Time for Attorney General to Show Courage on Prisoner Rape

National Standards Represent Once-in-a-Lifetime Opportunity for Attorney General Eric Holder to End Sexual Abuse in U.S. Corrections Facilities

Washington, DC, March 29, 2011. Next Monday (April 4, 2011) marks the end of the final public comment period on the Department of Justice’s proposed national standards to prevent, detect, and respond to sexual abuse in detention. In the months to follow, the Department will finalize the standards and issue them as federal regulation. The standards will be immediately binding on all federal prisons. State corrections systems will have one year to get into compliance or risk losing federal funding.

“Key parts of the Justice Department’s standards are unconscionably weak,” said Lovisa Stannow, Just Detention International’s Executive Director. “The next few days are the last chance for advocates, survivors, forward-thinking corrections officials, and concerned citizens to demand that something meaningful be done about the disgraceful epidemic of prisoner rape.”

In 2003, Congress unanimously passed the Prison Rape Elimination Act (PREA). PREA created the bipartisan National Prison Rape Elimination Commission, which spent years studying the problem before delivering its recommendations to Attorney General Eric Holder for ratification. In his proposed version of the standards, however, Holder has dramatically watered down the consensus recommendations by the commission.

Holder has removed limits on cross-gender pat searches and viewing of inmates using the toilet or shower, despite having documented that most staff abuse of inmates is cross-gender, and that it often begins during pat searches. Contrary to the clear intent of PREA, the Department has also decided that the standards should not apply to immigration facilities — even though immigration detainees are among the most vulnerable to abuse. Holder has even proposed that corrections agencies be allowed to police their own compliance with the standards by using an internal employee to conduct audits, rejecting the commission’s recommendation (and standard practice in the Western world) that oversight be conducted by independent monitors.

“The stated reason for weakening the commission’s recommendations was cost,” said Stannow.  “But the Justice Department’s own data, together with its preliminary cost-benefit analysis of the standards, make abundantly clear that much stronger standards would be warranted even from a purely financial perspective. This suggests that the Attorney General’s true reasons for weakening the standards are primarily political.”

In its Notice of Proposed Rulemaking, the Justice Department states that at least 216,600 inmates were sexually abused in 2008 alone. This figure counts the number of people abused, not the number of incidents. Data from the Justice Department’s Bureau of Justice Statistics (BJS) show that, on average, sexually abused inmates are victimized three to five times each over the course of a year. In most cases the perpetrators are not other inmates, but corrections staff.

The Department acknowledges that sexual abuse in detention is preventable. Ending it is a matter of adopting intelligent policies and practices, as the standards are supposed to require. Recent BJS reports show that many prisons already are doing a good job, while others are plagued by sexual violence. “If the standards succeed in bringing the national rate of abuse down to the level that has already been achieved in half of U.S. prisons and jails, more than 53 percent of all sexual violence behind bars would be eliminated. That would mean sparing well over 100,000 men, women, and children the horror of sexual abuse every year,” Stannow explained.

Every one of the more than 216,600 annual victims of sexual abuse in detention is a real person, a neighbor and family member — someone like Jan Lastocy. While serving time in a Michigan prison for attempted embezzlement, Lastocy was raped three to four times a week for seven months by an officer at the prison warehouse where she worked. He assaulted her behind pallets stacked with flour and sugar, in the walk-in freezer — anywhere he felt confident no one would catch him. Desperate to go home to her husband and children, Lastocy didn’t report the abuse. If she did, the officer told her, he would write her up and delay her release. The warden had made clear that she would always believe an officer’s word over an inmate’s. As Lastocy’s husband John said later, “My wife did something stupid, and the judge made her pay for it. But the judge didn’t say she should be raped by her guards. No one should have to go through what Jan did.”

“This is a critical moment in the history of the U.S. criminal justice system. If the Justice Department issues weaker standards than would be justified by its own data and cost-benefit analysis, that would be arbitrary and capricious,” said Stannow. “Doing so would also be an act of political cowardice — a betrayal of hundreds of thousands of people like Jan Lastocy.”