Perry: Federal Anti-Prison Rape Standards "Impossible" to Achieve

More than a decade after the Prison Rape Elimination Act unanimously passed Congress, federal standards for implementation of the law have been finalized. Now, Gov. Rick Perry and some prison reform advocates are at odds over what those standards mean for Texas lockups and the taxpayers who pay for them.

In a March 28 letter to Attorney General Eric Holder, Perry wrote that while he believed the law was well-intended, he would not certify that the 297 state prisons and local jails that are subject to PREA comply with its regulations come May 15, the certification deadline set by Department of Justice.

The new standards, he wrote, are "impossible," out of touch with the daily realities of state prisons and would require heavy financial burdens.

"Absent standards that acknowledge the operational realities in our prisons and jails, I will not sign your form and I will encourage my fellow governors to follow suit," Perry wrote.

But a spokesman for the correctional officers union said that not complying with the federal rules puts Texas at risk financially and legally.

Jason Clark, spokesman for the Texas Department of Criminal Justice, said the prison system has already made significant progress in meeting PREA standards.

“We are compliant with most of PREA’s standards, except for the cross-gender supervision standard,” Clark said.

That regulation, which is the primary rule to which Perry objects, would prohibit female officers from working in areas where they would see male inmates in private settings, such as the shower. About 40 percent of TDCJ correctional officers at units that house males are female, Perry wrote. PREA standards would force TDCJ to deny female officers jobs and promotion opportunities at those units.

The rules would also require a smaller ratio of correctional officers to juveniles at facilities that house offenders younger than 18. Perry said the cost of meeting that requirement would be unacceptably burdensome to small, local jails. 

PREA was enacted in 2003 to reduce sexual assault in prisons and jails, but its regulatory standards weren't confirmed until February, after the federal government spent 10 years collecting input from experts. 

From 2009 to 2011, the number of prison sexual victimization allegations rose by more than 10 percent nationwide, according to the Bureau of Justice Statistics. Texas is among states with the highest levels of inmate-on-inmate sexual assault allegations, including four out of the top 21 facilities between 2011 and 2012.

In his letter, Perry also challenged PREA’s established age of criminal responsibility — 18, compared with Texas’ 17. Compliance with that standard would require Texas to separate inmates, often in smaller facilities, at a substantial cost, he wrote. 

But independent of PREA’s mandates, Texas had already adopted its own anti-rape and assault program in 2001. Before President George W. Bushed signed PREA into law, TDCJ established the Safe Prisons Program, a zero-tolerance policy for sexual violence.

“The Texas prison system already realized some time ago that they need to work to create safer environments for inmates,” said Michele Deitch, a senior lecturer at the LBJ School of Public Affairs.

Still, noncompliance with PREA could have financial consequences. It would not only result in a 5 percent reduction of federal funding, but it could make the state vulnerable to lawsuits, said Lance Lowry, president of the Texas correctional employees union.

“The governor’s office has a gross misunderstanding of what the PREA act is all about,” Lowry said. “And the state’s failure to comply with regulation will open up a tremendous amount of liability.”

In recent years, Texas has revamped parole, reduced recidivism, added specialized drug courts and reduced overall prison costs. Still, Deitch said, challenges remain — most importantly, sufficient staffing.

“I think the governor makes a lot of very good points in his letter. He highlights some of the issues that will be hardest for correctional agencies in the state,” Deitch said. “But I think it’s also really important for us to realize that [the state agencies] are already very close to being in compliance now.”

Disclosure: The LBJ School of Public Affairs was a corporate sponsor of The Texas Tribune in 2013. (You can also review the full list of Tribune donors and sponsors below $1,000.)