The Costs of Prisoner Rape

In an important step toward implementing the U.S. Prison Rape Elimination Act (PREA), the Department of Justice is now soliciting public comments on the recommended Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Detention. Developed by a bipartisan commission created under PREA, these recommendations are the product of years of input from corrections officials, criminal justice experts, advocates, and prisoner rape survivors. They have the potential to become the most important tool so far in the effort to end sexual abuse behind bars.

It is refreshing to see the Department of Justice finally moving forward on the standards, which were released more than eight months ago. Importantly, yesterday’s Advance Notice of Proposed Rulemaking also states that the Attorney General is seeking to eliminate a regulation that bars the use of Victims of Crime Act funds – the life blood of community rape crisis centers – to assist incarcerated prisoner rape victims. It is significant that the Department of Justice has recognized that victims of sexual abuse behind bars should be able to receive the same crisis intervention services that are available to victims in the community.

Wherever it happens, sexual abuse is devastating, physically and emotionally – yet this violence is preventable. Congress recognized that in 2003 when it unanimously passed PREA. Since then, attitudes toward prisoner rape have transformed dramatically, as an increasing number of corrections officials, legislators, and policy makers now agree that such abuse can – and must – be stopped.

Unfortunately, the National Prison Rape Elimination Commission’s standards for addressing prisoner rape, released on June 23, 2009, have been bogged down in a review process at the Department of Justice. By law, Attorney General Eric Holder has until June 2010 to review the standards and codify them as federal regulations, making them binding on detention facilities nationwide. It is now clear that Holder will not meet that deadline. The delay is due, in large part, to a problematic cost projection study, commissioned by the Justice Department in response to pressure from corrections leaders opposed to the standards. The study asks corrections departments to estimate how much it would cost them to implement the standards, without considering potential savings or the fiscal and other benefits of these measures.

It is important to consider costs, as corrections agencies have many competing priorities and states are facing budget meltdowns. Additionally, PREA explicitly prohibits the standards from imposing “substantial additional costs” on corrections systems. Accordingly, cost figured heavily into the Commission’s development of the standards. And when corrections officials indicated that some provisions in a draft version of the standards would be too costly, the Commission significantly scaled back those measures.

The standards now under review will not substantially increase corrections budgets – in fact, they likely will help save money. Corrections departments that are already implementing the standards have shown that compliance does not necessitate increased spending. In Oregon, for example, officials have “retrained and repurposed” existing staff, instead of hiring additional personnel. Many of the practices outlined in the standards are constitutionally mandated and must be followed in every corrections institution regardless of PREA; costs associated with meeting such constitutional requirements should not be attributed to the standards.

When we consider the purely financial implications of preventing prisoner rape – and surely they are less important than the moral considerations – the savings and tangible gains are enormous.

The standards would help eliminate sexual abuse that, in the past few years alone, has resulted in litigation costing corrections systems many millions of dollars in damages -including a $100 million settlement that Michigan reached with prisoner rape survivors last year, after a jury found that prison officials for years ignored cases of rape, sexual advances, and groping by staff. When survivors of prisoner rape require medical care, as they often do, corrections agencies must bear most of the costs. And people traumatized by sexual assault behind bars often suffer serious long-term problems – including post-traumatic stress disorder, depression, and alcohol and other drug addictions – that make it nearly impossible for them to move on to economically productive lives after their release. These factors are not included in the Department of Justice cost study, but Attorney General Holder must take them into account.

The Attorney General should review the standards, but he should do so expeditiously, deferring to the expertise of the bipartisan Commission that spent years developing its recommendations. If he continues needlessly to delay the release of these common-sense measures – worse, if he strips them of their force because of pressure from corrections leaders – then the Obama administration will have missed a historic opportunity to address one of our nation’s most urgent human rights crises.