April 4, 2011
Eric H. Holder, Jr., Attorney General of the United States
Robert Hinchman, Senior Counsel
U.S. Department of Justice
Office of Legal Policy
950 Pennsylvania Avenue N.W., Room 4252
Washington, DC 20530
RE:

Docket No. OAG-131; AG Order No. 3244-2011
National Standards to Prevent, Detect, and Respond to Prison Rape

Dear Attorney General Holder:
On behalf of the D.C. Prisoners’ Project of the Washington Lawyers’
Committee for Civil Rights & Urban Affairs (“WLC”), we present the following
response to the Notice of Proposed Rulemaking: National Standards to Prevent,
Detect, and Respond to Prison Rape, 28 CFR Part 115, February 3, 2001, Docket No.
OAG-131; AG Order No. 3244-2011.
WLC is a non-profit legal organization. For more than forty years, it has
litigated hundreds of civil rights cases in employment, housing, public
accommodations, prisoners’ rights, and other aspects of urban life. The D.C.
Prisoners’ Legal Services Project was founded in 1986 to serve the civil legal needs
of men and women incarcerated, at that time, in the local jails and prisons. In a
transition designed to better address the needs of DC prisoners, this organization
merged with the WLC to form the D.C. Prisoners’ Legal Services Project of WLC. The
new Prisoners’ Project client base includes more than 3,200 people held in local DC
jail facilities, which are run by the DC. Department of Corrections; over 300 people
living in local halfway house programs; and almost 6,000 DC prisoners held in over
100 federally-run Bureau of Prisons (“BOP”) facilities throughout the country. We
are the only advocacy organization in the United States that systematically looks at
conditions in the BOP.
The responses and comments below include our responses to questions and
proposed standards where we feel we have something to add to the discussion. For
the proposed standards for which we have not submitted specific responses or
comments, we wholeheartedly endorse the comprehensive comments submitted by
Just Detention International.
As an introductory point, we applaud the Department’s decision to use the
term sexual abuse throughout the standards and to reference sexual harassment in
specific standards. We agree that sexual abuse is the most accurate term to

encompass the horrors that Congress sought to prevent. We also agree that it is
important to address all the factors that support environments tolerant of sexual
harassment and abuse.

SPECIFIC RESPONSES AND COMMENTS
Response to Question 3: Should the final rule provide greater guidance as to
how agencies should conduct such [contract] monitoring? If so, what guidance
should be provided?
REQUIREMENTS FOR CONTRACT MONITORING MUST BE
SPECIFIC AND SUBSTANTIVE
There must be significantly more guidance provided on monitoring. Private
facilities particularly suffer from lack of transparency. Without clear guidance, the
monitoring will not be enough to ensure that standards imposed in the Prison Rape
Elimination Act (“PREA”) are implemented properly. As they stand now, Sections
115.12, 115.112, 115.212, and 115.312 only provide that agencies that contract for
the confinement of BOP inmates with private agencies or other entities shall include
in any new contracts or contract renewals the entity’s obligation to adopt and
comply with the PREA standards.
Generally, prisoners have no third party beneficiary standing to enforce a
contract between a governmental entity and a private company. There is no vehicle
for bringing constitutional claims against private prison companies that contract
with the federal government. The Fourth and Tenth Circuit Courts have ruled that
prisoners are also unable to bring constitutional causes of action against the
employees of such companies. For private entities contracting with state
governments, some appellate courts have held that Title II of the ADA does not
apply, and it is an open question as to whether Title III does. Within this context,
contract monitoring is a vital tool for eliminating custodial sexual harassment and
abuse. Without explicit standards, there is nothing ensure that a contractor will
implement these regulations. Moreover, there is no reason to assume that all
contracting agencies have a quality system for monitoring contract compliance.
In the medical care context, the BOP has long-argued that prisoners may not
bring complaints about care provided by contractors to the BOP via the
administrative remedy process, nor the federal courts. The BOP has argued that:
“The BOP administrative claims process is limited to issues ‘directly related to BOP
matters’ such as sentence computation and transfer issues…[T]he BOP well may
reject claims regarding medical care simply because complaints by individual
inmates on such issues are handled internally by [the contractor]. (See BOP Motion
to Dismiss in Mathis et al v. GEO Group et al, 2:08-CT-0021 (2010).) Under the
Washington Lawyers' Committee for Civil Rights and Urban Affairs, page 2 of 9

proposed regulations, it is all but certain that the BOP will take a similar approach to
complaints about sexual abuse in contract facilities, opting to have these complaints
handled “internally,” that is, by the contractor and not by the BOP. After all, sexual
abuse is not “directly related to BOP matters” as envisioned by the BOP, and
therefore the agency asserts no responsibility for monitoring compliance nor even
to review complaints of sexual misconduct in contract facilities.
When the contractor is another governmental actor otherwise mandated to
follow these regulations, compliance monitoring can be limited. However, when the
contractor is a private corporation, specific standards are needed.
We suggest looking to the BOP’s Contract Facility Quality Assurance Plan
(Q7700.07) for one possible way of structuring the guidance.
At a minimum, the government agencies must be required to:
1.
2.
3.

