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Prison Oversight Sourcebook Article 16 National Prison Rape Elim Commission Standards, Pace Law Review, 2010

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Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 16

11-18-2010

Ensuring Progress: Accountability Standards
Recommended by the National Prison Rape
Elimination Commission
Jamie Fellner
Human Rights Watch

Recommended Citation
Jamie Fellner, Ensuring Progress: Accountability Standards Recommended by the National Prison Rape
Elimination Commission, 30 Pace L. Rev. 1625 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/16
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

Ensuring Progress: Accountability
Standards Recommended by the
National Prison Rape Elimination
Commission
Jamie Fellner
With the enactment of the Prison Rape Elimination Act of
2003 (“PREA”), Congress simultaneously acknowledged the
significance of sexual abuse by staff and prisoners in
correctional facilities as well as the duty of public officials to
protect incarcerated individuals from it.1
Among other
provisions, PREA authorized the creation of the National
Prison Rape Elimination Commission (“the Commission”). I
had the honor and responsibility of serving as one of the
commissioners.2
PREA charged the Commission with studying and
reporting its findings on the causes and consequences of sexual
abuse in confinement, and with developing standards for its
prevention, detection, response, and monitoring. To satisfy its
mandate, the Commission convened public hearings and expert
committees, thoroughly reviewed the relevant literature,
submitted draft standards for public comment, and through
this lengthy process of consultation and study, drew on the
knowledge, experiences, and insights of countless corrections
leaders, survivors of sexual abuse, health care providers,
researchers, legal experts, advocates, and academics. The
Commission presented its final report and proposed standards
on June 23, 2009 to the President, Congress, the Attorney
General, the Secretary of Health and Human Services, and

Jamie Fellner is Senior Counsel of the US Program at Human Rights
Watch and a commissioner on the National Prison Rape Elimination
Commission.
1. 42 U.S.C. §§ 15601-15609 (2006).
2. Id. § 15606. The law authorized nine commissioners.. One of the
commissioners resigned, leaving eight who served until the Commission
sunsetted on August 23, 2009, as required by statute. Id. § 15606(m).

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other federal and state officials.3
The four volumes of
standards include detailed prescriptions for corrections and
detention administrators, including training and hiring policies
for corrections staff, incident investigation and reporting
protocols, access to treatment and mental health services, and
requirements for disciplinary action against perpetrators.
Under PREA, the Attorney General must promulgate
national prison rape standards by June 23, 2010.4 These
standards will be immediately binding on federal detention
facilities.5 State officials must certify their compliance with the
standards or lose five percent of their federal correctionsrelated funding.6 The Commission views the standards it has
proposed to the Attorney General as a blueprint for lasting
change. They are as urgently needed in 2010 as in 2003 when
PREA became law. Sexual abuse of incarcerated men and
women remains a persistent human rights violation with
devastating consequences for victims as well as for the
integrity of correctional institutions.
The Commission’s report contains nine findings on the
scope and seriousness of the problem of sexual abuse. Our
analysis also substantiates the need for each of the standards
governing policies and practices that the Commission proposes
for adult prisons and jails, facilities with immigration
detainees, juvenile facilities, community corrections, and
lockups.
In crafting its standards, one of the Commission’s
overarching considerations was the importance of greater
transparency of correctional agencies’ sexual abuse data and
their efforts to address prison rape. The Commission is
convinced that such transparency will aid in the elimination of
prison sexual abuse and improve public trust and confidence in
corrections. It gathered voluminous information on internal
and external monitoring mechanisms and held a public hearing

3. See NAT’L PRISON RAPE ELIMINATION COMM’N, REPORT, (2009),
available
at
http://www.cybercemetery.unt.edu/archive/nprec/20090820155502/http://npre
c.us/files/pdfs/NPREC_FinalReport.PDF.
4. 42 U.S.C. § 15067(a)(1).
5. Id. § 15607(b).
6. Id. § 15607(c)(2)(A).

