Promising Regs, but Lousy Court Access

David Kaiser and Lovisa Stannow of Just Detention International have published an article in the October 11th edition of the New York Review of Books entitled Prison Rape: Obama's Program to Stop It.  The piece is an overview of the regulations released by the DOJ earlier this year pursuant to the Prison Rape Elimination Act (PREA), along with a reminder of the horrors that prompted passage of the law.  Kaiser and Stannow, the Chairperson and Executive Director, respectively, of Just Detention International (JDI), an organization that was a moving force in PREA's enactment, are optimistic that the regulations will "reduce the incidence of prisoner rape dramatically" and "make American detention facilities better run, more humane, and safer places in general."  This is welcome news, because they also write that 209,400 incarcerated people in the United States are sexually abused each year.   The authors give the DOJ high marks for its drafting of the PREA standards, writing that "[a] close look at these standards . . . shows that the Justice Department was not trying to creat legal loopholes or built-in excuses for failure."  They estimate that such standards could reduce the incidence of prison rape by 50% or more. 

Kaiser and Stannow acknowledge that PREA did not create an office within the DOJ charged with enforcing the statute, and that the major enforcement mechanism for state and local correctional facilities is the loss of a portion of the state's federal funding for prisons.  Since local jails receive little federal support, they may not stand to lose much funding if they fail to implement the regs.  Nonetheless, Kaiser and Stannow remain sanguine about PREA's possible impact.  They write that "jails also have good reasons to comply with the standards," reasoning that "inmates have been increasingly successful at bringing lawsuits against the agencies and facilities in which they were sexually abused." 

This is where the authors, in their optimism, might gloss over some of the continuing barriers to prisoners' court access.  Although it is true that there have been high-profile cases and damages awards in custodial sexual abuse cases, there remain many obstacles to bringing prisoners' claims to courts.  Foremost among these  is the Prison Litigation Reform Act (PLRA), which Margo Schlanger and I wrote about here.  

The PLRA is not the only obstacle.  On Tuesday, the Supreme Court granted certiorari in Millbrook v. United States, to decide the scope of immunity for the United States under the Federal Tort Claims Act in a case alleging that federal correctional officers at USP Lewisburg sexually assaulted a prisoner.  The Third Circuit affirmed the district court's grant of summary judgment to the civil defendant, and denied the prisoner's motion for appointment of counsel.  It reasoned that the U.S. is not liable for the intentional torts of its law enforcement officers unless they occur in the course of a search, seizure, or arrest.  The SCOTUS granted cert to answer the question: "Whether 28 U.S.C. ss 1346(b) and 2680 (h) waive the sovereign immunity of the U.S. for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to 'execute searches, to seize evidence, or to make arrests for violations of Federal law.'" 

We'll see what happens in Millbrook, but it illustrates some of the continuing barriers to prisoners' court access, and, ultimately, to full implementation of PREA.