4.
5.
6.

Conduct annual on-site compliance monitoring;
Review all contractor policies, procedures, and post orders to confirm
compliance with these standards;
Review all grievances submitted by inmates and complaints submitted by
third parties implicating sexual abuse, and review the investigation and
follow up to ensure appropriate actions were taken;
Directly observe some amount of both staff training and policy
implementation to verify compliance;
Prioritize bringing contracting agency into compliance where any
deficiencies are found; and
Aggressively employ remedies for non-compliance, including a system of
financial sanctions.

Additional Comments on Sections 115.12, 115.112, 115.212, and 115.312
ALL CONTRACTORS AND SUBCONTRACTORS, NOT JUST CONTRACTORS
PROVIDING CONFINEMENT, MUST BE INCLUDED
Many of the proposed standards apply not only to security staff, but also to
staff performing other duties within the system. However, as now written, none of
these standards are required of contractors providing services other than
confinement. Significant numbers of correctional agencies and facilities use
subcontractors to provide services such as medical care, meal service, technological
support, construction, and maintenance services. Obviously, not every standard will
apply to every contractor or subcontractor. However, many are directly relevant. As
one example, Sections 115.16, 115.116, 115.216, and 115.316 restrict hiring of
employees who have previously engaged in sexual abuse. These standards, however

Washington Lawyers' Committee for Civil Rights and Urban Affairs, page 3 of 9

ultimately formulated, should be applied to all contractors and subcontractors that
have any chance of inmate contact. To continue the example, there would be no
sense in allowing a private medical provider to hire an employee known to have
previously engaged in sexual abuse. As another, Sections 115.35, 115.235, and
115.335 require specialized medical training. many facilities subcontract medical
services to private companies which manage their own personnel training. These
standards would become meaningless if contractors were not obligated to fulfill
them.
However, Sections 115.12, 115.112, 115.212, and 115.312 only require
agencies to mandate adoption of PREA standards by contractors who provide
confinement. All contractors and subcontractors, no matter what services they
provide, should be required to adopt all standards relevant to the work, and the
contracting agencies must be required to monitor those contract provisions.
We recommend changing the language of the standards to read, “A public
agency that contracts for any services related to the confinement of its inmates with
private agencies or other entities, including other government agencies, shall
include in any new contracts or contract renewals the entity’s obligation to adopt
and comply with the PREA standards.”

Response to Question 16: Should the final rule contain any additional
measures regarding oversight and supervision to ensure that pat-down
searches, whether cross-gender or same-gender, are conducted
professionally?
THE ALLOWANCE OF CROSS-GENDER PAT DOWNS SHOULD BE REMOVED.
We support Just Detention International’s thorough comments that the ban
on cross-gender pat-down searches should be maintained. As more state agencies
are moving to limit cross-gender pat-down searches, the Department should not be
lowering the bar. There is growing recognition that when these types of searches
become commonplace, opportunities for sexual abuse abound. The Department
should ban cross-gender pat-down searches, except in exigent circumstances.

Response to Question 17: Should the final rule include a requirement that
inmates with disabilities and LEP [limited English proficient] inmates be able
to communicate with staff throughout the entire investigation and response
process? If such a requirement is included, how should agencies ensure
communication throughout the process?

