Presentation on theme: "The Prison Rape Elimination Act (PREA) and Strategies for Keeping Youth Safe in Juvenile Justice Facilities Dana Shoenberg Senior Staff Attorney Center."— Presentation transcript:
1The Prison Rape Elimination Act (PREA) and Strategies for Keeping Youth Safe in Juvenile Justice FacilitiesDana ShoenbergSenior Staff AttorneyCenter for Children’s Law and Policy
2Plans for This SessionExplain the Prison Rape Elimination Act (PREA) and current status of the PREA standardsDiscuss dynamics of juvenile facility sexual misconduct and common themes in facilities with these problemsExamine aspects of facility operations through a sexual misconduct prevention lensExercises and Discussion
3The Prison Rape Elimination Act of 2003 Provides for “analysis of the incidence and effects of prison rape in Federal, State, and local institutions” and “information, resources, recommendations and funding to protect individuals from prison rape.”
4Congress’ Purposes in Enacting PREA Establish a zero tolerance standard for incidence of prison rape in the U.S.Make prevention a top priorityDevelop and implement national standards for the detection, prevention, reduction and punishment of prison rapeIncrease available data and informationStandardize the definitions used for collecting data
5PREA Purposes, cont.Increase accountability of prison officials who fail to detect, prevent, reduce and punish prison rapeProtect Eighth Amendment rights of Federal, State and local prisonersEstablish grant programsReduce costs of prison rape for facilities, public health and public safety
6So what does PREA have to do with Juvenile Facilities? It’s all in the definitions:“The term ‘prison’ means any confinement facility of a Federal, State, or local government, whether administered by such government or by a private organization on behalf of such government, and includes:(A) any local jail or police lockup; and(B) any juvenile facility used for the custody or care of juvenile inmates.”“Inmate” includes anyone incarcerated or detained for violating the law or probation, parole, etc.
7Major PREA Provisions: National Statistics, Data and Research Bureau of Justice Statistics (BJS) annual comprehensive statistical review and analysis of incidence and effects of prison rapeFederal, State or local officials or facility administrators must participate in the national survey and provide access to inmates under their legal custody if asked to participateReview Panel on Prison Rape conducts annual hearings concerning the operation of the prisons with the highest and lowest incidence of prison rape to identify patterns – issued reports in 2008, more coming
8Major PREA Provisions: NIC Clearinghouse Provision of information and assistance to Federal, State and local authoritiesTraining and education programsAnnual report of activities to CongressVideo trainings, policy considerations guides and other materials availableGo to
9Major PREA Provisions: Grants Grants made between 2004 and 2006For:protecting inmates (prevention, investigation and prosecution); andsafeguarding communitiesMaryland received a grant to develop data capacity
10National Prison Rape Elimination Commission (NPREC) Mandate to conduct a legal and factual study of effects of prison rape in the U.S.Report due within 2 years of initial meeting – it took 5 yearsHearings around the countryRequired to recommend national standards that do not create substantial increased costs to agencies
11NPREC Recommended Standards Report and recommended standards issued June 2009 (following drafts and public comment)Separate standards for juvenile facilities, adult prisons and jails, community corrections and lockupsU.S. Department of Justice has one year to review the recommendations and issue standards - will be mandatory for federal agencies and recipients of federal fundsAccreditation organizations must have standards consistent with PREA
12Testimony from NPREC Hearings “I experienced the most damaging and emotionally devastating treatment of my life thus far when I was in a youth correctional facility….I survived threats of violence, unwanted sexual touching and verbal abuse that were severe beyond belief.”“[A] female staff person forced herself on my son and performed oral sex on him. My son did not report this incident at the time because he thought no one would believe him. Another youth who walked in as it was happening did not report it, and no one else was around when it happened. Not long after this first incident, my son was raped by another inmate….To this day, nearly four years later, he still has rectal bleeding….”
13Testimony from Hearings, cont. “I immediately noticed that the male corrections officers seemed too nice to the girls, and were overly familiar with them – putting their arms around them, or touching them on their face, shoulders or waist, and letting the girls touch them. I saw these same corrections officers give these girls candy or extra food, and let them out of their cells when they were supposed to be on lockdown….In my one month at [facility], three different girls told me they were raped by boys who corrections officers allowed to go into their cells.”
