whenever agency officials find there to be “a continuing need for separation from the
general population.”5
It is important to be clear about the implications of this proposed standard. It allows agency
officials to take the most vulnerable individuals in custody, and instead of creating safe spaces
where they can live free from the threat of sexual assault, to keep them locked up alone in tiny
cells for 23 hours a day for months at a time. If this is not punishing people for being victims, it
is hard to see what would be. Imagine you yourself being locked up alone for three entire months
in an extremely confined space. The experience would be—and is—be extremely traumatic, not
to mention psychologically disturbing even for people without a previous history of mental
illness.
This trauma may be alleviated to some extent by affording the people in solitary confinement
access to human interaction and stimulation, and § 115.43 (b) does require that inmates in
protective custody “have access to programs, education, and work opportunities to the extent
possible.” But as those familiar with prisons well know, it can be extremely resource-intensive to
make programming available to people in solitary confinement. This is especially likely to be the
case with respect to vulnerable inmates, who are only in solitary because the prison has not
4

See DOJ PREA NPR (stipulating at § 115.43 (a) that “[i]nmates at high risk for sexual victimization may be placed
in involuntary segregated housing only after an assessment of all available alternatives has been made, and then only
until an alternative means of separation from likely abusers can be arranged”).
5
Id. (§ 115.43 (e)).

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created safe spaces for them in the general population. As a consequence, in many if not most
cases, individuals in protective custody under § 115.43 are unlikely as a practical matter to have
access to programming or other educational or work opportunities, thereby only increasing the
harmful psychological and emotional effects of a 3-month stay in isolation.
For these reasons, I strongly urge you to rethink § 115.43, and to model the final standard
after the Commission’s proposed SC-2, on which protective custody would be available only as a
last resort and only until an alternative means of separation from likely abusers can be arranged.
Otherwise, the final standards will only legitimate a practice that inflicts severe pain and
suffering on people just because they are vulnerable to victimization.
At the very least, the length of time for which agencies may place at-risk inmates in
protective custody should be considerably reduced. Although agencies may sometimes require a
period of time to identify alternative housing for vulnerable inmates, a three-month renewable
window effectively relieves the pressure on agencies to create alternative housing arrangements
while placing severe burdens on people who have done nothing wrong. As an alternative, a nonrenewable 21-day window, although still extremely burdensome for prisoners, would give agency
officials three weeks to make alternative arrangements. Furthermore, a three-week window
without the possibility of renewal would create appropriate incentives for agencies to establish
permanent alternative housing for vulnerable inmates in a way consistent with the aims of PREA.
II. The Proposed Standards Go Too Far in Eliminating All Restrictions on Segregated
Housing Based on Sexual Orientation and Gender Identity. The Final Standards Should
Contain a Qualified Prohibition on Such Housing.
The Commission’s recommended standard SC-2 contained the following language:
“Lesbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not
placed in particular facilities, units, or wings solely on the basis of their sexual
orientation, genital status, or gender identity.”
This sweeping language appears to have been motivated at least in part by the Commission’s
desire to arrest the practice, followed in many correctional facilities, of automatically segregating
gay, bisexual and other gender nonconforming prisoners in long-term protective custody as a way
to keep them safe. Such conditions, even if increasing a person's protection from sexual assault,
force vulnerable prisoners into an impossible choice between personal safety and the satisfaction
of other basic and urgent human needs, above all, those of community and fellow human contact.
As noted above, opposition to that practice is wholly appropriate. With the above-quoted

