Supreme Court has held that deliberate indifference to the substantial risk of sexual assault violates inmates' rights under the Cruel and Unusual Punishments Clause of the 8th Amendment to the Constitution. In response, the Prison Rape Elimination Act of 2003 is designed to systematically study the incidence of offender-on-offender and staff-on-offender assault in correctional facilities throughout the United States and to propose standards for preventing these acts in the future. The act contains provisions that require withholding portions of federal funds from correctional agencies if they fail to comply with standards set by the attorney general of the United States (ACA Policies and Resolutions for Member Input, 2004). This paper provides an examination of the Prison Rape Elimination Act enacted in 2003, followed by a summary of the research in the conclusion.
Review and Discussion
Background and Overview.
Today, there are more people behind bars in the United States than at any time in history, and the nation leads the world in the percentage of citizens it incarcerates (Mccormick, 2000). The costs associated with the prison industry in the U.S. are truly staggering. Just to maintain pace with an inmate population that grows by 50,000 to 80,000 a year, approximately, 1,000 new jails and prisons have been constructed since 1980, and approximately one new 1,000-bed facility needs to be added every week through most of this decade (Mccormick, 2000). At the same time, the costs of imprisoning adult offenders ranging from $25,000 to $70,000 a year, and the total bill for constructing each new cell climbing to $100,000, the yearly budget for building and maintaining existing prisons has increased over the last 20 years from $7 billion to almost $40 billion dollars (Schlosser, 1999). According to Stephen Donziger (1997), "Prisons are the largest public works program in America, providing housing, food, (and only sometimes) education, mental health services, and drug treatment" (p. 24). Unfortunately, prisoner demand continues to outpace prison supply and many corrections facilities across the country have become overcrowded and increasingly violent.
In recent years, human rights advocates have increasingly reported that constitutional violations occur on a regular basis in United States prisons (Edney, 2004). For example, a report published in May 2004 by Human Rights Watch entitled, "Prisoner Abuse: How Different are U.S. Prisons?" found that in recent years, U.S. prison inmates have been "beaten with fists and batons, stomped on, kicked, shot, stunned with electronic devices, doused with chemical sprays, choked, and slammed face first onto concrete floors by the officers whose job it is to guard them" (p. 5). As the result of such violent condition, some inmates have experienced smashed ribs, broken jaws, perforated eardrums, lost teeth, burn scars, as well as the psychological and emotional pain associated with such injuries; in fact, "Some have died" the report noted (Edney, 2004, p. 5). The report also suggested that this environment has also led to many corrections officials tacitly approving of inmate rapes and assaults, and even taking an active part as well: "Correctional officers will bribe, coerce, or violently force inmates into granting sexual favors, including oral sex or intercourse. Prison staff have laughed at and ignored the pleas of male prisoners seeking protection from rape by other inmates" (Edney, 2004, p. 5). Given the large number of prisoners who fall under the purview of the PREA, these incidents emphasize the need for such legislation.
According to the Bureau of Justice Statistics, on December 31, 2004:
2,135,901 prisoners were held in federal or state prisons or in local jails; this figure represented an increase of 2.6% from year-end 2003, but this increase was less than the average annual growth of 3.4% since year-end 1995.
There were an estimated 486 prison inmates per 100,000 U.S. residents; this was an increase from 411 at year-end 1995.
The number of women under the jurisdiction of State or Federal prison authorities reached 104,848, a 4.0% increase from year-end 2003; the number of men also increased, but at a slower rate (1.8%) for a total of 1,391,781.
As of year-end 2004, there were 3,218 black male sentenced prison inmates per 100,000 black males in the United States, compared to 1,220 Hispanic male inmates per 100,000 Hispanic males and 463 white male inmates per 100,000 white males.
As can be seen in Figure 1 below, during the period 1995 to 2001, the increasing number of violent offenders represented 63% of the total growth of the state prison population; 15% of the total growth was accounted for by the increasing number of drug offenders (Summary Findings, 2005).
