ISA - Proactive PREA Defense 2014

Information about ISA - Proactive PREA Defense 2014

Published on July 23, 2014

Author: midwaygrays

Source: authorstream.com

Content

PowerPoint Presentation: Tate McCotter Administrator National Institute for Jail Operations National Institute for Jail Operations Taking a Proactive Approach to PREA PowerPoint Presentation: The video footage you are about to see was recorded at the Pima County Arizona Jail Intake Center. You decide if what you see is a PREA issue. VIDEO : Pima County Jail Intake Center PowerPoint Presentation: SEMINAR OBJECTIVES & OUTCOMES: Be aware of the fallacies of PREA inaccurately put on sheriffs and jails. Know the legal-based requirements for jails in order to be compliant to the PREA Act. M ake informed decisions about PREA with annotated information from a sheriffs’ perspective – not outside agendas. PowerPoint Presentation: What do you think of when you hear the term PREA ? Prison Rape Elimination Act PowerPoint Presentation: What is PREA? 2003 Act v. DOJ PREA Standards What is the difference between the Act and the Standards? the L aw ! DOJ Standards PowerPoint Presentation: Prison Rape Elimination Act P assed in 2003; signed by Pres. Bush Required the DOJ to create standards Final version was released by the DOJ on May 16, 2012 268 pages (11pg summary; 182pg preamble) PowerPoint Presentation: The statute directs the Attorney General to publish a final rule adopting “ national standards for the detection , prevention , reduction , and punishment of prison rape . . . 28 CFR § 115 Executive Summary 1:A pg 2. See also: 42 USC § 15602(3 ).; 42 U.S.C. 15607(a)(1)-(2). Prison Rape Elimination Act Key Provisions of the Prison Rape Elimination Act : Key Provisions of the Prison Rape Elimination Act Makes prevention a top priority Establishes a Zero-Tolerance for sexual misconduct, sexual abuse and sexual assault Calls for the development of national standards for detection, prevention, reduction and punishment of sexual abuse Increase available data and information on incidents in order to improve management and administration PowerPoint Presentation: What influences shaped the creation of the Act and the DOJ PREA standards? Prison Rape Elimination Act PowerPoint Presentation: “. . . based upon the independent judgment of the Attorney General , after giving due consideration to the recommended national standards provided by the Commission . . . and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider .” 42 USC § 15602(3 ).; 42 U.S.C. 15607(a)(1)-(2). Prison Rape Elimination Act PowerPoint Presentation: Prison Rape Elimination Act Public opinion Legislators Attorney General’s judgment I nmate right advocates Academia S tatistics reported by inmates National Prison Rape Elimination Commission (9 member panel: federal judge, CEO, inmate advocate/witness, human rights advocate, former inmate/politician, attorney/law professor, psychology professor, private prison lawyer) THE INFLUENCIALS Corrections officials provided feedback upon request. PowerPoint Presentation: THE NAME OF THE ACT: Prison Rape Elimination Act Prison Rape Elimination Act PowerPoint Presentation: Do the DOJ PREA standards apply to jails? Prison Rape Elimination Act PowerPoint Presentation: Prison Rape Elimination Act The DOJ wrote their PREA standards by mandate of the PREA Act with the intent to be applicable to all correctional facilities, including prisons, jails , community holding facilities and juvenile facilities . ( 28 CFR § 115 Executive Summary 1:A pg 2) PowerPoint Presentation: Is Santa “applicable” to Christmas?” What does it mean? …“the intent to be applicable” Prison Rape Elimination Act PowerPoint Presentation: Do jails have to comply with the DOJ PREA standards? Prison Rape Elimination Act PowerPoint Presentation: Prison Rape Elimination Act In Case You Missed It … PowerPoint Presentation: Per the PREA Act, compliance to the DOJ PREA standards is not required for any correctional agency except for federal facilities under the jurisdiction of the Department of Justice. (See 42 USC §15601(b)). Prison Rape Elimination Act PowerPoint Presentation: According to the Act and the Department of Justice, the DOJ PREA standards cannot be enforced upon states, local agencies and private correctional organizations . See 42 USC §15601(b ) 28 CFR § 115 Executive Summary 1:A pg 2 Prison Rape Elimination Act PowerPoint Presentation: Executive Order 13132 – Federalism / PREA Department of Justice “ … with respect to the thousands of State