Prison Rape Elimination Act (PREA)

¶ … Prison Rape Elimination Act (PREA)

When people in the United States are incarcerated, it is the government's responsibility to ensure their safety and welfare. One of the major problems facing convicts in many correctional facilities is rape. In response, the Prison Rape Elimination Act became a mandatory requirement for every adult and juvenile correctional facility in the United States and military facility abroad effective August 2013. This paper provides a review, critique and comparison of two peer-reviewed journal articles concerning this legislation to determine the Act's scope and intent. A summary of the research and important findings concerning the Prison Rape Elimination Act are presented in the conclusion.

Review and Discussion

In their study, "The Passage and Implementation of the Prison Rape Elimination Act: Legal Endogeneity and the Uncertain Road from Symbolic Law to Instrumental Effects," Jenness and Smyth (2011) report that the problem of rape in American prisons has been known for nearly two centuries, but it was not until the turn of the 21st century that President Bush acknowledged the efforts of the U.S. Congress to characterize prison rape as a national social problem that required substantive legislative intervention. As a result, President Bush signed into law and authorized significant federal funding to the tune of $60 million for the Prison Rape Elimination Act (PREA) in 2003 (Jenness & Smyth, 2011). According to Jenness and Smythe, "In accordance with this law, in 2009 the National Prison Rape Elimination Commission, a bipartisan group of lawmakers, advocates, and prison rape survivors, released its final report and proposed standards to prevent, detect, respond to, and monitor sexual abuse of incarcerated or detained individuals throughout the United States" (p. 489).

Despite this seeming progress in addressing this national social issue, Attorney General Eric Holder failed to meet the statutory deadline established by the National Prison Rape Elimination Commission by mid-2010 over concerns about the costs of implementation, meaning that these reforms remained recommendations rather than the law of the land. In this regard, Jenness and Smythe emphasize that, "These are historic moments in criminal justice policy development and reform [and] illustrate the failure of symbolic law to generate instrumental effects" (p. 490).

These researchers present a number of first-hand accounts of the severity of the problem of prison rape in America and suggest that the failure to adopt the recommendations of the National Prison Rape Elimination Commission means that millions of incarcerated men, women and juveniles in America remain vulnerable to being sexually assaulted and infected with the HIV / AIDS virus in the process with little or no recourse available to them. In this regard, Jenness and Smyth note that while the PREA cites an incidence level of 14% of convicts being raped, other authorities place the estimate as high as 40%. Although prisoner rape is violative of international, U.S., and state laws, the historic response to prisoner rape has been inadequate and indifferent. According to Jenness and Smythe, it was the specific intent of the PREA to address these issues. As Jenness and Smyth point out, "Current institutional policies regarding sexual violence are in need of reform and greater enforcement. The Prison Rape Elimination Act creates important incentives and standards, encouraging states to respond more responsibly" (p. 490). In sum, despite the adoption of the recommendations by the National Prison Rape Elimination Commission, PREA represents a step in the right direction in modern correctional management.

By contrast, in her study, "Introduction: Sexuality, Criminalization, and Social Control," Sears (2010) reports that, "Although PREA addresses a clear and pressing problem (sexual violence in prison), observers have criticized its primary focus on violent rape between male prisoners and its relative neglect of staff sexual abuse, the complexities of sexual coercion, and structural violence within the prison environment" (p. 1). Moreover, Sears maintains that the Prison Rape Elimination Act will unfairly target homosexual and bisexual juvenile offenders. According to Sears, "PREA has also effectively criminalized same-sex sexual activity between institutionalized girls, illuminating the capillary power of the adult male prison system to spread its policies to lower institutions of social control" (p. 2). Based on her analysis, Sears suggests that the juvenile justice system in the United States "robs girls of their sexual agency and systematically pathologizes, punishes, and marginalizes lesbian, bisexual, and queer youth" (p. 2). Taken together, Sears argues that although reforms are needed, the provisions of PREA are misplaced and are not the appropriate mechanism to achieve them.