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on oversight mechanisms.7

1627

The final standards require

7. The following individuals testified before the Commission in New
Orleans: Charles C. Foti, Jr., Louisiana Attorney General; James Carter,
Councilmember, New Orleans City Council Chair, Criminal Justice
Committee; Major Marty Dufrene, Corrections Department Head Lafourche
Parish Sheriff's Office (Thibodeaux, L.A.); Sandi Matheson, Director of the
State Office of Victim/Witness Assistance of the New Hampshire Attorney
General’s Office; Gina Womack, Co-Director, Families and Friends of
Louisiana’s Incarcerated Children (“FFLIC”); Norris Henderson, Soros
Justice Fellow and Co-Director for Safe Streets Strong Communities; Robert
B. Greifinger, M.D., Correctional Health Care Policy and Quality
Management Consultant and Professor (Adjunct) of Health and Criminal
Justice at John Jay College of Criminal Justice (New York, N.Y.); Jim
DeGroot, Ph.D., Director of Mental Health, Georgia Department of
Corrections; Jennifer Pierce-Weeks, RN, SANE-A, SANE-P, President-Elect,
International Association of Forensic Nurses and Forensic Nurse Examiner,
Memorial Hospital (Colorado Springs, Colo.); Lannette Linthicum, M.D.,
FACP, Medical Director, Texas Department of Criminal Justice; Ben Raimer,
M.D., Vice President and CEO, Community Health Services, University of
Texas Medical Branch; Professor, Pediatrics, Family Medicine and
Preventive Medicine (Galveston, Tex.); Mike Puisis, D.O., Consultant, former
Medical Director at the New Mexico Department of Corrections and the Cook
County Jail; Editor, Clinical Practice in Correctional Medicine (Chicago, Ill.);
Art Beeler, Warden, Federal Correctional Complex (Butner, N.C.); Wendy
Still, Associate Director of Female Offender Program & Services, California
Department of Corrections and Rehabilitation (Sacramento, Cal.); Lynn
Sander, M.D., NCCHC Representative and former Medical Director of Denver
Sheriff’s Department Medical Program; Immediate Past-President, Society of
Correctional Physicians (Denver, Colo.); Carrie Hill, Attorney, Corrections
Law and Criminal Justice Consultant; Editor, Corrections Managers’ Report
(Maple Grove, Minn.); Carrie Abner, Research Associate, American Probation
& Parole Association (Lexington, Ky.); Thomas Beauclair, Deputy Director,
National Institute of Corrections (Washington, D.C.); Denise Robinson,
President, Alvis House and Past-President, International Community
Corrections Association (Columbus, Ohio); Barbara Broderick, Director, Adult
Probation, Maricopa County Pretrial and Probation (Phoenix, Ariz.); Anadora
Moss, President of The Moss Group and NIC PREA/Moss Group Project
Director (Washington, D.C.); Antonio Booker, Director, Adult Residential
Services, Johnson County Department of Corrections (New Century, Kan.);
Jacqueline Kotkin, Field Services Executive, Probation and Parole, Vermont
Department of Corrections (Waterbury, Vt.); Eugenie Powers, Director,
Probation and Parole, Louisiana Department of Public Safety and Correction
(Baton Rouge, L.A.); Marlin Gusman, Orleans Parish Criminal Sheriff;
Michele Deitch, Professor (Adjunct), The University of Texas at Austin, LBJ
School of Public Affairs (Austin, Tex.); Doug Dretke, Executive Director,
Correctional Management Institute of Texas, Sam Houston University
(Hunstville, Tex.); Robert L. Green, Warden, Montgomery County
Correctional Facility, Montgomery County Department of Correction and
Rehabilitation (Boyds, Md.); Theodis Beck, Secretary, North Carolina
Department of Correction and President, Association of State Correctional
Administrators (Raleigh, N.C.); Matthew Cate, Inspector General, Office of
the Inspector General, California Rehabilitation Oversight Board

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mutually reinforcing mechanisms of internal and external
accountability and oversight because both are essential to
prison safety.
This essay will briefly review those
accountability standards and the Commission’s rationale for
them.8
I. Prison Management and Sexual Abuse
Prison rape is not an inevitable feature of confinement.
While isolated and random acts of abuse—sexual or
otherwise—can never be completely prevented, Congress
enacted PREA when it realized tens of thousands of prisoners
were victims of sexual violence each year because officials had
not instituted basic measures to protect them.
Prior to the passage of PREA, Human Rights Watch,
Amnesty International, Just Detention International (formerly
called Stop Prisoner Rape), and other organizations and
individuals had documented the failure of correctional leaders
to take prison sexual abuse seriously: basic prevention
measures were lacking, complaints of rape were not
investigated, victims who reported rape often suffered
retaliation by the perpetrators or their allies, and perpetrators
were rarely prosecuted. Prisoners who sought protection from
past or potential abusers confronted indifference and
sometimes even staff complicity. Officials displayed little
interest in understanding the nature or prevalence of the
sexual abuse that occurred in their facilities, or in adopting
measures to stop it.9 As I stated in the Human Rights Watch
(Sacramento, Cal.); Will Harrell, Ombudsman, Office of Independent
Ombudsman, Texas Youth Commission (Austin, Tex.); Jack Beck, Director,
Prison Visiting Project, Correctional Association of New York (New York,
N.Y.); Margo Schlanger, Professor of Law, Washington University in St.
Louis School of Law; Director, Civil Rights Litigation Clearinghouse (St.
Louis, Mo.). See NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at
245-49.
8. In order to present the Commission’s thinking, in this essay I draw
liberally, but without citation, from the text of the report and the discussion
that accompanies each standard.
9. See, e.g., HUMAN RIGHTS WATCH, ALL TOO FAMILIAR: SEXUAL ABUSE OF
WOMEN
IN
U.S.
STATE
PRISONS
(1996),
http://www.hrw.org/legacy/reports/1996/Us1.htm (last visited Mar. 16, 2010);
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS (2001)
http://www.hrw.org/legacy/reports/2001/prison/report.html (last visited Mar.

