The Department of Justice issued new rules on prison inmate protections that restrict the placement of juveniles in adult facilities and requires that certain staffing levels be maintained in juvenile detention centers and prisons.
All federal facilities must immediately begin to comply with the rules, but advocates say the willingness of states to do so will likely involve further moral and fiscal debates.
The rules require adult jails and prisons to house anyone under the age of 18 in a unit without adults. Teen inmates must also be sight- and sound-separated from adults in any environment outside the housing unit, unless guards are able to directly supervise all of the teens at all times.
And, the rules state, facilities cannot accomplish this separation by placing teens in isolation, a practice linked to mental health crises and suicide.
Campaign for Youth Justice Policy Director Neelum Arya, whose organization seeks to end entirely the practice of subjecting youths to the adult justice system, expressed dismay that the Justice Department did not impose an outright ban on incarcerating teens in adult jails and prisons.
“I’m disappointed,” said Arya. “I thought they’d listen to us.”
Justice Department data included in the rules process found that juveniles in adult facilities are eight times as likely to be sexually abused as adults.
“On their own terms, I think they should have gone farther,” said Arya. “This is not a place where reasonable people should disagree on what should happen.”
Justice estimates that in 2009, approximately 2,778 juveniles were incarcerated in state prisons and 7,218 were held in local jails.
The rules require juvenile facilities to maintain a minimum staffing ratio of one guard to eight juveniles during waking hours and one-to-16 during sleeping hours. About 30 states already have some staffing ratio requirements, according to Justice, and the ratios included in the rules are less stringent than those of 12 states.
The juvenile section reads as though Justice anticipates the potential for changes down the line. Despite the fact that PREA rules have been subjected to rounds of public feedback over nine years, Justice said it “seeks additional comment on this aspect of the standards, and may make changes if warranted in light of public comments received.”
The rules also give states until October of 2017 to comply with the staffing ratios.
A 2010 survey by the Bureau of Justice Statistics found a high rate of self-reported, inappropriate sexual contact in juvenile facilities. Twelve percent – or about one in eight – of youths held in large juvenile facilities in the United States report being victimized sexually while behind bars.
The vast majority of reported victimization occurred between a juvenile and a member of the facility staff (not necessarily guards). Of the 3,220 juveniles who reported victimization, 2,730 said it involved a staff member; 92 percent of those 2,730 involve male wards and female staff.
There is no requirement that states adhere to the regulations of the Prison Rape Elimination Act (PREA). States who do not come into compliance, however, will:
“Forfeit any Department of Justice grant funds that the State would otherwise receive for prison purposes, unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years.”
That sets up an interesting fiscal question for states: Will the price tag for implementing PREA exceed the federal funding lost by not complying with the standards?
DOJ estimates that the total cost of all secure facilities complying with PREA would be $6.9 billion over the next 14 years, nearly $2 billion of which would be juvenile facilities.
But that cost is unlikely to be the real price tag, because not all states are expected to fully comply. “PREA does not require State and local facilities to comply with the Department’s standards, nor does it enact a mechanism for the Department to direct or enforce such compliance,” the final regulations said.
“I think that is going to be the million dollar question,” said Arya of the states’ looming cost-benefit analysis.
The PREA 5 percent penalty is a similar approach to the one taken with the Adam Walsh Act, which in 2005 pegged 10 percent of state Byrne Grant allocations to compliance with a national standardized sex offender registry.
Most states have not complied with the Walsh Act because of philosophical dissent with certain parts of the national standards, and fears over how much implementation of a compliant registry would cost.
The deadline for compliance with the Walsh Act was pushed back twice by Attorney General Eric Holder, and this year states can use the 10 percent penalized funds to work on compliance, similar to the caveat in PREA.
The National PREA Commission submitted recommended standards to Justice in June of 2009. The department started soliciting feedback for the rule back in March of 2010.
“The ban on housing with adults is a great move,” said Ned Loughran, executive director of the Council of Juvenile Correctional Administrators. “It will be interesting to see where states are” on the juvenile facility staffing requirements.
Loughran said he expects most states to easily make the sleeping-time requirement of one-to-16, but some might struggle with the waking-time ratio of one-to-eight.
Arya said the Campaign was hopeful states would see “a moral obligation to comply with this.
“When adult corrections take good look at what doing,” Arya said, they’re going to say, ‘We do not want these children here.’”
–John Kelly is Editor-in-Chief of The Imprint