The Department of Justice has recently issued some long-awaited rules all incarceration facilities will be expected to use to “prevent, detect and respond to prison rape.” The guidelines, though, come with a $6.9 billion price tag for state and municipal jails and prisons with no indication of a funding source, prompting the conservative American Action Forum to wonder if such a system is appropriate:
Despite an admirable goal, this “landmark rule” imposes a costly, complicated regulatory framework on states currently battling recurring budget deficits, offers little assurance of success, and fails to explain this new burden to the states as required by the Unfunded Mandate Reform Act.
The administration prescribes 43 different action items to combat prison abuse. Such tasks range from “Hiring and Promotion Decisions,” to the specific parameters of a “Sexual Abuse Incident Review.” Under this new rule, federal requirements include minimum staffing levels for juvenile facilities, no time limit for “when an inmate may submit a grievance regarding [sexual abuse],” and “methods to ensure effective communication with inmates who are deaf or hard of hearing.” It requires that inmates be screened “for risk of being sexually abused or sexually abusive,” and that post incident reviews “consider whether the incident was motivated” by hate.
The administration cannot quantify how this regulation will reduce abuse. It merely establishes a series of “best practices” and amorphous requirements on states and local governments. There are no metrics for success. The DOJ itself admitted, “a requirement for specific outcome measures would be impractical to implement.”
The roots of the new rules lay in the Prison Rape Elimination Act of 2003, which created a commission to perform studies and to give recommendations to the attorney general to set standards. The commission completed its work in 2009, so this is a multi-administration, bipartisan effort.
While the Department of Justice cannot force non-federal detention facilities to comply with its policies, any non-compliant facility stands to lose five percent of its federal funding.
The $6.9 billion price tag is also a culmination of projections for the next 15 years, not a lump sum. The DOJ estimates that the average prison will incur an additional $55,000 per year to comply with standards. The DOJ does also attempt to create a cost-benefit ratio to justify implementing sexual misconduct policies by calculating how much a prison rape currently “costs.” They put the value between $310,000 and $480,000 per victim, even more for juveniles. The language the DOJ uses for the evaluation is full of jargon and references to the effects on human dignity. It doesn’t state if any actual legal settlements for prison rape cases may have contributed to the estimate. If it did, you’d think they’d state it outright, as it makes a more compelling case for any recalcitrant prisons to comply. (If you would like to read 268 pages of the guidelines and the Department of Justice responding to various concerns about them, you can view the rules here [pdf].)
The lack of measurable goals or even firm standards presents more of a challenge. The DOJ tells prisons and jails that they need to have solid enough staffing levels to comply with the provisions set forth in their regulations, but it’s not able to standardize what those staffing levels should be for adult jails and prisons, given that states have different guidelines (and sometimes laws) overseeing staffing numbers. If a prison has to hire a new guard or employee to meet the DOJ’s rape prevention standards, there goes that cost average. The very first provision requires designating a point person to coordinate compliance. In some cases that might require a new position. One comment received by the DOJ asked if such guidelines might run afoul of the 10th Amendment, but given that the guidelines are totally “voluntary” (“So, I guess you don’t need that federal funding then?”), there’s probably not much recourse.
The introduction to the new rules even recognizes that if prisons are successful, one of the results might be an increased willingness by inmates to report sexual abuse and therefore the incident numbers could actually increase, which is a nice way of setting yourself up to call the standards successful no matter the outcome.
A study from 2008 showed that 10 percent of all inmates had faced some sort of sexual misconduct (half from prison staff) while imprisoned, so arguably there's a need for government action in this area. Sadly, though, imprisoning fewer people to make it easier to monitor and prevent sexual misconduct is an idea far beyond the reaches of these rules.