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press release announcing the release of the Commission’s
report and standards, “The history of prison rape is a history of
officials who denied the problem existed, tolerated it, or
thought nothing could be done to stop it.”10 Prison rape
flourished where leadership was not committed to the safety of
prisoners, including their safety from sexual violence, and
where officials failed to create or maintain institutional
cultures marked top to bottom by a commitment to prisoner
safety. The relative indifference to prisoner safety from sexual
abuse was reflected in, among other things, the absence of
adequate internal prison rape monitoring measures and
external oversight.
The Commission’s fourth finding states: “Few correctional
facilities are subject to the kind of rigorous internal monitoring
and external oversight that would reveal why abuse occurs and
how to prevent it. Dramatic reductions in sexual abuse depend
on both.”11 The finding reflects considerable evidence that the
paucity of internal and external accountability measures
contributes to prison rape.
In public institutions, as in private, mutually reinforcing
mechanisms of internal monitoring and external oversight are
essential to ensuring optimum performance as well as public
accountability. Prisons are no exception. In his testimony
before the Commission, Doug Dretke, former Director of the
Correctional Institutional Division of the Texas Department of
Criminal Justice, quoted from John DiIulio’s influential book,
Governing Prisons: “[P]rison managers must be subject to a
vigorous system of internal and external controls on their
behavior.”12
16, 2010); AMNESTY INT’L, “NOT PART OF MY SENTENCE” VIOLATIONS OF THE
HUMAN
RIGHTS
OF
WOMEN
IN
CUSTODY
(1999)
http://www.amnesty.org/en/library/asset/AMR51/001/1999/en/ab8c7840-e36311dd-937f-a170d47c4a8d/amr510011999en.html (last visited Mar. 16, 2010).
10. Press Release, Human Rights Watch, US: Prevent Prison Rape (June
23, 2009), available at http://www.hrw.org/en/news/2009/06/23/us-preventprison-rape.
11. See NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 82.
12. Internal Oversight: Institutional Accountability for Eliminating
Sexual Violence, Public Hearing Before the Nat’l Prison Rape Elimination
Comm’n, New Orleans, La. (Dec. 6, 2007) (statement of Doug Dretke, former
Dir. of the Corr. Inst. Div. of the Tex. Dep’t of Criminal Justice), available at
http://www.cybercemetery.unt.edu/archive/nprec/20090820160908/http://npre
c.us/docs3/Dretke%20Testimony.pdf [hereinafter Dretke] (quoting JOHN

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Based on its research, the Commission concludes:
[Corrections
administrators]
need
robust
mechanisms and systems to monitor their
facilities, identify problems, and implement
reforms. They need to apply that discipline
internally and to accept it from outside. The
very nature of [correctional environments]
demands that the government and the public
have multiple means to watch over them and
intervene when both institutions and individuals
are at risk.13
Reflecting this conclusion, the Standards developed by the
Commission contain numerous internal and external
monitoring and accountability mechanisms, as described below.
II. Internal Monitoring
As Doug Dretke aptly noted, “[i]nternal accountability
begins with knowing what is actually occurring within a prison
facility.”14 Yet prison rape has long been underreported—
inmates have been reluctant to tell staff of past or prospective
abuse because of a sense of futility, fear of retaliation or further
attacks, not wanting to be subjected to harsh or hostile
“protective custody conditions,” and a general distrust of prison
officials.
The Commission found solid basis for inmate
concerns—all too often, in the past, nothing was done about a
report of rape, officers were dismissive or mocking and failed to
pass the information to appropriate officials, and retaliation or
further abuse was a strong possibility. The Commission found
that “[m]any victims cannot safely and easily report sexual
abuse, and those who speak out often do so to no avail.”15 The
Commission recognizes that officials need to create correctional
environments in which prisoners feel safe reporting sexual

DIIULIO, GOVERNING PRISONS: A COMPARATIVE STUDY OF CORRECTIONAL
MANAGEMENT 242 (1990)).
13. See NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 97.
14. Dretke, supra note 12.
15. NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 100.

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abuse and confident that the allegations will be investigated.
Standard RE-1 requires facilities to provide “multiple internal
ways for inmates to report easily, privately, and securely
sexual abuse, retaliation by other inmates or staff for reporting
sexual abuse, and staff neglect or violation of responsibilities
that may have contributed to an incident of sexual abuse.”16
Standard OR-5 specifically requires the agency to “protect[ ] all
inmates and staff who report sexual abuse or cooperate with
sexual abuse investigations from retaliation by other inmates
or staff.”17 Because inmates may not want to report directly,
Standard RE-4 requires facilities to receive and investigate
third-party reports of sexual abuse.18 Pursuant to Standard

