The Prison Rape Elimination Act and the Problem of Legislative Deadlines

Poor Eric Holder: It can’t feel good to know that the ACLU, Focus on the Family, the American Conservative Union, the Southern Baptist Convention, the United Methodist Church, Grover Norquist, Gary Bauer, Jim Wallis, Prison Fellowship, the Sentencing Project, the NAACP, and the National Immigrant Justice Center—among others—are all “furious” with you, and all for the same reason. Back in June, Obama’s attorney general missed his statutory deadline to promulgate national standards for reducing prison rape. The standards have been proposed by the bipartisan National Prison Rape Elimination Commission, which was convened pursuant to the 2003 Prison Rape Elimination Act, and represent what are already best practices at the facilities that have done the most to curtail prison rape. But they still require Holder’s formal say-so to become binding conditions on federal funding for prisons and jails nationwide.

(Incidentally, for a skeptical take on whether such conditions can actually reduce prison rape, especially in light of widespread public indifference to the problem, see this 2003 Slate article by my criminal law professor, Bob Weisberg. Ever-insightful readers: Do you think things have changed since 2003? Just Detention International thinks so: “The standards release was a turning point in the struggle to end sexual abuse in detention. After decades of institutional denial, downplaying, and flippant repetition of stereotypes, government agencies and corrections officials have finally begun to describe the problem of sexual abuse behind bars as a serious violation of human rights … .”)

Yesterday, the above-listed coalition of strange bedfellows issued an open letter urging Holder to promulgate the standards sooner rather than later. In fairness, it’s not that Holder has completely ignored the issue: rather, he says his office needs more time to assess the implementation costs to prisons and jails (as required by the PREA itself), and to ensure that the regulations promulgated “will endure” (PDF link to Holder’s letter). But many advocates view the delay as indefensible foot-dragging in the face of widespread violations of prisoners’ human rights. In any event, this controversy sparked my interest in the broader question of statutory deadlines of this type. What exactly were the terms of the Attorney General’s deadline, and what, if any, are the consequences for Holder’s failing to meet it? If there are no consequences, what was the point of Congress’s legislating the deadline to begin with? I’ll (sketchily) consider these questions after the jump.

(1) Holder’s Deadline under the PREA

Here’s the relevant text of the Prison Rape Elimination Act (via full text PDF here):

SEC. 8. ADOPTION AND EFFECT OF NATIONAL STANDARDS.
(a) PUBLICATION OF PROPOSED STANDARDS.-
(1) FINAL RULE.-Not later than 1 year after receiving the report specified in section 7(d)(3), the Attorney General shall publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape.
(2) INDEPENDENT JUDGMENT.-The standards referred to in paragraph (1) shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission under section 7(e), and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.
(3) LIMITATION.-The Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities. The Attorney General may, however, provide a list of improvements for consideration by correctional facilities.

Without going back into the legislative history, my quick read just of the statutory text suggests that Sec. 8(a)(3) gives Holder a pretty big legal loophole, and in his letter explaining why he missed the deadline, he jumps right through it, pointing to this provision as a main reason for his office’s delay. Advocacy groups dispute whether implementing the standards would actually impose “substantial additional costs,” pointing out that some jurisdictions, even cash-strapped California, have already begun to implement them as early adopters. As a legal matter, though, Holder seems to be within his authority to delay implementing the standards on cost-benefit grounds; indeed, it seems he’d be within his authority never to implement the standards at all on those grounds.

Without wading too far into the morass that is administrative law, one could theoretically imagine scenarios in which Holder’s inaction might face judicial review, but they seem very theoretical to me, for a variety of reasons (in no particular order): agency inaction (as opposed to action) is presumptively non-reviewable, there are strong norms of judicial deference to high-level executive officials, I am not sure who would have standing to bring a suit and under what facts, and in any event the statute, as noted above, seems to provide the DOJ with plenty of wiggle room for implementation. Then too, as noted by one administrative law observer,* “the federal courts do not read statutory deadlines literally” anyway, instead adopting a “reasonableness” approach to evaluate agency noncompliance. (BIG CAVEAT: Admin law is really not my area so please feel free to jump in and correct my errors here!)

(2) What’s the Point of Legislative Deadlines?

When delegating rulemaking authority to agencies, Congress imposes statutory deadlines to confront the problem of administrative delay and to guide agency priorities (a practice that increased beginning in the 1970s, especially in the context of environmental regulation). But given the relatively toothless nature of statutory deadlines of the kind that Holder missed, both de jure and de facto, one might ask why Congress would bother to impose them. In a 1987 law review article,* one observer, Alden Abbott, observed that agencies often fail to meet their statutory deadlines, and as such, argued that it would be better for Congress not to set them at all, or at least to do so less frequently: “First, a substantial amount of delay may be the inevitable by-product of congressional statutes or the action of outside parties—sources of delay that may be immune to deadlines. Moreover, the imposition on an agency of a plethora of deadlines may make it impossible for any deadline to be met.” Imposing too many deadlines may also have negative side effects, like spurring wasteful litigation over the deadline or encouraging agencies to act too hastily. As such, Abbott suggested alternatives like requiring agencies to set their own deadlines or issuing non-binding deadlines.

One might view the deadline embedded in the PREA in a few different ways. Given the flexibility built into the statute, one might call it something of a non-binding deadline to begin with. Alternatively, if one sees it as a deadline that was intended to be binding—particularly in light of the PREA’s stated purpose to establish “zero tolerance” for prison rape—one might think it illustrates Abbott’s point that statutory deadlines should be used more sparingly—i.e., that they’ve become so common and unremarkable that even the really important ones get ignored.

Finally, one might argue that the statutory deadline has not been useless, but to the contrary has served an eminently useful expressive function: For even though Holder failed to meet it, the existence of the deadline has given advocates a strong hook on which to hang public pressure on Holder to implement the standards. Almost every article or blog post I’ve seen on the National Prison Rape Elimination Commission standards has somewhere referenced Holder’s missing his deadline. Perhaps being able to point to a concrete, specific misstep by the DOJ has allowed advocates to more effectively galvanize media and public interest in prison rape than would have been the case otherwise. After all, it’s one thing to vaguely argue for the DOJ to act, another to be able to point to a specific date on which the Attorney General was supposed to act, and didn’t.

* Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 Admin L. Rev. 171 (1987). Link here for those with HeinOnline access.