and local agencies, and private companies, that own and operate confinement facilities across the country, PREA provides the Department with no direct authority to mandate binding standards for their facilities. Instead , PREA depends upon State and local agencies to make voluntary decisions to adopt and implement them .” DOJ PREA Standards PowerPoint Presentation: U.S . DEPARTMENT OF JUSTICE (DOJ) National Standards to Prevent, Detect and Respond to Prison Rape. Executive Summary, p. 10 (emphasis added). “ … “PREA does not require State and local facilities to comply with the Department [of Justice]’s standards, nor does it enact a mechanism for the Department to enforce such compliance ; instead the statute provides certain incentives for such confinement facilities to implement the standards.” PowerPoint Presentation: What about all this non-compliance talk? DOJ PREA Standards Where are the teeth PowerPoint Presentation: By May 15, 2014 Every governor in the United States and US territories were asked by the DOJ to declare their intentions to being DOJ PREA compliant . DOJ PREA Standards PowerPoint Presentation: Only two states said they were currently compliant. Neither of these states have had DOJ audit verification inspections to date. New Jersey, New Hampshire DOJ PREA Standards PowerPoint Presentation: A majority of state governors provided statements to the DOJ asserting they w ould to become compliant . try DOJ PREA Standards NOTE: State DOCs had a significant impact on this decision with their respective governors. PowerPoint Presentation: DOJ PREA Standards (Texas, Nebraska, Arizona , Florida, Indiana, Idaho, Utah and the Northern Marianas Island Territory) Seven governors, including INDIANA said no thank you. PowerPoint Presentation: Whether you choose to follow the DOJ PREA standards or not, agencies will need to be able to articulate the decision. DOJ PREA Standards PowerPoint Presentation: “ The new standards are impossible , out of touch with the daily realities of state prisons and would require heavy financial burdens.” - Gov. Rick Perry (TX) PowerPoint Presentation: "Absent standards that  acknow -ledge  the operational realities in  our  prisons and  jails, I will not sign your form and I will encourage my fellow governors to follow suit.” - Gov. Rick Perry Response Letter to DOJ March 29, 2014 PowerPoint Presentation: Brenda Smith, a former commissioner on the National Prison Rape Elimination Commission which helped create the PREA standards, said the decision by some states to opt out is shameful. DOJ PREA Standards PowerPoint Presentation: " As a state you can move over to the sidelines, but people in custody don't get to move over to the sidelines. Providing them safety from sexual abuse is the minimum we can do." - Brenda Smith (response issued after Idaho opted out) DOJ PREA Standards PowerPoint Presentation: “I have heard much discussion that the federal government intends to ‘shame’ those states that do not implement every PREA recommendation. Such a plan would be misguided and would do nothing to advance the aims of PREA. - Governor Gary Hebert Utah PowerPoint Presentation: Will there be penalties for jails that do not comply with the DOJ PREA standards? DOJ PREA Standards PowerPoint Presentation: courts may consider the PREA standards in decision making c ompliance is required for accreditation (ACA for example) DOJ PREA Standards There are no penalty per se, but there are consequences .” potential for civil liability PowerPoint Presentation: Straight Facts About the DOJ PREA standards… DOJ PREA Standards PowerPoint Presentation: " These are not some high falutin ', unreachable standards. These are things that are constitutional, based on best practices that have been determined in the field and in the courts .” - Brenda Smith DOJ PREA Standards PowerPoint Presentation: Are the DOJ PREA standards “best practices” or legal-based? DOJ PREA Standards PowerPoint Presentation: “Standards are to set the bar for policy, practice and procedure based on ‘best correctional practices’… “There are not measurable outcomes.” DOJ PREA Standards In a 2013 webcast when asked to clarify the purpose of the standards: PowerPoint Presentation: What is a “Best Practice” PowerPoint Presentation: Who determines what is considered “best?” PowerPoint Presentation: They reflect the g oals, objectives and priorities of the organization. PowerPoint Presentation: Their goals, objectives and priorities: May or may not be the same as yours May or may not be defensible