16. Id. at 102.
17. Id. at 218.
The agency protects all inmates and staff who report
sexual abuse or cooperate with sexual abuse investigations
from retaliation by other inmates or staff. The agency
employs multiple protection measures, including housing
changes or transfers for inmate victims or abusers, removal
of alleged staff or inmate abusers from contact with victims,
and emotional support services for inmates or staff who fear
retaliation for reporting sexual abuse or cooperating with
investigations. The agency monitors the conduct and/or
treatment of inmates or staff who have reported sexual
abuse or cooperated with investigations, including any
inmate disciplinary reports, housing, or program changes,
for at least 90 days following their report or cooperation to
see if there are changes that may suggest possible
retaliation by inmates or staff. The agency discusses any
changes with the appropriate inmate or staff member as
part of its efforts to determine if retaliation is taking place
and, when confirmed, immediately takes steps to protect the
inmate or staff member.
Id.
18. Id. at 217.
The facility receives and investigates all third-party
reports of sexual abuse (IN-1). At the conclusion of the
investigation, the facility notifies in writing the third-party
individual who reported the abuse and the inmate named in
the third-party report of the outcome of the investigation.
The facility distributes publicly information on how to
report sexual abuse on behalf of an inmate.
Id.

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OR-1:
All staff members are required “to report
immediately and according to agency policy any
knowledge, suspicion, or information they receive
regarding an incident of sexual abuse that
occurred in an institutional setting; retaliation
against inmates or staff who reported abuse; and
any staff neglect or violation of responsibilities
that may have contributed to an incident of
sexual abuse retaliation.”19
Under the standards, reports of abuse will also trigger
prescribed medical and mental health responses and
investigations.20 The Commission’s standards also require two
19. Id. The Standard also requires staff to limit dissemination of such
information to those who need to know and it includes medical and mental
health practitioners as staff required to report:
Apart from reporting to designated supervisors or officials,
staff must not reveal any information related to a sexual
abuse report to anyone other than those who need to know,
as specified in agency policy, to make treatment,
investigation, and other security and management
decisions. Unless otherwise precluded by Federal, State, or
local law, medical and mental health practitioners are
required to report sexual abuse and must inform inmates of
their duty to report at the initiation of services. If the
victim is under the age of 18 or considered a vulnerable
adult under a State or local vulnerable persons statute, the
facility head must report the allegation to the designated
State or local services agency under applicable mandatory
reporting laws.
Id.
20. Id. at 219.
Victims of sexual abuse have timely, unimpeded access to
emergency medical treatment and crisis intervention
services, the nature and scope of which are determined by
medical and mental health practitioners according to their
professional judgment.
Treatment services must be
provided free of charge to the victim and regardless of
whether the victim names the abuser. If no qualified
medical or mental health practitioners are on duty at the
time a report of recent abuse is made, security staff first
responders take preliminary steps to protect the victim (OR-

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levels of review for reports of abuse: one in response to each
individual incident and the other a periodic review based on
aggregated data.
Standard DC-1 requires correctional facilities to treat
every report of sexual abuse as a critical incident that is
examined by “a team of upper management officials, with input
from line supervisors, investigators, and medical/mental health
practitioners.”21 Although such reviews are widely recognized
as a best practice when inmates attack another, they are rarely
instituted for incidents of rape.
The most effective prevention efforts are targeted
interventions that reflect where, when, and under what
conditions sexual abuse occurs, as well as how staff members
respond. Incident reviews following every report of sexual
abuse (except where the allegation was determined to have
been unfounded) can provide that knowledge. By reviewing all
the facts and circumstances surrounding an incident and the
quality of the facility’s response, officials can spot problems and
take steps to correct them. A critical incident review may
3) and immediately notify the appropriate medical and
mental health practitioners.
Id.
21. Id.
The facility treats all instances of sexual abuse as critical
incidents to be examined by a team of upper management
officials, with input from line supervisors, investigators, and
medical/mental health practitioners. The review team
evaluates each incident of sexual abuse to identify any
policy, training, or other issues related to the incident that
indicate a need to change policy or practice to better
prevent, detect, and/or respond to incidents of sexual abuse.
The review team also considers whether incidents were
motivated by racial or other group dynamics at the facility.
When incidents are determined to be motivated by racial or
other group dynamics, upper management officials
immediately notify the agency head and begin taking steps
to rectify those underlying problems. The sexual abuse
incident review takes place at the conclusion of every sexual
abuse investigation, unless the allegation was determined to
be unfounded. The review team prepares a report of its
findings and recommendations for improvement and
submits it to the facility head.
Id.