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language, the Commission may have sought to ensure alternative mechanisms for protecting
members of these particularly vulnerable groups.
In my May 2010 comments, I expressed concern with the wholesale nature of SC-2’s
prohibition. As I explained, SC-2 as written went beyond prohibiting the use of protective
custody as a long-term strategy for protecting LGBT prisoners. It also foreclosed the practice of
separately housing sexual minorities in dormitories, wings or units set aside for their exclusive
use. This latter approach is entirely distinct from protective custody. Rather than housing gay,
transgender or intersex prisoners in isolated single cells, segregated housing in a dorm setting or
a designated cell block could keep members of these groups relatively safe from sexual
victimization—PREA’s key goal—while still allowing residents access to programming and the
opportunity for interpersonal interaction, that prisoners in protective custody are routinely denied.
My primary concern with SC-2’s sweeping nature was that it would have endangered an
important program currently in place in the LA County Jail. For the past 25 years, LA County
has been housing gay male and transgender prisoners separately from the Jail’s general
population in a unit known as “K6G”. Over the past few years, I have spent considerable time
studying this unit, and my research convincingly shows that with K6G, the L.A. County Sheriff’s
Department6 has successfully managed to house its gay and transgender prisoners in relative
freedom from sexual abuse. Indeed, with its total segregation from the general population, K6G
has arguably become the safest place in the Jail—no small thing when one considers the daily
harassment and abuse that gay and transgender inmates often endure in a prison’s general
population.
As written, SC-2 could have spelled the end of this successful program, as well as foreclosed
other jurisdictions from adopting the K6G model even in cases where all parties agree that this
approach is the most appropriate option under the circumstances. At the same time, as I
explained in my comments, the concerns motivating SC-2—most notably, that under some
circumstances, segregation on the basis of sexual orientation or gender identity could increase
the vulnerability of target populations—told in favor of qualifying rather than wholly deleting
SC-2’s prohibition.
In crafting its proposed standards, DOJ clearly took the fate of K6G seriously. Indeed, the
success of K6G was the sole reason offered in the NPR to explain why the proposed standards
did “not include the Commission’s recommended ban on assigning inmates to particular units
solely on the basis of sexual orientation or gender identity.”7 In this way, DOJ has assured the
6

The L.A. County Sheriff’s Department administers the L.A. County Jail under the current leadership of Sheriff
Leroy Baca.
7
See DOJ PREA NPR, at 37 (explaining that “the proposed standard does not include the Commission’s
recommended ban on assigning inmates to particular units solely on the basis of sexual orientation or gender

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ongoing protection of vulnerable prisoners in LA County, and the LA County Jail may now
continue to operate this successful program without fear of being out of compliance with PREA
standards. This is a welcome result for which DOJ deserves commendation.
Unfortunately, in its response to the K6G concern, DOJ appears to have thrown out the baby
with the bathwater. Rather than modifying SC-2 to qualify the conditions under which an agency
may segregate prisoners on the basis of sexual orientation or gender identity, it instead eliminated
the prohibition entirely. As a result, there are no longer any restrictions at all on “assigning
inmates to particular units solely on the basis of sexual orientation or gender identity.”8
From the perspective of PREA, this is a dangerous situation. Although LA County’s K6G
program has been very successful, in other places, segregating prisoners on the basis of sexual
orientation or gender identity has actually facilitated the abuse of segregated inmates. For
example, at Fluvanna Correctional Institution in Virginia, women who identified as or were
perceived to be lesbian or otherwise gender non-conforming were removed from the general
population and placed in what became known as the “butch ward,” where they were subject to
ongoing harassment and other punitive conditions.9 In that case, rather than being protected by
segregation (as occurs in K6G), targeted women were placed at risk of abuse because of it.
As the Fluvanna case indicates, segregation in the LGBT context can be a risky strategy,
since it gathers sexual minorities in one place and publicly proclaims their status as such. This
can be thought of as the “sitting duck” concern: that concentrating all sexual minorities in one
unit will draw attention to people who are already vulnerable to victimization, making them
sitting ducks for any predators—whether inmates or officers—bent on assault.
This concern is especially salient in women’s prisons, where it is custodial officers and other
staff who pose the greatest threat. For this reason, in my May 2010 comments, I urged a revision
of SC-2 to prohibit the segregation of lesbian, bisexual or other gender non-conforming inmates
in women’s prisons. Absent this prohibition, corrections officials in women’s prisons may
pursue a segregationist strategy thinking they are thereby furthering the goals of PREA, when in
fact they are actually nourishing the conditions under which sexual victimization thrives. This
concern alone should be sufficient to justify reinstating SC-2 in a qualified form.
But there is a further reason to reinstate a qualified version of SC-2, one that I have become
convinced of in the past year. Since submitting my comments, I have consulted extensively with
LGBT advocates, exchanging perspectives on the issue of segregating LGBT prisoners. In these
identity” and noting that “[o]ne commenter discussed the success of the Los Angeles County Jail in housing gay male
and transgender prisoners in a separate housing unit”).
8
Id.
9
See VA women’s prison segregated lesbians, others, ASSOCIATED PRESS, June 11, 2009.

