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Pulling the Teeth from the Prison Rape Elimination Act

Delay, defy, defang.

When the United Nations Committee Against Torture appraised America’s justice system in 2006, it had special praise for the Prison Rape Elimination Act (PREA), a 2003 law that called for “zero-tolerance” toward sexual abuse in detention facilities and established a set of standards to prevent and respond to sexual abuse.

That international admiration has now soured into disappointment. In its latest report, released last Friday, the committee cited, among other shortcomings of American criminal justice, the “widespread prevalence of sexual violence” against American prisoners, and the failure of states to put the rape law into practice. According to the most recent estimates by the federal government, nearly 200,000 people were sexually abused in American detention facilities in 2011, largely unchanged since the first survey in 2007. After more than a decade of bureaucratic lethargy, rape elimination is not in sight.

And the U.N. did not mention a quiet effort underway to make the law even less effective by eliminating its only enforcement mechanism.

PREA required states to certify by May of 2014 that they were in compliance with the standards, or promise that they would eventually comply. States that refuse to do either can be penalized with a loss of five percent of their federal funding for prison-related purposes. But a proposal that originated in the Senate Judiciary Committee would almost completely eliminate financial penalties for states that defy the rape prevention law. The proposal, written by Senator John Cornyn, Republican of Texas -- the most vocally defiant state -- was agreed on by the committee in an after-midnight session in September and was attached to an unrelated bill.

The bill carrying the PREA amendment failed to pass, but members of the National Prison Rape Elimination Commission, a federal body that spent years developing the PREA standards, say efforts are already underway to reintroduce the amendment during the next legislative session.

In a November letter to Attorney General Eric Holder, the Commission members requested a meeting to “discuss our grave concern about recent efforts to delay or weaken effective implementation” of PREA. So far, six states are refusing to comply with the standards: Arizona, Florida, Idaho, Indiana, Texas, and Utah. The letter goes on to point out that only two states have certified compliance, while forty-six states and territories have submitted assurances to eventually comply, which allows them to keep their funding.

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“But those assurances will become hollow — and states and territories may not make them — absent the threat of financial penalties for failure to become compliant,” the Commission wrote.

Neither Senator Cornyn, who introduced the amendment, nor Senate Judiciary Committee Chairman Patrick Leahy, who voted for the amendment, responded to requests for interviews. During the Senate Judiciary Committee hearing on the amendment, Cornyn explained that the federal funds tied to PREA enforcement include grants for police and victims of domestic violence, and that a loss of those resources would harm important programs. “This will preserve the ability of the states to implement PREA while ensuring we are not unintentionally harming victims and law enforcement,” said Cornyn, in support of his amendment.

The passage of the amendment was a surprise to many who had been involved with PREA from the beginning, including organizations such as Just Detention International, which advocates more humane prison policies. “It caught us all by surprise,” said Chris Daly, the group’s deputy executive director. “The effect of this amendment absolutely guts the enforcement, but I actually don’t think that was the intent,” explained Daly. Rather, he said, the amendment was prompted by concerns from police and other recipients of those federal funds. He and other groups are attempting to compromise with government officials on new language that will not remove financial penalties.

The money at stake is not huge – about $27.5 million in all, according to the National Criminal Justice Association. For Texas, where Governor Rick Perry has denounced PREA as an example of federal meddling in state affairs and declared the state would not comply, the penalty would be $1 million. In a letter to Attorney General Holder, Perry called PREA “counterproductive and unnecessarily cumbersome and costly.”

The move to weaken enforcement is just the latest impediment to fulfillment of the rape law. Pat Nolan, a member of the National Prison Rape Elimination Commission and the former Republican leader of the California State Assembly, cited a litany of delays and missed deadlines -- most recently the Justice Department’s decision earlier this year to put off audits of state facilities required under PREA .

“It’s been a passive-aggressive behavior,” he said. “They haven’t publicly come out and said we hate this law and don’t want to enforce it, but all their actions show they want to drag this out as much as possible.”