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reveal, for example, a dangerous, unmonitored area of a
facility, or slow responses by frontline staff. Such reviews will
also reveal what is working well, for example, reporting
mechanisms or collection of forensic evidence. Standard DC-1
specifically requires the review team to consider “whether
incidents were motivated by racial or other group dynamics at
the facility. Where incidents are determined to be motivated
by racial or other group dynamics, upper management officials
immediately notify the agency head and begin taking steps to
rectify those underlying problems.”22 Research suggests that
racial dynamics may play a role in inmate on inmate sexual
abuse. The Commission wants to be sure that facility officials
are vigilant and alert to the role that such dynamics may play,
and that where racial tensions are present, they act to address
those tensions rather than limit their focus to the specifics of
the incident of abuse.
Standard DC-2 requires correctional agencies to collect
accurate uniform data for every reported incident of sexual
abuse and, at least annually, to aggregate it.23
The
Commission recognizes the value of some measure of uniform
data across agencies but seeks to avoid creating an overly
cumbersome or impractical data collection instrument. Its
solution is to require agencies to collect data that, at a
minimum, will enable them to answer all of the questions on
the most recent Bureau of Justice Statistics (“BJS”) Survey on
Sexual Violence.
But, it also suggests to agencies that
additional data might prove useful for their own purposes of
22. Id.
23. Id.
The agency collects accurate, uniform data for every
reported incident of sexual abuse using a standardized
instrument and set of definitions. The agency aggregates
the incident-based sexual abuse data at least annually. The
incident-based data collected includes, at a minimum, the
data necessary to answer all questions from the most recent
version of the BJS Survey on Sexual Violence. Data are
obtained from multiple sources, including reports,
investigation files, and sexual abuse incident reviews. The
agency also obtains incident-based and aggregated data
from every facility with which it contracts for the
confinement of its inmates.
Id.

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self-analysis and monitoring. In Appendix C to the Standards,
the Commission presents a list of data items that goes beyond
what the BJS survey requires. The Commission believes that if
the data identified in Appendix C were, in fact, collected for
each incident of sexual abuse, agencies would be greatly
assisted in their ability to identify patterns of abuse and
possible remedies.
The aggregated data will provide a picture of trends and
patterns among reported incidents both at individual facilities
and within the agency as a whole. But the potential of the
aggregated data will be lost if no one actually studies and acts
on it. The Commission’s research suggests that, all too
frequently, agencies did not gather the data that would enable
them to understand patterns and trends with regard to sexual
abuse, but that even if they did have the data, they did not
analyze it to exploit its potential to guide their work. Standard
DC-3, “Data review of corrective action,” was created to ensure
this did not happen. It states, in part:
The agency reviews, analyzes, and uses all
sexual abuse data, including incident-based and
aggregated data, to assess and improve the
effectiveness of its sexual abuse prevention,
detection, and response policies, practices, and
training. Using these data, the agency identifies
problem areas, including any racial dynamics
underpinning patterns of sexual abuse, takes
corrective action on an ongoing basis, and, at
least annually, prepares a report of its findings
and corrective actions for each facility as well as
the agency as a whole. The annual report also
includes a comparison of the current year’s data
and corrective actions with those from prior
years and provides an assessment of the agency’s
progress in addressing sexual abuse.24
As Former Secretary of the North Carolina Department of
Correction, Theodis Beck, told the Commission, “We can’t make
a dent in this problem if we don’t have a full understanding of
24. Id.

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what is really going on inside our facilities. . . . With accurate
data in hand, our final step is to critically examine our actions
and our outcomes.”25 Equipped with the knowledge generated
by its data review, corrections officials can determine what
needs to be known to better keep inmates safe. The reviews
provide administrators with the opportunity to identify policies
or practices that may contribute to, or fail to prevent, sexual
abuse. They should generate information administrators need
to make efficient use of limited resources, deploy staff wisely,
safely manage high-risk areas, and develop more effective
policies and procedures.
The requirement that agencies
compare current data with the prior years’ data forces agencies
to assess their progress, or lack thereof. The comparisons may
validate the success of preventive measures that were newly
implemented, or may reveal that certain problems have
resisted improvement and that redoubled effort is required.
For example, the agency may discover that allegations of abuse
in a particular unit decreased after cameras were installed, or
it may discover that a higher number of allegations of abuse
during the night shift have persisted over time, warranting
focused remediation.
Under Standard DC-3, the agency head is required to
approve the annual report. This requirement underscores to
the agency head, and thus to the agency and the public, the
importance of compliance with PREA standards.
III. External Oversight
Professor Michele Deitch, an expert in prison oversight
mechanisms, emphasized in her testimony to the Commission
that external oversight “is a means of achieving the twin
objectives of transparency of public institutions and
accountability for the operation of safe and humane prisons

25. Special Topics in Preventing and Responding to Prison Rape:
Medical and Mental Health Care; Community Corrections Settings and
Oversight, Public Hearing Before the Nat’l Prison Rape Elimination Comm’n,
New Orleans, La. 4 (Dec. 6, 2007) (statement of Theodis Beck, Sec’y, N.C.
Dep’t of Corr. & President, Ass’n of State Corr. Adm’rs), available at
http://www.cybercemetery.unt.edu/archive/nprec/20090820160914/http://npre
c.us/docs3
/T%20Beck%20Final.pdf.