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exchanges, I explained my concern that a wholesale prohibition would threaten the ongoing
existence of K6G, thereby exposing gay male and transgender prisoners in the LA County Jail to
possible victimization in the Jail’s general population. Moreover, I argued that the segregation
option should remain open for other jurisdictions where—as in LA County—prison officials and
LGBT advocates agree that this would be the best way to keep these vulnerable populations safe.
In turn, the advocates with whom I spoke helped me to see that, although the LA County program
has been successful, there are reasons to think that in other jurisdictions, such a program could
actually lead to increased victimization of gay, transgender and other non-conforming inmates; in
other words, that depending on the circumstances, the sitting duck concern may be equally salient
in men’s prisons.
It is relevant here that K6G’s success is a function of several factors, many of which,
although not unique, will not be present everywhere. These factors include the considerable size
of the gay and transgender population in Los Angeles County; the ongoing involvement of the
Los Angeles LGBT community in K6G’s design and the support this community has provided
for both the Jail and K6G’s inmates; and the respectful, open-minded, and sympathetic attitude
toward K6G and its inmates taken by the officers who run the program. In other jurisdictions, by
contrast, there may be many fewer GBT inmates, few if any community advocates with the
resources or interest in supporting such a program, and—unfortunately but realistically—a dearth
of sympathetic correctional officers willing to commit themselves to maintaining such a program.
And where this is the case, an official decision to segregate gay and transgender inmates, even as
a protective measure, may only increase the vulnerability of these inmates, officially announcing
their GBT status and thereby exposing them as available victims to would-be predators (thus
making them sitting ducks).
In short, in the course of my conversations with LGBT advocates, I became even more
convinced that, in light of PREA’s goals, it would be a grave mistake to entirely abandon the
commitments of SC-2. Instead, what is needed is a way to ensure the ongoing survival of K6G
while foreclosing the option of segregating on the basis of sexual orientation or gender identity in
places where doing so would be dangerous to LGBT inmates.
I believe there is an easy way to achieve these dual aims. K6G grew out of a lawsuit brought
against the Jail on behalf of all gay inmates after several gay inmates were raped. This case was
resolved via a consent decree establishing the K6G unit. This legal posture made clear that
advocacy groups supported a segregationist strategy in this context—support that would likely
not have been forthcoming absent the belief that this approach was in the best interests of gay
inmates. It also made sure that outsiders concerned with the interests of K6G’s target populations
would be watching to confirm that segregation did not lead to victimization. Over time, outside
advocates have become partners with Jail officials in ensuring the success of the unit.

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The K6G experience teaches that, when segregation arises from a legal settlement with buyin from all sides, success is much more likely. Conversely, where a segregationist strategy is
pursued unilaterally by prison officials, the lack of community involvement and oversight can
greatly increase the vulnerability of segregated inmates and thus the likelihood that they will be
victimized. Moreover, when segregation is adopted unilaterally by prison officials, it becomes
more likely that a general ignorance of and discomfort with gay, transgender or other gender nonconforming people may have motivated the decision and/or may drive the official treatment of
inmates in the segregated unit. And unfortunately, where this is so, harassment and abuse of
segregated inmates is more likely to follow (as appears to have happened in Fluvanna).
For these reasons, I strongly urge DOJ to adopt the following provision as part of § 115.42
(Use of Screening Information):
(f) The agency shall not place lesbian, gay, bisexual, transgender, or other
intersex inmates in particular facilities, units, or wings solely on the basis of such
identification or status, unless such placement is in a dedicated facility, unit, or
wing established in connection with a consent decree, legal settlement or legal
judgment for the purpose of protecting such inmates.
This language was crafted conjointly with Harper Jean Tobin of the National Center for
Transgender Equality and Jody Marksamer of the National Center for Lesbian Rights. We all
agree that this is the best possible way to ensure both the survival of K6G and the ongoing
protection of prisoners vulnerable to sexual abuse on account of their sexual orientation or
gender identity. Protecting vulnerable prisoners is PREA’s central aim, and I strongly urge DOJ
to adopt the proposed provision as part of its final PREA standards.
III. The Proposed Exhaustion Procedure Excessively Limits Access to the Courts for
Prisoners with Meritorious Claims of Sexual Abuse. The Reasons Offered For
the Shift from RE-2 Do Not Hold Up to Scrutiny. DOJ Should Therefore Revert
to the Exhaustion Procedure Originally Proposed by the Commission in RE-2
Since the passage of the Prison Litigation Reform Act of 1995 (PLRA), prisoners wishing to
get a hearing in federal court must first exhaust all administrative remedies. This exhaustion
requirement applies even when prisoners have experienced the worst forms of sexual abuse.
Unfortunately, too often it is extremely difficult for prisoners to satisfy this exhaustion
requirement. In many institutions, grievance procedures are opaque and filing deadlines are
extremely short. Prisoners who have been traumatized by sexual abuse may be unable to act
quickly enough to figure out filing requirements or meet deadlines. These difficulties are
compounded by the fact that many prisoners are illiterate, learning disabled or seriously mentally

