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Sentenced to Wait: Efforts to End Prison Rape Stall Again

The Prison Rape Elimination Act was passed in Washington 2003. It still hasn’t been fully implemented.

Texas prison inmates report being raped at some of the highest rates in the country, and the problem only seems to be worsening: The three most recent reports issued by the U.S. Department of Justice show stubbornly high levels of reported sexual assault.

But late last month, Texas Gov. Rick Perry wrote a letter to U.S. Attorney General Eric Holder signaling that he'd rather lose federal funds for corrections than comply with new rules under the Prison Rape Elimination Act requiring states to substantially improve detection and prevention of sexual assaults in prisons.

"Washington has taken an opportunity to help address a problem in our prisons and jails, but instead created a counterproductive and unnecessarily cumbersome and costly regulatory mess for the states," Perry said of the regulations.

Perry asserted that some of the federal rules would duplicate safeguards already in place, including, for example, the development of comprehensive sexual assault training for staff and prisoners.

A spokesperson for Gov. Perry's has not yet responded to calls for comment.

Prisoner advocates fear that other states will follow Texas's example, or simply once more find a way to delay declaring their intentions and thus skirt facing immediate sanctions.

Thursday was the deadline for every state governor to notify the Department of Justice whether they intended to abide by the rape elimination act or absorb the financial penalty.

The legislation requires every state in the country to substantially improve their ability to detect and prevent such assaults through an array of surveillance and disciplinary measures. The legislation first passed Congress — unanimously — in 2003, and after nearly a decade of subsequent study and negotiations, formal reform measures were enacted in 2012.

States that don't comply with the rules — aimed at reducing assaults and improving means of effective reporting by inmates — will be hit with a cut to their federal funding for corrections.

But so far the Justice Department hasn't said which states intend to comply and which don't, adding to confusion and frustration among advocates and the male and female prisoners they represent. Already, advocates complain, the Justice Department is allowing state governors to submit what are known as "assurance letters." These function as a promise to the federal government that the state will eventually comply with the law.

But, there's no specific deadline for when a state has to make good on its promise, and, according to people close to the process, the Justice Department just recently decided that states that submit an assurance letter will be allowed a three-year grace period before their facilities are audited by federal inspectors. In the meantime, those states won't be subjected to any financial penalties.

"This is a huge step backwards," said Carmen Daugherty, policy director for the Campaign for Youth Justice, a non-profit that advocates for juvenile justice reform. "We've been pushing the Justice Department to set deadlines for compliance for a long time, and now it seems like states are going to be able to just kick the can further down the road. It's really a big blow for implementation and now I feel like nothing is going to change." Others close to the process suggested that the National Governor's Association may have successfully pushed the Justice Department to be more lenient in just the last few days.

On May 13, 2014, the association's executive director sent a letter to Holder, suggesting that the Justice Department be more flexible.

"Despite the law's enactment in 2003, delays in providing states the necessary guidance to evaluate and meet statutory and regulatory requirements have made compliance with proposed deadlines nearly impossible," the letter said.

A spokesperson for the association didn't immediately respond to calls for comment.

Brenda Smith, an American University law professor who was closely involved in developing the new regulations, said state governors are simply stalling.

"Justice has capitulated to pressure from the very forces that need to be held accountable and that includes governors, correctional authorities, and states, which have a constitutional obligation to provide safe and humane care," said Smith. "It's disappointing and it's totally inconsistent with the spirit of the standard. Also, consider the harm that we're actually concerned about here. Every day, people are getting raped and sexually abused in confinement as a result of their vulnerability, and I just don't think that's okay to give states a pass on this and give them an extra three years comply."

In an email, a Justice Department spokesperson acknowledged that governors who submit an assurance letter won't be audited for three years, but would not provide a list of states that had sent one. The spokesperson hasn't yet responded to the charge that the department succumbed to state and industry pressure.

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