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Tuesday, September 11, 2012

PREA: Vehicle for Change?

Gabriel Arkles, Acting Assistant Professor of Lawyering at NYU, recently shared with me his work-in-progress regarding implementation of the Prison Rape Elimination Act of 2003 (PREA).  PREA mandated that the DOJ promulgate regulations to eliminate prison sexual violence, and the DOJ issued those regulations in May of this year.  The regulations were a product of recommendations from the National Prison Rape Elimination Commission (NPREC), followed by additional notice-and-comment periods and revisions at the DOJ.  States must certify compliance with these regulations or risk losing a portion of their federal funding for prisons; corrections systems are subject to independent audits every three years (28 C.F.R. s 115.401 et seq.).

The final version of the regulations contains numerous significant provisions including a ground-breaking rule that decisions regarding where to house a transgender prisoner should be made on a case-by-case basis, taking into consideration each prisoner's views about his or her own safety, (28 C.F.R. s 115.42(c) and (e)).  Other important provisions mandate that facilities eliminate cross-gender pat-searches of adult women prisoners absent exigent circumstances (28 C.F.R. s 115.15(b)),  and require that screening devices take account of the vulnerabilities of LGBT prisoners (28 C.F.R. s 115.41(d)(7)), who face a heightened risk of sexual assault.

Gabriel's project considers issues and challenges in implementing PREA, and also queries whether reform of such a vast incarceration system is possible.  It put me in mind of Hadar's post last week about the mammoth task of providing health care for California's aging prison population. 

I see PREA as a fascinating case study of administrative rule-making in the unevenly bureaucratized carceral world.  In my 2009 article Ad Law Incarcerated, I described the contribution of LGBT rights organizations to the NPREC process.  Like the NPREC proposed draft rules, the definitional section of the final PREA rules possesses great educative potential, containing  terms such as "intersex," "gender nonconforming," and "transgender." 

I share concerns voiced by Gabriel in his draft regarding obstacles to implementation of PREA and possible unintended consequences of the statute and rules.  I look forward to following Gabriel's work in this area and also to hearing from others who are studying PREA implementation.

Posted by GiovannaShay on September 11, 2012 at 09:11 PM | Permalink

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