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Delayed Responses

Today marks the deadline for states to comply with prison rape laws. The results? More are, some may not be, and most just want an extension.

Governors across the country are on deadline today: May 15 is the final date for every state to report whether they are in compliance with the Prison Rape Elimination Act (PREA), a 12-year-old law that established a set of standards to prevent the sexual abuse of inmates.

The reports have been trickling in, and so far, seven governors have implemented all prison rape standards, according to the Department of Justice’s tally, which was last updated on Wednesday. Those states include Maryland, Mississippi, New Hampshire, New Jersey, North Dakota, Oregon, and Tennessee. It represents a small but significant uptick since 2014, when only two states, New Hampshire and New Jersey, certified compliance.

The Justice Department has made information about 26 states available, and no states have yet to refuse to comply with PREA altogether; in 2014, six governors did not adopt the law and lost five percent of certain federal funds, the only penalty for noncompliance. One of those six governors was Indiana Governor Mike Pence, who wrote in a letter to the Department of Justice: “There is little empirical data showing these standards to be effective.”

Pence changed course this year and issued an “assurance,” a promise that the state would work towards PREA compliance and would commit funds towards implementation.

In 2014, the vast majority of states – 42 – issued assurances. As of Wednesday, 19 states have done the same this year.

“This deadline is meaningful because it gives us a sense of where everyone is,” said Chris Daley, deputy executive director of Just Detention International, an advocacy organization that works to stop prison rape. “Without it, it would be impossible to tell what was going on in all 50 states.”

But not everyone believes today’s deadline brings transparency; states that offer assurances are not required to report their progress. They are also not subject to the same financial penalties as states that refuse to comply.

“This assurance stuff, it’s fiction,” said Pat Nolan, a former commissioner of the National Prison Rape Elimination Commission, a bipartisan group tasked with drafting the PREA standards. “All they have to do is say, ‘I’m trying,’ and they don’t have to produce a shred of evidence.”

Moreover, the PREA legislation as written allows states to issue assurances in perpetuity – in other words, they can renew their promise to eventually become PREA compliant every year, and there is no limit on the number of assurances that each state can issue.

There have been multiple attempts to amend PREA over the past year. Last fall, there were efforts in Congress to remove the five percent penalty, but the bill never made it to the floor. The advocacy community is now divided over a new amendment that seeks to restructure the penalty system, increase reporting requirements, and set a final deadline of 2018 for states to issue assurances. However, the proposal would also allow states to seek waivers annually until 2021. Discussions about these changes are ongoing.

“We had never done this before, and the fact of the matter is, there will be mistakes,” said Daley from Just Detention. “None of which is reassuring for someone who is currently incarcerated, of course.