in court May or may not be effective PowerPoint Presentation: MILLION DOLLAR QUESTION: Who owns the intellectual copyright to create standards, policies and procedures on how to most effectively create a zero tolerance culture toward sexual assaults and abuse in jails? PowerPoint Presentation: Protecting the Office of Sheriff Administrative Discretion Federal Oversight What are the interests of your SO? PowerPoint Presentation: Many outside organizations are fond of telling you how best to run your jail… YOU are the expert of your jail! PowerPoint Presentation: " These are not some high falutin ', unreachable standards. These are things that are constitutional , based on best practices that have been determined in the field and in the courts .” - Brenda Smith DOJ PREA Standards PowerPoint Presentation: Are the DOJ PREA standards legal-based? DOJ PREA Standards PowerPoint Presentation: “Legal- Based” What the organization requires Subjective Not recognized by Courts Creates unnecessary state liberty interests for inmates Often supersedes the law F ails to address what the law requires What the law requires Constitutional Federal Law Circuit Court State Laws and statutes “Best Practices” DOJ PREA Standards PowerPoint Presentation: … but this is the Department of Justice. Will the courts defend the DOJ PREA standards? What does history say? DOJ PREA Standards PowerPoint Presentation: In 1978, the DOJ published federal correctional standards with the intention of defining requirements for incarcerating pretrial detainees; however, the standards were rebuffed by the U.S. Supreme Court.  In that case, the Court ruled : [T]he draft recommendations of the Federal Corrections Policy Task Force of the Department of Justice regarding conditions of confinement for pretrial detainees are not determinative of the requirements of the Constitution . See Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections. Bell v. Wolfish , 441 U.S. 520, 543 n. 27 (1979) (emphasis added). PowerPoint Presentation: Creation of Liberty Interests … Nothing in the PREA Act or the DOJ PREA standards suggest that Congress intended to create a private right of action for inmates to sue prison officials for non-compliance with the PREA Act. DOJ PREA Standards PowerPoint Presentation: See Ball v. Beckworth , 2011 US Dist., LEXIS 109529, (D. Mont. Aug. 31, 2011) (citing cases). “ PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue…. The statute does not grant prisoners any specific rights . Chinnici v. Edwards, 2008 US Dist. LEXIS 119933, (D. Vt. 2008). Thus, Plaintiff fails to state a β 1983 claim based on an alleged violation of the PREA. Accord Rivera v. Drake, 2010 US Dist. LEXIS 37933 (E.D. Wis. 2010); Law v. Whitson, 2009 US Dist. LEXIS 122791, (E.D. Cal. 2009 ) Inscoe v. Yates, 2009 US Dist. LEXIS 92012, (E.D. Cal. 2009). DeLonta v. Carne, 2013 US Dist. LEXIS 5054 (W.D. Va. 2013 ). DOJ PREA Standards PowerPoint Presentation: The Argument for Compliance: DOJ PREA Standards You will get sued if you don’t … PowerPoint Presentation: “The [PREA] standards are not intended to define the contours of constitutionally required conditions of confinement .” U.S . Department of Justice, National Standards to Prevent, Detect and Respond to Prison Rape, Executive Summary, p. 2 What about LIABILITY risks if our jail is not compliant? DOJ PREA Standards PowerPoint Presentation: "[R] eliance on . . . correctional standards issued by various groups is misplaced . . . . And while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima ; rather, they establish goals recommended by the organization in question." - Bell v. Wolfish , 441 U.S. 520, 543 n.27 (1979). PowerPoint Presentation: The DOJ states that non-compliance with PREA does not create liability nor does compliance with PREA protect jail officials from liability . U.S . Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Executive Summary, p . 2 (emphasis added). DOJ PREA Standards PowerPoint Presentation: “The standards are not intended to define the contours of constitutionally required conditions of confinement . Accordingly, compliance with the standards does not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse .” U.S . Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Executive Summary, p. 4 (emphasis added). DOJ PREA Standards PowerPoint Presentation: “The standards are not intended to define the contours of constitutionally required conditions of confinement . Accordingly, compliance with the standards does not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse.” U.S . Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Executive Summary, p. 4 (emphasis added). DOJ PREA Standards PowerPoint Presentation: “Furthermore, while the standards aim to include a variety of best practices, they do not incorporate every promising avenue of combating sexual abuse , due to the need to adopt national standards applicable to a wide range of facilities, while taking costs into consideration.” U.S . Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Executive Summary, p. 4 (emphasis added ). DOJ PREA Standards PowerPoint Presentation: What are some DOJ PREA standards not “ legal-based” of concern to many sheriffs? DOJ PREA Standards PowerPoint Presentation: Example of DOJ PREA standards not “legal-based:” Definition of Strip Search The definition, which is stressed for agencies to use in policy, procedure, training and reporting differs greatly from the Supreme Court definition used in the Florence decision just a month before PREA was officially released by the DOJ/ attorney general . See § 115.5 General definitions. Pg194; Florence v. Board of Chosen Freeholders of Burlington County 566 U.S. (2012 ). DOJ PREA Standards PowerPoint Presentation: § 115.5 General definitions. Pg194 Strip search means a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia. Florence v. Board of Chosen Freeholders of Burlington County 566 U.S. (2012 ). (Supreme Court definition) The term is imprecise . It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. The court recognized levels of searches/intrusions! DOJ PREA Standards PowerPoint Presentation: DOJ PREA standard concerns: Grievances Requirement to report alleged sexual assault incidences without the knowledge or notification to staff/officers to outside 3 rd parties. DOJ PREA Standards PowerPoint Presentation: Grievance Syste m … Full compliance to all the DOJ PREA standards would essentially eliminate the benefits provided to sheriffs and jail administrators under PLRA to use a grievance system before filing federal lawsuits. DOJ PREA Standards PowerPoint Presentation: Grievance Syste m … “ No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted . ” - 42 U.S.C. § 1997e(a). PowerPoint Presentation: Grievance Syste m … Properly operated, the grievance system can also provide information from which the sheriff and jail administration can evaluate the operational climate of the jail, defend litigation and discover operational problem areas. Grievance system documentation provides: A record of the good-faith efforts of jail officials in attempting to address the legitimate concerns of inmates; A record of unreasonable complaints and demands of inmates; and Information which can be used to defend the jail in the event of litigation . Clear record for court proceedings PowerPoint Presentation: Handling of Grievances . DOJ PREA standards require agencies to offer alternatives for inmates to report sexual assault/abuse grievances outside of the scope of the established grievance system (For example, inmate telephone calls to outside 3 rd parties to report alleged sexual assault incidences without the knowledge or notification to staff/officers). DOJ PREA Standards PowerPoint Presentation: Example of PREA standards not “legal-based:” Youthful Adults (under 18 juveniles convicted and sentenced as adults) N o inmate under 18 may be placed in a housing unit where contact will occur with adult inmates in a common space, shower area, or sleeping quarters. O utside of housing units, agencies must either maintain “sight and sound separation A gencies must make their best efforts to avoid placing youthful inmates in isolation DOJ PREA Standards § 115.14 Youthful inmates.pg197 PowerPoint Presentation: Example of DOJ PREA standards not “legal-based:” Youthful Adults (under 18 juveniles convicted and sentenced as adults) The DOJ felt strongly that juvenile offenders should be in juvenile facilities, regardless of the crime. “ Judication is not the issue – AGE is the issue.” Many jails and prisons will have a very difficult time enforcing this, as their state laws differ. “That’s an opportunity to change the law.” DOJ PREA Standards PowerPoint Presentation: What about transgender inmates? LGBTI inmates? DOJ PREA Standards RE: lesbian , gay, bisexual, transgender, intersex and gender nonconforming inmates CLASSIFICATION: Identification and assessment of inmates at risk or with history of sexual abuse or assault. PowerPoint Presentation: DOJ PREA Standards Farmer v. Brennan – Deliberate Indifference Differences in a jail v. prison (knowing what you are getting) PowerPoint Presentation: Classification : (§ 115-40(42); § 115-42c-e) (c) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems . (d) Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate. (e) A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration . DOJ PREA Standards PowerPoint Presentation: LGBTI Inclusions & Searches : Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates. (§ 115-42f) The facility shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status . If the inmate’s genital status is unknown, it may be determined during conversations with the inmate, by reviewing medical records , or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner. (§115-15e) THEY SAID IT: “Every situation is different. Follow the spirit of this – maybe ask them who they would prefer to search them. Use medical staff whenever possible. But if not, I know of some facilities that use female staff to search the upper body and male staff for lower…” DOJ PREA Standards PowerPoint Presentation: Cross-Gender Viewing and Searches. (§115.15 ) ( d) staff of the opposite gender to announce their presence when entering an inmate housing unit. DOJ PREA Standards PowerPoint Presentation: "Such an announcement would provide an individual committing a sexual assault notice to stop the assault before the staff member arrives.” DOJ PREA Standards Gov. Heineman of Nebraska said he was concerned this standard would actually increase sexual assaults in the prisons. He noted: PowerPoint Presentation: HOT ISSUE: Discrimination suit by female officers who cannot perform duties hereto performed because of PREA. Cross-Gender Viewing and Searches. (§115.15 ) AKRON, OHIO. (AP) - The federal government has put its weight behind a discrimination lawsuit filed by 21 female jail guards who said they are effectively being demoted because county officials don't want them watching over male inmates while showering or being strip searched. The women claim the personnel policy limits job options because they are mostly assigned to overseeing female inmates. Eighty-two percent of inmates and 80 percent of deputies are male . female guards with seniority were bidding on jobs in which they would jeopardize the privacy of inmates being strip-searched or in the showers . " The three work shifts at the jail need to have a proper number of deputies assigned by gender in order (to) conduct strip searches, showers and not violate the inmates right to privacy," jail commander Gary James said in an affidavit in response to the lawsuit . Filed: June 12, 2012 DOJ PREA Standards PowerPoint Presentation: PREA Coordinator/Manager. (§ 115.11) One per agency; not FT position; upper level rank. Staffing Issues : DOJ PREA Standards The courts don’t care if you have a PREA coordinator. They do care about violation of inmate rights (duty to protect, conditions of confinement, etc.) LEGAL BASED PERSPECTIVE: PowerPoint Presentation: Will our jail be financially penalized if we do not comply with the DOJ PREA standards? DOJ PREA Standards PowerPoint Presentation: “ A State whose Governor does not certify full compliance with the standards is subject to a loss of five percent of any Department of Justice grant funds that it would otherwise receive for prison purposes , unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years.” - 42 USC § 15607(c ). DOJ PREA Standards PowerPoint Presentation: Grants Subject to Penalty: (according to the Bureau of Justice Assistance) The BJA notes the list of applicable grants is based on FY2012 appropriations. DOJ PREA Standards Edward Byrne Memorial Justice grant program Juvenile Justice & Delinquency Prevention Act Formula grant program Juvenile Accountability Block Grant Program PowerPoint Presentation: Grants Subject to Penalty: (according to the Bureau of Justice Assistance) DOJ PREA Standards Exemption clause – the 5% can be used toward compliance for future years. This provides flexibility to states who certified they would try to be compliant. Newly created grant programs may be subject to the penalty. PowerPoint Presentation: Do the Math DOJ PREA Standards PowerPoint Presentation: What about contracts with federal or state agencies such as: ICE US Marshals S tate Department of Corrections? Won’t you have to comply? DOJ PREA Standards PowerPoint Presentation: 115.501(b) states the Governor’s certification applies to facilities under the operational control of the State’s executive branch; however “ the Certification, by its terms, does not encompass facilities under the operational control of counties, cities or other municipalities.” U.S . Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Executive Summary, p. 4 (emphasis added). DOJ PREA Standards DOC Contracts - PowerPoint Presentation: Are contracts negotiable? Act versus the DOJ PREA standards? Will there be consideration for contracted facilities that are compliant to the Act but for justifiable reasons that protect the legitimate peneological interests of the jail choose not to be compliant to certain components of the DOJ PREA standards? Legally review the contract agreements There is power in numbers (Western State Sheriffs) DOJ PREA Standards PowerPoint Presentation: How much cost is anticipated in implementing PREA for a jail? DOJ PREA Standards PowerPoint Presentation: Per DOJ’s published estimation annual cost of compliance is: $50,000 per jail $54,000 per juvenile facility $24,000 community confinement $16,000 lockup ( OAG-131 I:C pg9) T he standards may not “impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.” - 42 U.S.C. 15607(a)(3). DOJ PREA Standards PowerPoint Presentation: ACTUAL COST In Ohio, PREA coordinators reported their average costs exceeded $100,000 per year. ( after facility upgrades, training staff, inmates, volunteers , contractors, etc.) In South Carolina, a jail reported it had spent an additional $37,000 receiving a $300,000 fed grant. DOJ PREA Standards PowerPoint Presentation: ACTUAL COST In Indiana, Governor Mike Pence told the DOJ they would not participate because of money. The state needs an estimated $20 million and another $4.5 million for counties – to add the staff and equipment required. “This would require a redirection of millions of tax dollars currently supporting other critical needs for Indiana.” DOJ PREA Standards PowerPoint Presentation: Proactive PREA Defense DOJ PREA Standards PowerPoint Presentation: If you are running a constitutional jail and you decide to implement the DOJ PREA standards … PREA won’t impact your jail operations apart from: paperwork, reporting, documentation forced definitions and policy procedural changes potential physical plant changes cost to pay for the above DOJ PREA Standards PowerPoint Presentation: Awareness: Jail policies and procedures clearly state that the DOJ PREA standards do not create constitutional, other legally enforceable requirements, or liberty interests for inmates. DOJ PREA standards are not used to protect against prisoner litigation or as a defense against liability.   DOJ PREA Standards PowerPoint Presentation: Know the benefits of a grievance system are bypassed by adopting the DOJ PREA standards . Awareness: DOJ PREA Standards PowerPoint Presentation: If you are NOT running a constitutional jail (regardless of the reason), PREA is just one of many issues addressing inmate rights and liability as covered in: Duty to Protect (Farmer v Brennan) Policy & Procedure Defense ( Safley ) Conditions of Confinement (Wilson v Seiter ) DOJ PREA Standards PowerPoint Presentation: Sheriffs run over 80% of the jails in the United States. Few sheriffs, if any, have issues with compliance to the PREA Act. Saying no to the DOJ PREA standards does not mean an agency is deliberately indifferent to protecting inmates from sexual abuse or assaults. Prison Rape Elimination Act PowerPoint Presentation: Be able to articulate WHAT you are doing and WHY . Prison Rape Elimination Act PowerPoint Presentation: Proactive Approaches to PREA DUTY TO PROTECT ZERO TOLERANCE PowerPoint Presentation: Proactive Approaches to PREA DUTY TO PROTECT ZERO TOLERANCE “Prison conditions may be ‘restrictive and even harsh,’ (Rhodes, supra, at 347), but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective .” Hudson v. Palmer at 548. PowerPoint Presentation: Proactive Approaches to PREA DUTY TO PROTECT ZERO TOLERANCE Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes at 347. Farmer v. Brennen PowerPoint Presentation: Proactive Approaches to PREA DUTY TO PROTECT ZERO TOLERANCE The 8 th Amendment protects against CRUEL & UNUSUAL PUNISHMENT PowerPoint Presentation: Proactive Approaches to PREA DUTY TO PROTECT ZERO TOLERANCE The 8 th Amendment protects against CRUEL & UNUSUAL PUNISHMENT PowerPoint Presentation: While corrections officials are required to take reasonable steps to protect those persons who they incarcerate, they cannot absolutely guarantee that no prisoner (or staff member) will ever be harmed . DUTY TO PROTECT Proactive