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and jails.”26 Indeed, because of the closed nature of prisons,
public oversight may be even more important than for many
other public institutions. The Commission understands that
even the most rigorous internal monitoring cannot replace the
value of opening up correctional facilities to review by
outsiders. It agrees with Deitch that internal accountability
measures and external scrutiny “go hand-in-hand, and neither
is a replacement for the other.”27
The Commission reviewed forms of external oversight that
vary widely in scope, function, and authority—for example,
ombudsmen, legislative committees, inspectors general, boards
of correction, and other entities. It also learned that few
correctional systems in the United States, whether federal,
state, local or private, are subject to an oversight body with
most, much less all, of the fundamental characteristics that
experts agree are essential for effective external oversight.28
Such characteristics include independence from the
correctional agency being scrutinized, unfettered and
confidential access to facilities, prisoners, staff and documents,
and adequate resources.29 The Commission does not create a
standard specifying the creation of a particular oversight body
because it lacks the statutory authority to prescribe policies for
federal, state, or local governments apart from those for
correctional agencies. The Commission does, however, endorse
the 2008 American Bar Association (“ABA”) resolution
regarding oversight.
The ABA resolution urges governments to “establish public
entities that are independent of any correctional agency to
regularly monitor and report publicly on the conditions in all
prisons, jails, and other adult and juvenile correctional and

26. Prison Oversight and Systems of Accountability, Public Hearing
Before the Nat’l Prison Rape Elimination Comm’n, New Orleans, La. 2-3 (Dec.
6, 2007) (statement of Michele Deitch, Adjunct Professor of Pub. Policy,
Lyndon B. Johnson Sch. of Pub. Affairs, Univ. of Tex. at Austin), available at
http://www.cybercemetery.unt.edu/archive/nprec/20090820160902/http://npre
c.us/docs3/Deitch%20Testimony.pdf.
27. Id. at 3.
28. See id. at 7-8, 18.
29. Id. at 2-3; STEPHEN J. SALTZBURG, AM. BAR ASS’N, REPORT TO THE
HOUSE
OF
DELEGATES
2-3
(2008),
available
at
http://www.abanet.org/crimjust/policy/prisonoversight.pdf.

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detention facilities operating within their jurisdiction.”30 The
Commission notes in its report that “although the [ABA]
resolution does not impose a particular model of external
oversight, its [ ] requirements capture the characteristics that
experts and practitioners generally agree are necessary to
achieve true accountability and transparency.”31 Perhaps most
important is the requirement that the person or entity
overseeing corrections operates independently of any public or
private entity that could compromise or corrupt its work. The
Commission believes that if independence and other key
requirements enumerated in the ABA resolution are met,
external oversight will be strong and everyone’s interests will
be served, including those of corrections administrators who
depend on educated legislatures and the public to support
significant reform in the facilities they manage.
The
Commission urges “governments to act quickly to create forms
of external oversight strong enough to make all correctional
facilities more transparent, accountable, and, ultimately,
safe.”32
IV. Audits
To ensure independent external scrutiny of agencies’
implementation of the PREA standards, the Commission
recommends periodic audits. Standard AU-1 requires audits in
all correctional facilities to measure compliance with the
standards:
The public agency ensures that all of its
facilities, including contract facilities, are
audited to measure compliance with the PREA
standards. Audits must be conducted at least
every three years by independent and qualified
auditors. The public or contracted agency allows
the auditor to enter and tour facilities, review
documents, and interview staff and inmates, as

30. NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 90 (quoting
SALTZBURG, supra note 29, at 1).
31. Id. at 90.
32. Id. at 91.

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deemed appropriate by the auditor, to conduct
comprehensive audits.
The public agency
ensures that the report of the auditor’s findings
and the public or contracted agency’s plan for
corrective action (DC-3) are published on the
appropriate agency’s Web site if it has one or are
otherwise made readily available to the public.33
Many prisons and jails are already subject to audits,
having voluntarily agreed, for example, to seek accreditation
from the American Correctional Association (“ACA”). ACA
accreditation requires review of a facility’s documentation to
determine if its policies and practices comply with ACA
standards, which include a number of standards addressing
prison rape. Valuable as these accreditation audits are, they
do not fulfill the Commission’s vision of what is needed under
PREA. The ACA audits are voluntary, and only a small
percent of all detention facilities are accredited. The results of
audits are not public: they are the property of each jurisdiction
to publish or not, and few do. In addition, the ACA standards
are less comprehensive than the Commission’s standards, with
respect to the measures necessary to prevent and respond to
sexual abuse.
The Commission believes the audits required by Standard
AU-1 are crucial to the success of PREA. They will allow
agencies, legislative bodies, and the public to learn whether
facilities are complying with the PREA standards. They can be
a resource for the Attorney General in determining whether
states are meeting their statutory responsibilities. They will
provide the agency with objective feedback on its performance
by skilled reviewers, thereby helping the agency understand if
deficiencies exist in its policies and practices and providing a
basis for developing corrective steps.
But, if audits are to serve these purposes effectively, they
must meet certain criteria, as reflected in the Standard AU-1
and the definition of auditor developed by the Commission.34
33. Id. at 219.
34. The Commission defines auditor as:
An individual or entity that the jurisdiction employs or
retains by contract to perform audits. An auditor may also