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impaired. Furthermore, many prisoners who have filed official grievances report being retaliated
against by fellow inmates and even correctional officers. As a consequence, even prisoners who
have experienced severe sexual abuse may be too afraid to file grievances through official
channels and are thus locked out of federal court altogether. This result is doubly concerning
from the perspective of PREA, since not only do victims thereby lose any possible remedy for
their violation, but the fact of the abuse winds up buried, leaving officials potentially unaware of
the victimization taking place in their facilities.
The Commission’s proposed standard RE-2 directly addressed these problems in the context
of sexual abuse. First, it ensured that prisoners who because of the sexual abuse or its aftereffects were unable to make a timely official report will not be precluded from pursuing
administrative or judicial remedies. Second, by allowing a claim to have been deemed exhausted
after 90 days from the point of filing, it provided ample opportunity for prison officials to
respond to the allegations internally while not penalizing victims for official failures to timely
respond to their reports of victimization. Third and finally, it protected prisoners from the threat
of retaliation by allowing them to choose whether to report sexual abuse to prison officials
personally or to report the abuse to a third party or an outside office or officer, who would then
pass the information on to prison administrators.
RE-2 successfully balanced two crucial interests implicated by the PLRA’s exhaustion
requirement. On the one hand, it provided adequate opportunity for prison administrators to
respond to allegations of sexual abuse. Certainly, prisons are complex institutions and prison
administrators routinely face many competing pressures on their time and attention. But given
the imperative to protect prisoners from sexual abuse, it is reasonable to ask administrators to
respond to allegations of such abuse within a three-month period of being put on notice. On the
other hand, it imposed realistic reporting obligations on victims of sexual abuse, and ensured that
their claims would be heard and addressed.
Unfortunately, proposed standard § 115.5210 departs significantly from RE-2 in ways that
run directly counter to PREA’s goals. Whereas RE-2 stipulated that administrative remedies
would be deemed exhausted 90 days from the filing of a complaint, thereby providing agencies
three full months to respond to allegations of sexual abuse, § 115.52 (a)(1) imposes a 20-day
deadline for filing a grievance, to run from the moment of the assault. Under § 115.52, victims
of sexual abuse who were unable to file within the 20-day window will find the courthouse doors
closed to their claims.
Although § 115.52 (a)(2) does provide for a 90-day extension, those wishing to qualify for
this extension would be required to provide documentation of their inability to file within the 20
10

See also § 115.252 & § 115.352.

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day period. This provision suggests an utter failure to understand the experience of the people
who face sexual victimization behind bars. Even in the free world, people who have been raped
are frequently traumatized by the experience. It can take weeks and even months before they are
able to process what happened to them. They may find themselves paralyzed with confusion and
fear. This incapacity is only compounded in the case of prison rape, where victims are often
isolated, without support, and in fear of repeated assaults. And as noted, prisoners tend to be
disproportionately illiterate, learning disabled or seriously mentally impaired. Under these
circumstances, it is entirely unreasonable to expect the victims of sexual abuse behind bars to be
able either to comply with a 20-day filing deadline or to muster the requisite documentation to
earn a 90-day extension.
For these reasons, DOJ’s final standards should include the exhaustion procedure originally
adopted by the Commission as RE-2. There is some suggestion in the NPR that RE-2 somehow
ran afoul of the PLRA. This is false and a red herring. The PLRA requires only that prisoners
bringing claims in federal court must first have exhausted their administrative remedies. RE-2
simply created a standard for establishing when prisoners bringing claims of sexual victimization
may be deemed to have satisfied this requirement.
RE-2 thus furthered the aims of PREA while posing no PLRA problem. By contrast, §
115.52 (a)—the proposed alternative to RE-2—arguably runs afoul of PREA, by increasing the
restrictions on prisoners’ access to federal courts in cases of sexual abuse. By stipulating a 20day clock, § 115.52 (a) effectively sets a national 20-day default rule, incentivizing agencies with
longer filing deadlines to cut those deadlines to 20 days. In this way, § 115.52 would worsen the
situation for victims of prison rape, in direct and inexplicable opposition to the clear goals of
PREA.
The NPR’s discussion of the shift from RE-2 to § 115.52’s 20-day filing deadline is framed
to suggest that several valid agency concerns motivated the change.11 But a careful parsing of the
five reasons actually given in the NPR reveals an absence of any compelling justifications either
for replacing the 90-day period with a 20-day window or for shifting the presumption from
exhaustion to default.

