Monday, January 31, 2011;
THE LATE SEN. Edward M. Kennedy (D-Mass.) and Sen. Jeff Sessions (R-Ala.) did not agree on much. So it was remarkable when they joined to champion the Prison Rape Elimination Act (PREA).
Enacted in 2003, the landmark law was meant to address the scourge of sexual abuse behind bars that for too long had been accepted as an unavoidable byproduct of incarceration. It is not. Incidences of sexual abuse represent egregious lapses in institutional order and security. They are inhumane and inexcusable violations that scar tens of thousands of adult and juvenile inmates each year, often complicating their ability to reintegrate into society.
Last week, the Justice Department took an important, long-overdue but still inadequate step toward fulfilling PREA's promise. In releasing draft regulations to implement the landmark legislation, the department closely tracked many of the recommendations of the National Prison Rape Elimination Commission, the congressionally created panel that spent some six years studying the problem. The department concluded, for instance, that PREA addresses not just rape but all manner of sexual abuse in correctional facilities - an interpretation resisted by some corrections officials. It calls for the adoption of a zero-tolerance policy for sexual abuse; maintains prohibitions on cross-gender pat and strip searches of juveniles; requires a facility to designate an on-site PREA coordinator; and calls for background checks of prospective corrections officers to screen for past incidents of inmate abuse.
But the department punted on several crucial issues - a particularly frustrating development given that it had the benefit of a thorough and credible report from the commission. The department failed to articulate rules for independent audits of facilities and did not come to any conclusions about how often such audits should take place. (The commission recommendation: every three years.) Such evaluations are crucial in determining whether facilities are complying with the law's mandate. Perhaps one reason the Justice Department had a hard time with audits is that it also failed to specify what criteria should be used to determine whether an institution is in compliance with the law.
Administration officials argue that the draft regulations are just that - preliminary proposals to be fleshed out once more information is gathered; the department will be accepting public comments for approximately two months. Some delay and duplication are beyond the administration's control. But it is perturbing that the department has not made more progress in answering these critical questions. Didn't it miss a congressional deadline in 2010 because of protracted "listening sessions" in which it tilled much of the same ground already worked by the commission? As it now stands, the department will probably not finalize its rules until the end of the year.
If there is a silver lining, it is that the Justice Department can reconsider some of its initial determinations; one of the decisions it should rethink is its exclusion of immigration detention centers from PREA's reach. Everyone in government custody - regardless of the type of institution - should be assured of an environment free from abuse.