Some Republican Governors Continue To Dodge Federal Anti-Prison Rape Law

03/26/2015 05:30 am ET | Updated Mar 26, 2015
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WASHINGTON -- Some Republican governors continue to dodge the federal law that aims to prevent rape in U.S. correctional facilities, despite a looming Justice Department deadline that will hit uncooperative states with financial penalties.

The lack of enthusiasm shown by some states to meet basic federal standards may create a setback for groups trying to stop sexual assault in American prisons. Already, criminal justice reform advocates are fearing that lawmakers on the Hill will soon push a proposal to weaken the penalties on states that don't comply to federal rules.

At issues is the Prison Rape Elimination Act (PREA), which passed in 2003 with a high level of bipartisan support. After years of study, the Obama administration finalized the law's requirements in 2012. The law, which applies to public and private lockups and extends to both adult and juvenile offenders, sets a number of anti-rape requirements -- including that youth must be housed separately from adults, that sexual abuse victims must have access to free forensic medical evaluations and that facilities beef up reporting on sexual assault.

Advocates consider implementing the law to be a fundamental step states must take to provide basic protections in prisons. According to the Bureau of Justice Statistics, about 200,000 inmates were sexually abused in 2011 -- excluding kids, who are particularly at-risk for sexual assault when held in adult facilities.

To incentivize states to adopt the guidelines, the law dictates that nonparticipating states will lose certain DOJ funds -- such as some funding for the STOP Violence Against Women Formula Grant Program, which helps states combat violent crimes against women. The Justice Department announced last year that 43 states were either in compliance with the law or had promised that they would use a portion of grant funds to work to achieve compliance in the future. But seven states led by Republican governors -- Arizona, Florida, Idaho, Indiana, Nebraska, Texas and Utah -- did not make that promise, the agency noted.

It wasn’t just bureaucratic hold-ups keeping the states from pledging to comply with the requirements. Several of the governors explained that they were defying the law on purpose, arguing that the uniform federal approach was counterproductive to their state anti-rape efforts. On March 5, the Justice Department again told states they had to implement reforms or commit to complying by May 15. It’s still unknown which hold-out states will meet the deadline. Moreover, some appear unfazed by the prospect of being penalized.

Gov. Gary Herbert (R) of Utah wrote in a letter to a DOJ official last May that the state was not implementing certain PREA recommendations because "they are not sound policy" and "we need more flexibility from the federal government." He cited, for instance, the requirement of officers announcing their presence when they enter facility areas with opposite-gender inmates. Herbert said this could endanger officers.

The "intent of this standard is to provide inmates with basic human dignity while they shower, change clothes... etc.," Jesse Lerner-Kinglake, a spokesman for human rights organization Just Detention International, wrote in an email to HuffPost. "Staff safety and inmate dignity are not mutually exclusive."

A spokesman for Herbert told HuffPost that the governor's position hadn't changed and they expected federal officials to penalize Utah. "We [decided] that maintaining good policy for Utah was more important," he said.

In Idaho, a spokesman for the state Department of Correction also said their position had not changed, but noted that they were evaluating how to become compliant in the future. He said that "Idaho is developing its own PREA standards."

In Indiana, Gov. Mike Pence (R) wrote last year that "there is little empirical data" showing certain PREA standards to be effective and that fully complying the law would require "redirection of millions of tax dollars currently supporting other critical needs for Indiana."

Pence spokeswoman Christy Denault said that Indiana will not be in compliance by the May deadline. Regarding the use of grant funds, she said that Indiana is currently reviewing the documents from the Department of Justice to determine a course of action. A spokesman for the Indiana Department of Correction indicated that the state is shifting toward compliance. "We want to avoid a penalty," he said, and noted that discussions with the Justice Department are ongoing.

Arizona and Texas are under new Republican leadership since the Justice Department called them out last year. A spokesman for Arizona Gov. Doug Ducey said that the new administration is still assessing the law's requirements and figuring how to respond. He claimed that adult corrections in the state are "100 percent compliant," based on assessments by a DOJ-trained auditor.

Texas Gov. Greg Abbott's office did not respond to request for comment, although a spokesman for the Texas Department of Criminal Justice said that its goal is to be "as compliant as possible with PREA standards without jeopardizing the safety and security of our institutions." Abbott's predecessor, former Gov. Rick Perry (R), called PREA requirements "cumbersome" and a "regulatory mess."

Sen. John Cornyn (R-Texas) introduced an amendment to PREA last year that would have weakened financial penalties to states who didn't comply with the law, The Marshall Project reported. He contended that the penalties might unintentionally harm important programs, like those for domestic violence victims.

Human rights groups continue to push DOJ to not back away from enforcing the federal guidelines.

The National Prison Rape Elimination Coalition told Attorney General Eric Holder when Cornyn’s amendment was introduced that "any weakening of the financial penalties reduces the incentive to fully comply with PREA." The amendment ultimately failed, but the coalition sent a letter to Cornyn last month urging him not reintroduce it.

"Nothing has been introduced yet -- but it’s expected," said Amy Fettig, senior staff counsel for the ACLU’s National Prison Project. Cornyn's office did not respond to comment.

Lerner-Kinglake, from Just Detention International, said that supporting PREA is a no-brainer. "The PREA standards represent good corrections policies -- and they were developed with the input of corrections officials," he said. "States have an absolute responsibility to keep the people they lock up safe from this violence."

The majority of states seem to agree that the federal standards are worthwhile. Florida, for example, didn't make the Justice Department cut last year, but a spokesman for the Florida Department of Corrections said that this year, the state plans on using grant funds as it works toward compliance. And Nebraska provided HuffPost with proof that it had already sent a signed assurance statement to the agency last year.

"I appreciate having this opportunity to further review my state's effort on this important issue," wrote then-Nebraska Gov. Dave Heineman (R) in his letter.

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