Approaches to PREA PowerPoint Presentation: “Prisons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, “[s] ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do ... unless all prisoners are locked in their cells 24 hours a day and sedated.” Farmer v. Brennan , 114 S.Ct 1970, 1990 (1994) (THOMAS, J., concurring), quoting McGill v. Duckworth , 944 F.2d 344, 348 (CA7 1991). According to Supreme Court Justice Thomas : Proactive Approaches to PREA PowerPoint Presentation: POLICY REVIEW: Violation of 8 th Amendment rights if … Inmate suffers “ sufficiently serious harm ” (deprived of an essential human need) Officials are deliberately indifferent to the rights, health or safety of the inmate Proactive Approaches to PREA PowerPoint Presentation: POLICY REVIEW: Classification / Seg Proactive Approaches to PREA Singled out inmates… W ho are they? If the prisoner can show he belongs to an identifiable group of prisoners who are frequently singled out for violent attack by other inmates (and can establish exposure to a sufficiently serious risk of serious harm or suffers harm…) GAME ON! PowerPoint Presentation: Proactive Approaches to PREA PowerPoint Presentation: WHAT IS YOUR JAIL’S CULTURE? Deliberate Indifference … Proactive Approaches to PREA If prison officials were aware that inmate rape was “so common and uncontrolled that some potential victims dared not sleep but instead … would leave their beds and spend the night clinging to the bars nearest the guards’ station…” Farmer citing Hutto v. Finney, 437 U.S. 678, 681-682n. 4 (1978) PowerPoint Presentation: Proactive Approaches to PREA But it was CONSENTUAL PowerPoint Presentation: The quickie just wasn’t quick enough … PowerPoint Presentation: POLICY REVIEW: Include more than just the buzz word in your policies “Zero Tolerance…” This is not just a general PREA policy statement Proactive Approaches to PREA PowerPoint Presentation: POLICY REVIEW: Incorporate proactive measures showing duty to protect laced in ALL applicable policies and procedures: Proactive Approaches to PREA Investigations Inmate monitoring Staff monitoring – blind spots/cameras Staffing patterns Classification Systems Strict Code of Conduct Inmate Grievances Retaliation Potential Inmate Handbook Inmate Discipline Unannounced Security Checks Medical/Mental Health Screening PowerPoint Presentation: Examples Proactive Approaches to PREA Do your policies address specifically what areas of contact with the opposite sex is not appropriate for inmates, officers, staff and volunteers? (touching breasts, inner thigh, buttocks, groin, genitalia, anus…) “UNRELATED TO OFFICIAL DUTIES” PowerPoint Presentation: Examples Proactive Approaches to PREA Do inmates have the right to sexual privacy? What happens when an inmate intentionally removes clothing? What is considered voyeurism by staff? Video monitoring of toilets, showers, cameras? NSA Legal-Based Guideline C03.03.05 Voluntary Exposures “UNRELATED TO OFFICIAL DUTIES” PowerPoint Presentation: The PREA Act can be used to effectively educate the public commissioners to assist with budget increases. Prison Rape Elimination Act The Importance of Running a Constitutionally Safe Jail PowerPoint Presentation: We need to run constitutionally safe jails – regardless! Prison Rape Elimination Act PowerPoint Presentation: Be proactive and document efforts to set the tone and try to remove officer-on-inmate and inmate-on-inmate potentialities. Prison Rape Elimination Act PowerPoint Presentation: Compliance to the ACT is REQUIRED. If administrators want to run a constitutional jail, they need to comply with the law – the ACT. PowerPoint Presentation: Referring to national standards, the Supreme Court wrote: [T]he District Court erred in assuming that opinions of experts as to desirable prison conditions suffice to establish contemporary standards of decency . . . . [S] uch opinions may be helpful and relevant with respect to some questions, but ' they simply do not establish the constitutional minima . . . . Rhodes v. Chapman , 452 U.S. 337, 350 n.13 (1981). Prison Rape Elimination Act PowerPoint Presentation: Saying “The DOJ PREA standards don’t apply to jails” and doing nothing isn’t a good defense. We have to do something ! Prove it. Document it. Consider self-audits Prison Rape Elimination Act PowerPoint Presentation: Passing out condoms DOES NOT make your jail PREA compliant! PowerPoint Presentation: Know the Law ! Legal-based jail resources: www.jailtraining.org

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