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The Commission seeks both to promote the integrity and value
of the audit process and to provide appropriate flexibility to the
facilities and agencies regarding the identity of the auditor.
Audits must be conducted periodically. The three year
requirement in the standard was chosen to ensure sufficient
frequency to be meaningful, without being so frequent (for
example, annually) as to be onerous. The requirement of
independence is intended to help protect the audit process from
biased or compromised investigations or findings.
The
individual or team of individuals conducting the audit cannot
be employed by the correctional agency or have a current direct
reporting relationship to the head of the agency being audited,
but may be a staff or contract worker hired by the jurisdiction
or authorized by law, regulation, or the judiciary to perform
audits.
The auditors must be prequalified by the U.S.
Department of Justice to ensure a certain level of competence
as well as uniformity in the auditing process across the nation.
The Commission recommends that the National Institute of
Corrections design and develop a national training program for
auditors.35 The requirements of qualifications along with
independence are intended to ensure the individuals or teams
conducting the audits have the skills and objectivity necessary
to identify and gather the data that must be analyzed and to
employ sound professional judgment when analyzing the data.
The requirement of unfettered access to all parts of the facility
as well as all documents, staff, and prisoners is selfexplanatory—without such access the auditors would not be
able to obtain the comprehensive information needed to ensure
an accurate, reliable audit.

be authorized by law, regulation, or the judiciary to perform
audits; however, an auditor cannot be an agency employee.
An auditor is able and prequalified by the U.S. Department
of Justice to perform audits competently and without bias.
Prequalification does not require prior employment with
any particular agency.
National Prison Rape Elimination Commission—Publications—Standards—
Adult
Prisons
and
Jails:
Glossary,
http://www.cybercemetery.unt.edu/archive/nprec/20090820155246/http://npre
c.us/publication/standards/adult_prisons_and_jails/glossary.php (last visited
Mar. 24, 2010).
35. See NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 238.

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V. The Role of the Public
It is axiomatic that prison walls not only keep prisoners in,
they keep the public out.
Most Americans have little
understanding of what goes on in U.S. prisons. The public
lacks the information to know how well or poorly they are doing
their job because correctional agencies tend not to operate their
facilities in an open and transparent way. The Commission
believes the public has a right and a responsibility to know
what is going on in correctional institutions operated in its
name; therefore, our standards require agencies to make
available to the public extensive data relevant to sexual abuse.
Each agency must publish its annual reports (Standard DC3),36 aggregated sexual abuse data (Standard DC-4),37 auditors’
findings and plans for corrective action (Standard AU-1) on the
agency’s web site if it has one, or otherwise make the material
readily available to the public, for example, through paper
copies.38 The transparency achieved by giving this information
to the public can enhance community confidence in the steps
agencies are taking to prevent sexual abuse and can generate
public support for providing an agency with the resources it
needs to prevent abuse more effectively.
VI. Role of the Courts
The Commission is acutely aware of the importance of the
courts in protecting prisoners’ right to be free of “cruel and
unusual punishment,”39 including freedom from sexual abuse.
While courts cannot replace internal monitoring, audits, and
entities charged with external oversight, society depends on
them when other modes of oversight fail or are lacking
36. Id. at 219.
37. Id.
38. To respect legitimate privacy interests, Standard DC-4 requires the
agency to remove all personal identifiers from the aggregated sexual abuse
data before it is made publicly available. The Commission does not require
agencies to make incident-based data available to the public. But it
recommends that with regard to such data agencies balance privacy interests
against the public interest in safe correctional institutions by establishing a
non-burdensome process to allow researchers, academics, journalists, and
others access to it. Id.
39. U.S. CONST. amend. VIII.

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altogether. Professor Margo Schlanger, a national authority on
prison litigation, testified to the Commission regarding the
enormous beneficial impact court orders have had on U.S. jails
and prisons. Beyond the reforms that courts usher in, their
scrutiny of abuse elicits attention from the public and reaction
from lawmakers in ways that no other forms of oversight
accomplish. Indeed, corrections officials themselves told the
Commission that litigation helps them acquire the resources
they need to protect prisoners.
The Commission received testimony and reviewed research
regarding the ways in which the Prison Litigation Reform Act
of 1996 (“PLRA”) has made it harder for prisoners to obtain
judicial protection of their rights.40 Although sponsors of the
PLRA claim the law was never intended to block meritorious
claims,41 it is clear to the Commission that the PLRA
requirements block access to the courts for many victims of
sexual abuse and weaken the power of the courts to protect
them. Of particular concern to the Commission are two PLRA
provisions: the requirement to exhaust administrative
remedies as a precondition to filing a suit and the limitation of
damages to cases in which there was physical injury.42
The PLRA does not itself establish specific grievance and
appeals processes, but leaves it to agencies to set their own
requirements, which typically include filling out specific
complaint forms within specific time frames and moving
through several levels of appeal.43 Any mistakes, such as using
an incorrect form or missing a deadline even by a day, may
forever bar an incarcerated person access to the courts. Of
course, the more convoluted or technical the requirements, the
more likely prisoners will fail to satisfy them. There is ample
evidence before the Commission that many prisoners, in fact,
have their claims dismissed simply because they fail to satisfy
40. See NAT’L PRISON RAPE ELIMINATION COMM’N, supra note 3, at 92-95.
41. Deborah M. Golden, The Prison Litigation Reform Act—A Proposal
for Closing the Loophole for Rapists, AM. CONST. SOC’Y FOR L. & POLICY, June
6,
2006,
http://www.acslaw.org/files/Golden%20Prison%20Litigation%20Reform%20Act%20-%20June%202006%20%20Advance%20Vol%201.pdf.
42. Prison Litigation Reform Act of 1996, 42 U.S.C. §§ 1997e(a), (e)
(2006).
43. Id. § 1997e(a). See also NAT’L PRISON RAPE ELIMINATION COMM’N,
supra note 3, at 93.