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STAFF MUST ENGAGE IN EFFECTIVE COMMUNICATION WITH INMATES WHO
HAVE DISABILITIES OR WHO ARE LEP THROUGHOUT ALL STAGES OF THE
INVESTIGATION AND RESPONSE PROCESS. QUALIFIED INTERPRETERS AND
TRANSLATORS MUST BE USED.
This requirement is absolutely necessary since private agencies contracted
with the BOP currently argue that they are neither subject to the Rehabilitation Act
nor the ADA. For private entities contracting with state governments, Title II of the
ADA does not apply, and it is an open question as to whether Title III does. Without
this requirement, we fear that private agencies might not provide any interpretation
services, much less ensure effective communication throughout the investigation
and response process. The Department must ensure that inmates with disabilities
and LEP inmates are able to communicate with staff during the entire sexual abuse
investigation. Failure to communicate can only lead to incomplete investigations
and unresponsive agencies.
The standards must specify what agencies must do to ensure effective
communication. Unfortunately, our experience has been that, despite the well
established standards in the implementation regulations for the ADA and the
Rehabilitation Act, correctional facilities often do not provide qualified translators
and interpreters. For example, in 2010, WLC had to sue the commonwealth of
Virginia to obtain interpreters for and to establish effective communication with
inmates who are deaf. To this day, the BOP refuses to provide interpreters for
inmates who are deaf, despite clear legal obligations to do so.
All orientation and educational information presented in English, whether in
written, audio, or video format, must also be available in any language used by more
than one percent of the facility residents. For residents that use a language not
covered by the prepared materials, the materials must be explained by a qualified
interpreter (sign language) or translator (spoken language).
Throughout the investigation and response process, staff must ensure
effective communication with disabled and LEP inmates to the same extent it
communicates with all other inmates. For example, staff may not choose to forgo
interviews with deaf or LEP witnesses based on a belief that sufficient evidence has
been obtained from English-proficient witnesses. Where the agency does not
already employ staff fluent in the inmate’s language, the primary means of
communication must be qualified interpreters or translators in-person. In exigent
circumstances only, facilities may use telephonically available translators or video
remote interpreting. Agencies must make the arrangements to have such services
available at all times.
Additional Comments on Sections 115.16, 115.116, 115.216, and 115.316

Washington Lawyers' Committee for Civil Rights and Urban Affairs, page 5 of 9

FORMER STAFF WHO HAVE RESIGNED RATHER THAN FACE INVESTIGATION
INTO ALLEGATIONS OF SEXUAL ABUSE CANNOT BE HIRED OR REHIRED
We concur with the commonsense regulation that agencies may not hire or
promote anyone who previously has engaged in sexual abuse. We suggest adding a
requirement that no agency may hire a staff member who has previously resigned
from that or another agency or contractor in lieu of facing an investigation.

Response to Question 19: Should this standard expressly mandate that agencies
attempt to enter into memoranda of understanding that provide specific assistance
for LEP inmates?
AGENCIES MUST SPECIFICALLY INCLUDE ASSISTANCE TO LEP INMATES IN ANY
MEMORANDA OF UNDERSTANDING
If the Department intends for LEP inmates to be served, Sections 115.22, 115.222,
and 115.322 must specifically require a provision to that effect in all memoranda of
understanding. The legal requirements on outside entities are too varied and compliance
with those requirements are too spotty for the Department to assume LEP inmates will be
otherwise served. There is essentially no cost to this requirement and no reason not to do
so.

Response to Question 24: Because the Department’s proposed standard
addressing administrative remedies differs significantly from the
Commission’s draft, the Department specifically encourages comments on all
aspects of this proposed standard.
THE DEPARTMENT MUST PROMULGATE STANDARDS TO HELP SURVIVORS,
NOT TO PROTECT AGENCIES FROM LITIGATION
These standards conflate the purposes of PREA and of the PLRA. The PLRA
was intended to deter lawsuits. PREA was intended to eliminate custodial sexual
abuse. The Department’s statement that the standard recognizes “the need to
comply with the PLRA” simply makes no sense. There is no “need to comply with
the PLRA” in designing sexual abuse standards. The PLRA does not create
requirements for administrative remedy systems. It merely creates an affirmative
defense government agencies may raise in litigation: if there is a grievance system
available to an inmate, he or she must exhaust those remedies prior to filing suit.
As a preliminary matter, underlying the proposed standards are assumptions
that the grievance systems generally and the BOP administrative process in
particular work well, are manageable by inmates, do not prevent the filing of

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otherwise non-frivolous law suits, and solve problems. Those assumptions are
completely false.
Our office is the only organization that works with inmates throughout the
BOP. We also work and have worked with inmates in the District of Columbia,
Virginia, Maryland, and New Jersey state systems and in private facilities run by
Corrections Corporation of America, GEO Group, and Cornell Industries. In that
work, we regularly try to help inmates navigate the administrative remedy process
and review their attempts to use the process. Our collective staff cannot think of a
single time where an inmate submitted a grievance reporting a violation of federal
law or policy where the response addressed and solved the lapse.
The idea that the grievance policy is used by the BOP to fix serious problems
is almost laughable. Two ongoing lawsuits in which our office is counsel are
demonstrative. Although neither case involves sexual abuse, both highlight the
futility of using the administrative remedy system to solve serious problems, even
when abuses are apparent.
The first case is Womack v. Smith, ongoing, Middle District of Pennsylvania
1:06-cv-0234, and 310 Fed. App’x 547 (3d Cir. 2009). As the litigation is continuing,
there are obviously facts and conclusions still in dispute. Generally, however, the
parties agree on the outline of what happened. Mr. Womack was held in restraints
for twenty-six days without even breaks to use the bathroom. It is important to
stress that there has been almost five years of active litigation, and yet there still has
been no ultimate conclusion as to whether even the grievances filed here were
timely. Although the trial court recently ruled the grievances were timely and
otherwise comported with published regulations, the BOP has notified us that it will
be appealing the decision. This will be the second time that the Third Circuit has
ruled on the properness of this exhaustion. In this case, our client has been
subjected to gross violations of his constitutional rights in a federal prison,
violations about which the facility and the BOP regional and central offices received
ample notice. Rather than addressing the substance of the obvious constitutional
issues, the BOP has focused efforts on contesting the competency of the
administrative remedies the victim filed.
In another case, Bryant v. United States Bureau of Prisons, ongoing, Middle
District of California, CV11 0254, a Deaf man has been housed in several BOP
facilities without access to basic interpreting services. A failure to provide
interpreting services is an obvious violation of the Rehabilitation Act of 1973. There
is no factual question that the inmate is Deaf and that the BOP had not provided him
interpreters or other required accommodations.
Despite having retained counsel who hired a sign language interpreter to
help him exhaust the grievance process at least twice, multiple letters from counsel