11

1.

As noted, the notion that a presumption of exhaustion would be inconsistent with the
PLRA is a red herring.

2.

The worry that an exhaustion presumption would “encourage the filing of frivolous
claims” is something the Commission considered and rightly rejected. For one thing, the
PLRA’s three-strikes provision already contains a strong deterrent against frivolous

See DOJ PREA NPR, at 42-44.

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suits.12 Moreover, as § 115.52 (d)(5) makes clear, agencies have other tools for
disincentivizing bad faith filings. And given the many reasons to think that meritorious
claims may be routinely foreclosed by the constraints recreated by § 115.52, the worry
about frivolous claims is simply insufficient to justify § 115.52 draconian restrictions.
3.

Concerns regarding agencies’ need for “sufficient time for investigation” relate to the
Commission’s establishment in RE-2 of a 48-hour window for exhaustion of
administrative remedies in cases of “an inmate seeking immediate protection from
imminent sexual abuse,”13 and does not bear on the shift in presumption from exhaustion
to default or to the 20-day filing deadline.

4.

The concern with “gamesmanship” on the part of prisoners also arose in the context of
the imminence requirement created by RE-2. And even taken more broadly, this concern
would be insufficient to justify the shift in presumption from exhaustion to default. For
one thing, even were some prisoners to file grievances to try to get “changes to housing or
facility assignments for reasons unrelated to sexual abuse” as suggested in the NPR,14
such efforts could be readily thwarted by officials. And were such prisoners to elevate
these efforts to the federal courts, their claims would be quickly exposed as frivolous and
penalized by the PLRA’s three-strikes rule. Again, agencies have mechanisms for
penalizing the filing of bad faith grievance requirements, and the worry about procedural
abuses should not be used to justify closing the courthouse doors on prisoners with
meritorious claims.

5.

Finally, as the NPR indicates, the concern about stale claims relates to the absence of a
limitation period and thus bears on neither the shift in presumption from exhaustion to
default or the 20-day filing deadline.15

In short, if strong arguments exist for the retreat from RE-2 to § 115.52, they have yet to be
brought forward, whereas extremely strong arguments exist for retaining the original
Commission formulation. I therefore strongly encourage DOJ to adopt the exhaustion procedure
originally proposed by the Commission in RE-2. As it is now, § 115.52 would not only directly
compromise the goals of PREA, but would actually make it even more difficult in some
12

See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or
proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.”).
13
NPREC REPORT at 217 (RE-2).
14
DOJ PREA NPR at 43.
15
More generally, a concern with stale claims may be valid and may tell in favor of some statute of limitations on
claims, but any such limit would need to reflect the seriousness of allegations of rape, which 20 days does not do.

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jurisdictions for prisoners with meritorious claims of sexual abuse to get into federal court. This
cannot be the aim of the Attorney General and is certainly not consistent with PREA.
One final concern regarding § 115.52 bears noting: § 115.52 (d)(5) provides that “[a]n
agency may discipline an inmate for intentionally filing an emergency grievance where no
emergency exists.” As written, this provision contains no qualification restricting discipline o
cases of grievances filed in bad faith. As a result, adoption of § 115.52 (d)(5) would enable
agencies to punish any inmate who filed an emergency grievance where the agency subsequently
determined that no emergency exists, even if the inmate sincerely and in good faith believed
themselves to face imminent assault. As written, all § 115.52 (d)(5) requires is that the grievance
was intentionally filed and no emergency found to exist.
Given this troubling possibility, one can only conclude that the current construction of §
115.52 (d)(5) reflects an inadvertent drafting error. At the very least, therefore, § 115.52 (d)(5)
should be amended to read:
(d)(5) An agency may discipline an inmate for filing an emergency grievance in
bad faith knowing that no emergency exists.

Thank you for your consideration of this submission.

Sharon Dolovich
Professor of Law, UCLA School of Law

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