14Testimony from Hearings, cont. “Although A.D. was never accused of or charged with a sex offense, he was automatically placed in a sex offender unit, simply because he is gay. Because A.D. lived in the sex offender unit and was known to be gay, other wards expected that he would service them sexually. This was exacerbated by staff, who called him homophobic names, made sexualized references toward him in front of the other wards, and refused to take any steps to protect him from sexual harassment and assault. Wards regularly exposed themselves to him, threatened him on the way to the showers, and propositioned him for sex. One youth in his unit who was a known gang member forced A.D. to give him oral sex after threatening that he would get his gang to jump him next time he left the unit.”
15Why wait?Final PREA standards may not have been issued by DOJ, but facilities and systems remain responsible for the safety of their residents. They can examine themselves through a sexual misconduct prevention lens and begin making improvements.
16Common Themes in Facilities with Sexual Misconduct Problems Cultures that don’t respect residentsBroken reporting, investigation and/or grievance systemsLack of sufficient effective programmingInsufficient mental health supportsMid-level supervision breakdownsStaffing challenges: not enough people, not the right background and temperament, not enough training, high turnover
17Key concepts to think about Isolation Vulnerability Power
18Conditions Topics Can Be Divided Into… Classification and intake systemHealth and mental health careAccess to counsel, the courts, and familyProgramming, education, and recreationTraining and supervision of staffEnvironmental issuesRestraints, isolation, due process, and grievancesSafety for youth and staff
19Organization of NPREC Standards NPREC Recommended Standards are divided into:PlanningPreventionDetection and ResponseMonitoringToday’s presentation incorporates these concepts into the CHAPTERS review framework.
20Assessing Conditions Observation Document Review Interviews Youth Staff at all levelsVolunteersParents
21Classification and Intake Youth with serious medical or mental health needs that can’t be met by the facility should not be sent there.Is the facility overcrowded? Overtaxed facilities have a harder time keeping youth safe.Appropriate age limitations
22Classification and Intake, cont. Youth’s immediate and long-term individual needs are screened at intake so that the facility can meet their needs:DisabilitiesHealth and mental health issuesEducational status and historyFamily informationIntake/detention interviews occur in privateInformation sharing limited to need-to-know
23Classification and Intake, cont. For housing, programming and job assignments, classification staff consider youth characteristics, including:Age, suicide risk, history of prior victimization, current charges and offense history, alleged sex offenses, and when appropriate, gang affiliation or other relevant informationSize, level of emotional and cognitive development, mental or physical disabilities, intellectual or developmental disabilitiesEven in facilities with only one or two housing units, these factors can be considered in staffing, showering, room assignments
24Classification and Intake, cont. No automatic policies based on race or sexual orientation of youthHow will you keep LGBT youth safe without penalizing them?Facilities should have individualized plans as needed for particular youths’ safety and well-being, and be prepared to keep especially vulnerable populations safe without resort to isolation
25Orientation Orientation for all youth should include: Institutional rightsRules and disciplineProceduresHow to report if feel unsafeAccessing health and mental health servicesGrievance systemIn youth’s primary language and with attention to the youth’s age, disabilities and literacy needsPrevention messaging in the facility – posters, posted hotline numbers, etc.
26Orientation, cont. NPREC Recommended Training Requirements: Resident’s right to be free from sexual misconduct and from retaliation for reporting abuseDynamics of sexual abuse in confinementCommon reactions of sexual abuse victimsAgency sexual abuse response policies and proceduresHow to present these concepts in a way youth will hear? Peer education as a promising model
27Health and Mental Health Care Services provided with sensitivity to youths’ histories of physical and sexual victimization and with informed consentMental health screening for all, with follow-up assessment and treatment planning for youth with positive screensOpportunity to access mental health care later in stay – staff and youth understand and have access to the referral processStaff not barriers to care – youth shouldn’t have to tell line staff their problems in order to get care (emergency exception)
28Health and Mental Health Care, cont. Youth with sexual victimization histories receive mental health services from staff with special expertise or have access to outside practitionersVictimized youth receive immediate specialized services
29Health and Mental Health Care, cont. NPREC Recommended Training Topics for facility medical and mental health care practitioners:How to detect and assess signs of sexual abuseHow to preserve physical evidenceHow to respond effectively and professionally to young victims of sexual abuseHow and to whom to report allegations or suspicions of sexual abuseDetecting, assessing and responding to sexual abuse victims
30Access: Telephone, Mail and Visitation Youth need to communicate with people they trust in order to reduce isolation and support return to their communities.