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to three wardens, three regional counsels, and an assistant general counsel, the BOP
has not complied with the law. Instead, responses have explicitly refused to comply
with the law, claimed the BOP had a policy of not following the law, accused him of
engaging in bad faith abuse of process by hiring counsel, ruled that he is not entitled
to any accommodation, and claimed grievances did not conform to policy that is not
available. Now, under pressure from a federal court challenge, the BOP is allegedly
reconsidering its recalcitrant stance. It is notable, however, that this long series of
administrative remedies, filed over a course of years in three different BOP facilities,
three different BOP regional offices, and the national office failed to compel the
agency to comply with clearly-established and obviously-applicable federal law. The
BOP system is no model.
The Department must step back to first principles and note that there are
two purposes to administrative remedy systems. One is to allow facilities to be
notified of problems they may wish to solve. The other is to limit the otherwise
meritorious claims that may be brought by inmates in court. Restrictions on time
and form in which remedies must be presented do not stop facilities from
addressing any problems raised. Facilities are always free to address problems
whenever they become aware of them. The Department’s proposed timelines, in
fact, conflict with the stated goal that all reports of sexual misconduct will be
investigated.
Restrictions are not necessary to prevent non-meritorious claims from
prevailing in court. Standard civil procedure and other portions of the PLRA allow
courts to screen out frivolous claims and to quickly resolve non-meritorious ones.
Restrictions on presentment of grievances therefore serve only to prevent inmates
from presenting otherwise meritorious cases in court.
Rather than design a complicated new grievance system, the Department
should promulgate regulations that ensure agencies that create grievance systems
do so in a way that ensures that inmates are protected from sexual abuse and that
they are able to present non-frivolous claims in court. In keeping with the purposes
of PREA, these regulations must not create obstacles to addressing sexual abuse or
allowing inmates to seek redress for abuse in federal court.
For agencies that choose to have administrative remedies available, these
standards must ensure that for complaints about sexual abuse and harassment, the
following conditions are met:
1. There must be only one level of required administrative remedy, without
required appeals. Agencies must be required to treat all of these remedy
requests as serious and give them the investigation necessary to address the
underlying problems.
2. It must be impermissible to deny such administrative remedy requests on
technical grounds, such as using the wrong color ink, descriptions that are

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3.

4.
5.
6.

7.

too long or too short, lack of specific requested response, failure to check the
right boxes, etc.
Every report, from any source, must be treated as a request for an
administrative remedy, unless the purported victim specifically requests that
it not be.
Juveniles should not have the option of requesting that any report from any
source not be treated as an administrative remedy request.
There must be clear and enforceable time frames in which an agency must
respond.
There must be a specific system for processing remedy requests from
residents who have moved to different facilities, been transferred to other
agencies, or who have been released from custody.
There must be a means of submitting a sensitive remedy request, should the
inmate believe that the remedy request cannot be submitted at his or her
institution without compromising safety.

Additional Comments on Sections 115.76, 115.176, 115.276, and 115.376
ANY SANCTIONS MUST BE REPORTED TO POTENTIAL FUTURE EMPLOYERS
When agencies or contractors are contacted by future potential employers,
such as those complying with Sections 115.16, 115.116, 115.216, and 115.316,
entities must disclose any sanctions imposed. Future collective bargaining
agreements must allow for this disclosure. This is critical to ensure abusers are not
able to simply transfer to other agencies rather than switch to a career that does not
give them further opportunities for abuse.
We commend the Department for promulgating these standards, and again
completely endorse the comprehensive comments submitted by JDI. We look
forward to the final rule making, and remain available should any further input be
desired.

Sincerely,

Roderic V.O. Boggs
Executive Director

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