Figure 1. Correctional Populations in the United States, Annual and Prisoners in 2004.
Violent offenses include murder, negligent and nonnegligent manslaughter, rape, sexual assault, robbery, assault, extortion, intimidation, criminal endangerment, and other violent offenses.
Property offenses include burglary, larceny, motor vehicle theft, fraud, possession and selling of stolen property, destruction of property, trespassing, vandalism, criminal tampering, and other property offenses.
Drug offenses include possession, manufacturing, trafficking, and other drug offenses.
Public-order offenses include weapons, drunk driving, escape/flight to avoid prosecution, court offenses, obstruction, commercialized vice, morals and decency charges, liquor law violations, and other public-order offenses.
Source: Summary Findings, BJS, 2005.
The Prison Rape Elimination Act of 2003.
Sexual assault in the nation's prisons has plagued American correction facilities since the 19th century; while the incidence of prisoner sexual assault remains unclear, recent studies reliably suggest that the problem is widespread and frequently affects the most vulnerable prisoners (Dumond, 2003). According to Dumond, "The mental health and public health consequences, both within institutions and the community, are complex and devastating, requiring comprehensive intervention and treatment. These crimes have been largely ignored by correctional managers, compromising the safety and security of correctional institutions. The Prison Rape Elimination Act of 2003 could play a vital role in managing a national scandal" (p. 354).
The legislation noted by Dumond was in response to the increasingly violent environment of many of the nation's prisons, on September 4, 2003, the Prison Rape Elimination Act (PREA) of 2003 became law; PREA represents a broad commitment to zero tolerance for rape and sexual assault "in any confinement facility of a federal, state or local government whether operated by such a government or by a private organization to include local jails, police lockups and juvenile facilities" (Halley, 2005, p. 30). While the proper role of the nation's corrections field have been debated over the years, there is a universal consensus among corrections professionals that the status quo, particularly as it applies to staff-on-prisoner assaults, is no longer acceptable, and this consensus now has the teeth of the federal government behind it as well. This position also has the full support of the American Correctional Association (ACA); the ACA has promulgated a policy statement on this issue that clearly sets forth the organization's views:
ACA recognizes that correctional agencies do not control the number of people of color who enter juvenile and adult facilities. ACA encourages detention and correctional systems to examine their existing policies, programs and practices to identify decision points where racial inequities exist. Juvenile and adult correctional agencies that have responsibility for community-based programs should work with the judiciary, other governmental agencies and community organizations to develop and implement culturally responsive intervention programs on the front and back end of the correctional systems to minimize the number of people confined in detention and correctional systems consistent with public safety. Correctional systems should gather and disseminate data and information to all criminal justice agencies about the extent of the disparity. Detention and correctional agencies should use this information and work collaboratively with other components of the criminal justice system and non-justice, community-based service providers and organizations to develop systemic solutions. (
ACA Policies and Resolutions for Member Input, 2004, p. 69)
At the time this policy statement was issued, the ACA also recommended that correctional agencies adopt the following strategies to reduce sexual misconduct in the nation's corrections facilities:
Support and/or strengthen legislation making sexual contact with offenders / detainees a felony offense;
Establish mental health and medical protocols addressing investigative procedures;
Report all instances of sexual misconduct to the proper authorities for investigation and possible criminal action;
Foster an environment in which the reporting of alleged sexual misconduct behavior is encouraged and reports may be made without fear of reprisal;
Establish, publicize and enforce a zero-tolerance policy regarding all forms of sexual misconduct;
Develop and adopt specific, clear and concise policies and definitions that clarify interpretations of the term "sexual misconduct" and that provide clear direction for the agency's response to violations of the policies;
Develop policies and procedures that clearly explain the investigative process to staff and offenders, including policies on transfer and movement or separation of the people alleged to be involved;
Provide orientation and ongoing in-service training to staff, volunteers and contractors emphasizing the zero-tolerance policy and explaining state law, case law, administrative policies on the issue and providing…