31Telephone, Mail and Visitation, cont. Check for:Low limits on numbers of letters a youth may writePhone calls too short to complete collect calls and have meaningful conversationProhibitive costs of telephone calls without options for indigent familiesVisitation times that are unrealistic for working familiesAre there opportunities for youth to visit with their children and with important mentors?
32Telephone, Mail and Visitation, cont. Kids may not tell anyone but their families about being victimizedHow is the facility engaging families as partners?Parent orientation?Ongoing opportunity to ask questions and provide feedback on what they hear from youth?Easily accessible system for reporting problems?Identified personnel to communicate with?Will you notify parents of any alleged victimization of their children? Do you have a timeline?
33Access to Courts Check for: Youth access to legal assistance for needs beyond their delinquency mattersCan youth make and complete free and confidential calls to attorneys?Are private areas available for confidential attorney visits at reasonable times?Is legal correspondence kept confidential?Can youth write and call victim advocacy and rape crisis organizations and communicate with them in private settings?
34ProgrammingActive schedules of education and other programming keep youth engaged, busy and developing new skills.Do youth on segregation status have more education than just homework packets?How do limited English proficient youth get information, education, participate in activities?Are youth with disabilities getting services they need?
35Programming, cont.Does programming reflect the needs and interests of youth?Are girls receiving opportunities equivalent to the boys?Can youth practice their religions and have access to appropriate clergy?
36Programming, cont.Behavior management systems should be implemented fairly and reward good behavior.To the extent possible, institutional culture emphasizes rewarding success in lieu of focusing on or punishing failureYouth understand the graduated scale of incentives for positive behaviorRewards and sanctions are implemented fairly and consistentlyBehavior management system is institution-wide3636
37Programming, cont.Findings from the Survey of Youth in Residential Placement:Risk of victimization is related to perceived fairness and accessibility of staff.Youth who:Were beaten upHad property stolenWere forced to engage in sexual activityWere twice as likely to report that staff were not accessible and did not treat residents fairly than to report that staff were accessible and fair.3737
38Training and Supervision StaffingPre-employment record checks and periodic re-screeningNo promotion of staff who have been involved in sexual abuseSufficient staff to ensure adequate and continuous supervision of youth, visitation, transportation to health appointments, and other scheduled activitiesStaff do not sleep while on dutySame gender staff always on duty in living unitsStaff have sufficient language capability to serve limited English proficient youth3838
39Training and Supervision, cont. Cameras are never a substitute for live supervisionHow are blind areas handled?What are the limitations on youth being alone with other youth or a staff person?Where can people hide or avoid supervision in your facility?Storage rooms, closetsBedroomsShowers, bathroomsWork detail, kitchensClassrooms, LibraryOfficesRecreation areas3939
40Training and Supervision, cont. Training includes:Clear messages about prevention, intervention and response to sexual misconduct, including need to report, consequences for failing to report and how institutional security can be compromised by sexual misconductUnderstanding adolescent development and the trauma histories of many youth in their careHow to identify red flags and report themStrategies for working with youth with mental health needs and identifying need for mental health interventionHow to handle sensitive disclosures by youth4040
41Training and Supervision, cont. NPREC Recommended Training Requirements:Communicating effectively and professionally with all residentsResident’s right to be free from sexual abuseThe right of residents and employees to be free from retaliation for reporting sexual abuseThe dynamics of sexual abuse in confinementThe common reactions of sexual abuse victimsDon’t forget training for volunteers and contractors!4141
42Training and Supervision, cont. Strong supervisory presence on all shifts is essential to ensure that:No inappropriate physical contact or personal relationships between staff and youth occurFacility management addresses alleged violations of standards of conductStaff do not allow youth to victimize one anotherStaff do not use profanity, threats, intimidation, or humiliation with youth –“Profanity is an expression of violence and degradation.” – David Roush4242