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all the requirements for exhausting their administrative
remedies.44 The Commission is mindful that victims of sexual
abuse may be particularly vulnerable to having their claims
dismissed for this reason because the trauma of sexual abuse
and fear of retaliation often prevent them from reporting the
incident almost immediately after it occurs as specified by
many agency policies.
The Commission’s response is Standard RE-2, which
requires agencies to adopt policies by which an inmate is
deemed to have exhausted his or her administrative remedies
no later than ninety days after a report of sexual abuse is made
and regardless of the time that has elapsed between the abuse
and the report.45 While it is possible that an agency may not
complete its investigation into the report within ninety days,
the Commission concludes that ninety days is ample time
within which it can act to protect the inmate and to
demonstrate its efforts to conduct a thorough investigation for
the purposes of defending against a lawsuit. Standard RE-2
thus responds to an agency’s legitimate interest in having a
reasonable opportunity to respond to an inmate’s complaint
before having to defend itself in court. But it also reflects the
Commission’s recognition that PREA’s goals are undercut when
victims of prison rape are deemed to have forfeited their ability
to seek judicial redress for abuse because they do not report the
44. For a particularly poignant example of this, see NAT’L PRISON RAPE
ELIMINATION COMM’N, supra note 3, at 93-94.
45. Id. at 217.
Under agency policy, an inmate has exhausted his or her
administrative remedies with regard to a claim of sexual
abuse either (1) when the agency makes a final decision on
the merits of the report of abuse (regardless of whether the
report was made by the inmate, made by a third party, or
forwarded from an outside official or office) or (2) when 90
days have passed since the report was made, whichever
occurs sooner. A report of sexual abuse triggers the 90-day
exhaustion period regardless of the length of time that has
passed between the abuse and the report. An inmate
seeking immediate protection from imminent sexual abuse
will be deemed to have exhausted his or her administrative
remedies 48 hours after notifying any agency staff member
of his or her need for protection.
Id.

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abuse within a set time frame after it occurs. The standard
also recognizes that there may be urgent, emergency situations
when an inmate seeks an immediate injunction from the court
to provide protection from imminent harm. In such cases, the
standard requires an exception to the ninety day waiting
period.
The Commission is also troubled by the PLRA requirement
that plaintiffs prove physical injury to receive compensatory
damages. That requirement fails to take into account the very
real emotional and psychological injuries that often follow
sexual assault, and it has been perversely interpreted by at
least a few courts that concluded sexual assault alone does not
constitute a “physical injury.”46 The Commission is convinced
that victims of sexual abuse are being denied remedies because
they cannot prove physical injury.
It recommends that
Congress amend the physical injury requirement in the PLRA
as well as the administrative exhaustion provision to remove
barriers to the courts for victims of sexual abuse.
Conclusion
The Commissioners understand that good, even great,
policies are for naught if not translated into practice. Good
intentions and even committed leadership may be necessary
conditions for change, but they are not enough. For prison rape
to be eliminated, correctional agencies must be subject to
mechanisms that ensure accountability. The Commission is
convinced that accountability will be promoted best by
mandatory internal processes to capture and measure progress,
external independent oversight to ensure objective, impartial
assessments, and transparency, so the public itself can stay
abreast of what is being done in its name.
Although the Commission’s mandate is limited to prison
sexual abuse, Commissioners share a belief that many of the
proposed prison rape standards also present a guide for best
practices that could readily be extended beyond sexual abuse.
Internal accountability measures, external oversight, and
transparency applied to the general treatment of prisoners and
46. See, e.g., Hancock v. Payne, No. 21751, 2006 WL at *3 (S.D. Miss.
2006).

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the conditions of their confinement will promote better
managed prisons in which all prisoners’ rights are safeguarded
and their dignity respected.
The Commission’s work has now ended, and it is up to the
Attorney
General
to
oversee
the
enactment
and
implementation of rape elimination standards. Obviously, I
hope he relies heavily on our work. If adopted, the standards
we carefully researched and developed over several years
would end prison rape. A just society that respects and
protects human rights should accept nothing less.

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