43Training and Supervision, cont. Review, Tracking and Investigation:Administrator or designee reviews major incident reports and all uses of physical force, restraints, isolation, injuries to youth or staff, allegations of sexual misconduct and incidents involving contraband or major property damageSupervisors track patterns of staff uses of force, discipline and youth complaints to guard against retaliation and inform training plansThorough investigation – does your investigator have specialized skills in collecting evidence and interviewing victims alleging sexual assault? What specialized training and resources does your investigator need?4343
44Training and Supervision, cont. NPREC Recommended Investigation Training Topics:Conducting sexual abuse investigations in confinement settingsTechniques for interviewing young sexual abuse victimsProper use of Miranda- and Garrity- type warningsSexual abuse evidence collection in confinement settingsCriteria and evidence required to substantiate a case for administrative action or prosecution referral4444
45EnvironmentHuman and physical environments respectful of youth and not sexualized; no culture of secrecyYouth have sufficient opportunity for personal hygiene and all necessary productsSize-appropriate, clean and non-penal clothing4545
46EnvironmentSearch process within legal bounds and adequate to prevent weapons and dangerous contraband from entering the facility through youth, staff and visitorsRooms are not occupied by more youth than the rated capacity allowsReasonable opportunity for privacy when unclothed – importance of bodily privacy for adolescents – also creates appropriate boundaries to avoid sexualized atmosphere4646
47Restraints, Isolation, Due Process and Grievances Physical force, restraints, and isolation are used only when truly needed to protect youth or others, only as long as needed, and cease once the youth is under controlReview circumstances of isolation and restraint – how will you minimize opportunities for abuse?4747
48Restraints, Isolation, Due Process and Grievances, cont. Due process protections for major rule violations should include:Notice of violation/chargesOpportunity to present youth’s side of the incidentRight to decision before time servedNeutral decision-makerOpportunity to appeal4848
49GrievancesEffective, reliable systems for youth to report abuses and other concerns are essential.Youth know about and understand the grievance process and have access to forms, writing implements and other means of reportingGrievances are confidential and without reprisalAll grievances are fully investigatedWritten, legible, respectful responses to grievances that address the issues raisedAppropriate action taken in response to valid grievancesReasonable policy on exhaustion of administrative remedies4949
50Safety: Policy and Coordination Any and all sexual harassment or sexual conduct between staff and youth is prohibited; a prevention, investigation and appropriate response plan is in placeWho will coordinate sexual misconduct prevention, etc. at the facility?How will you ensure that contractors are held to the same standards as your facility personnel?Uniform evidence protocol for preservation of evidence while meeting victims’ needsMOUs to establish criminal investigation and prosecution responsibilitiesStandard for substantiating allegations – preponderance of the evidence?5050
51Safety: ReportingMultiple ways for residents and staff to report abuse; retaliation by other residents or staff; and staff neglect or violation of responsibilities that may have contributed to an incidentAt least one way to report sexual abuse to an outside public entity or office that has agreed to receive reports and forward them to the facility head.Staff accept reports made verbally, in writing, anonymously and by third partiesThe facility makes reporting options publicStaff immediately put any verbal reports in writingNotifications of abuse allegations to appropriate individuals, information-sharing based on need-to-know5151
52Safety: Protections from Retaliation Measures that could protect youth and staff from retaliation:Housing changes or transfers of individuals who reportRemoval of alleged staff or resident abusers from contact with victimsEmployee assistance services or other resources for staff who may need psychological or emotional supportAvailable services for residents who may need psychological or emotional supportMonitor treatment of residents and staff including discipline, housing, program or work changes5252
53Safety: Youth-YouthStaff are trained to handle assaultive behavior by youth in ways that minimize injury to everyone involved, and backup support is available if neededStaff address the behavior of youth who threaten or victimize othersObjects that can be used as weapons are properly stored and securedYouth are not transported to and from the facility in the presence of adult inmates5353
54In Conclusion Leadership and vigilance are essential. Not just a policy and a training – think comprehensively.In litigation, a central question is: What did the facility do to prevent this tragedy?5454
55Contact InformationDana Shoenberg, Senior Staff AttorneyCenter for Children’s Law and Policyx107